HomeMy WebLinkAbout2018CV01 - Sutherland V. City Of Fort Collins, Et Al - 022 - City Defendants' Designation And Submission Of Certified RecordFORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521.
Phone: (970) 221-6800
Plaintiffs: Eric Sutherland; and J&M Distributing
d/b/a Fort Collins Muffler and Automotive
LIM
Defendants: THE CITY COUNCIL OF THE CITY OF COURT USE ONLY
FORT COLLINS, the governing body of a Colorado
municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry.
Intervenor: NEXT CHAPTER PROPERTIES, LLC,
an Illinois Limited Liability Company.
Kimberly B. Schutt, #25947 Case Number:
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3 2018-CIVILOI
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
wicklaw.com
FAX Number: (970) 482-8929
CITY DEFENDANTS' DESIGNATION AND
SUBMISSION OF CERTIFIED RECORD
COMES NOW the City of Fort Collins ("the City"), on behalf of the City Council of the
City of Fort Collins and the improperly named "Administration Branch of the City of Fort
Collins," through its counsel, Kimberly B. Schutt of Wick & Trautwein, LLC, and respectfully
designates and submits those portions of the certified record which it deems necessary for this
Court's review. In support thereof, the City states as follows:
1. Plaintiffs have filed this action in municipal court pursuant to C.R.C.P. 106(a)(4),
requesting declaratory and injunctive relief related to the City Council's decision upholding the
Planning & Zoning Board approval of the Preliminary Development Plan for the Johnson Drive
Apartments Project, PDP #170034.
2. Under Rule 106(a)(4)(I), the Court's review is limited to an examination of the record of
the administrative proceedings below, seeking only to determine whether the governmental
agency exceeded its jurisdiction or abused its discretion. As noted in the City's recent Motion
for Clarification, Rule 106(a)(4)(III)-(IV) places the burden on the plaintiffs to first designate
those portions of the record they deem necessary for the Court's review under this framework,
typically done by including a motion and proposed order for certification of the record when the
complaint is filed. These provisions also place the burden on the plaintiffs to advance the costs
for such portions of the record designated.
3. The Plaintiffs failed to include such a motion and order with their original complaint or
with any of the amendments thereto, and have likewise failed to timely designate any record for
certification pursuant to the Court's order dated July 31, 2018. They have therefore shirked their
responsibility under the Rule to designate a record and advance the costs of the same in order to
enable this Court to review the issues they raise in their Amended Complaint.
4. However, in the interest of having this matter resolved on its merits, and providing the
Court with the full record needed for that end, the City is hereby designating and submitting the
following items from the administrative proceeding below:
a) Agenda Item Summary 1 and 8 attachments, consisting of 381 pages, provided
to the City Council at its hearing held February 27, 2018, regarding
"Consideration of an Appeal of the Planning and Zoning Board Decision
Regarding Johnson Drive Apartments Project Development Plan PDP 170034;"
b) Case law handout provided by Eric Sutherland to City Council at the hearing
held February 27, 2018;
c) Minutes from the City Council meeting and hearing held February 27, 2018,
consisting of 8 pages;
d) Verbatim'transcript of the hearing held at the Regular City Council meeting on
February 27, 2018.
e) Resolution 2018-023 of the Council of the City of Fort Collins, Making Findings
of Fact and Conclusions of Law Regarding the Appeals of the Planning and
Zoning Board's Decision Approving the Johnson Drive Apartments Project
Development Plan PDP170034;
f) Agenda Item Summary 13, consisting of 3 pages, for March 6, 2018 City
Council meeting;
g) Minutes from the regular City Council meeting held March 6, 2018, consisting
of 11 pages, reflecting approval of Resolution 2018-023 as part of the consent
agenda;
h) Pertinent portions of the City of Fort Collins Land Use Code.
i) Pertinent portions of the City of Fort Collins Municipal Code.
j) The City of Fort Collins Charter.
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5. All of the above record items have been properly certified by City Clerk Rita Knoll as
being true and accurate copies for purposes of this Court's review, as reflected in the
certifications submitted herewith.
6. The City reserves the right to supplement and correct the record on motion at any time
pursuant to C.R.C.P. 106(a)(4)(IV). The City also reserves the right to seek an award of any and
all costs incurred in the production of the record, which should have been advanced by the
plaintiffs.
RESPECTFULLY SUBMITTED this 9T" day of August, 2018.
Respectfully submitted,
WICK & TRAUTWEIN, LLC
By.
Kimbe •ly B. Schut #25947
Attorneys for the improperly named
defendants
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing CITY
DEFENDANTS' DESIGNATION AND SUBMISSION OF CERTIFIED RECORD was served
this 9TH day of August, 2018, via email transmission on the following:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
sutherix@vahoo.com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Avenue
Fort Collins, CO 80525 bdwyer]199@zmail.com
Jeffrey Cullers
Herms & Herrera, LLC
3600 S. College Avenue, Ste. 204
Fort Collins, CO 80525
ie(O.hhlawoffice. com
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