HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 002.1 - Complaint 10.04.2022DISTRICT COURT, LARIMER COUNTY, COLORADO
Court Address:
201 La Porte Ave., Suite 100
Fort Collins, CO 80521
Plaintiffs: Sanctuary Field Neighborhood Network, a
Colorado nonprofit corporation; and Miranda Spindel
v.
Defendant: Council of the City of Fort Collins
Attorney for Plaintiff
Andrew Pipes, #53233
Frascona, Joiner, Goodman and Greenstein, P.C.
4750 Table Mesa Drive
Boulder, CO 80305
Phone Number: 303-494-3000
Fax #: 303-494-6309
E-mail: andrew@frascona.com
COURT USE ONLY
_________________________
Case Number:
Div. Ctrm:
COMPLAINT FOR JUDICIAL REVIEW PURSUANT TO C.R.C.P. 106
Plaintiffs Sanctuary Field Neighborhood Network, a Colorado nonprofit corporation
(“SFNN”), and Miranda Spindel (“Miranda,” and together with SFNN, the “Plaintiffs”), by and
through their attorneys, Frascona, Joiner, Goodman and Greenstein, P.C., for their Complaint
Pursuant to Colorado Rule of Civil Procedure 106 and for Declaratory Relief, state, allege, and
aver as follows:
PARTIES, VENUE, AND JURISDICTION
1. Plaintiff, SFNN, is a nonprofit corporation organized in the State of Colorado, has
its primary place of business located at 330 North Taft Hill Road, Fort Collins, Colorado 80521,
which is located within Larimer County, Colorado, and is organized to assist the members of the
Sanctuary Field Neighborhood in responsibly developing the area incorporated into the Northwest
Subarea Plan, as adopted by the Council of the City of Fort Collins in Resolution 2006 -120, on
December 19, 2006 (the “NWSAP”), that has been annexed into the City of Fort Collins, Colorado.
A copy of the NWSAP is attached with this Complaint as Exhibit A.
2. Plaintiff, Miranda, is an owner of real property in Larimer County, Colorado.
3. Defendant City of Fort Collins (the “City”) is a home rule municipality located in
Larimer County, Colorado.
DATE FILED: October 4, 2022 8:10 PM
FILING ID: 88F2085A71B33
CASE NUMBER: 2022CV30661
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4. Defendant Council of the City of Fort Collins, (the “Council”), which exercises
authority pursuant to C.R.S. § 31-4-101, et seq., sits as a quasi-judicial board on land use matters
pursuant to Section 2-48 of Ordinance No. 020, 2020, City of Fort Collins Municipal Code (the
“Code”) and the City of Fort Collins Land Use Code (the “LUC”) Art. 2, § 13.8.
5. The Court has jurisdiction over this action pursuant to C.R.S. § 13-1-124(1) and
C.R.C.P. 106.
6. Venue is proper in Larimer County because this action involves a quasi-judicial
decision by an elected body of the City and a representative of the City, which concerns land use,
including without limitation the approval of a plan of development on real property located in
Larimer County, Colorado, a subsequent appeal thereof, and the interpretation of the LUC which
was promulgated and is enforced in Larimer County, Colorado.
GENERAL ALLEGATIONS
7. The City, through the Council, has adopted the LUC and uses the same to govern
the use of land within the boundaries of the City.
8. The LUC dictates uses that are permissible and delineates certain zone districts
within the City and whether additional review, such as an administrative review, is required for a
particular use.
9. In addition to and incorporated within the LUC, the City, through the Council,
identified and adopted certain planning and development priorities for specific areas within the
City and the Growth Management Area between the City and Larimer County, Colorado (the
“County”) through the NWSAP, which is designed to assist in the implementation of City planning
by tailoring City-wide policies concerning land use, open land and trails, transportation,
infrastructure, and community appearance in the NWSAP area.
10. Solitaire Fort Collins, LLC, a Colorado limited liability company (the
“Developer”), is the owner of an approximately 41.34-acre parcel of vacant land described as
Parcel Nos. 9709104001, 9709104002 and 9709103020, as recorded with the Larimer County
Clerk and Recorder, which is entirely located within the portions of the NWSAP annexed by the
City (the “Subject Property”).
11. Developer’s first plan of development, designated as PDP 190003 (the “Initial
Plan”), was submitted on February 15, 2019.
12. The Initial Plan fell under a Type 2 review, which requires approval from the City’s
Planning and Zoning Board (the “P&Z Board”) due to the mix of housing types, pursuant to LUC
Art. 2, § 1.3.
13. On July 17, 2021, the P&Z Board held a hearing regarding the Initial Plan.
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14. The Developer withdrew the Initial Plan prior to a P&Z Board vote.
15. Upon information and belief, the Developer amended the Initial Plan sometime
between June 18, 2021 and September 13, 2021 to avoid rejection by the P&Z Board.
16. The amended Initial Plan included the removal of structures defined as multi-family
housing, resulting in a plan designated as PDP 210018 (the “Amended Plan”).
17. Because of the nature of the Amended Plan, the Developer was able to avoid
another hearing in front of the P&Z Board and, instead, go through a Type 1 review and proceed
through an administrative review, which requires an administrative hearing, pursuant to LUC Art.
2, § 1.3.
18. The Developer continued to amend the Amended Plan several more times with
minor changes, prior to the impending administrative review hearing.
19. A neighborhood meeting was held on the Amended Plan on September 13, 2021.
20. The Developer submitted the Amended Plan, as amended, to the City on November
5, 2021.
21. Upon information and belief, sometime between November 5, 2021, and May 2,
2022, a representative from the City appointed Marcus McAskin as the hearing officer (“Hearing
Officer”) for the Developer’s administrative hearing, which was scheduled for May 2, 2022 (the
“Hearing”).
22. Upon information and belief, the Hearing Officer is not employed by the City nor
the Director of the City’s Community Development and Neighborhood Services Department, or a
subordinate thereof.
23. Per LUC Art. 2, § 2.7(A)(1), “[a]n administrative review process is hereby
established wherein certain development applications shall be processed, reviewed, considered and
approved, approved with conditions, or denied by the Director pursuant to the general procedural
requirements contained in [LUC Art. 2, § 1.1]…. For those development applications that are
subject to administrative review, the Director shall be the designated decision maker.”
24. Per LUC Art. 2, § 1.1, “[f]or those development applications subject to
administrative review (sometimes referred to as ‘Type 1 review’), the Director is the designated
decision maker.
25. Per LUC Art. 5, § 1.2, the “Director” is the director of the Community
Development and Neighborhood Services Department.
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26. Per § 2 of the LUC, the Hearing was to be presided over by the Director and the
findings therefrom were to be issued by the Director within 10 working days.
27. The City failed to comply with the LUC by appointing the Hearing Officer to
preside over the Hearing.
28. Notice of the Hearing was mailed on or about April 13, 2022, however, the staff
report and Amended Plan documents were not made publicly available until shortly before the
Hearing.
29. Per LUC Art. 2, § 2.5, “[t]he [s]taff [r]eport shall be made available for inspection
and copying by the … public prior to the scheduled public hearing on the development
application.”
30. On May 2, 2022, the Hearing was held at 300 LaPorte Avenue, Fort Collins, CO
80521 (“City Hall”), in a hybrid fashion, and was presided over by the Hearing Officer.
31. Per LUC Art. 2, § 2.7(D)(1), “[w]ithin ten (10) working days following the public
hearing, the Director shall issue a written decision to approve, approve with conditions, or deny
the development application based on its compliance with the [LUC standards]. The written
decision shall be mailed to the applicant and any person who provided testimony at the public
hearing.”
32. On or about May 16, 2022, the Hearing Officer issued his determination, which
included his findings (the “Hearing Officer Decision”). A copy of the Hearing Officer Decision is
attached with this Complaint as Exhibit B.
33. In the Hearing Officer Decision, the Hearing Officer made the following findings:
a. The “vast majority of the public comment received … is property characterized
as against the approval of the [Amended Plan], for various reasons including
noncompliance with certain provisions of the [NWSAP], ….” See Exhibit B,
pg. 7.
b. “[T]he [NWSAP] lacks sufficient guidance as to how to alleviate negative
effects caused by development which otherwise complies with the City zoning
regulation” and that “[a]bsent clear guidelines or standard set forth in the
[NWSAP] against which the [Amended Plan] may be judged, the [NWSAP] is
insufficient to provide ‘all users and potential users of land with notice of the
particular standards and requirements imposed by the [City] for [development
plan approval’” and therefore, “lack[s] sufficient guidelines or standards on
which to deny the [Amended Plan].” See Exhibit B, pg. 8.
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c. That the Hearing Officer lacked the authority to deny the Amended Plan based
upon the evidence reviewed. Id.
34. Despite the Hearing Officer’s assertion that the NWSAP is insufficiently drafted to
implement or otherwise inform his decision, the NWSAP makes numerous references to the nature
and characteristics of the area and the vision for future development maintain the semi-rural or
country feel thereof and to involve the community in such development, including its unique image
and identity.
35. Further, the NWSAP identifies the City’s role and responsibility in implementing
the NWSAP as, among other roles and responsibilities, to “[r]eview development proposals (in
City limits) to make sure new development projects are consistent with [the NWSAP].” See
Exhibit A, pg. 50.
36. When the Council adopted the NWSAP in 2006, the Council stated the reasons for
adopting the NWSAP as to “assist in the implementation of City Plan by tailoring City-wide
policies concerning land use, open land and trails, transportation, infrastructure, and community
appearance in the [NWSAP] area.” See the “Council Resolution 2006-120,” attached with this
Complaint as Exhibit C.
37. LUC Art. 1, § 2.2 states that the purpose of the [LUC] is to improve and protect the
public health, safety and welfare by, among other things, (i) ensuring that all growth and
development is consistent with the LUC, including its adopted components and associated sub-
area plans; (ii) minimizing adverse environmental impacts of development; and (iii) ensuring that
development proposals are sensitive to the character of existing neighborhoods.
38. Per LUC Art. 1, § 2.4, “all development shall comply with the applicable terms,
conditions, requirements, standards and procedures established in [the LUC].”
39. Per LUC Art. 4, § 5(A), Low Density Mixed-Use Neighborhood Districts are to be
“developed and operated in harmony with the residential characteristics of a neighborhood.”
40. As is clear in the “Hearing Transcript,” the vast majority of the interested public
opposes the Amended Plan and testified that its development is incompatible with the nature,
character, historic and unique image and the natural habitat that defines and comprises the area, as
referenced and contemplated in the NWSAP. A copy of the Hearing Transcript is attached with
this Complaint as Exhibit D.
41. The Hearing Officer failed to find or otherwise identify how the Amended Plan
satisfied the standards and vision set forth in the NWSAP and failed to properly interpret applicable
provisions of the LUC by disregarding the NWSAP due to his inability to reconcile the same.
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42. On May 31, 2022, the “Notice of Appeal” was filed by several members of the
community, including Miranda, on a form provided by the City, pursuant to LUC Art. 2, § 11.2.
A copy of the Notice of Appeal is attached with this Complaint as Exhibit E.
43. Per LUC Art 2, § 11.2, “[a]n administrative decision shall be processed according
to, in compliance with and subject to the provisions contained in [Art. 2, § 1] and Steps 1 through
12 of the Common Development Review Procedures ([Art. 2, § 2.1 through 2.12], inclusive).”
44. Per LUC Art. 2, § 2.12, unless the City is the applicant, appeals of the Director’s or
other decision maker’s final decision shall be appealed to the P&Z Board.
45. Despite LUC Art. 2, § 11.2 and 2.12, the appeal was taken by the Council and
scheduled for August 16, 2022. See the “Appeal Notice,” attached with this Complaint as Exhibit
F.
46. In the Notice of Appeal, the appellants asserted that, among other things, the
Hearing Officer improperly interpreted the LUC.
47. The appeal hearing was held at City Hall in front of the Council on August 16, 2022
(the “Appellate Hearing”).
48. At the Appellate Hearing, the Council heard from the appellants and the Developer
and asked a series of questions, many of which centered around a development built in 1970
located at 155 Briarwood Rd, Fort Collins, CO 80521, known as the “Ramblewood Apartments.”
49. Though the Ramblewood Apartments are in the NWSAP area within city limits, it
was developed and built on or before 1970, well before the creation and adoption of the NWSAP
and was used by the Developer and the City as a comparable development upon which their
analysis was based. See “Appellate Hearing Minutes,” attached with this Complaint as Exhibit G.
50. During the Appellate Hearing, Council member Ohlson stated that the City should
avoid creating any additional subarea plans as they are not followed or observed and that the intent
of the NWSAP was to keep things as they are in the area. See Exhibit G, pg. 15.
51. Several Council members stated that the LUC takes precedence over the NWSAP
and that the LUC is the regulatory framework for which to review all development, implying that
any subarea plan is to be disregarded if the Hearing Officer is unable to reconcile the same. Id.
52. During the Appellate Hearing, Council member Gutowsky stated that the Hearing
was unfair and that the Hearing Officer was unqualified to render such a decision. Id.
53. The City failed to comply with LUC Art. 2, § 11.2, wherein appeals of
administrative decisions are to be heard by the P&Z Board.
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FIRST CLAIM FOR RELIEF
(Judicial Review Pursuant to C.R.C.P. 106(a)(4))
54. The allegations above are incorporated herein by reference.
55. C.R.C.P. 106(a)(4) provides for a district court to review a final, quasi-judicial
decision of a government agency.
56. The Council reached a final, quasi-judicial decision on September 6, 2022.
57. The City’s appointment of the Hearing Officer to preside over the Hearing and
make a determination of findings regarding the Amended Plan failed to comply with the LUC and
therefore, the appointment thereof was wrong and exceeded the City’s authority and jurisdiction.
58. The Notice of Appeal being taken and heard by the Council failed to comply with
the LUC, specifically because the LUC requires such appeal to be held in front of the P&Z Board,
and therefore, the Appellate Hearing and decision made by the Council exceeded their jurisdiction.
59. The Hearing Officer and the Council failed to properly interpret the LUC and failed
to implement the NWSAP into their analysis of the Amended Plan and therefore, abused their
discretion and/or exceeded their authority by wrongfully approving the Amended Plan.
60. Plaintiffs have no plain, speedy, or adequate remedy at law.
61. Pursuant to C.R.C.P. 106(a)(4), which is the exclusive remedy for reviewing quasi-
judicial decisions, the City and the Council exceeded their jurisdiction and abused their discretion
in appointing the Hearing Officer, interpreting the LUC, approving the Amended Plan, and in the
Council taking and presiding over the Appellate Hearing.
SECOND CLAIM FOR RELIEF
(Declaratory Judgment Pursuant to C.R.C.P. 57 and C.R.S. § 13-51-101, et. seq.)
62. The allegations above are incorporated herein by reference.
63. This Court has the power to declare rights, obligations, and other legal relations
whether or not further relief is or could be claimed.
64. A controversy exists with respect to Plaintiffs’ procedural and substantive due
process rights under the Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution, which were denied, as well as Plaintiffs’ rights under the LUC and other applicable
law, code and regulations.
65. Further relief based on a declaratory judgment or decree may be granted whenever
necessary and proper.
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WHEREFORE, Plaintiffs respectfully request that this Court enter the following order:
A. A determination, pursuant to C.R.C.P. 106(a)(4), that the City and the Council
exceeded their jurisdiction and/or abused their discretion by appointing the Hearing Officer,
interpreting the LUC, approving the Amended Plan, and in the Council taking and presiding over
the Appellate Hearing;
B. Plaintiffs’ costs and attorney fees; and
C. For such other relief as the Court deems just and proper.
Dated: October 4, 2022.
Respectfully submitted,
Frascona, Joiner, Goodman and Greenstein, P.C.
/s/ Andrew Pipes
Andrew Pipes, Atty. Reg. No. 53233
4750 Table Mesa Drive
Boulder, Colorado 80305-5500
(303) 494-3000
Plaintiffs’ Address:
330 North Taft Hill Road
Fort Collins, CO 80521