HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 018 - Plaintiffs' Reply BriefDISTRICT 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’ REPLY 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 Reply
Brief (this “Reply”):
I. INTRODUCTION
The Plaintiffs undertook this action based upon two central arguments: (i) that the
application submitted by Solitaire Fort Collins, LLC (“Solitaire Fort Collins”), which listed itself
as the “owner” of the Subject Properties 1 is insufficient due to the indisputable fact that it is not
the owner of the Subject Properties; and (ii) the discretion afforded to the City of Fort Collins (the
1 The “Subject Properties” consist of several parcels of vacant land in Fort Collins, Colorado, identified as Parcel
Nos. 9709104001, 9709104002 and 9709103020, as recorded with the Larimer County Clerk and Recorder’s Office.
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“City”) is guided by the City’s stated purpose to “ensur[e] that all growth and development which
occurs is consistent with … associated sub-area plans,” which includes to the Northwest Subarea
Plan (the “NWSAP”). City of Fort Collins Land Use Code (“LUC”) § 1.2.2. The City’s appointed
hearing officer, Marcus McAskin (the “Hearing Officer”), and subsequently the City Council of
the City of Fort Collins (the “Council”), failed to properly consider the NWSAP when using such
discretion in reviewing and approving PDP 210018 (the “Amended Plan”) submitted by Solitaire
Fort Collins.
Solitaire Fort Collins and the Council (collectively, the “Defendants”), presumably in
coordination with one another, assert similar arguments using different presentation styles. First,
the Defendants argue that because City approved the Amended Plan, the City’s Director of
Community Development and Neighborhood Services Department (the “Director”) necessarily
determined that Solitaire Fort Collins had the “requisite power, authority, clear title, good standing,
qualifications and ability to submit and carry out the development and/or activities requested in
the [Amended Plan].” LUC § 2.2.3(C)(1). However, because this conclusion is completely devoid
of any evidence, the Defendants argument is simply boiled down to the idea that any failure by the
City to follow its own processes and/or any deficiencies in an application for development is
necessarily waived by the Director simply by virtue of the process commencing. This attempt to
interpret a statutory backstop into the LUC in order to cover up and cure the City’s failure to follow
its own processes must fail as a matter of law. Further, the evidence cited in the Record in the
Defendants’ briefs purporting to evidence the City’s determination that Solitaire Fort Collins has
the requisite power, authority and clear title carry out the development in the Amended Plan
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consists of a refence to a document not found in the Record 2 and an unsigned and partially dated
letter from attorney Carolynne White, addressed to the Hearing Officer (the “Letter”), that
incorrectly identifies the Solitaire Homes East, LLC and Solitaire Homes, LLC (together, the
“Property Owners”) as the “applicant.”3
Then, to counter the Plaintiffs’ argument regarding the Hearing Officer’s and Council’s
misinterpretation and abuse of discretion based upon their failure to properly consider the
NWSAP, the Defendants agree with the Plaintiffs that the Hearing Officer determined the NWSAP
to be too vague to enforce and therefore, was not required to be considered in a review of the
Amended Plan. The Defendants then move to a semantical argument regarding the difference
between the terms “consistency” and “compliance,” which indisputably mean the same thing when
interpreting their obligatory adherence to the NWSAP.
Finally, Solitaire Fort Collins concludes with a half-hearted accusation that the Plaintiffs’
argument is frivolous and, without any legal or factual support, ask for this Court to determine the
same and award attorney fees under Colorado Appellate Rule 38(d). All while citing to a page in
the Record that was not disclosed to the Plaintiffs. But ad hominem arguments and bare assertions
that the Plaintiffs’ have no legal basis for their positions is inappropriate and simply false,
respectively. Therefore, in an effort to minimize Plaintiffs’ resources and this Court’s time,
Plaintiffs simply state that Solitaire Fort Collins’ request should be denied based upon a their
failure to provide any factual and legal support or argument as to how the Plaintiffs’ arguments
are frivolous.
2 Record, Pg. 379.
3 Record, Pg. 505.
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II. 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). Rule
106(a)(4) limits the scope of review to the evidence presented to it 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). 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). A city council, therefore, does not have the authority, short of legislative action
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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).
Finally, 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).
III. ARGUMENT
1. City’s Approval of Solitaire Fort Collins’ Deficient Application is Ripe for Review.
The first rebuttal to the Plaintiffs’ challenge regarding the sufficiently of Solitaire Fort
Collins’ application for the Amended Plan (the “Application”) was only put forth by the Council,
challenging this Court’s jurisdiction to review the Plaintiffs’ procedural due process rights. More
specifically, the Council asserts that because the Application’s cover page is not in the Record4 it
cannot be reviewed by this Court.
However, the Council’s argument is futile because both the Hearing Officer Decision and
the Staff Report list Solitaire Fort Collins as the “owner” and “property owner,” respectively.
Record, Pg. 62, 997 & 1010. Thus, any confusion as to the City’s position and the Hearing
Officer’s and Council’s understanding of the party having clear title to the Subject Properties,
along with the genesis of such confusion, is squarely in the purview for review by this Court under
C.R.C.P. 106(a)(4). See Kruse v. Town of Castle Rock, 192 P.3d 591 (Colo. App. 2008) (the scope
4 Plaintiffs assert that the Application should be in the Record.
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of a C.R.C.P. 106(a)(4) action is limited to a review of the record). See also Van Sickle & Nichols,
supra. Thus, the Court’s review in this action is of the entire approval process for the Application
and is limited to the evidence in the Record, which includes the applicant’s representations of
ownership and the City’s subsequent understanding, along with the Hearing Officer’s finding, that
Solitaire Fort Collins was the “property owner” and “owner” of the Subject Properties.
2. The Defendants’ Citations to the Record are Insufficient to Demonstrate that the City
Properly Approved an Otherwise Deficient Application.
It is important to keep in mind that the Plaintiffs are not challenging the weight of any
evidence in this action, but whether the Director affirmatively determined that Solitaire Fort
Collins met the criteria set forth in LUC § 2.2.3(C)(1) and the Application was procedurally
qualified to move to an administrative hearing. Because the Staff Report and the Record is
completely devoid of any such determination or evidence thereof, Plaintiffs assert that the
Application was procedurally deficient to proceed, and the Hearing Officer and Council were
unaware of such deficiency. While it is the City’s “job to evaluate the probative value and weight
of all of the evidence” and is “not required to make explicit findings” regarding the same, Stor-N-
Lock Partners #15, LLC v. City of Thornton, 2018 COA 65, ¶ 32, “some evidence [must] exist[]
to support the City[‘s] ultimate decision. Id., at ¶ 27. See also No Laporte Gravel Corp. v. Board
of County Commissioners of Larimer County, 2022 COA 6M, ¶¶ 91 – 95 (court found competent
evidence in the record only through discussion of criteria and topic at the county’s hearing); T-
Mobile South, LLC v. City of Roswell, Ga., 574 U.S. 293, 302 – 303 (2015) (concluding that local
governments must provide or make available reasons for zoning application decisions).
The Defendants rebut the Plaintiffs’ showing that the Application is deficient by arguing
that the City impliedly determined that the Application’s listed applicant Ripley Design Inc.
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(“Ripley”) and listed owner Solitaire Fort Collins meet the criteria set forth in LUC § 2.2.3(C)(1).
As evidence of this implicit determination, which was required for the Application to move to the
Hearing, the Defendants cite to two pages in the Record.
First, the Defendants cite to page 379, which they purport to be a plat of the Subject
Properties. However, Plaintiffs affirmatively state that the Record is devoid of a page 379 and
therefore, cannot respond to this argument. Plaintiffs ask that this Court disregard this citation.
Second, the Defendants cite to the Letter, unsigned and partially dated, which designates
the Property Owners as the “owner of the … Property, with respect to the [Amended Plan]” before
referring to the same as the applicant.5 Record, Pg. 505.
Finally, the Defendants make a passing argument that the Hearing Officer’s and Council’s
reference to the parcel numbers issued by Larimer County are evidence that the City was aware of
title not being vested in the Application’s listed owner and therefore, the City determined that
Solitaire Fort Collins met the LUC § 2.2.3(C)(1) criteria.
Plaintiffs feel compelled to quickly review the commonly understood meaning of the word
“owner.” “Owner,” as presumably intended by the City in its form application, is defined as
“[s]omeone who has the right to possess, use, and convey something; a person in whom one or
more interests are vested.” OWNER, Black’s Law Dictionary (11th ed. 2019). More obviously and
to the point here, an owner is a person or entity that holds at least some legal right, in title or in
contract, to develop the Subject Properties in accordance with the Amended Plan. Here, the
Defendants cannot point to any evidence in the Record demonstrating that Solitaire Fort Collins
meets the aforementioned criteria or definition, or was appointed by the Property Owners to act on
5 Notably, the Property Owners are not the applicant.
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their behalf. See C.R.S. § 2-4-101 (“Words and phrases shall be read in context and construed
according to the rules of grammar and common usage.”).
More substantively, Plaintiffs simply state that the above-mentioned evidence in the record
is incompetent to demonstrate a finding that the City affirmatively determined that Solitaire Fort
Collins had the requisite authority and clear title to develop the Subject Properties pursuant to the
Amended Plan. As evidence of the Plaintiffs’ position that the Letter and the City’s reference to
county parcel numbers are incompetent to support an implied finding of authority and title,
Plaintiffs cite to the Hearing Officer Decision and the City’s own Staff Report, both of which list
Solitaire Fort Collins as the “owner” and “property owner,” respectively. Record, Pg. 62, 997 &
1010. This argument is further cemented by the fact that Ripley was the applicant on the
Application, leaving Solitaire Fort Collins as having absolutely no role in the Application other
than that of owner. Importantly, the administrative hearing for the Amended Plan (the “Hearing”),
subsequent Hearing Officer Decision, and the hearing on Plaintiffs’ Appeal (the “Appellate
Hearing”) occurred after submission of the Letter to the City and both the Hearing Officer and
Council reviewed the Staff Report and incorporated it into their decision-making process. Record,
Pg. 999, 1010 - 1062, 2047, 2052, 2054, 2062, 2063 & 2065. After review of the Staff Report, the
Hearing Officer explicitly named Solitaire Fort Collins as the “owner” and the Council was silent
on the matter, clearly demonstrating a failure to make any determination as to the authority or title
of Solitaire Fort Collins.
Thus, it stands to reason that the scant references to the Property Owners cited by the
Defendants were not considered in the Hearing Officer Decision or the Council’s denial of the
Appeal. Further, the City failed to amend the Staff Report or otherwise nominate Solitaire Fort
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Collins as having any role other than that of property owner throughout the entirety of the
Application process. Neither the Hearing Officer, the City Staff, nor the Council discussed,
mentioned or even referenced the actual Property Owners, and it is entirely unclear whether the
City was even aware of who actually held title to the Subject Properties. So, any notion that the
City impliedly determined that Solitaire Fort Collins had the requisite authority and clear title to
develop the Subject Properties is fabricated for the purposes of this action.
Tellingly, the Defendants failed to identify any caselaw or statutory text authorizing a
governmental agency or quasi-judicial body to impliedly make determinations that are statutorily
required. Thus, the proposition put forth by the Defendants that the City has an implied backstop
that cures all of its procedural defects is not supported by any authority or precedent and should
not be granted here.
Therefore, because there was never a discussion by City Staff, the Hearing Officer, or the
Council regarding the status of the Subject Properties’ ownership or the Application’s listed owner
being completely separate entities, there is no competent evidence in the record to support the
Defendants’ assertion that the Director determined that Solitaire Fort Collins had the requisite
power, authority and clear title to effectuate the Amended Plan, per LUC § 2.2.3(C)(1). Rather,
the overwhelming amount of evidence in the Record suggests that the City, including the Hearing
Officer and Council, was completely unaware that the listed “owner” in the Application did not
have title to the Subject Properties and therefore, lacked the requisite authority and clear title to
effectuate the Amended Plan, pursuant to LUC § 2.2.3(C)(1). Thus, the Hearing Officer and
Council acted outside the scope of their authority, rendering the approval of the Application and
denial of the Plaintiffs’ Appeal void. See Kruse, at 596.
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3. The Hearing Officer and Council Abused Their Discretion by Failing to Interpret the
NWSAP and LUC in Harmony.
To rebut the Plaintiffs’ argument that the Hearing Officer and the Council abused their
discretion by misinterpreting the law through a failure to adhere to recognized canons of statutory
construction, the Defendants separately put forth the exact same argument that: (i) the LUC does
not require the Amended Plan to “comply” with the NWSAP, but rather only requires
“consistency” therewith; and (ii) that the NWSAP is too vague to be applicable and is aspirational
rather than informative when using its discretion to interpret the LUC.
The premise of the Defendants’ argument is based upon a misinterpretation of the
Plaintiffs’ overall challenge. First, the Plaintiffs do not contest that the Subject Properties are not,
and that the NWSAP does not contemplate, an L-M-N zoning standard. Second, the Plaintiffs do
not challenge that, absent more, comprehensive master plans are generally advisory in nature. On
the other hand, Plaintiffs assert that the NWSAP is intended to inform the discretion used by the
City and its appointed decision-makers when interpreting the LUC.6 It is with this background that
the Plaintiffs offer the following reply to the Defendants’ arguments.
a. Defendants’ First Argument is Semantical and Unsupported by Law or Fact
The Defendants’ first argument is that the LUC’s requirement that “all growth and
development which occurs is consistent with the [LUC], … and its adopted components, including
… associated sub-area plans” does not require “compliance” with such sub-area plans. LUC
§ 1.2.2. Thus, the Defendants assert a semantical argument that being consistent with a scheme
does not require compliance with such scheme.
6 The Hearing Officer Decision approved the Amended Plan with three modifications to the standards required by
the LUC and subject to two conditions. Record, Pg. 1007.
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First, neither the Hearing Officer nor the Council cited to this concept, rendering it
somewhat outside the scope of the review here. But the Defendants bring up a good point, does
the LUC require compliance with the NWSAP. Plaintiffs affirmatively state that it does.
Neither “compliance” nor “consistent” is defined in the LUC. So, when properly observing
Colorado’s recognized scheme for interpreting statutory provisions, we must interpret the terms
“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.”).
The term “consistent,” when used as an adjective, means “marked by harmony, regularity,
or steady continuity: free from variation or contradiction” or “compatible.” CONSISTENT,
Meriam-Webster (Oct. 2022). The term “compliance” means “the state of being in conformity with
some command, demand, requirement, etc.; harmony, agreement, or accordance.”
COMPLIANCE, Black’s Law Dictionary (11th ed. 2019). Thus, when construed in accordance
with the terms’ plain and ordinary meanings, to be consistent or in compliance with something
means to be in harmony or agreement, free from variation or otherwise in conformance with that
something.
So, the Defendants’ argument that the language in the LUC requiring development to be
consistent, but not in compliance, with the LUC is not supported by law or the dictionary. Rather,
it appears that the LUC’s requirement that development be consistent with associated sub-area
plans requires the Amended Plan to be in harmony or conformance with, and free from variation
12
from, the NWSAP. Any other reading or interpretation of LUC § 1.2.2 simply does not comport
with standard statutory interpretation.
b. Defendants’ Second Argument Mischaracterizes the Law, the Facts, and the
Plaintiffs’ Argument
The Defendants second argument that the NWSAP is purely advisory misunderstands both
the law and the facts. First, in Theobald v. Bd. Of Cty. Comm’rs, 644 P.2d 942 (Colo. 1982), cited
by the Defendants for the proposition that a master plan is advisory is distinguishable on the facts
alone. In Theobald, the comprehensive master plan was only adopted by the planning commission
and had not been adopted and implemented by a legislative body in a resolution. Here, the NWSAP
was adopted by the Council under Resolution 2006-120. Record, Pg. 2030, rendering the logic and
ultimate holding in Theobald inapplicable.
In Bd. Of Cty Comm’rs v. Conder, 927 P.2d 1339 (Colo. 1996), the Colorado Supreme
Court held that a master plan must be “drafted with sufficient exactitude so that proponents of new
development are afforded due process [so that governmental bodies do] not retain unfettered
discretion, and the basis for [any] decision is clear for purposes of reasoned judicial review.” Id.
at 1351. However, the Conder Court softened its application by maintaining that “the specificity
requirement, properly applied, does not undercut a desirable degree of flexibility” and that
“[c]ompatability with the surrounding area and [h]armony with the character of the neighborhood”
is applicable “when applied in conjunction with more specific criteria.” Id. at 1348. (internal
citation omitted). Therefore, because Conder’s specificity requirement does not undercut the
City’s ability to impose general compatibility and neighborhood character requirements
contemplated by legislatively adopted plans, the NWSAP is appropriately considered and should
have informed the Hearing Officer’s analysis of whether the Amended Plan met all the criteria set
13
forth in the LUC, as required in LUC § 2.2.3(C)(2).7 At the very least, Conder stands for the
proposition that duly adopted legislative plans should be considered rather than discarded because
the decision-maker was unable to find sufficient guidance to reconcile the competing provisions
of the NWSAP with the Amended Plan.
i. Hearing Officer’s Abuse of Discretion
Despite the Defendants’ assertions that the Hearing Officer determined the Amended Plan
to be in harmony with the NWSAP, Solitaire Fort Collins Answer Brief, Pg. 6 – 9, the clear
statements in the Hearing Officer Decision state otherwise. Record, Pg. 1004, ¶¶ C & D (Wherein
the Hearing Officer urged the owners to reduce the overall residential density and building heights
to increase the compatibility with the surrounding area and ensure that goals and policies
articulated in the NWSAP are implemented.). No reasonable reading of either of the
aforementioned findings can be construed to be interpreted as the Hearing Officer finding that the
Amended Plan complies with the provisions or intent of the NWSAP. In fact, the plain language
clearly states that the Hearing Officer lacked the authority to deny the Amended Plan because it
“otherwise complie[d] with City zoning regulations,” meaning the L-M-N zoning standards and
not the NWSAP. Id.
So, when confronted with the facts that the Amended Plan met the criterion set forth in the
LUC for L-M-N zoning standards but failed to meet the criterion set forth in the NWSAP, the
Hearing Officer was required, under Conder, to give appropriate consideration to the NWSAP,
pursuant to LUC § 1.2.2. See argument above for discussion on requirement for consideration
7 LUC § 2.2.3(C)(2) requires the Director to “determine whether or not the development activities and development
application address and satisfy each and every applicable general development standard, district standard or other
requirement or provisions of th[e LUC].”
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thereof. However, the Hearing Officer Decision is devoid of any such consideration and, instead,
merely states that the NWSAP is too vague for reconciliation and therefore, cannot warrant
consideration. As noted above, this is not the holding in Conder and is very clearly not the intended
purpose of the LUC. See LUC § 1.2.2. Had the Hearing Officer properly considered the NWSAP
in accordance with Colorado’s recognized canon of statutory interpretation, he would have
afforded the NWSAP some, or any, deference by which to judge the Amended Plan and required
strict compliance therewith.
Finally, Plaintiffs stand for the proposition that development within the NWSAP’s
geographical area is not impossible as the area has been developed for years since the adoption of
the NWSAP by the Council. Thus, reconciliation between the LUC and the NWSAP is not only
possible but provides the guidance for both the general and specific types of development the City
specifically contemplated as being appropriate and in harmony with the area. Simply stating that
compliance with both schemes is too difficult and therefore, the NWSAP does not apply, to ensure
approval of the Amended Plan flies in the face of the legislative intent of the NWSAP and the
stated purpose of the LUC, constituting a clear abuse of discretion. See Whatley & Anderson, supra.
ii. Council’s Abuse of Discretion
Then, on appeal, the Council simultaneously voiced their disapproval with both the process
and the outcome of the Hearing and Hearing Officer Decision, including the deliberate disregard
for the NWSAP, only to regurgitate the same false logic put forth by the Hearing Officer and City
Staff. Record, Pg. 2069, Ln. 19 – 20 (Council member Ohlson stating that the City does not respect
subarea plans.); Pg. 2070, 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.”) Pg. 2068, Ln.
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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.). However, acting on poor advice from City Staff and in keeping with the Hearing
Officer’s misinterpretation of the requirement of Colorado law, the Council denied the Appeal
while clearly disagreeing with it.
Had the Council been provided accurate legal advice regarding the harmony and discretion
with which it possesses, it would have undoubtedly remanded the Application to “ensur[e] that [it]
is consistent with [the LUC], … and … associated sub-area plans,” which includes the NWSAP,
as required by the City’s own statutory scheme. Thus, because the Council denied the Appeal
based upon an incorrect application of its own laws, the Council abused its discretion.
V. CONCLUSION
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: March 20, 2023.
Respectfully submitted,
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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
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 20, 2023, a true and correct copy of the
foregoing PLAINITFFS’ REPLY 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
(303) 825-6444
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