HomeMy WebLinkAbout2020CV30833 - CITY OF FORT COLLINS V. PLANNING ACTION TO TRANSFORM HUGHES STADIUM SUSTAINABLY CORP, ET. AL - 018 - ORDER DENYING MOTION TO DISMISS
District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
▲ COURT USE ONLY ▲
THE CITY OF FORT COLLINS, COLORADO, a
Colorado home rule city and municipal corporation,
Plaintiff,
v.
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,
Defendants.
Case No.: 2020 CV 30833
Courtroom: 3B
ORDER DENYING MOTION TO DISMISS
Plaintiff City of Fort Collins (“City”) filed a complaint for declaratory and injunctive relief
against Planning Action to Transform Hughes Sustainably (“PATHS”) and other individuals,
seeking to exclude certain provisions of a citizens’ initiative submitted to the City Council.
Generally, the City seeks declarations that the citizen-initiated initiative at issue contains provisions
that are administrative rather than legislative and, as such, shouldn’t be placed on a ballot to go
before the City’s electors.
I. INTRODUCTION.
PATHS, a nonprofit corporation, is organized “for the purpose of organizing and
representing Fort Collins area residents who are aligned in the objective of conserving as open space
and for other similar uses the property on which Colorado State University’s Hughes Stadium was
formerly located (the ‘Hughes Stadium Property’).” Compl. ¶ 1. As readers of this Order may know,
DATE FILED: January 26, 2021 12:28 PM
CASE NUMBER: 2020CV30833
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Colorado State University (“CSU”) owns the property where Hughes Stadium used to be; that land
is presently vacant. The City has annexed the Hughes Stadium Property and neither CSU nor the
City agrees on how the property should be zoned. So, PATHS decided to take advantage of their
rights under Colo. Const. art. V § 1, and under the City’s Charter, art. X § 1(a), and submitted a
proposed ordinance to the City Council. The City Counsel chose to refer PATHS’ initiated
ordinance to the City’s voters. In general, the initiated ordinance seeks to mandate rezoning of the
Hughes Stadium Property and to require the City to make “good faith” attempts to purchase it.
The initiated ordinance consists of eight sections and provides as follows:
Section 1. That the City hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City shall acquire the Hughes Stadium property, a 164.56-
acre parcel of land legally described in Section 3 of Fort Collins Ordinance No. 123
(2018) (“Annexing the Property Known as the Hughes Stadium Property
Annexation to the City of Fort Collins, Colorado”) at its fair market value for the
purpose of using it for parks, recreation and open lands, natural areas, and wildlife
rescue and education.
Section 3. That notwithstanding any contrary designation in the April 2019
City Plan or any action taken by the Council subsequent to its annexation of the
Hughes Stadium property but before the passage of this Ordinance, the City shall
rezone the Hughes Stadium property as Public Open Lands (P-O-L) zoning district
pursuant to Division 4.13 of the City of Fort Collins land use code immediately upon
passage of this Ordinance.
Section 4. That the City shall not de-annex, cease acquisition efforts, or
subsequently rezone the Hughes Stadium property to any designation other than
Public Open Lands without voter approval of a separate initiative referred to the
voters by City Council.
Section 5. That to acquire the Hughes Stadium property, the City shall seek
funding from existing sources or future partnerships, including but not limited to the
Fort Collins Open Space -3- Yes! sales tax fund, Certificates of Participation, the
City’s general fund, Great Outdoors Colorado and other third party organizations
providing open space or other types of recreational or land conservation grants,
and/or partnerships with other entities such as Larimer County.
Section 6. That the City Council may refer ballot measures to the voters for
the purpose of seeking additional funding only if existing sources of funding or
future partnerships are insufficient for the preservation of the Hughes Stadium
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property as described in this Ordinance.
Section 7. That the City shall expeditiously, but no later than two years from
the passage of this Ordinance, use best efforts in good faith to acquire the Hughes
Stadium property utilizing the financial mechanisms described in Sections 5 and 6.
Section 8. That this Ordinance shall take effect immediately upon passage by
the majority of the voters of Fort Collins during the first available regular city
election, and any registered voter in Fort Collins has legal standing to petition for
injunctive and/or declaratory relief related to City noncompliance with the
provisions of this Ordinance.
Compl., Ex. B.
The City doesn’t believe that several of the above provisions are “legislative” and thus it
argues that they’re inappropriate for inclusion on the initiated ordinance. In particular, the City
asserts that sections 1, 2, 4,1 5, 6, 7, and “the next-to-last recital” of the initiated ordinance “are in
fact administrative matters not subject to the initiative powers of the registered electors of home rule
cities under Article V, Sections 1(2) and 1(9) of the Colorado Constitution and under the City’s
Charter Article X, Section 1(a).” Compl. ¶ 51. It, however, agrees that sections 3 and 4 of the
initiated ordinance “are properly characterized as legislative matters subject to the initiative powers
the City’s registered electors have under Article V, Sections 1(2) and 1(9) of the Colorado
Constitution and under Charter Article X, Section 1(a).” Id. ¶ 57.
The City seeks very specific relief. As to sections 1, 2, 4, 5, 6, 7, and in the next-to-last recital,
it seeks a declaration that those provisions “are administrative matters not subject to the initiative
powers the City’s registered electors have under Article V, Sections 1(2) and 1(9) of the Colorado
Constitution and under Charter Article X, Section 1(a).” Compl., Prayer for Relief ¶ A. Then, it
requests injunctive relief, in the form of an order directing that the “Ballot Initiative and Ballot
Measure to exclude and sever from them the provisions in Sections 1, 2, 4, 5, 6 and 7 and in the
1 The Court perceives the City’s objection to section 4 to be to the extent that it requires the City to
“cease acquisition efforts” to purchase the Hughes Stadium Property.
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next-to-last recital….” Id. ¶ C.
Conversely, as to sections 3 and 4, the City seeks a declaration that “the provisions in
Sections 3 and 4 of the Initiated Ordinance requiring the City Council, immediately upon passage of
the Initiated Ordinance, to rezone the Hughes Stadium Property to the Public Open Lands District
pursuant to Division 4.13 of the City’s Land Use Code and prohibiting the City from de-annexing or
subsequently rezoning the Hughes Stadium Property “to any designation other than Public Open
Lands without voter approval of a separate initiative referred to the voters by City Council,” are
legislative matters ….” Id. ¶ B.
Time is of the essence and there’s a need to promptly adjudicate the questions presented by
the City to enable the parties to proceed accordingly. But PATHS doesn’t believe that everyone who
should be a party to this action is involved as a party. So, PATHS filed a motion under Colo. R. Civ.
P. 12(b)(6), seeking dismissal of the City’s complaint because it didn’t join an indispensable party—
the CSU Board of Trustees. The City opposes the motion, noting that CSU isn’t indispensable in
this action, which seeks adjudication of legally narrow issues. Further, the remedy PATHS seeks—
dismissal—seems drastic because, assuming it’s right, the Court could simply order that CSU be
joined as a party.
As more fully explained below, PATHS’ motion to dismiss is denied. The CSU Board of
Trustees is not an indispensable party and need not be joined in this action, which deals with very
narrow legal questions.
II. APPLICABLE LEGAL STANDARDS.
A party may seek dismissal of a complaint for the “failure to join a party under C.R.C.P. 19.”
Colo. R. Civ. P. 12(b)(6). In turn, Rule 19(a), which governs compulsory joinder, provides that a
person may be joined to an action if several conditions apply:
(a) Persons to be Joined if Feasible. A person who is properly subject to service
of process in the action shall be joined as a party in the action if: (1) In his
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absence complete relief cannot be accorded among those already parties; or (2)
he claims an interest relating to the subject of the action and is so situated that
the disposition of the action in his absence may: (A) As a practical matter impair
or impede his ability to protect that interest or (B) leave any of the persons
already parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest. If he has not
been so joined, the court shall order that he be made a party. If he should join as
a plaintiff but refuses to do so, he may be made a defendant, or in a proper case,
an involuntary plaintiff. If the joined party objects to venue and his joinder
would render the venue of the action improper, he shall be dismissed from the
action.
Colo. R. Civ. P. 19(a).
Determining whether a party is indispensable depends on the facts of each case and is a
mixed question of law and fact. Cruz-Cesario v. Don Carlos Mexican Foods, 122 P.3d 1078, 1080 (Colo.
App. 2005). The principal question the Court must ask is whether “the absent person’s interest in
the subject matter of the litigation such that no decree can be entered in the case which will do
justice between the parties actually before the court without injuriously affecting the right of such
absent person?” Woodco v. Lindhal, 380 P.2d 234, 238 (Colo. 1963). As the Court of Appeals later put
it, “an indispensable party has such an interest in the controversy’s subject matter that a final decree
between the parties cannot be made without affecting the nonparty's interests or leaving the
controversy in such a situation that its final determination may be inequitable to the nonparty.” Bittle
v. CAM-Colorado, LLC, 318 P.3d 65, 69 (Colo. App. 2008).
The Court of Appeals also has noted that if an indispensable party hasn’t been joined in a
suit, dismissal isn’t the appropriate remedy: “If there has been a failure to join a necessary party, the
court should not dismiss the action, but rather should join that necessary party or allow plaintiff an
opportunity to do so.” B.C., Ltd. v. Krinhop, 815 P.2d 1016, 1018–19 (Colo. App. 1991).
III. DISCUSSION.
As the City correctly notes in its response to the motion to dismiss, the Supreme Court has
decided the precise issue presented here. And it’s done so contrary to the position that PATHS takes
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on its motion.2 In Margolis v. District Court, 638 P.2d 297 (Colo. 1981), the Supreme Court addressed
the issue of whether property owners should’ve been joined as indispensable parties to an action to
determine whether a proposed municipal ordinance was subject to the initiative provisions of Colo.
Const. art. V § 1 and that city’s charter. Id. at 299, 301.
Answering that question in the negative, the Supreme Court concluded that the individual
landowners were neither necessary nor indispensable under Colo. R. Civ. P. 19. It reasoned that the
relief sought in the action—a determination “whether zoning and rezoning are legislative and thus
subject to the referendum and initiative powers reserved to the people”—“can be granted in the
absence of the landowners, and the relief neither impairs nor impedes the landowners’ ability to
protect their interests, and does not lead to the risk of multiple inconsistent obligations.” Margolis,
638 P.2d at 301.
As in Margolis, the CSU Board isn’t an indispensable or necessary party to this action. The
2 PATHS’ failure to substantively address Margolis on its motion, save by oblique “but see” and
“compare” Blue Book citations, is concerning. Under Colo. R. Prof’l. Cond. 3.3(a)(2), “a lawyer shall
not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel.” As the comment to the Rule 3.3 further explains, “although a lawyer in an adversary
proceeding is not required to present an impartial exposition of the law or to vouch for the evidence
submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law
or fact or evidence that the lawyer knows to be false.” Id. comment 2. PATHS’ motion barely passes
muster on this count.
PATHS cites Norby v. City of Boulder, 577 P.2d 277 (Colo. 1978), for the proposition that
“[c]ourts have held applicants for zoning, rezoning, and zoning variances to be indispensable
parties.” Mtn. to Dismiss at 11. It then contends—with a but-see citation—that Margolis stands for a
contrary proposition. That’s misleading. Norby and Margolis are completely inapposite. To begin with,
Norby dealt, in relevant part, with whether a “failure to join all indispensable parties in a Rule 106
action [for judicial review of a quasi-judicial decision by a city] within the time limit prescribed by the
rule is a jurisdictional defect which requires dismissal of the action.” Norby, 577 P.2d at 279. Margolis
didn’t deal with a Rule 106 action, but with whether landowners were indispensable parties in an
action to compel a municipality to refer proposed zoning ordinances to the electors of that city. 638
P.2d at 299. Moreover, PATHS failed to note that Norby was overruled on the very point it cited the
decision because three years after it, Colo. R. Civ. P. 106 was amended. See Thorne v. Board of County
Com’rs of Fremont County, 638 P.2d 69, 71 n.4 (Colo. 1981) (recognizing Rule 106 amendment). The
Court expects counsel to be forthright and provide accurate propositions for the decisions they cite.
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relief that the City seeks is quite narrow, dealing solely with whether several provisions of the
initiated ordinance are administrative and thus not subject to the initiative powers reserved to the
people. Id. It’s true that, as PATHS notes, if the Court were to grant the relief the City seeks, the
Hughes Stadium Property would be “zoned only for Public Open Lands,” and the City wouldn’t be
“bound to use best efforts at fair market value to acquire it.” Mtn. to Dismiss at 12. And, if that
came to pass, it would “affect the consummation of the purchase-sale agreement” between the CSU
Board and a developer. Id.
But the Supreme Court thinks that’s an indirect interest in property, which doesn’t make the
CSU Board an indispensable party: “While the [CSU Board’s] interests may be indirectly affected by
the decision resulting from referendum and initiative elections, the resolution of the issues in dispute
in no way affects the landowners of the subject property any more than it affects other landowners
of the city.” Margolis, 638 P.2d at 301. Thus, given Margolis, PATHS’ motion to dismiss must be
denied.
IV. CONCLUSION.
For the reasons set forth above, PATHS’ motion to dismiss is denied.
SO ORDERED on this 26th day of January, 2021.
BY THE COURT:
_________________________
JUAN G. VILLASEÑOR
District Court Judge