HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 010 - Solitaire's Reply to Motion to InterveneDISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Ave., Suite 100
Ft. Collins, Colorado 80521
____________________________________
720.865.8307
Plaintiffs:
Sanctuary Field Neighborhood Network, a
Colorado nonprofit corporation; and Miranda
Spindel;
v.
Defendant:
Council of the City of Fort Collins COURT USE ONLY
Counsel for Proposed Intervenors, Solitaire
Homes East, LLC and Solitaire Homes, LLC
Andrew J. Petrie, #11416
Andrew Valencia, #54691
BALLARD SPAHR LLP
1225 17th St., Ste. 2300
Denver, CO 80202
(303) 292-2400
petriea@ballardspahr.com
valenciaa@ballardspahr.com
Case Number: 2022CV30661
Division 5A Courtroom
SOLITAIRE’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO INTERVENE
Plaintiffs’ Response to Solitaire’s Motion to Intervene—which they neglected to
serve on Solitaire1—is based on a nonsensical, circular argument. Plaintiffs assert that
because they have challenged the propriety of the City of Fort Collins’ actions, and on
1 Plaintiffs elected to attempt to serve Solitaire via ICCES knowing full well that
Solitaire is not yet a party to the case, does not receive ICCES notifications, and,
because it is not a party, is still not entitled to see exhibits Plaintiffs filed. It was only
when Solitaire checked the court’s docket on the due date for any opposition to see if
one had been filed that it first learned, on Monday, November 21, of the Plaintiffs early
filing. Plaintiffs obviously filed early attempting to maximize the inconvenience to
Solitaire and create a reply deadline on the Friday following Thanksgiving.
DATE FILED: November 25, 2022 1:52 PM
FILING ID: 3A78D89F566A8
CASE NUMBER: 2022CV30661
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that basis they contend Solitaire’s permission to proceed with the proposed
development is illegal, Solitaire cannot intervene because its rights rely on an illegal
action. Put another way, Plaintiffs base their opposition on their assumption that they
will succeed on their challenge to the City’s actions. While that argument is baseless, in
making it, they essentially admit their action does and will impact Solitaire’s property
rights.
As the property owner receiving the City’s permission to proceed with its
development, Solitaire is vitally interested in the outcome of the Plaintiffs’ challenge, the
net result of which, if successful, would be to prevent Solitaire from proceeding with the
planned and approved development. That is textbook grounds to require, and at the
very least permit, a party to intervene. Plaintiffs’ assertion that “no possible outcome of
this litigation precludes, impairs or impedes Intervenors’ asserted interest in the Subject
Properties” is fallacious.
Plaintiffs’ argument that the City of Fort Collins will adequately represent
Solitaire’s interest is similarly unfounded. While the City maintains an interest in
defending its agency’s decision, that interest is not the same as Solitaire’s interest in the
continued enjoyment of its right to develop its property as approved by the City. The
City acknowledges that is the case when it agrees Solitaire is properly allowed to
intervene.
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A. Solitaire Has An Interest in the Property and Challenged Transaction
Solitaire Homes LLC and Solitaire Homes East, LLC are the record property
owners of the Property, and are, in turn, 100% owned by Solitaire Fort Collins, LLC.
Solitaire Fort Collins is listed the owner on the Development Plan as it is the entity
charged with managing the development process.2 Solitaire has an obvious and record
interest in the Property and the rights to develop the Property, including the preservation
of the Development Plan as the City and the Council approved it. It is because of the
indisputable fact that Solitaire is the property owner of record, that the City and Council
considered, and ultimately approved, their redevelopment efforts for the Property.
Indeed, Colorado law directs that Solitaire, as the owner of land that is the
subject of a challenged ordinance “clearly” has an interest relating to property that is the
subject of the action. Dillon Cos., Inc., v. City of Boulder, 515 P.2d 627, 628-29 (Colo.
1973). Moreover, Solitaire’s right to develop its property is an essential property interest,
which interest Plaintiffs’ have made the subject of this action. Village at Treehouse, Inc.
v. Property Tax Adm’r, 321 P.3d 624, 626 (Colo. App. 2014) (“development rights are
property interests”); HDH P’ship v. Hinsdale Cty. Bd. of Equalization, 459 P.3d 586, 592
(Colo. App. 2017) (holding “other real property ownership rights include the right to
develop the property”); rev’d on other grounds, 438 P.3d 742 (Colo. 2019). Courts are to
determine the existence of an interest in a liberal manner and Solitaire easily meets the
threshold showing.
2 Neighbors for a Better Approach v. Nepa, 770 P.2d 1390, 1391-92 (Colo. App.
1989), on which Plaintiffs rely, does not prohibit Solitaire from intervening nor does it
somehow make Solitaire Homes and Solitaire Homes East no longer indispensable
parties.
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Plaintiffs’ argument that Solitaire does not possess a legally protectable interest
in the subject and outcome of this action is seriously misguided, and their reliance on
Hillside Community Church v. Olson is misplaced. Hillside concerned a dispute between
a church and its neighbors over the construction of a church addition. 58 P.3d 1021,
1023 (Colo. 2002). When the city issued the building permit without holding a hearing,
as its municipal code required, the neighbors asserted they were deprived of a property
right. Id. at 1024. However, the Colorado Supreme Court determined the neighbors did
not have a property interest in the procedures contained in the municipal code. Id.
at 1026. Thus, Hillside concerned the existence of a cognizable property interest giving
rise to due process guarantees in a claimed right to notice, and an opportunity to
participate in, a permit hearing. It does not, however, stand to somehow diminish
Solitaire’s property rights and development interest, or its interest in the preservation of
the City and Council’s determination concerning the Development Plan (notice of which
Plaintiffs admit they received). Indeed, a review concerning the governmental body’s
abuse of discretion or exercise in excess of its jurisdiction, will ultimately impact the
validity of the Development Plan in which Solitaire has an interest.
Plaintiffs also incorrectly assert that Solitaire somehow lacks standing because it
purportedly obtained its approval of the development plan through illegal or improper
means, and thus, lacks a legally cognizable interest. As an initial matter, Plaintiff’s
argument conflates the legal concept of standing, a prerequisite to a plaintiff filing suit
for injury, with the procedural prerequisites to intervention, of which standing is not one.
Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977) (“The proper inquiry on standing
is whether the plaintiff has suffered injury in fact to a legally protected interest ….”)
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(emphasis added)). In doing so, Plaintiffs erroneously rely on Brown v. Bd. of Cnty.
Comm’rs, in which the Court of Appeals determined that the applicant for a rezoning
change, who was not the true owner of the land at the time of the application as the
applicable municipal code required, did not have a legally protected right to initiate a
zoning change, and thus, lacked standing to pursue judicial review. 720 P.2d 579,
581-83 (Colo. App. 1985). Solitaire, however, seeks to intervene, and as the record
holder of title to the Property, it undoubtedly has a vested interest in the outcome of this
Court’s review.
Plaintiffs’ argument that Solitaire does not have an interest in the action because
the interest was “ill-gotten” and thus “not legally protectable” is nonsensically circular
and is based on their assumption that they will succeed on their challenge to the City’s
actions. Their mere allegations cannot serve to be the basis for finding Solitaire has no
legally protectable interest. The crux of Plaintiffs’ Complaint is a request to review the
Defendant’s actions to determine whether Defendants exceeded their jurisdiction or
abused their discretion. Pls.’ Resp. to Solitaire’s Mot. to Intervene at 6. Until such time
as the Court conducts its review, and makes a determination, there is no finding that
any predicate unlawful City or Council conduct occurred, and the Court cannot now
determine the Development Plan was “ill-gotten.”
In any event, Bock v. American Growth Fund Sponsors, Inc., 904 P.2d 1381,
1385-86 (Colo. App. 1995), on which Plaintiffs rely, has no bearing on the issues before
this Court. It concerned a claim for unjust enrichment and whether it would be
inequitable for a recipient to retain certain benefits allegedly predicated on fraud, facts
not in any way similar to those here. That case did not concern the approval of a
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development plan and whether alleged procedural missteps by the lower tribunal made
that approval improper.
B. Solitaire’s Interest Is Not Contingent
In their last and most desperate argument, Plaintiffs assert that Solitaire’s interest
is contingent and therefore insufficient to give it a defensible interest for the purposes of
intervention. Demonstrating a fundamental misunderstanding of the development
process, they argue Solitaire has a contingent interest because it has not yet obtained
flood plain approval for the approved development.
The flood plain permit is simply part of the site permit and inspection process—
the same as the requirement to obtain a construction permit, on which Solitaire’s
construction is also “contingent”—steps in the process going forward that must take
place before construction begins. The Development Review Flowchart the City issued
Solitaire attaches as Exhibit A demonstrates that development plan approval at a
public hearing is a unique step in the development process, whereas site permit
acquisition occurs during step 10. There is no requirement that Solitaire only has a
protectable interest once it has obtained every permit needed to proceed with
construction. Indeed, the City and Council’s approval of the Development Plan was in
no way contingent on the issuance of a floodplain use permit and the exhibits Plaintiffs
cite indicate only that Solitaire must acquire a floodplain use permit as part of the
construction permitting process.
C. Solitaire’s Absence From This Action Will Impair Its Ability to Protect Its
Interests.
An adverse disposition of this action will certainly impair, and even eliminate,
Solitaire’s development interests in the Property by preventing it from pursuing its right
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develop the Property as approved by the Council and City. Plaintiffs’ allegation that
“neither this action nor the outcome hereof will impair, impede, or otherwise change …
Intervenors’ claimed interest,” is patently erroneous. It asks the court to ignore the
practical outcome of an adverse decision, as well as the established law rejecting
Plaintiffs’ argument that the prospect of duplicative review would not impair a proposed
intervenor’s interests. The simple fact remains that if Plaintiffs are successful, Solitaire
will either have to go through the process again or not be able to develop its property as
the City has approved.
Ctr. for Biological Diversity v. Jewell, 2017 U.S. Dist. LEXIS 215165, at *3
demonstrates the reasons why intervention here is proper. In that case, plaintiffs
challenged the administrative decision of the federal government not to list a species as
endangered or threatened, in which action the state of Colorado moved to intervene.
Plaintiffs claimed that a decision in the plaintiffs’ favor would not impair the proposed
intervenors’ interests, since their success would “only send the matter back for
administrative review.” Id. at *7-8. The court approved intervention, reasoning “requiring
[the intervenors] to once again participate in an administrative review process would be
costly and burdensome.” Id. at *8. Moreover, the court found that if the plaintiffs were
successful in requiring a new administrative process, and the new process resulted in
an adverse outcome for intervenors, the intervenors would need to file a separate action
challenging that outcome, incurring the costs of that action. Id. Finally, the court noted
that if plaintiffs succeeded and the administrative body decided to reverse its earlier
decision, the intervenors would be subject to restrictions to which it would not be subject
to under the previously-approved plan—an impact that “qualifies as sufficient
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impairment to satisfy [the intervenors’] ‘minimal’ burden.” Id. at *9. Each of these
impairments and injuries parallel what Solitaire risks here if Plaintiffs were to be
successful.
At bottom, the mere possibility of an adverse outcome at a remanded proceeding
is sufficient to satisfy an intervenor’s minimal burden of impairment. Jewell, 2017 U.S.
Dist. LEXIS 215165, at *9. See also WildEarth Guardians v. Nat’l Park Serv., 604 F.3d
1192, 1199 (10th Cir. 2010) (holding that “the interest of a prospective defendant-
intervenor may be impaired where a decision in the plaintiff’s favor would return the
issue to the administrative decision-making process”).
Plaintiffs also attempt to downplay the impacts of the relief they seek. Plaintiffs
request review under Rule 106(a)(4) and a declaratory judgment, which Plaintiffs
themselves define as “the power to declare rights, obligations, and other legal relations.”
Complaint, ¶ 63. The terms, conditions, and interpretations of this Court’s decision bind
the administrative body conducting any subsequent proceeding on remand and would,
therefore, continue to impact Solitaire. Thus, this Court should permit Solitaire to
intervene to allow Solitaire to invest resources into building a comprehensive picture for
the Court of the parties most affected by its holding. See WildEarth Guardians v. Jewel,
2014 U.S. Dist. LEXIS 179058, at *6 (noting that proposed intervenors, who held a
financial interest in the outcome of the litigation, could “emphasize and shed light on
those portions of the record” relating to the activities that would affect the disposition of
the case that could have a controlling effect on the administrative body on remand).
Solitaire has no practical means to protect its approved Development Plan apart
from intervention. A Court ruling finding in Plaintiff’s favor will set back Solitaire months,
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if not years, to restart the pre-hearing review and public hearing process. That is, of
course, exactly what Plaintiffs seek to do; they are trying to impair, if not block,
Solitaire’s ability to develop its property. Indeed, Solitaire cannot opt out of an adverse
ruling made in its absence, cannot bring an independent challenge, and cannot appeal
this Court’s determination if it is not a party—eliminating Solitaire’s ability to protect its
interest altogether. See Cherokee Metro. Dist. v. Meridian Serv. Metro. Dist., 266 P.3d
401, 406-407 (Colo. 2011). As the property owner receiving the City’s permission to
proceed with its development, Solitaire is vitally interested in the outcome of the
Plaintiffs’ challenge, the net result of which, if successful, would be to prevent Solitaire
from proceeding with the planned development.
C. The City and Council Do Not Adequately Represent Solitaire’s Interests
Plaintiffs misstate the criteria for determining inadequate representation, listing
only one of three criteria. Indeed, in addition to those grounds Plaintiffs identified,
Colorado courts may determine inadequate representation where “the absentee's
interest is similar to, but not identical with, that of one of the parties.” Cherokee, 266
P.3d at 407 (emphasis removed) (“quoting 7C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1909 (3d ed. 1997)). In such a situation, “intervention
ordinarily should be allowed.” Id.
While it could be argued that the City, Council, and Solitaire have a similar
interest in the outcome of this litigation—the preservation of the decisions concerning
the Development Plan—their interests ultimately are not identical with, and could
diverge from, one another. The City and Council, in addition to defending their
decisions, represent the broad spectrum of views in the public interest, have different
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financial interests and incentives than Solitaire, and may make strategy decisions that
undermine Solitaire’s position. The fact that governmental interests differ from private
ones, as they do by definition, unavoidably creates circumstances where the City and
Council are inadequate representatives of Solitaire’s interests. See WildEarth
Guardians v. United States Forest Serv., 573 F.3d 992, 994 (10th Cir. 2009) (intervenor
shows inadequate representation when the party on which it must rely is the
government).
Solitaire’s interest is in the development of its property and the benefits it will
derive from that development. Plaintiffs’ contention that Solitaire must demonstrate the
City is “apathetic towards the Plaintiffs’ claims and the outcome of this action,” is
unsupported by case law and just wrong. And, importantly, the City, in its Response to
Solitaire’s Motion to Intervene, acknowledges Solitaire is currently inadequately
represented in the action.
D. Permissive Intervention is Proper
In the alternative, this Court should permit Solitaire to intervene due to the
existence of a common question of law or fact between its development interest, the
preservation of the approved development plan, and Plaintiffs’ claims seeking to block
that development. Undoubtedly, more than one common question of law or fact exists
as Plaintiffs’ themselves admit in their Response: “the [Development] plan is part of any
analysis regarding the Hearing Officer’s interpretation and the Defendant’s subsequent
review therefor ….” The Court will consider the same facts, law, and issues, when it
considers Plaintiffs’ claims of procedural missteps and improper interpretation of the
LUC, as it will Solitaire’s assertion that it properly followed the LUC in its Development
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Plan, and the City’s approval of the same was proper. Just because Plaintiffs’ claim
without any supporting logic that they “do not see how the Intervenors joinder in this
action is necessary or helpful,” that bare assertion does not mean intervention is
improper under C.R.C.P. 24(b).
As the record property owners, both entities have a legally recognized interest in
the development of the Property by preserving the approved Development Plan, which
shares common questions of law or fact with Plaintiffs’ claims seeking to invalidate it.
CONCLUSION
For all of these reasons and those in its motion to intervene, Solitaire respectfully
requests that the Court enter its Order authorizing Solitaire to intervene as a matter of
right, or, in the alternative, permitting Solitaire to intervene.
Dated: November 25, 2022.
Respectfully submitted,
Ballard Spahr LLP
/s/ Andrew J. Petrie
Andrew J. Petrie, #11416
Andrew Valencia, #54691
1225 17th St., Ste. 2300
Denver, CO 80202
(303) 292-2400
petriea@ballardspahr.com
valenciaa@ballardspahr.com
Attorneys for Proposed Intervenors,
Solitaire Homes East, LLC and Solitaire
Homes, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on November 25, 2022, the foregoing SOLITAIRE’S REPLY
IN FURTHER SUPPORT OF MOTION TO INTERVENE was filed via the Courts
electronic notification system, which will send notification of same to all counsel of
record.
/s/ Sherri L. Clark