Loading...
HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 015 - Opening Brief w Exhibit ADISTRICT 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. Defendants: City Council of the City of Fort Collins, Solitaire Homes East, LLC, and Solitaire Homes, LLC 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: 2022CV030661 Div. 5A Ctrm: PLAINITFFS’ OPENING BRIEF 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., hereby submit this Opening Brief (this “Brief”): I. INTRODUCTION This action was precipitated by the unlawful approval by the City of Fort Collins (the “City”) of a development application submitted by Solitaire Fort Collins, LLC (the “Applicant”). The Applicant had proposed to develop several parcels of vacant land in Fort Collins, which parcels comprise 41.34 acres and are identified as Parcel Nos. 9709104001, 9709104002 and 9709103020, as recorded with the Larimer County Clerk and Recorder’s Office (collectively, the “Subject Properties”). 2 At the time of application, the Applicant did not (and still does not) own the Subject Properties, which properties are currently owned by two separate entities, Defendants Solitaire Homes East, LLC and Solitaire Homes, LLC (together, the “Property Owners”). The Property Owners are not listed on any application submitted to the City regarding the Subject Properties, and the record is devoid of any evidence demonstrating that the Applicant has the legal authority to have submitted the application whose approval is the subject of this action. The Subject Properties are located in an area of northwest Fort Collins which borders unincorporated Larimer County, Colorado. This area is subject to the Northwest Subarea Plan (the “NWSAP”), a development plan drafted in collaboration with the City, Larimer County (the “County”), and the local community and adopted on December 19, 2006 by Defendant City Council of the City of Fort Collins (the “Council”) under Resolution 2006-120. Record, Pg. 2030. As stated in the NWSAP and ratified by the Council, the “overarching theme of [the NWSAP] is to retain and enhance the area’s existing character” by “establishing a focused ‘roadmap’ for the area’s future through clearly defined goals, policies, and strategies.” Record, Pg. 1926. On February 15, 2019, the Applicant submitted a plan of development to the City, designated as PDP 190003, which plan was required to be processed via Type 2 review (the “Initial Plan”). Pursuant to a Type 2 review, the Initial Plan was required to undergo a public hearing at the City’s Planning and Zoning Commission (the “P&Z Commission”). At this hearing, the Initial Plan appeared to be heading for a denial by the P&Z Commission due to, among other reasons, the mix of proposed housing types being incompatible with the neighborhood and the NWSAP. As a result of the negative feedback during this hearing, the Applicant withdrew the Initial Plan. 3 On November 5, 2021, after removing some multi-family housing and reducing the number of units by a small fraction, the applicant submitted a new plan to the City, designated as PDP 210018 (the “Amended Plan”), a copy of which is attached hereto as Exhibit A. Because of the aforementioned changes, the Amended Plan was only required to be processed via Type 1 review, which does not require a public hearing with P&Z Commission but rather is heard by the director of the City’s Community Development and Neighborhood Services Department (the “Director”) in an administrative hearing. City of Fort Collins Land Use Code (“LUC”) § 2.2.7(A)(1). The Director appointed Marcus McAskin as the City’s hearing officer (the “Hearing Officer”) to preside over the administrative hearing, pursuant to LUC § 1.4.9(E). The administrative hearing to review the Amended Plan was held on May 2, 2022 (the “Hearing”). At the Hearing, the Hearing Officer reviewed, among many other things, the City’s “Staff Report,” Record, Pgs. 1009 – 1060, as well as pertinent sections of the LUC and the NWSAP, and comments from 47 members of the community. Fourteen days after the Hearing, the Hearing Officer issued a written determination (the “Hearing Officer Decision”) which included findings and a decision approving the Amended Plan, including modifications to the LUC, subject to certain conditions regarding exterior lighting and trash enclosures. See Record, Pg. 996 – 1008. As part of the findings in the Hearing Officer Decision, the Hearing Officer acknowledged that: “the [NWSAP] evidences an intent that the Northwest Subarea continue to be a ‘low density residential area at the edge of Fort Collins with stable neighborhoods’ and that such neighborhoods be protected from ‘incompatible development…’” Id. at 1004, ¶C. 4 Despite the foregoing acknowledgement; overwhelming public sentiment opposing the Amended Plan, Id. at 1003, ¶ A; the LUC’s requirement that development in the City be consistent with associated subarea plan, LUC § 1.2.2(A); and the requirement that low density mixed-use housing neighborhoods be “developed … in harmony with the residential characteristics of a neighborhood;” the Hearing Officer ultimately concluded that he lacked the authority to deny the Amended Plan because the NWSAP lacked sufficient guidelines or standards for him to do so. Record, Pg. 1004, ¶¶ C & D. This inaccurate conclusion led to the Hearing Officer approving the Amended Plan and pleading for the Applicant to work with the community to amend the Amended Plan to better fit the neighborhood, as stated in the NWSAP. Id. at 1008, ¶ E(2). On May 31, 2022, several members of the community appealed the Hearing Officer Decision (the “Appeal”). Record, Pg. 49-60. The appeal was taken by the Council, pursuant to the requirements of LUC § 2.2.12. On August 16, 2022, the Council heard the Appeal (the “Appellate Hearing”). At the Appellate Hearing, the Council relied upon a recommendation by the City’s Planning and Zoning Department (“City Staff”) that misstates and misapplies current law (i.e., that the LUC takes precedence over the NWSAP and that the development under the NWSAP must only comply with the City’s Low Density Mixed-Use Neighborhood Districts (“L-M-N”) standards in the LUC). Record, Pg. 1019. Further, the Council relied upon the Applicant’s argument that the Hearing Officer found that the Amended Plan complied with the NWSAP, which is not found in the record and is expressly contradicted in the Hearing Officer Decision. Record, Pg. 2051, Ln. 20; 1004, ¶¶ C & D. Ultimately, and despite several Council members’ objections and statements that the Hearing Officer improperly disregarded the NWSAP in his analysis, the Council denied the Appeal and thus allowed the approval of the Amended Plan to stand. 5 This case followed. The Plaintiffs are appealing the Hearing Officer Decision and the Council’s denial of the Appeal, pursuant to Colorado Rule of Civil Procedure 106(a)(4), and requesting declaratory judgment pursuant to C.R.C.P. 57 and C.R.S. § 13-51-101, et. seq. II. QUESTIONS PRESENTED 1. Did the Hearing Officer and Council exceed their jurisdiction or abuse their discretion in approving the incomplete Amended Plan? 2. Did the Hearing Officer exceed his jurisdiction or abuse his discretion by disregarding the NWSAP when interpreting the LUC in the Hearing Officer Decision? 3. Did the Council Board exceed its jurisdiction or abuse its discretion by relying on incompetent evidence and disregarding the NWSAP when interpreting the LUC in the Appeal? III. STANDARD OF REVIEW Colorado Rule of Civil Procedure 106(a)(4) provides for appellate review by a state district court of any quasi-judicial decision of a governmental officer or body. Colorado State Bd. of Land Comm'rs v. Colorado Mined Land Reclamation Bd., 809 P.2d 974, 981 (Colo. 1991) (citing Cherry Hills Resort Development Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo.1988) (where a governmental decision is reached through the application of legal criteria at a hearing, it is acting in a quasi-judicial capacity). Rule 106(a)(4) provides for judicial review of the administrative record of a governmental body or officer’s action to determine whether such body or officer exceeded its jurisdiction or abused its discretion. Id.; Rule 106(a)(4)(I). As a quasi-judicial body, the Council and the Hearing Officer are obligated to consider only the evidence presented to it 6 through the hearing process and to render its decision by applying the applicable legal criteria and standards to that evidence. See Van Sickle v. Boyles, 797 P.2d 1267, 1272 (Colo. 1990). It is an abuse of discretion if a governmental body or officer’s decision is not supported by competent evidence. Id. For findings of fact, a reviewing court must set aside decisions based on a record which contains “no competent evidence” supporting the decision. Board of County Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996). Decisions which are “devoid of evidentiary support [] can only be explained as an arbitrary and capricious exercise of authority” and do not merit the reviewing court’s deference. Id. (internal citation omitted). For questions of law, a decision-maker abuses its discretion if it has “misconstrued or misapplied the applicable law.” Stamm v. City and County of Denver, 856 P.2d 54, 58 (Colo. Ct. App. 1993); see also Talbots, Inc. v. Schwartzberg, 928 P.2d 822, 823 (Colo. Ct. App. 1996). Even with respect to a decision-maker’s interpretation of its own regulations and ordinances, “a reviewing court is not bound by such a decision if ... the decision misconstrues or misapplies the law.” Whatley v. Summit County Bd of County Comm’rs, 77 P.3d 793, 801 (Colo. Ct. App. 2003). Furthermore, administrative agencies and municipalities may not exceed the authority conferred by their enabling legislation. See, e.g., Flavell v. Department of Welfare, 355 P.2d 941, 943 (Colo. 1960); Kruse v. Town of Castle Rock, 192 P.3d 591, 596 (Colo. App. 2008). A city council, therefore, does not have the authority, short of legislative action to amend plans or codes, to obviate the requirements or processes thereof; judicial deference to a governmental body or officer’s decision “cannot extend to allowing those officials to amend the ordinance in the guise of interpreting it.” Anderson v. Bd. of Adjustment for Zoning Appeals, 931 P.2d 517, 520 (Colo. Ct. App. 1996). 7 Finally, a review pursuant to Rule 106(a)(4) appropriately encompasses procedural due process claims as a basis for finding an abuse of discretion: “denial of due process by an agency in its exercise of quasi-judicial functions may serve as the basis for a determination under C.R.C.P. 106(a)(4) that the agency abused its discretion.” Eason v. Bd. of County Comm’rs of County of Boulder, 70 P.3d 600, 609 (Colo. Ct. App. 2003). In a Rule 106(a)(4) review of an agency decision, the “entire procedure” becomes relevant. See Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505, 507 (Colo. Ct. App. 2002) (holding that determination of whether the board of education abused its discretion in expelling a student depends on the court’s examination of the entire procedure). IV. ARGUMENT 1. The Hearing Officer and Council abused their discretion in approving the Amended Plan because the Subject Properties are not owned by the Applicant. The LUC states that a plan for development, submitted under a Type 1 review, “shall be in a form established by the Director….” LUC § 2.2.3(A). The form established by the Director has several informational requirements, including information necessary to “determine whether or not the application, developer and/or owner have the requisite power, authority, clear title, good standing, qualifications and ability to submit and carry out the development … in the application.” LUC § 2.2.3(C)(1). Should the Director receive an incomplete application, such application “will be held in abeyance until the Director receives the necessary material to determine that the submittal is sufficient. The development application shall not be reviewed on its merits by the decision maker until it is determined sufficient by the Director.” LUC § 2.2.4(B). However, the Director may authorize the review of an incomplete application “so long as: (1) the applicant, at the time of application, has ownership of, or the legal right to use and control the majority of the property to be developed under the application; (2) the Director determines that it would not be 8 detrimental to the public interest to accept the application for review and consideration by the decision maker; and (3) the applicant and developer enter into an agreement satisfactory in form and substance to the City Manager, upon consultation with the City Attorney….” Id. Here, the Amended Plan’s application lists the Applicant as the property owner. However, as is on file with the County’s Clerk and Recorder’s Office, the Applicant is not in title to the Subject Properties. Moreover, there is nothing in the record which demonstrates, at the time of application (or to this day for that matter), that the Applicant has the requisite power, authority or good standing even to make the submittal. Further, there is no record or other evidence which would render the Amended Plan complete under LUC § 2.2.3(C)(1), or that the Director made a determination that the Amended Plan meets the requirements of LUC § 2.2.4(B)(1) – (3). The legislative intent of LUC § 2.2.3(A) is clear, an application for development must contain information necessary to determine whether the listed owner of the property to be developed has the power and authority to develop the same. Without such information, an application will be deemed incomplete and will not be accepted. In lieu of such information, however, LUC § 2.2.4(B) provides specific steps that must be taken for an incomplete application to move forward to an administrative hearing. The Amended Plan does not provide information sufficient to determine whether the Applicant has the power, title, authority or standing to develop the Subject Properties. And with no evidence that the Applicant and the Director followed the procedures in LUC § 2.2.4(B), the Amended Plan is an incomplete application void of the authority to proceed to an administrative hearing. Further, as shown in the record, the Amended Plan continued to the Hearing and through the Appeal under the false pretense that the Applicant was the property owner. See Exhibit A; Record, Pg. 997 & 2039. 9 When “a municipality's officers or agents act outside the scope of their authority, their actions are void” rendering the Hearing Officer Decision and the Council’s denial of the Appeal without merit and of no force and effect. Kruse v. Town of Castle Rock at 596. Because “[a] municipality, like an administrative agency, must comply strictly with its enabling legislation, such as a charter or code,” Id., and officers and agencies “are without power to act contrary to the provisions of the law or the clear legislative intendment,” it was improper for the City to move the Amended Plan to the Hearing, rendering the Hearing Officer Decision along with the Council’s denial of the Appeal void as the same are outside the scope of their respective legislative authority, and ultimately depriving the Plaintiffs’ of their due process rights under the LUC and the U.S. Constitution. See Flavel, supra. See also Martinez v. Colorado Dep’t of Human Servs., 97 P.3d 152, 157 (Colo.App.2003) (“An administrative agency must comply strictly with its enabling statutes, and it has no authority to set aside or circumvent legislative mandates.”). The Amended Plan should not have proceeded to an administrative hearing, and its approval should be voided. The Hearing Officer Decision and the Council’s denial of the Appeal exceeds the authority of the relevant decision-makers and constitutes an abuse of their discretion under LUC and the U.S. Constitution. The Hearing Officer Decision and Council’s ratification of same are therefore void. 2. The Hearing Officer and Council Abused Their Discretion by Misinterpreting the Law and Disregarding the NWSAP. a. Hearing Officer’s Findings The Hearing Officer’s findings include a determination that the Amended Plan is “incompatible” with the NWSAP. Record, Pg. 1004, ¶ C. However, the Hearing Officer also determined that the Amended Plan complied with the LUC. This contradiction appears to have 10 posed an irreconcilable conundrum to the Hearing Officer. To solve this conundrum, the Hearing Officer disregarded the standards and intent of the NWSAP and concluded that the plan “lack[ed] sufficient guidance as to how to alleviate negative effects caused by development which otherwise complies with [the LUC]….”. Id. As a result, the Hearing Officer wrote, the NWSAP insufficiently provided “all users and potential users of land with notice of the particular standards and requirements imposed by the [City] for [development plan] approval.” Id. (citing Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 790 P.2d 827, 832 (Colo. 1990)). He concluded that the NWSAP could be disregarded because it “lack[ed] sufficient guidelines or standards on which to deny the [Amended Plan.]” Id. b. Canons of Statutory Interpretation In Colorado, “Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” § 2-4-101, C.R.S. 2022. See also City and County of Denver v. Board of Adjustment for City and County of Denver, 55 P.3d 252, 254 (Colo. App. 2002) (“A city ordinance must be construed according to its plain and ordinary meaning.”). “In enacting a statute, it is presumed that: [t]he entire statute is intended to be effective.” § 2-4-201(1)(b), C.R.S. 2022. And when interpreting a statute, the “goal is to give effect to legislative intent” … by giving the statute’s “words and phrases their ordinary and commonly accepted meaning.” People v. Hoskin, 2016 CO 63, ¶ 7. “To reasonably effectuate the legislative intent, a statute must be read and considered as a whole and ‘should be interpreted so as to give consistent, harmonious, and sensible effect to all its parts.’” State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (en banc) (citing People v. District Court, 713 P.2d 918, 921 (Colo.1986). “A statute must also be construed to further the legislative intent represented by the entire statutory scheme” and “presumed that 11 ‘[t]he entire statute is intended to be effective’ and ‘[a] just and reasonable result is intended.’” Id. (citing § 2–4–201(1)(b), (c)).” Further, statutory text should be construed to further, not to obstruct, a statute’s stated purpose. See, e.g., Entek GRB, LLC v. Stull Ranches, LLC, 763 F.3d 1252, 1256 (10th Cir. 2014); Larrieu v. Best Buy Stores, L.P., 303 P.3d 558, 565 (Colo. 2013). And, in the event two provisions cannot be interpreted harmoniously, a specific provision controls over, and creates an exception to, a conflicting general provision. See § 2-4-205, C.R.S. 2022. See also U.S. v. Porter, 745 F.3d 1035, 1048-49 (10th Cir. 2014); Young v. Brighton School District 27J, 2014 CO 32, ¶¶ 13 & 14. “Generally, a reviewing court should defer to the construction of a statute by the administrative officials charged with its enforcement” and “[i]f there is a reasonable basis for an administrative board's interpretation of the law, we may not set aside the decision on that ground.” City and County of Denver, at Id. However, if an administrative agency applies an erroneous legal standard, a reviewing court may overturn its decision under Rule 106(a)(4). Puckett v. City and County of Denver, 12 P.3d 313, 314 (Colo. App. 2000). Further, if an administrative agency’s findings are not supported by any competent evidence in the record, the reviewing court may find that the agency abused its discretion and overturn its decision. Id. When faced with an irreconcilable conundrum between the LUC and NWSAP, the Hearing Officer chose to throw out the NWSAP. The canons of statutory interpretation, however, require that the Hearing Officer and the Council construe the language of the LUC and NWSAP to effectuate the purpose of both documents. “If a statute is ambiguous, the court, in determining the intention of the general assembly, may consider among other matters: (a) the object sought to be 12 attained; (b) the circumstances under which the statute was enacted; … (g) the legislative declaration or purpose.” § 2-4-203, C.R.S. 2022. c. LUC and NWSAP Language and Legislative Intent Any development plan for property within the area subject to the NWSAP must be compliant with the provisions of both the LUC and any applicable sub-area plan, such as the NWSAP. The purpose of the LUC “is to improve and protect the public health, safety and welfare by: ensuring that all growth and development which occurs is consistent with [the LUC], City Plan and its adopted components, including, but not limited to, … associated sub-area plans” [emphasis added] and “ensuring that development proposals are sensitive to the character of existing neighborhoods.” LUC § 1.2.2. The LUC “shall apply to … all development of land within the municipal boundaries of the City, unless expressly and specifically exempted or provided otherwise” and “all development shall comply with the applicable terms, conditions, requirements, standards and procedures established in [the LUC].” LUC § 1.2.4. See also § 2-4-401(13.7)(a), C.R.S. 2022 (“‘Shall’ means that a person has a duty.”). Importantly, the LUC was adopted “pursuant to Article XX of the Colorado Constitution and Title 31, Article 2 of the Colorado Revised Statutes … and such other authorities and provisions as are established in the statutory and common law of the State of Colorado.” LUC § 1.2.3. In addition, the purpose of the L-M-N zoning district, which district is applicable to the Subject Properties, is to ensure that property is “developed and operated in harmony with the residential characteristics of a neighborhood.” LUC § 4.4.5. Thus, applications for development of property designated as L-M-N must adhere to the residential characteristics of such neighborhood, which is defined under the NWSAP for the Subject Properties. 13 The NWSAP is a sub-area plan that was duly adopted by the Council and incorporated into the LUC. The plan’s “overarching theme,” or legislative intent, “is to retain and enhance the area’s existing character” through the plan’s “clearly defined goals, policies, and strategies.” Record, Pg. 1926. The vision and key strategies of the NWSAP are to maintain the area’s “semi-rural heritage” by requiring slow development at “low intensity [to] fit in with the … country feel of the area” and to “recognize the citizens’ role to initiate and take responsibility for the future of the area [by] respect[ing the] rights of property owners.” Record, Pg. 1934. In other words, a key strategy of the NWSAP is to “[m]ake development approvals consistent with [the NWSAP]” and “[e]ncourage development to be consistent with design guidelines that reflect the area’s character.” Record, Pg. 1935. One of the tactics espoused by the NWSAP to effectuate its intent is through citizen-driven initiatives that incorporate community input and approval of minimal development. Record, Pg. 1956, Goal C-2 & C-2.1. And “as new development occurs, it should be of low intensity to be compatible with the diversity and semi- rural feel of the area.” Record, Pg. 1957. The NWSAP’s action plan to effectuate its intent states, in part, that “[t]he City … development regulations will need to be consistent with the goals, policies, and land use directions of [the NWSAP].” The plan is meant to “[e]ncourage development to comply with design guidelines that are consistent with the area’s character [and] the [NWSAP]” and “guide decisions occurring for the area.” Record, Pg. 1974. Significantly, Figure 19 of the NWSAP identifies roles and responsibilities for all parties associated with development in the area and expressly states that the City must “[r]eview development proposals … to make sure new development projects are consistent with [the NWSAP].” Record, Pg. 1975. 14 Pursuant to the LUC, any development proposal in an area subject to a sub-area plan must comply with the applicable sub-area plan. This is not a recommendation but rather a requirement of the LUC. The NWSAP has several expressly stated requirements for development in the subject area: (i) to maintain the character of the current neighborhood; (ii) to involve and respect the citizens of the area in development proposals; and (iii) to ensure that all development proposals comply with the NWSAP’s stated goals. So, the appropriate analysis for any development plan of the Subject Properties requires the City to construe the NWSAP in harmony with the LUC, meaning that any such plan for development must satisfy all requirements thereof, using the common meaning of the words therein, to act in harmony with one another with an intent to effectuate the legislative intent of both. The Amended Plan’s admitted lack of compliance with the NWSAP should not have been disregarded in any appropriate and lawful review of the application. d. Hearing Officer Abused His Discretion by Disregarding the NWSAP The Hearing Officer Decision expressly found that the “vast majority of the public comment received on [the Amended Plan], including written (email) comments …, is properly characterized as against the approval of the [Amended Plan], for various reasons including noncompliance with certain provisions of the [NWSAP].” Record, Pg. 1003. See also Record, Pg. 952 – 973, 1061 - 1062. This finding is dispositive of two things: (i) that the community is overwhelming against the Amended Plan based upon its noncompliance with the NWSAP; and (ii) that the vast majority of the community believes the Amended Plan is not compatible with the character of the neighborhood. Then, the Hearing Officer found that the Subject Properties should be “protected from ‘incompatible development,’” thereby agreeing with the community that the Amended Plan is out 15 of the neighborhood’s character and thus, noncompliant with the NWSAP. Record, Pg. 1004, ¶ C. The Hearing Officer, however, concluded that, despite the NWSAP being a duly adopted sub-area plan, the NWSAP’s goals, policies and guidelines are too vague to be enforceable, and that he “lack[ed] the authority to deny the [Amended Plan] given the evidence reviewed….” Id. at ¶ D. See also Record, Pg. 1008, ¶ E(2). This conclusion is a misinterpretation of applicable law and misapplication of applicable canons of statutory interpretation as it renders the NWSAP meaningless. See Nieto, supra. The Hearing Officer also concluded that the NWSAP insufficiently provides notice to “all users and potential users of land with notice of the particular standards and requirements imposed by the [City] for [development plan] approval.” Record, Pg. 1004, ¶ C. “The root of the vagueness doctrine is fairness and reasonable notice of prohibited conduct,” meaning that “the law fails reasonably to forewarn persons of ordinary intelligence of prohibited conduct and lends itself to arbitrary and discriminatory enforcement because it fails to provide explicit standards for those who apply it.” Stamm, at 56. (citing People v. Seven–Thirty Five East Colfax, Inc., 697 P.2d 348 (Colo.1985)). However, Colorado courts have also recognized that “[s]tatutes often contain broad terms to allow their applicability to varied circumstances” and that such “generality is not the equivalent of vagueness, and [that] statutory terms used need not be defined with mathematical precision.” Id. (citing Watso v. Colorado Department of Social Services, 841 P.2d 299 (Colo.1992)) (“Generality is not the equivalent of vagueness. Neither scientific nor mathematical certainty is required [as a] statute does not contravene due process standards and is not void for vagueness if it fairly describes proscribed conduct in terms that enable persons of common intelligence to readily understand its meaning and application.”). Here, the Hearing Officer had a 16 “duty to interpret [the] language [in the NWSAP] in a reasonable and practical manner so as to impart a rational and cogent meaning to it.” Id. See also People v. Rosburg, 805 P.2d 432, 439 (Colo. 1991). In the Hearing Officer Decision, the Hearing Officer failed to interpret the NWSAP so as to impart a rational and cogent meaning that is in harmony with the rest of the LUC. Rather, the Hearing Officer made the legal conclusion that the Applicant was not provided sufficient notice of the NWSAP’s goals and policies and thus, disregarded its legislative intent and effect. This conclusion appears, at least in part, to be based upon the City Staff’s comment that “[i]n order to comply with the [NWSAP], the development needs to meet the L-M-N zoning requirements and city standards” and that past appeals have resulted in Council concluding that the LUC takes precedence over the NWSAP, Record, Pg. 1019. But difficulty in synthesizing different statutory requirements or a history of incorrect statutory application are insufficient reasons to ignore the requirements of the law. Further, because the NWSAP was created specifically for the subject area, it is the more specific statutory provision and should control over the general L-M-N zoning district or other LUC provisions in case of conflict of laws. See § 2-4-205. The Hearing Officer’s disregard for the NWSAP and misinterpretation of the LUC constitutes an arbitrary and capricious decision because it is not based in any legal precedent or logic and thus, constitutes an abuse of the Hearing Officer’s discretion. Therefore, this Court should review the Hearing Officer Decision de novo and in accordance with Colorado’s standards of statutory interpretation. See Puckett, supra. As a result of the Hearing Officer’s abuse of discretion, this Court is not bound by the Hearing Officer Decision and the Plaintiffs request that 17 this Court remand the Amended Plan back to the City for a new administrative hearing and require the City to interpret the LUC and the NWSAP in harmony, as required under Colorado law. e. Council Abused Its Discretion by Misinterpreting the Law and Disregarding the NWSAP At the Appellate Hearing, the Council reviewed the record from the Hearing along with testimony from concerned citizens and the Applicant regarding the Amended Plan’s compliance with the NWSAP. During the Appellate Hearing, counsel for the Applicant argued, among other things, that: (i) the Hearing Officer found that the Amended Plan comported with the NWSAP, Record, Pg. 2051, Ln. 20; and (ii) because the Amended Plan comports with the LUC’s L-M-N requirement, it necessarily complies with the NWSAP. Record, Pg. 2051, Ln. 25 – 32. Plaintiff will take each of these arguments in turn. First, the record is clear that the Hearing Officer did not find that the Amended Plan complied with the NWSAP. As noted above, the Hearing Officer Decision found that the NWSAP is in conflict with the Amended Plan. See Record, Pg. 1004, ¶¶ C & D. Thus, the Council’s reliance on the Hearing Officer’s finding of compliance between the Amended Plan and the NWSAP was entirely erroneous. Therefore, Council’s decision was not based on any competent evidence in the record and is subject to being overturned by this Court. Second, the Applicant’s argument that the NWSAP only requires compliance with the LUC’s L-M-N standards was also entirely erroneous. This argument, which appears to be based upon the City Staff’s baseless comment that the Hearing Officer and Council may disregard the NWSAP so long as the Amended Plan complies with the L-M-N requirements, Record, Pg. 1019, is contrary to the well-established canons of statutory interpretation. Moreover, it controverts the actual language of the LUC (LUC § 1.2.2, requiring “all growth and development” to be consistent 18 with applicable sub-area plans) and, as applied by the Council, effectively neutering a duly adopted statutory scheme that expressly states its intent and requirements that property development be in character with the neighborhood. See §§ 2-4-101 & 2-4-201(1)(b). See also Nieto, supra. City Staff and the Applicant’s erroneous advice to Council was successful in convincing the Council to mis-analyze the relevant statutory scheme, despite multiple members of Council voicing their misgivings related to such advice. This is demonstrated in the following comments where Council members question the propriety of disregarding the NWSAP. Record, Pg. 2069, Ln. 19 – 20 (Council member Ohlson stating that the City does not respect subarea plans.); Pg. 2070, Ln. 13 – 14 (Mayor Arndt’s comment that the Hearing Officer properly “interpreted the Land Use Code, which takes Precedence … [and] the Land Use Code takes precedent over {the NWSAP]”); Id., at Ln 17 – 21 (Mayor Pro Tem Francis stating that Council has “historically, [not] … done a great job of marrying’ sub-area plans and the LUC and that the LUC “is the regulatory arm of that, and …. Tonight, the… it is about the [LUC].”) Pg. 2068, Ln. 28 – 29 (Council member Peel stating that the Amended Plan does not follow the “spirit” of the NWSAP”), 38 – 39 (Council member Peel stating that the Hearing Officer did not follow the intent of the NWSAP.). Because Council was given incompetent advice regarding the appropriate statutory interpretation of the LUC, Council’s decision was not based on any competent evidence in the record and is subject to being overturned by this Court. Therefore, the Plaintiffs request that this Court find that the Council’s denial of the Appeal is an abuse of their discretion, as it is based upon incompetent evidence in the record, and that this Court overturn the Council’s denial of the appeal. V. CONCLUSION 19 The Hearing Officer Decision approving the incomplete Amended Plan and the Council’s denial of the Appeal violated the due process rights of the Plaintiffs and the public at large and are based upon a misapplication of the LUC, the NWSAP, and Colorado law. For the foregoing reasons, the Plaintiffs request that this Court find and declare that the Hearing Officer and Council abused their discretion and exceeded their jurisdiction by approving the Amended Plan and denying the Appeal, respectively, by acting inconsistently with the LUC and misapplying Colorado law, depriving the Plaintiffs and the public their due process rights. In addition, the Plaintiffs request that this Court exercise its injunctive and declaratory authority under C.R.C.P. 57 (b) to vacate the approval of the Amended Plan and order that the City enforce its requirements in the LUC. Dated: January 30, 2023. 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 20 CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 30, 2023, a true and correct copy of the foregoing Opening Brief was served via Colorado Courts E-Filing on the parties as listed below: Attorneys for Defendant Corey Y. Hoffmann, No. 24920 Katharine J. Vera, No. 53995 Firm: Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, CO 80202 Phone: (303) 825-6444 E-mail: cyh@hpwclaw.com kjv@hpwclaw.com Attorneys for Proposed Intervenors, Solitaire Homes East, LLC and Solitaire Homes, LLC Ballard Spahr LLP Andrew J. Petrie Andrew Valencia 1225 17th St., Ste. 2300 Denver, CO 80202 (303) 292-2400 petriea@ballardspahr.com valenciaa@ballardspahr.com /s/ Scarlet Ramirez___________ Scarlet Ramirez, Paralegal DEVELOPMENT REVIEW: APPLICATION FORM Community Development & Neighborhood Services – 281 N College Ave – Fort Collins, CO 80522-0580 Project Information Project Name:_____________________________________________ Project Description (Choose type of request from the list on the back): Location Description/Project Address:_________________________ Major Cross Streets: _______________________________________ Zone District:______________________________________________ Parcel Number: ____________________________________________ Building/Unit Information Residential:_________ ___________________________Square Feet Commercial:____________________________________Square Feet Industrial:______________________________________Square Feet Building Floor Area Ratio:___________________________________ Platted Area:______________________________________________ Number of Units: Single Family Attached:______Single Family Detached: __________ Two Family:________________Multi-Family:____________________ Total Number of Bedrooms Rented Separately:_________________ Dates: Conceptual Review Meeting Date_____________________________ Neighborhood Meeting Date_________________________________ Hearing Type______________________________________________ Site/Area Information Residential Area:_____________ _____Sq. Ft. ____________Acres Commercial Area:____________ _____ Sq. Ft. ____________Acres Industrial Area:_____________ ______ Sq. Ft. ____________Acres Mixed Use Area:_____________ ______Sq. Ft. ___________Acres Right of Way Area: _________________ Sq. Ft. ___________Acres Parking and Drive Area: _____________ Sq. Ft. ___________Acres Stormwater Detention Area:__________Sq. Ft. ___________Acres Landscape Area: ___________________Sq. Ft. ___________Acres Open/Other Areas: __________________Sq. Ft. __________Acres Gross Area:________________________Sq. Ft. ___________Acres Floor Area Ratio:_________________________________________ Gross Density:________________Net Density ________________ Owner Information Name:__________________________________________________ Address:________________________________________________ City:__________________State:________________Zip:__________ Phone:_________________Email:___________________________ Applicant Information Name:__________________________________________________ Organization Name: ______________________________________ Contact:_________________________________________________ Address:________________________________________________ City___________________State:________________Zip:_________ Phone:_________________Email:___________________________ Preferred Method of Contact: ______________________________ For Office Use Only Date Submitted ________________ Current Planning File #_________________ Planner______________________ ð CERTIFICATIONMUST BESIGNED.ï CERTIFICATION I certify the information and exhibits submitted are true and correct to the best of my knowledge and that in filing this application, I am acting with the knowledge, consent, and authority of the owners of the real property, as those terms are defined in Section 1-2 of the City Code (including common areas legally connected to or associated with the property which is the subject of this application) without whose consent and authority the requested action could not lawfully be accomplished. Pursuant to said authority, I hereby permit City officials to enter upon the property for the purpose of inspection, and if necessary, for posting of public notice on the property. Name (Please PRINT): _______________________________________________________________________ Address:___________________________________________________________________________________ Telephone:___________________________________________________________________________ Signature: (and title showing authority to sign, if applicable) EXHIBIT A DATE FILED: November 17, 2022 8:37 AM FILING ID: 60F355F211C94 CASE NUMBER: 2022CV30661 DATE FILED: January 30, 2023 10:18 AM FILING ID: 7A054A67EBEFC CASE NUMBER: 2022CV30661 Revised November 18, 2014 2 PDP Submittal Requirements Type of Request Please indicate the type of application submitted by checking the box preceding the appropriate request(s). Additional handouts are available explaining the submittal requirements for each of the following review processes. Annexation Petition with Initial Zoning REQUESTED ZONE: _______________________________ Fee $1,188.00 + $50.00 sign posting fee + $.75 for each APO label Rezoning Petition REQUESTED ZONE: _____________________________ Fee $977.00 + $50.00 sign posting fee Overall Development Plan (ODP) Fee: $1,599.00 + $50.00 sign posting fee + $.75 for each APO label + Poudre Fire Authority Review Fee Project Development Plan (PDP) without Subdivision Plat (also Wireless Tele-communication Facilities) Fee: $3,887.00 + $50.00 sign posting fee + $.75 for each APO label + Poudre Fire Authority Review Fee Project Development Plan (PDP) with Subdivision Plat Fee: $5,879.00 + $50.00 sign posting fee + $.75 for each APO label + Poudre Fire Authority Review Fee Final Plan without Subdivision Plat Fee: $1,000.00 Final Plan with Subdivision Plat Fee: $1,000.00 Modification of Standards/Text and Map Amendment Fee: $200.00+ ($50.00 sign posting fee + $.75 for each APO label for Modification of Standards only) Basic Development Review Fee: $200.00 + Poudre Fire Authority Review Fee Major Amendment Fee: $3,206.00 + $50.00 sign posting fee + $.75 for each APO label + Poudre Fire Authority Review Fee Non-Conforming Use Review Fee: $1,389.00 + Poudre Fire Authority Review Fee Vacation of ROW or Easement Fee: $5.00 per sheet of filing document Small Project Fees Fee: Varies-Check with the Current Planning Department + Poudre Fire Authority Review Fee Street Name Change Fee: $5.00 Extension of Final Approval Fee: $566.00 Site Plan Advisory Review NO FEE Addition of Permitted Use Fee: $500.00 + $50.00 sign posting fee + $.75 for each APO label + Poudre Fire Authority Review Fee