HomeMy WebLinkAbout2020CV30833 - CITY OF FORT COLLINS V. PLANNING ACTION TO TRANSFORM HUGHES STADIUM SUSTAINABLY CORP, ET. AL - 0025 - REPLY TO RESPONSE TO MOTIN FOR SUMMARY JUDGMENT
DISTRICT COURT, COUNTY OF LARIMER,
COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, Colorado 80521-2762
(970) 498-6100
______________________________________________
Plaintiff: THE CITY OF FORT COLLINS, COLORADO,
a Colorado home rule city and municipal corporation,
v.
Defendants: PLANNING ACTION TO TRANSFORM
HUGHES STADIUM SUSTAINABLY CORP, a Colorado
nonprofit corporation; and ELENA M. LOPEZ, MELISSA
ROSAS, AND PAUL PATTERSON, each in their official
capacity as a petition representative of the persons signing the
petition for a citizen-initiated ordinance relating to the City
of Fort Collins rezoning and acquiring certain real property
______________________________________________
Carrie M. Daggett #23316
City Attorney
John R. Duval #10185
Deputy City Attorney
Fort Collins City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
970-221-6520
Fax: 970-221-6327
cdaggett@fcgov.com
jduval@fcgov.com
Andrew D. Ringel #24762
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
Attorneys for Plaintiff
▲COURT USE ONLY ▲
_________________________
Case Number: 2020 CV 30833
Division: 3B
REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
2
Plaintiff City of Fort Collins, Colorado, (the “City”), by and through its undersigned attorneys,
respectfully submits this Reply to “Defendants’ Response and Opposition to Plaintiff’s Motion for
Summary Judgment” (“Response”), as follows:
I. INTRODUCTION
Defendant Planning Action to Transform Hughes Sustainably Corp (“PATHS”) and
Defendants Elena M. Lopez, Melissa Rosas and Paul Patterson (collectively, “Defendants”) argue in
their Response that their initiated ordinance requiring the Fort Collins City Council (“Council”) to
rezone the Hughes Stadium property (“Property”) to the City’s Public Open Lands District and the
City to “acquire” the Hughes Stadium Property (the “Initiated Ordinance”) includes only legislative
and no administrative matters. As the City states in Plaintiff’s Motion for Summary Judgment
(“Motion”), the City agrees the rezoning requirement in the Initiated Ordinance is a legislative matter
properly subject to the citizen-initiative power in the Colorado Constitution and the City’s Charter
[Motion pp. 9-10]. The City does not agree, however, that the acquisition-related requirements in the
Initiated Ordinance are legislative matters. They are instead administrative matters not the proper
subject of a citizen initiative under the Colorado Constitution and the City’s Charter.
Consequently, the parties’ disagreement concerns only the Initiated Ordinance’s property-
acquisition provisions and related recitals the City has identified in the Motion and proposed in Exhibit
15 of the Motion to be severed from the Initiated Ordinance.1
II. STATEMENT OF UNDISPUTED FACTS
Defendants do not dispute any of the material facts the City has presented in Section II of the
Motion, except for the City’s statement in paragraph 19. [Response, pp. 4-5.] While the Defendants
do not dispute that the information in Tawnya Ernst’s affidavit [Motion, Ex. 2] “establishes evidence
1 The City has also provided the Court in Exhibit 16 of its Motion with the City’s proposed revisions to sever the
administrative matters from the Ballot Measure for the Initiated Ordinance.
3
of due diligence and expertise used to acquire real property in the City of Fort Collins,” they dispute
Ms. Ernst’s affidavit establishes these same procedures apply to other Colorado municipalities.
However, Defendants present no admissible specific facts to contest paragraph 19 leaving it
undisputed.
The Defendants include two new statements of fact. They state the Colorado General
Assembly has passed “legislative acts regarding the acquisition, conveyance, and appropriation for
real property,” and the Council “has passed legislative ordinances and resolutions regarding the
acquisition and conveyance of real property.” [Response, p. 5.] (Emphases added.) The City does not
dispute the General Assembly has, by the adoption of bills, authorized the acquisition and conveyance
of real property and the Council has done the same by the adoption of resolutions and ordinances.
However, the City disputes these actions were “legislative” actions by the Council. Instead, they were,
as a matter of law, administrative actions for the reasons discussed below in Section IV.C.
III. DEFENDANTS’ ARGUMENTS
Defendants’ Response presents three arguments to support Defendants’ contention the
acquisition provisions in the Initiated Ordinance address legislative and not administrative matters.
First, the people’s reservation of the initiative and referendum powers in the Colorado Constitution
is to “is to be liberally construed in favor of those who seek to exercise that right, and any limitations
on the power must be strictly construed.” [Defendants’ Response, pp. 5-6.] Second, a citizen initiative
concerning the acquisition of a single parcel of land, like an initiative concerning the annexation or
rezoning of a single parcel of land, can be a “policy of general applicability” and, therefore, a legislative
matter. [Defendants’ Response, pp. 6-20.] And third, certain cited Colorado General Assembly bills
and Council resolutions and ordinances provide precedent that “the acquisition of real property can
be a legislative function.” [Defendants’ Response, pp. 20-26.] The City addresses each argument in
turn.
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IV. PLAINTIFF’S REPLY TO DEFENDANTS’ ARGUMENTS
A. People’s Reservation of Legislative Power Broadly Interpreted and Limitations on
it Strictly Construed
Defendants are correct that in Margolis v. District Court, 638 P.2d 297 (Colo. 1981), the Colorado
Supreme Court observed it has held the people’s power of initiative in the Colorado Constitution is
to be liberally interpreted in favor the people to exercise it and limitations on it are to be strictly
construed. Margolis, 638 P.2d at 302. However, Defendants ignore more recent Supreme Court
comments on this standard. For example, In City of Idaho Springs v. Blackwell, 731 P.1250 (Colo. 1987),
the Court observed:
The powers of initiative and referendum, although broadly construed, are not unlimited. In
City of Aurora v. Zwerdlinger, 194 Colo. 192, 195, 571 P.2d 1074, 1076 (1977), we held that the
right of referendum applies only to legislative actions of a governing authority. See also Witcher
v. Canon City, 716 P.2d 445, 449 (Colo.1986). The same limitation is applicable to the power of
initiative. Margolis v. District Court, 638 P.2d 297, 303 (Colo.1981). Neither the referendum nor
initiative powers guaranteed by the Colorado Constitution grant the people the right to
petition for an election on administrative matters. [Cites omitted.] 731 P.2d at 1253.
Even more recently, the Court in Vagneur v. City of Aspen, 295 P.3d 493 (Colo. 2013), added that the
people’s legislative power under Article V, Section 1 of the Colorado Constitution is also limited by
the separation-of-powers provision in Article III of the Colorado Constitution2 which “reflects the
explicit and strict separation of powers” between the legislative, executive and judicial branches of
government. Id. at 503-04. Vagneur further stated:
Indeed, in exercising this legislative power, the people are prohibited by article III from
exercising administrative (i.e., “executive”) or judicial power. Consequently, the powers of
initiative and referendum do not encompass the right to petition for an election on
administrative matters. Blackwell, 731 P.2d at 1253. In short, a voter initiative must be a valid
exercise of legislative power, rather than executive or judicial power. [Cite omitted.] Id. at 504.
2 “The powers of the government of this state are divided into three distinct departments, —the Legislative, Executive
and Judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of
these departments shall exercise any power properly belonging to either of the others, except as in this Constitution
expressly directed or permitted.” Colorado Constitution Article III.
5
Consequently, the Supreme Court has developed and applied in a series of decisions beginning with
City of Aurora v. Zwerdlinger, 571 P.2d 1074 (Colo. 1977), and most recently in Vagneur, tests to be
followed by the courts in deciding the issue here. Those decisions apply the tests to actual factual
situations and give examples (as later described below) that compare closely to the facts of this case
supporting the City’s challenge to the acquisition provisions in the Initiated Ordinance as being
administrative and not legislative matters.
B. Acquisition of a Single Property Not a Policy of General Applicability or a
Legislative Matter Like the Annexation and Zoning of a Single Property
Defendants argue that because the Supreme Court has held the zoning and annexation of a
single parcel of land are legislative matters subject to the citizen-initiative power under the Colorado
Constitution, by analogy and in the circumstances of this action, the acquisition provisions in the
Initiated Ordinance constitute a “policy of general applicability” and, therefore, a legislative matter.
This argument fails in three respects.
First, the Supreme Court’s holding in Margolis that an ordinance zoning or rezoning a single
parcel of land is a legislative matter and its holding in McKee v. City of Louisville, 616 P.2d 969 (Colo.
1980), that an ordinance annexing a single parcel of land is also legislative, are not analogous to an
ordinance requiring acquisition of a specific parcel of land.
Second, Defendants fail in their Response to apply the Supreme Court’s now well-established
tests for distinguishing between legislative and administrative matters to the Initiated Ordinance’s
acquisition provisions. Instead, they start with the premise that because the Property’s future has
become the subject of an “intense” public debate, acquisition of it is “an example of setting a general
rule or policy” and “the current campaign to zone and acquire the Hughes property as open space is
part of a larger ongoing general public policy discussion regarding the future of the City’s natural
6
areas/open spaces,” so acquisition of the Property is “a matter of generally applicable open space
policy.” [Response, pp. 18-20.]
Third, Defendants are wrong in their assertion that the Supreme Court’s clear statement in
Vagneur that “government decisions to enter into a contract with a specific entity are not legislative
decisions” but executive or administrative acts, Vagneur 295 P.3d at 507, is not controlling in this case
because of the Court’s decisions in Margolis and McKee.
1. Margolis and McKee Not Analogous
Defendants correctly argue that Margolis observed that “small” rezonings “may more properly
be seen as the setting of policy for the future,” Margolis, 638 P.2d at 304, but it did so only after using
the following reasoning to hold that all zonings and rezonings, regardless of size, are legislative matters
for the purpose of citizen initiatives and referendums:
It is quite clear under the tests set forth in Zwerdlinger, supra, that original zoning decisions
are legislative in character since the act of original zoning is of a general and permanent
character and involves a general rule or policy. See Snyder, supra. Therefore, being legislative
in character, it is subject to the referendum and initiative provisions of the Colorado
Constitution.
We do not believe that, for the purposes of determining whether it is subject to referendum
and initiative, rezoning may be characterized as other than a legislative decision subject to
referendum and initiative. It seems entirely inconsistent to hold that an original act of general
zoning is legislative, whereas an amendment to that act is not legislative. It appears only logical
that since the original act of zoning is legislative, the amendatory act of rezoning is likewise
legislative even though the procedures may entail notice and hearing which characterize a
quasi-judicial proceeding. Essentially, the city council ultimately amends the zoning ordinance
or denies the amendment, a legislative function. (Citations omitted.) Id. at 303-04.
Confirming this was the controlling reasoning in Margolis, the Supreme Court explains in Vagneur:
Some years later, in Margolis v. District Court, 638 P.2d 297 (Colo.1981), we expanded on these
general tests to include a presumption that where an original act is legislative, an amendment
to that act is likewise legislative. In Margolis we examined three municipal zoning and rezoning
ordinances. We concluded that under the tests set forth in Zwerdlinger, an original act of zoning
is legislative because it is of a general and permanent character and involves a general rule or
policy. Id. at 303–04. We then reasoned that, as a matter of logic, the act of amending the
zoning ordinance is likewise legislative. Id. at 304. We therefore concluded that zoning and
rezoning decisions, no matter the size or number of properties involved, are legislative and
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thus subject to the powers of initiative and referendum. Id. at 305. (Bolding added.) Vagneur,
295 P.3d at 505.
Margolis cannot, therefore, be relied on to argue the Initiated Ordinance’s mandate that the City acquire
the Property is a “policy of general applicability,” and therefore a legislative matter, unless such
mandate represents the amendment of an existing government decision that itself satisfies the
Supreme Court’s tests for being a legislative matter. No such evidence exists here.
McKee in 1980 determined that the Louisville city council’s ordinance annexing a 1,407-acre
parcel of land was of a “legislative character” and, therefore, subject to a citizen referendum. McKee,
616 P.2d at 975. However, McKee provided little analysis supporting this determination and did not
rely on the two tests the Supreme Court used two years earlier in Zwerdlinger to determine an Aurora
city council ordinance setting water rates and charges was an administrative matter not subject to a
citizen referendum.3 Zwerdlinger, 571 P.2d at 1077. McKee instead provided the following analysis:
In terms of subject matter, the initiated measure in this case relates exclusively to a matter of
local interest and concern-the 1,407 acres of property annexed to the city of Louisville. There
is no statewide interest in this particular land. Admittedly, the state does have a general interest
in matters of annexation and disconnection. That interest, however, centers essentially on
procedural uniformity as it relates to the orderly growth of urban communities. The initiated
measure here does not facially contravene or usurp any interest of the state. The uniquely local
subject matter of the initiated measure, its clearly legislative character, and the timely filing of the initiative
petitions prior to the effective date of annexation ordinance 637, place the electors’ claim to
an initiative election within the broad powers reserved to the people by Article V, Section 1,
of the Colorado Constitution. [Citations omitted.] McKee, P.2d at 975. (Emphasis added.)
McKee is clearly not helpful in shedding any light on the present issue. The Court in Vagneur seems
to recognize this reality by citing McKee only once for the proposition that petitioners for a citizen
initiative concerning a legislative matter have a constitutional right to have their initiative submitted
to the electorate. In contrast, Vagneur repeatedly cites and discusses in detail its decisions in Zwerdlinger,
Margolis, Blackwell and Witcher v. Canon City, 716 P.2d 445 (Colo. 1986).
3 Zwerdlinger is cited in McKee but only once in the dissenting opinion. 616 P.2d at 976.
8
Defendants’ reliance on Margolis and McKee is misplaced and these decisions do not provide a
valid analogy for this Court to rely on to conclude the acquisition-related requirements in the Initiated
Ordinance are legislative matters.
2. Defendants Fail to Apply Supreme Court’s Tests
As the City presents in its Motion, the Supreme Court has provided in Vagneur its most recent
and comprehensive discussion of the controlling tests and principles courts are to use to determine
whether the subject matter of a citizen initiative is legislative or administrative. [Motion, pp. 13-16.]
Defendants’ Response never squarely addresses these tests or applies them to either the undisputed
facts or the words of the Initiated Ordinance. Defendants also never directly respond to the City’s
application of these tests in its Motion. [Motion, pp. 16-20.]
Instead, Defendants attempt to distinguish the facts and circumstances here from those in
Zwerdlinger, Witcher, Blackwell and Vagneur, and in the Court of Appeals’ decisions in Colorado Springs v.
Bull, 143 P.3d 1127 (Colo. App. 2006) and Friends of Denver Parks, Inc. v. City and County of Denver, 327
P.3d 311 (Colo. App. 2013). [Response, pp. 6-8 and 10-18.] Then, without referencing or applying
the applicable Supreme Court’s tests, Defendants contend the holdings in Margolis and McKee support
these statements from the Response:
“Like McKee, the PATHS ballot measure addresses a ‘uniquely local subject matter’ that
has been the subject of considerable local debate, and its ultimate zoning and acquisition
will represent the proclamation of a policy with widespread ramifications for the City and
its open space.” [Response, p.8.] (Bold added.)
“The amount of public interest shown during prior city council and zoning board
proceedings as well as the thousands of petition signatures show the Hughes property
matter rises to the level of a generally applicable policy issue like the Margolis opinion
contemplated.” [Response, p. 10.]
“Rather, the acquisition provisions of the PATHS initiative are a policy of general
applicability within the meaning of McKee and Margolis.” [Response, p. 16.]
9
None of these statements, however, are actually supported by Margolis or McKee for the reasons
discussed above in Section IV.B.1. And more important, they are not supported by Witcher, Blackwell,
Vagneur and Friends of Denver Parks, all of which addressed citizen ballot measures involving specific
parcels of land and all of which found these measures to be administrative matters not subject to
citizen initiative or referendum under the Colorado Constitution.
Witcher address an amendment to a lease Cañon City had entered into to lease a portion of its
park land near the Royal Gorge to a company who would own and operated the bridge built over the
Royal Gorge, rather than Cañon City directly owning and operating the bridge. Witcher, 716 P.2d at
447. Before entering into the lease, Cañon City’s voters indicated in two elections their policy
preference Cañon City not own and operate the bridge. The amendment was entered into by Cañon
City and the company after it was determined the bridge needed to be modernized. Id. Shortly after
the amendment was approved by Cañon City’s council, citizens petitioned to refer council’s approval
of the amendment to the electors. Id. at 448. The council declined to do so on the basis the
referendum was an administrative matter. Id. The citizens sued Cañon City to compel placement of
the referred matter on the ballot. Id. In upholding the council’s decision, the Supreme Court provided
the following relevant guidance:
On a day-to-day basis, elected city officials are required to make decisions on administrative
functions facing the city, such as purchase of city vehicles, establishment of parking fees,
and the proper maintenance of city-owned lands and buildings. In Zwerdlinger, we concluded
that to subject each such decision to referendum would result in chaos and bring the machinery
of government to a halt. Id. at 449. (Citations omitted and bold added.)
. . .
Similarly, the decisions of this Court, holding that zoning decisions are permanent or general
in nature, see, e.g., Margolis, are not analogous to the amendment of a lease. Id. at 450.
. . .
The question of approval of the specific terms and conditions of the lease is not a matter of
public policy. The negotiation of the leases and the amendments thereto are administrative
acts, undertaken to carry out the policy decision to lease, rather than operate, the bridge. Id.
at 450.
10
Defendants distinguish the Witcher holding and facts from the facts here arguing that while the lease
and its amendment were administrative matters executing the policy decision made by Cañon City’s
voters in the two prior elections, “[t]he PATHS initiated ordinance does not seek to modify
administrative actions in furtherance of an existing policy; instead, it would put a new zoning and
acquisition policy in place” (emphasis added). [Response, p. 11.] However, this ignores the City’s
currently established policies concerning its natural areas program as identified and referenced by
Tawnya Ernst in her affidavit attached as Exhibit 2 to the Motion.
In paragraphs 7, 8 and 9 of her affidavit, Ms. Ernst describes the City’s natural areas program
and her involvement in it, the program’s establishment by the voters in 1992 approving a quarter-cent
sales tax for the program, and Council’s adoption of its most recent policy statement concerning that
program in Resolution 2014-089, which Resolution is attached as Exhibit 17. [Motion Ex. 2, p.3.]
Attached as Exhibits 18, 19 and 20, respectfully, are: (i) the “Citizen Initiated Ordinance” the City’s
voters approved in 1992 for the quarter-cent sales tax for the program; (ii) Council-initiated Ordinance
No. 29, 1997, voters approved in 1997 extending the tax through 2005; and (iii) Citizen-Initiated
Ordinance No. 1, 2002, voters approved in 2002 extending the tax through 2030. Therefore, it is
more accurate to describe the Property acquisition requirements in the Initiated Ordinance as an
administrative action in furtherance of the City’s existing policies as previously established by the City’s
voters and Council in the natural areas program.
In Blackwell, the Idaho Springs voters approved in 1977 a council-initiated ordinance for a 3%
sales and use tax to fund certain projects, including a new city hall. Blackwell, 731 P.2d at 1251. In
1984, the Idaho Springs council approved a motion to purchase the land for the city hall and to move
a historic schoolhouse to it to be renovated as the city hall. Id. Idaho Springs entered into a contract
to purchase the land. Id. Citizens petitioned the council submitting two initiatives, one to repeal the
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council’s approval of the land purchase and the moving of the schoolhouse to the land, and the other
to prohibit Idaho Springs using any funds to purchase the land or move the schoolhouse. Id. at 1251-
52. Idaho Springs filed a declaratory action asking the district court to declare the petitions improper
because they addressed administrative and not legislative matters. In holding the two petitions
addressed administrative matters not subject to the citizen initiative powers under the Colorado
Constitution, the Supreme Court provided the following relevant guidance:
When viewed under the first guideline, the initiated ordinances prohibiting the purchase of the
Skaff-Sweet property and the relocation of the schoolhouse are administrative. The only
declared public policy of general applicability, the decision to build the new city hall in the first
instance, was made in 1977 when the 3% sales and use taxes were imposed for particular
purposes. The ordinances proposed by the appellants only exclude one parcel of real estate (the Skaff-Sweet
property) and one type of structure (the Grass Valley Schoolhouse) from the range of choices available to the
Council to implement the previously declared policy of securing a city hall. The concerns addressed by the
ordinances do not relate to policy declarations of general applicability, and the initiative
proposals therefore do not address matters of a permanent or general nature. (Emphasis
added.) Id. at 1254-55.
. . .
The proposed initiated ordinances also must be classified as administrative matters when
viewed under the second “test.” The choice of location and structure for the new city hall is
an act “necessary to carry out” the existing legislative policy to build a new city hall. [Cites
omitted.] The decision to raise tax revenues to be used in part for city hall construction was
made in 1977 and approved by the majority of Idaho Springs voters in a special election.
Implementation of the 1977 policy decision in the ordinance is administrative or executive and
is not a proper subject for an initiated ordinance. Id. at 1255.
Like they do for Witcher, Defendants distinguish the holding and facts in Blackwell from the facts here
arguing: “[t]he acquisition of the Hughes property in the PATHS initiated ordinance is more analogous
to the enunciation of a new legislative policy than the execution of a previous legislative decision.”
However, as demonstrated above in addressing Witcher, previous actions of the City’s voters and
Council in establishing the natural areas program is the legislative action and the Defendants’ attempt
in the Initiated Ordinance to direct the City to purchase one specific parcel of land, is clearly an
administrative action under the Court’s reasoning in Witcher and Blackwell.
12
The Supreme Court in Vagneur admittedly addresses a complex set of facts, but a short version
of them, as applicable here, are: (i) the City of Aspen for many years explored and engaged in local
debate over whether and how to modify the design of its highway entrance; (ii) to make modifications,
Aspen would need to cooperate with Federal (“FHWA”) and Colorado (“CDOT”) transportation
agencies; (iii) in 1996, Aspen’s voters were asked to allow some of Aspen’s open space to be conveyed
to CDOT for a two-lane design, which voters approved; (iv) in 1998, Aspen, FHWA and CDOT
agreed on a preferred design for a two-lane parkway; (v) in 2007, two citizen-initiated petitions were
submitted to Aspen to enact ordinances to require the highway to following one of two alternative
four-lane designs; (vi) the initiated ordinances would also rescind the voters’ 1996 approval for the
sale of the open space to CDOT; and (vii) after an Aspen hearing officer determined the initiatives
were administrative matters not subject to a citizen initiative, the proponents of the initiatives appealed
to the courts. Vagneur, 295 P.3d at 496-502. In upholding the hearing officer’s decision, the Supreme
Court provided the following relevant guidance:
The initiatives do not propose new laws or rules of general applicability that set a governing
standard for all cases coming within their terms. Rather, the proposed initiatives seek to
mandate via municipal ordinance a specific proposal for the location, design, and construction
of a state highway corridor. Id. at 508, ¶ 51.
. . .
Despite Proponents’ characterization of the initiatives as establishing a “new strategic
concept” and an “alternate policy” for the transportation corridor, the initiatives are not, in
fact, legislative in character because they do not propose to establish a law of general
applicability or a rule that sets a governing standard. As such, the initiatives do not represent
the exercise of legislative power. Id. at 509, ¶ 58.
. . .
The determination of the type or scope of a right-of-way easement conveyed to another party
across a specific parcel of city-owned property reflects the kind of administrative decision
related to the management of municipal infrastructure addressed in Witcher and Blackwell. See
Witcher, 716 P.2d at 449; Blackwell, 731 P.2d at 1254. Id. at 510, ¶ 60.
Before attempting to distinguish the holdings and facts in Vagneur from the facts here,
Defendants make the following concession about the Vagneur holding: “[t]he [Supreme] Court held
13
that the initiatives to be administrative in nature. In short, the Court appropriately held that building
highways was not a legislative function, but instead a culmination of administrative tasks.” [Response,
p. 15.] Yet, Defendants here argue purchasing a specific parcel of land to use for parks, recreation
and open lands, natural areas, and wildlife rescue and education is legislative.
Defendants argue Vagneur is not applicable here because the Initiated Ordinance does not
have all the complexities of the Aspen initiatives and “[t]he PATHS initiated ordinance does not
mandate the many specifics of rezoning or acquisition, instead leaving the discretion of how to execute
the policy to the City’s administrative staff.” [Response, p. 15.] Defendants downplay the complexities
in the Initiated Ordinance as outlined in the Motion [Motion, pp. 16-20] and ignore its clear
administrative mandates. The Initiated Ordinance states the City: (i) “shall acquire” the Property at
its fair market value and use it for parks, recreation and open lands, natural areas, and wildlife rescue
and education; (ii) “should use” $10 million as starting point in purchase negotiations; (iii) “shall not”
cease acquisition efforts without voter approval; (iv) “shall seek funding” from certain designated
sources; (v) may seek additional funding from voters but “only” if other designated sources
insufficient; and (vi) “shall expeditiously” use best efforts in good faith to acquire the Property. 4
[Motion Ex. 8, pp. 1-3.] Vagneur, Witcher and Blackwell make it clear, these provisions in the Initiated
Ordinance are administrative matters.
3. Entering into a Contract is an Administrative Decision
Vagneur states: “government decisions to enter into a contract with a specific entity are not
legislative decisions because they do not involve the adoption of generally applicable rules in the
implementation of public policy. Instead, such decisions are executive acts involving specific
4 Fort Collins Municipal Code § 1-2 provides, in part, that in the construction of nontechnical words used in all City
ordinances, they “shall be construed according to the common and approved usage of the language.” The commonly
accepted meaning of the word “shall” indicates the Initiated Ordinance provisions using this word are mandatory. See,
Skruch v. Highlands Ranch Metropolitan Districts Nos. 3 and 4, 107 P.3d 1140, 1143 (Colo. App. 2004).
14
individual parties and, accordingly, lie beyond the bounds of legislative power.” See also, Friends of
Denver Parks, 327 P.3d at 320-21 (Court of Appeals held, quoting this from Vagneur, that Denver’s
ordinance approving the conveyance of land to a school district was an administrative matter not
subject to a citizen referendum). The Supreme Court also says in Vagneur:
We have held that a city’s negotiation of contracts to which it is a party, and amendments to those
contracts, are administrative matters not subject to the power of initiative. See Witcher, 716 P.2d
at 450. (Emphasis added.) Vagneur, 295 P.3d at 509, ¶ 56.
. . .
The administrative decisions and actions taken by the City in furtherance of this administrative
process are akin to the negotiation and amendment of contractual obligations related to the
“maintenance of city-owned lands and buildings” discussed in Witcher, 716 P.2d at 449, and
the “choice of the location and structure” for a municipal building in Blackwell, 731 P.2d at
1254. Because the initiatives seek to modify or replace an essentially administrative decision,
the initiatives are likewise administrative in character. See Witcher, 716 P.2d at 451. (Emphasis
added.) Id. at 509, ¶ 59.
In distinguishing this clear and concrete example of an administrative action, Defendants argue
this principle from Vagneur “does not harmonize with the Supreme Court’s previous holdings
regarding specific pieces of property in McKee and Margolis.” [Response, p. 18.] Defendants conclude:
“[t]he reasoning of the Margolis opinion – which was not overruled, distinguished, or limited by the
Vagneur decision – leads to the conclusion that the acquisition of a specific piece of property can be
legislative if that acquisition has the effect of ‘setting a general rule or policy’ like zoning and rezoning
of real property.” [Response, p. 18.] This, however, is not true. The Court states in Vagneur:
We reject Proponents’ suggestion that proposing a permanent change in use of a specific
parcel of City-owned open space is equivalent to modifying a zoning plan and that such a
proposed change in use is therefore legislative. See Margolis, 638 P.2d at 304–05 . . . . Moreover,
the sale, exchange, conveyance, disposition, or change in use of a particular parcel of city-owned property cannot
be analogized to the development of a city-wide zoning plan of general applicability. Such case-specific
actions generally do not reflect the exercise of legislative power because they do not necessarily
entail the enactment of a zoning ordinance that sets a governing standard for all properties
coming within its terms, nor do they necessarily amend any existing zoning ordinance of
general applicability. The proposed initiatives at issue here do not establish or amend any
zoning laws. (Emphasis added.) Vagneur, 295 P.3d at 510, ¶
15
Therefore, as argued above in Section IV.B.1. and here clarified in Vagneur, Defendants cannot rely
on McKee and Margolis to argue the acquisition provisions of the Initiated Ordinance are the “setting a
general rule or policy” and, therefore, a legislative matter. In addition, Vagneur, Blackwell, Witcher and
Friends of Denver Parks all make it clear that requiring the City to enter into a contract with Colorado
State University to purchase the Property is an administrative matter.
C. General Assembly Bills and City Resolutions and Ordinances Not Precedent for
Property Acquisition Being a Legislative Matter
Defendants cite the Supreme Court’s statement in Vagneur that in a “close case” a court’s
decision can be informed by historical examples as found in statues enacted by legislative bodies.
[Response, p. 20.] Defendants then cite several General Assembly bills and several City resolutions
and ordinances in which the acquisition of real property is authorized. [Response, pp. 21-26.]
Defendants argue these were all “legislative” actions and they lend support to this Court concluding
the acquisition provisions in the Initiated Ordinance are legislative matters. This argument fails for
three reasons.
First, for all the reasons discussed above in this Reply, this is not a “close case” for which the
Court needs to consider these bills, resolutions and ordinances.
Second, in Vagneur the Supreme Court recognizes the reality the governing body of a
municipality “often wields both legislative and executive powers and frequently acts in an
administrative as well as a legislative capacity by the passage of resolutions and ordinances,” Vagneur,
295 P.3d at 504, so the fact that the Fort Collins Council has adopted resolutions and ordinances to
approve the purchase of real property does not mean that such actions were legislative. As the
Supreme Court has made very clear in Vagneur and the other cases discussed above whether a matter
is legislative or administrative depends on the nature of the action. Whether the General Assembly
acts in both legislative and administrative capacities is not clear from the existing case law, but what
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kind of actions it takes in its bills is not relevant to the City since the Supreme Court recognizes that
municipal governing bodies do act in both capacities.
And third, we have the clear example in Blackwell where the Idaho Springs adopted a motion
to approve the purchase of the land for its new city hall, which action was considered by the Supreme
Court to be an administrative matter. Blackwell, 731 P.2d at 1254-55. More recently, in Friends of Denver
Parks, the Court of Appeals concluded a Denver city council ordinance approving the transfer of land
to a school district was also an administrative matter. Friends of Denver Parks, 327 P.3d at 320-21.
Accordingly, the Court need not and should not rely on the General Assembly bills or the City
resolutions and ordinances in its analysis of the City’s Motion.
CONCLUSION
Therefore, for the reasons argued above and, in the Motion, the City asks the Court to grant
the City’s Motion by severing the administrative matters from the legislative matters in the Initiated
Ordinance and Ballot Measure as proposed in Exhibits 15 and 16 attached to the Motion so that only
the legislative matters in them will be submitted to City’s electors at the City’s April 6, 2020, regular
election, and for such other relief as the Court deems just and proper.
Dated this 1st day of February, 2021.
Respectfully submitted,
/s/John R. Duval
John R. Duval #10185
Deputy City Attorney
Carrie Daggett #23316
City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
970-416-2488
Fax: 970-221-6327
jduval@fcgov.com
cdaggett@fcgov.com
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and
Andrew D. Ringel #24762
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
ATTORNEYS FOR PLAINTIFF
THE CITY OF FORT COLLINS
COLORADO
CERTIFICATE OF SERVICE
The undersigned herby certifies that on the 1st day of February, 2021, a true and correct copy of this
Reply to Response to Motion for Summary Judgment was filed via the Colorado Courts e-filing system
and served to the following parties:
Michael Foote, #34358
Attorney for Defendants
Foote Law Firm, LLC
357 S. McCaslin Blvd. Suite 200
Louisville, Colorado 80027
Phone: (303) 519-2183
mjbfoote@gmail.com
/s/ Cary J. Carricato
___________________________
Cary J. Carricato, Paralegal