HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 021E - Exhibit E - Pkr Farm Llc Order On Rule 106 Petition1
DISTRICT COURT, LARIMER COUNTY,
COLORADO
Larimer County Justice Center
201 LaPorte Ave., Suite 100
Fort Collins, CO 80521-2761
970-494-3500
Plaintiff:
PKR FARM, LLC
vs.
Defendants:
BOARD OF COUNTY COMMISSIONERS
OF THE OUNTY OF LARIMER, STATE
OF COLORADO; THE BRAD AND
LINDSEY MODESITT TRUST
σ COURT USE ONLY σ
Case No. 15 CV 30044
Courtroom: 3B
ORDER ON RULE 106 PETITION
This matter is before the Court for ruling on the petition for review under
C.R.C.P. 106(a)(4) filed by Plaintiff PKR Farm, LLC. Plaintiff filed its opening brief
on June 11, 2015. Defendants filed separate response briefs on July 21 and 23, 2015,
and Plaintiff filed a reply brief on August 18, 2015. The Court has reviewed the briefs
and the entire record below and finds and orders the following:
I. Background
After a public hearing held on December 22, 2014, by a vote of 2-1, the Board
of Commissioners of Larimer County (“Board”), approved a special review
application submitted by the Modesitt Trust (“Trust”) for an expansion of the Trust’s
current rafting business (Mountain Whitewater Descents) to include a bar and
restaurant with an outdoor live music venue, community hall, and an outdoor play
area. The Board issued its Findings and Resolution Approving the Petition of Brad
DATE FILED: August 28, 2015 5:24 PM
CASE NUMBER: 2015CV30044
EXHIBIT E
DATE FILED: October 23, 2020 12:08 PM
FILING ID: 577B70D840207
CASE NUMBER: 2020CV30580
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and Lindsey Modesitt Trust for Mountain Whitewater Descents on March 10, 2105.
Plaintiff is challenging the Board’s action under Rule 106(a)(4).
Plaintiff PKR Farms is a farm located at 2345 North Shields Street, Fort
Collins, and is zoned FA-1. The Trust property is located at 2411 North Shields
Street, which is adjacent to Plaintiff’s land, and has been rezoned from FA-Farming to
PD – Planned Development. Both properties are located in the Fort Collins Growth
Management Area (GMA) District. The Trust property is also adjacent to Colorado
Highway 287, which is scheduled for expansion by the Colorado Department of
Transportation.
Prior to the instant Special Review application, the Trust had operated under
Special Exceptions which allowed for a commercial rafting business and associated
retail uses on the Trust property. The Trust had been operating the rafting business
since 2001, and has been operating an associated “Paddler’s Pub” business with a
limited liquor license for several years. The rezoning of the Trust property allowed for
a restaurant and tavern without Board approval. The Special Review application was
submitted on March 10, 2104, and sought Board approval for outdoor seating in
connection with the restaurant or tavern use, and for the community hall use.
Specifically, the Trust sought expansion of the existing rafting business to include a
bar and restaurant with an outdoor live music venue that could accommodate up to
1,200 people, a community hall for wedding and other special events, and an outdoor
play area.
At the December 22, 2014 public hearing, a number of neighbors spoke in
reference to the application, with some in favor and some opposed. There was
discussion regarding noise, the character of the area and the adjacent highway, and the
impact that the proposed expansion would have on the area, both the potential
positive impacts and negative impacts that the expansion may have on the area. After
the public hearing, the Board approved the Trust’s Special Review application with
conditions that include limiting the number of events with attendance of up to 1,200
persons to two per month, limiting the hours of operation, requiring provision of
public sewer, and providing installation of identified turn lanes. On March 10, 2015,
the Board issued its Resolution approving the Trust’s Special Review Application, and
this action under Rule 106 followed.
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II. Standard of Review
Under C.R.C.P. 106(a)(4)(I), the district court reviews a quasi-judicial function
to determine “whether the body or officer has exceeded its jurisdiction or abused its
discretion, based on the evidence in the record before the defendant body or officer.”
This standard is highly deferential to the quasi-judicial body. Widder v. Durango School
Dist. No. 9-R, 85 P.3d 518, 526 (Colo. 2004). The reviewing court shall not reweigh
the evidence in the record, Bd. of Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50-51 (Colo.
1996), and a body’s ultimate decision need not be overturned merely because there is
contrary evidence in the record. Martinez v. Bd. of Comm’rs of Housing Auth., 992 P.2d
692, 696 (Colo. App. 1999). The Court’s role is not to find facts, to modify the
decision maker’s decision, or to question the wisdom of the decision. See Corper v. City
& Cnty. of Denver, 552 P.2d 13, 15 (Colo. 1976). Rather, the Court’s role is limited to
ensuring that the quasi-judicial body acted within its legal authority and that the
decision is supported by competent evidence.
C.R.C.P. 106(a)(4) requires the court to review the final decision of the quasi-
judicial body. Keystone v. Flynn, 769 P.2d 484, 489 & 489 n.7 (Colo. 1989). It is not a
mechanism for reviewing decisions at all levels of the administrative process. See, e.g.,
Nixon v. City & Cnty. of Denver, 2014 COA 172, ¶¶ 7-9; Lovett v. School Dist. No. 1, 523
P.2d 152, 153 (Colo. App. 1974).
There is no dispute that the Board was acting in a quasi-judicial capacity when
it reviewed the Special Review Application. Therefore, the Court will analyze only
whether the Board abused its discretion or exceeded its jurisdiction.
There is also no dispute that the Special Review application is subject to the
review criteria set forth in Section 4.5 of the Larimer County Land Use Code. Section
4.5.3 provides:
To approve a special review application, the county commissioners
must consider the following review criteria and find that each
criterion has been met or determined to be inapplicable:
A. The proposed use will be compatible with existing and allowed
uses in the surrounding area and be in harmony with the
neighborhood;
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B. Outside a GMA district, the proposed use is consistent with the
county master plan. Within a GMA district, the proposed use is
consistent with the applicable supplementary regulations to the
GMA district, or if not, with the county master plan or county
adopted sub-area plan;
C. The applicant has demonstrated that this project can and will
comply with all applicable requirements of this code;
D. The proposed use will not result in a substantial adverse impact
on property in the vicinity of the subject property; and
E. The recommendations of referral agencies have been
considered.
F. The applicant has demonstrated that this project can meet
applicable additional criteria listed in section 4.3 use descriptions.
Larimer County Land Use Code, Section 4.5.3, Res. No. 06172003R009, 6-17-2001;
Res. No. 0502206R007, 5-2-2006; Res. No. 06032008R003, Exh. A, 6-3-2008.
Specifically, Plaintiff asserts that the Board exceeded its jurisdiction or abused
its discretion by (1) not properly applying the criterion set out in 4.5.3 (A), above, that
is, that the use will be compatible with the existing and allowed uses in the
surrounding area and be in harmony with the neighborhood; (2) that the Board did
not properly apply the criteria in 4.5.3 (B), (C), (D) and (E); and (3) that
Commissioner Gaiter had improper ex parte communication with representatives of
the Trust. The Board and the Trust each reject those contentions, and argue that the
Board had evidence before it that supports its approval of the project, and that there
were no improper communications between Commissioner Gaiter and the applicants.
III. Determination by the Board
There is no dispute that the Board was acting as a quasi-judicial body when it
reviewed, and subsequently approved, the Trust’s Special Review application. The
question before the Court is whether the Board exceeded its jurisdiction or abused its
discretion.
A. Exceeding Jurisdiction
A reviewing court can reverse a quasi-judicial decision if the decision maker
exceeded its jurisdiction. C.R.C.P. 106(a)(4); City of Commerce City v. Enclave West, Inc.,
185 P.3d 174, 178 (Colo. 2008). By the plain language of the Rule, this permits the
Court to reverse the Board’s decision if the Board lacked legal authority to act. See
City of Commerce City, 185 P.3d at 178. Here, the City’s Comprehensive Plan identifies
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the land along the highway 287 corridor as “Rural Lands;” the County’s Master Plan,
Section 3.1.1, provides that urban development can occur if it meets basic service
levels and is compatible with the policy or land use plan for the adjacent city. For the
County’s purposes, all of the lands within the GMA are considered “urban lands.”
The county development review team determined that commercial development is
likely along the highway corridor despite the City’s designation of “rural lands.”
Consequently, and based upon the initial comments of the City, dated April 4, 2014,
Plaintiff asserts that the Board exceeded its jurisdiction by not rejecting the proposal
pursuant to the GMA provision in 4.5.3(b) and acceding to the City’s comments. The
Court disagrees. Plaintiff notes that the City of Fort Collins, in reviewing the
application and its proposed use under the GMA, initially provided negative
comments about the proposal, and recommended that the proposal be rejected. There
is no dispute that the Trust Property is within the Fort Collins GMA. Under its
guidelines, the Board is to determine whether “Within a GMA district, the proposed
use is consistent with the applicable supplementary regulations to the GMA district,
or if not, with the county master plan or county adopted sub-area plan.” Land Use
Code Section 4.5.3(B). Here, the Board asserts that there have not been any
supplementary regulations that apply to the Trust Property, and no county-adopted
sub-area plan. The Board was to consider any recommendations by the City of Fort
Collins as well as the consistency of the proposal with the County’s Master Plan. The
provision does not require the Board to follow the City’s recommendations,
regardless. Plaintiff does not cite to any law which requires the Board of County
Commissioners to strictly follow (not just consider) the recommendations of the City.
Accordingly, the Court does not find that the Board exceeded its authority by not
following the City’s initial recommendation.
Further, the Court finds that the Board further considered the City’s
recommendations, and adopted at least some of the recommendations that the City
made in its subsequent review. Initially, the City’s recommendation was not
supportive of the application, in part, stating that the Plan “appears inconsistent with
certain principles and strategies of the County’s Master Plan for urban and rural
development to maintain distinct and separate urban areas.” See April 4, 2014
Summary of Comments, Comment 5. However, the City subsequently reviewed the
Plan and provided additional comments and noted that “the rural character of
additional commercial development will be crucial…and that [rural] character should
be continued in any changes and expansions, as much as possible.” The City’s
recommendations included review of the revisions to the original plan, and
suggestions for elements to help retain that rural character by, for example, retaining
the original historic building and mature trees and provide landscape elements and
smaller parking areas. August 6, 2014 Summary of Comments, Comment 11, and 12. The
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details of the building styles and landscaping will be developed during the site plan
review. See August 6, 2014 letter, Comment 10.
The Board considered the recommendations of the City, and included the
suggestions for specific building and landscape elements that will help to maintain the
rural character of the area. The Court does not find that the Board exceeded its
jurisdiction by its actions in considering the recommendations of the City.
To the extent that Plaintiffs assert that the Board exceeded its jurisdiction by
not considering the applicable elements of the County’s Master Plan, the Court does
not find that there was error by the Board. The Board considered the Master Plan – it
specifically heard evidence about increased traffic and the lack of a public sewer, and
created conditions to meet those concerns that must be met before the new, proposed
use of the Trust Property will be allowed.
B. Abuse of Discretion
When reviewing a decision for abuse of discretion, the Court defers to the
quasi-judicial body’s findings of fact and will only set aside the decision if it “is not
reasonably supported by any competent evidence in the record.” Widder, 85 P.3d at
526. If the ultimate decision “is so devoid of evidentiary support that it can only be
explained as an arbitrary and capricious exercise of authority,” it lacks competent
evidence and should be overturned. Ross, 713 P.2d at 1309. Again, the Court’s role is
not to make new findings of fact or to reweigh evidence, but rather to determine if
any evidence in the record supports the quasi-judicial body’s decision. See O’Dell, 920
P.2d at 50-51. The fact that some evidence supports a different conclusion does not
require the Court to reverse the quasi-judicial body unless there is no evidence to
support the decision. See Martinez, 992 P.2d at 696.
Plaintiff alleges that the Board abused its discretion in following ways:
1. Finding that the proposed use would be compatible with existing and
allowed uses in the surrounding area and be in harmony with the
neighborhood;
2. Not finding that the proposal was inconsistent with the County Master Plan
based on the comments from the City of Fort Collins; and
3. Not disqualifying Commissioner Gaiter for his alleged ex parte
communications with the Trust representatives.
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Under the abuse of discretion standard, the inquiry is whether competent
evidence in the record supports the Board’s decision.
1. Finding that Application is Compatible with Area
Plaintiff contends that Board abused its discretion by finding that the proposed
use was compatible with existing and allowed uses in the surrounding area, and that
the proposed use was in harmony with the neighborhood. Specifically, Plaintiff
alleges that the proposed use as a concert/event center is not consistent with the
neighboring residential and farm properties. Defendants urge the Court to conclude
that the record supports the Board’s determination.
Again, the Court’s role is not to reweigh evidence or to substitute its judgment
for the judgment of the Board, but rather to review the decision and the process to
ensure that the Board’s decision is supported by evidence in the record. Here, the
Court determines that, while there was evidence presented that was to the contrary,
there was competent evidence in the record to support the Board’s decision. Thus, the
Board’s determination will not be reversed as an abuse of discretion. Specifically, two
of the three Commissioners made specific findings that the proposed project is
compatible with the area. The evidence included the location of the proposed venue,
which is adjacent to a major state highway that includes significant truck traffic and
the anticipated expansion of that highway in the foreseeable future. The evidence
presented included that the area had been designated as a blight zone, that there were
few connections among the residents who lived there, and that the rafting business
had been operating in the area, with auxiliary use of a bar/restaurant, for a number of
years without complaints. There was an indication from a number of neighbors that
the existing business had provided a gathering area for the residents who live nearby,
and that they believed that the proposed use of the Trust land would positively add to
the area and would fit in well. The representative of the Trust, in addressing the Board
indicated that he expected that the proposed project would improve the character of
the area for the better. Commissioner Johnson expressed that he had some concerns,
that was persuaded by the number of close-by neighbors who supported the proposal,
that the concerns raised regarding noise and parking could be mitigated through the
engineering and site plan review, and that given the proximity of Highway 287, “times
change” and this is reasonable to expect that this corridor will be a commercial area.
Commissioner Gaiter noted that there were a number of positive comments from
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people who live in the area about the current rafting business and the proposed
expansion and that “a whitewater rafting company getting a little bigger will not have
anywhere near the impact of a big Walmart.” December 22, 2014 Hearing Transcript,
at 153-54. Commissioner Donnelly disagreed with his colleagues on the compatibility
issue and noted that with the development of the highway and the expansion of the
sewer line to that area, the nature of the community where the subject property is
located will change, but that that was not the situation at present. Commissioner
Donnelly was concerned about the capacity of the proposed venue.
The fact that Commissioner Donnelly did not concur with his colleagues on
the key issue of compatibility does not lead the Court to conclude that the Board
abused its discretion. There is sufficient competent evidence in the record to support
the determination that the proposed use is compatible with the existing area. And,
notably, a number of residents from the area support the proposed use, and indicate
their view that the use is compatible. As argued by Plaintiff, the number of citizens
who speak out for or against a proposal like this is not determinative of the issue; the
Court agrees. But those statements provide some information in the record upon
which the Commissioners can, and did, rely upon in reaching their individual and
collective determinations regarding this proposal. Under the standard the Court is to
apply, that is, whether there is competent evidence in the record to support the
determination by the Board, the Court determines that there was, and therefore the
Court does not find that there was an abuse of discretion by the Board in finding that
the proposed use is compatible and harmonious with the area.
2. Finding that the Proposed Use is Consistent with the GMA District
In addition to arguing that the Board’s action exceeded its jurisdiction in regard
to the GMA requirements, Plaintiff also argues that the Board’s decision was an abuse
of discretion. As noted above, the Board considered the recommendations and
adopted at least some of the recommendations in its approval of the project,
particularly those that would serve to maintain the unique rural character through site
planning and building design. Further, by establishing the conditions that the Board
imposed requiring public sewer and installation of a right-hand turn lane before the
proposed use may begin, the Board shows that it considered the applicable elements
of the County’s Master Plan. Accordingly, the Court does not find that the Board
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abused its discretion in finding that the proposed use is consistent with the GMA
district.
C. Comments of Commissioner Gaiter regarding contact with the
applicants
At the December 22, 2014 hearing, Commissioner Gaiter described a conversation
that he had had with the applicants “way back when – when they were going through
their special exception….” He noted that at the time they came in and spoke to him,
“nothing was up for review” and they were getting frustrated with the process they
had been pursuing. Commissioner Gaiter stated: “And that was the first time we
talked about, well, you can go through this series of hurdles, and I said, there’s no
guarantee that you’ll get it. We’re pretty crystal-clear about that. But that you’ll have to
go through the zoning, and then you’ll have to go through the special reviews and get
all of that done.”
Plaintiff asserts that these comments reflect an abuse of discretion, and that
Commissioner Gaiter was improperly advising the applicants about their proposed
use before the public hearing, suggesting that he had arrived at the hearing with his
mind made up. The Court does not find that the evidence in the record rebuts the
presumption of integrity, honesty and impartiality of those public officials who serve
in a quasi-judicial capacity. Wells v. Del Norte School District C-7, 753 P.2d 770, 772
(Colo. App. 1987)(lunch conversations between hearing officer and the attorney for
the school board and a witness during a break in the hearing undermined the
appearance of impartiality in connection with the hearing process and entitled teacher
to new termination hearing). Here, the record before the Court indicates that
Commissioner Gaiter disclosed that he had discussed potential processes for the
landowners regarding development if they chose to do so. Although the date of the
discussion was not identified, the discussion was “way back when,” before there was
an application was pending. Commissioner Gaiter stated that he had told them
“there’s no guarantee that you’ll get it,” and that the applicants would have to go
through the process and get “all of that done.” The Court has carefully reviewed the
transcript of the December 22, 2015 hearing and does not find any evidence in the
record that Commissioner Gaiter had come into the hearing with a decision in mind,
or that he acted improperly in making the general statements of identifying a process
to constituents that may be available to them through the County. As such, the Court
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does not find that there has been a showing that rebuts the presumption of integrity,
honest, and impartiality so as to void Commissioner Gaiter’s vote on the project.
VI. Conclusion
For the reasons addressed above, the Court concludes that the Board did not
exceed its jurisdiction or abuse its discretion when it approved the proposal submitted
by the Modesitt Trust Property/Mountain Whitewater Descents. The Court finds that
there is competent evidence in the record to support the determination by the Board.
Therefore the Rule 106 Petition is respectfully denied.
SO ORDERED this 28th day of August, 2015
BY THE COURT:
______________________________
Julie Kunce Field
District Court Judge