HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 016 - City's Answer Brief
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DISTRICT COURT, LARIMER COUNTY, COLORADO
201 La Porte Ave., Suite 100
Fort Collins, CO 80521
▲ COURT USE ONLY ▲
Plaintiffs: SANCTUARY FIELD NEIGHBORHOOD
NETWORK, a Colorado nonprofit corporation; and
MIRANDA SPINDEL,
v.
Defendants: CITY COUNCIL OF THE CITY OF FORT
COLLINS, COLORADO, a municipal corporation of the
State of Colorado; SOLITAIRE HOMES EAST, LLC and
SOLITAIRE HOMES, LLC
Attorneys for Defendant:
Attorney: 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
Case No.: 2022CV30661
Division: 5A
ANSWER BRIEF OF DEFENDANT CITY COUNCIL OF THE CITY OF FORT
COLLINS, COLORADO
Defendant, City Council of the City of Fort Collins, Colorado ("City Council" or
"Defendant") by and through its undersigned counsel, Hoffmann, Parker, Wilson & Carberry,
P.C., hereby submits this Answer Brief.
I. INTRODUCTION AND FACTUAL BACKGROUND
This is a matter brought pursuant to C.R.C.P. 106(a)(4) in which Plaintiffs are seeking
judicial review of the decision of City Council affirming a Hearing Officer's decision dated May
16, 2022, approving the Sanctuary on the Green Project Development Plan (the "PDP").
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Factually, on February 15, 2019, Solitaire Homes East, LLC and Solitaire Homes, LLC (jointly,
"Solitaire" or the "Applicant") submitted its first PDP application for the subject site. At that
time, the application proposed a different mix of residential development than the PDP that is the
subject of this appeal. Solitaire withdrew its initial application and submitted a new application
on November 5, 2021, which is the subject of this case.
The revised PDP at issue here proposed the development of 212 residential dwelling
units, a one-acre park, and about 14 acres of open space on a 41 -acre parcel of vacant land
located northwest of the North Taft Hill Road and Laporte Avenue intersection (the "Property").
This PDP proposed a mix of two-family dwellings, single -family attached dwellings, and single-
family detached dwellings with a density of approximately 5.13 dwelling units per gross acre.
The Property is located in the City's Low Density Mixed-Use Neighborhood District (the "L-M-
N District").
On May 2, 2022, an Administrative Hearing was held to consider the application for the
PDP. The PDP was reviewed for compliance with the City's Land Use Code (the "LUC") and
also for overall conformity with the City's Northwest Subarea Plan (the "NSP"). The NSP is a
planning document that acts as a guide for future land use and identifies goals and policies for
development in the defined area of the NSP, which includes the Property. The City-appointed
Hearing Officer issued a Decision on May 16, 2022, finding that the PDP satisfied all applicable
requirements of the LUC, subject to two modifications. In approving the PDP, the Hearing
Officer found that although the NSP evidences an intent to remain a "low density residential
area," the PDP complied with the LUC and the NSP does not provide specific guidelines or
standards against which the PDP may be judged. Record, 1004.
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A Notice of Appeal (the "Notice") of the Hearing Officer's decision was filed on May 31,
2022, by the Plaintiff Sanctuary Field Neighborhood Network, alleging that the Hearing Officer
failed to conduct a fair hearing because he failed to properly interpret and apply sections of the
LUC. City Council heard the appeal on August 16, 2022, and affirmed the Hearing Officer's
Decision to approve the PDP. City Council issued thorough written findings of fact affirming
the decision to approve the PDP in Resolution 2022-095. Record, 1450-53. As it relates to this
case, City Council found that the Hearing Officer properly interpreted and applied LUC Sections
1.2.2 and 4.5(D)(1). Record, 1451. Plaintiffs seek review of the City Council's decision.
II. STANDARD OF REVIEW
Review under C.R.C.P. 106(a)(4) is the method to challenge a governmental body's
exercise of a quasi-judicial function. C.R.C.P. 106(a)(4); Condiotti v. Board of County Comm'rs
of the County of LaPlata, 983 P.2d 184, 186 (Colo. App. 1999). An action is quasi-judicial when
it "involves the determination of rights, duties, or obligations of specific parties by applying
existing legal standards to past or present facts to resolve the particular interest in question."
Native American Rights Fund, Inc v. City of Boulder, 97 P.3d 283, 287 (Colo. App. 2004);
Condiotti v. Board of County Comm’rs of the County of LaPlata, 983 P.2d at 186. The scope of
a C.R.C.P. 106(a)(4) judicial review proceeding is limited to a review of the record; a court is not
the fact finder and cannot weigh the evidence or substitute its own judgment for that of the
government body. Kruse v. Town of Castle Rock, 192 P.3d 591 (Colo. App. 2008); Bd. Of
County Comm’rs v. O'Dell, 920 P.2d 48, 50 (Colo. 1996).
In this regard, governmental proceedings are accorded a presumption of validity and
regularity, and all reasonable doubts as to the correctness of the governmental body's rulings
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must be resolved in its favor. City & County of Denver v. Bd. of Adjustment, 55 P.3d 252, 254
(Colo. App. 2002). The burden is on the party challenging a governmental body's action to
overcome the presumption that the government's acts were proper . Id.
Colorado case law is clear that review under Rule 106(a)(4) is sharply limited to the
following standard:
C.R.C.P. 106(a)(4) provides for judicial review of a decision of any governmental
body or officer exercising judicial or quasi -judicial functions for the limited
purpose of determining whether the body or officer exceeded its jurisdiction or
abused its discretion. Widder v. Durango Sch. Dist. No. 9–R, 85 P.3d 518, 526
(Colo. 2004). "Abuse of discretion means that the decision under review is not
reasonably supported by any competent evidence in the record."
Kruse, supra at 601.
Colorado case law is also clear that, if supported by "some competent evidence in the
record," the lower tribunal's findings of fact are binding on appeal, and the reviewing court "may
not substitute its judgment for that of the fact finder"—even "if evidence is conflicting." Stamm
v. City and County of Denver, 856 P.2d 54, 57 (Colo. App. 1993). Colorado courts have
interpreted the "no competent evidence" standard to refer to a decision by a lower tribunal that is
"so devoid of evidentiary support that it can only be explained as an arbitrary and capricious
exercise of authority." Ross v. Fire and Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo. 1986)
(see also City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995); Morris-Schindler,
LLC v. City and County of Denver, 251 P.3d 1076, 1081-82 (Colo. App. 2010). However, an
action by an administrative [body] is not arbitrary or an abuse of discretion when the
reasonableness of the [body's] action is open to a fair difference of opinion, or when there is
room for more than one opinion. Khelik v. City & Cnty. of Denver, 411 P.3d 1020, 1023 (Colo.
App. 2016).
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Plaintiffs contend that the City Council's approval of the PDP is suspect because it failed
to correctly interpret and apply the City's LUC and the NSP. While interpretation of a city code
is reviewed de novo, interpretations of the code by the governmental entity charged with
administering it are afforded deference if they are consistent with the drafters' overall
intent. Whitelaw v. Denver City Council, 405 P.3d 433, 438 (Colo. App. 2017). "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 v. Board of Adjustment for City and County of Denver, 55 P.3d 252, 254 (Colo. App.
2002).
III. ARGUMENT
A. Plaintiffs' claim that the Property is not owned by the Applicant cannot be
considered because it is being raised for the first time and was not made a
part of the record.
Colorado case precedent is clear that review under C.R.C.P. 106(a)(4) is strictly limited
to a review of the record before the court. Kruse, 192 P.3d at 591. Plaintiffs did not argue that
the Applicant is not the property owner of the Property at the hearing before the Hearing Officer
on May 2, 2022, at the City Council hearing on August 16, 2022, or in their Complaint.
Nonetheless, the record specifically includes (1) the subdivision plat, which lists a Solitaire
entity as the owner of the Property, and (2) an April 2022 letter from C. White, counsel for
Solitaire, listing Solitaire as the owner of the Property. R ecord, 379, 505.
The LUC requires only that an application and accompanying materials contain sufficient
information for the City's Director of the Community Development and Neighborhood Services
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Department (the "Director") to determine in the Director's discretion, "whether or not the
applicant, developer, or owner have the requisite power, authority, clear title, good standing,
qualifications, and ability" to proceed with an application and development. The LUC does not,
however, require that the applicant be the actual landowner. LUC § 2.2.3. The determination
that Solitaire's application was complete, and that Solitaire had the authority under LUC §
2.2.3(C)(1) to develop the Property was made by the Director and was not an issue before the
Hearing Officer or City Council. Record, 11-16; 997-1007. Therefore, the issue is simply not
reviewable.
A similar issue was addressed dispositively in Whitelaw v. Denver City Council, 405 P.3d
433, in which the plaintiffs in a Rule 106(a)(4) case contended for the first time at district court
that their due process rights had been violated by a city council rezoning vote because some
council members received political contributions from lobbyists and were biased. 405 P.3d at
441. The Court of Appeals, agreeing with the district court in the case, determined that the
court’s review was limited to the record that was before the city council, and that evidence of the
political contributions was not in the record before the council. Id. Additionally, the court found
that the plaintiffs had raised the issue for the first time in district court. Id. The court determined
that it could not review the political contributions issue because it was based on
facts outside the record of the Rule 106 proceeding. Id. Here, the Rule 106(a)(4) review in this
case is limited to the evidence in the record and accordingly the Court cannot review the
sufficiency of Solitaire's application.
Even assuming that this Court seeks to address this issue on the merits, competent
evidence in the record including the above referenced subdivision plat, and the April 2022 letter
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from C. White, counsel for Solitaire, shows that Solitaire was found to have the necessary
ownership interest to proceed with the application . Record, 379, 505. Thus, Plaintiffs' argument
fails both procedurally and substantively for purposes of review pursuant to Rule 106(a)(4) of the
Colorado Rules of Civil Procedure.
B. City Council’s decision affirming the Hearing Officer’s approval of the PDP
must be upheld because it was based on competent evidence in the record.
The fundamental question in this case is whether City Council 's decision to affirm the
Hearing Officer's approval of the PDP is supported by competent evidence in the record.
Plaintiffs' opening brief conflates the issue that is subject to review in this case. The Hearing
Officer's decision to approve the PDP is not at issue in this case —only the City Council's
determination to affirm the Hearing Officer's decision is ripe for judicial review. Likewise, the
Hearing Officer's interpretation of the LUC is not at issue in this case —only the City Council's
determination to uphold the Hearing Officer's Decision.
Interpretation of LUC and NSP
Plaintiffs' sole claim relating to the decision of the City Council is that it failed to
properly interpret the LUC in concert with the NSP. Plaintiffs argue that City Council was
required to follow the provisions of the NSP and that it erred in failing to do so. Plaintiffs cite to
a "purpose" section of the LUC to support this contention. LUC Section 1.2.2 states that 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 [th e LUC], City Plan and its
adopted components, including, but not limited to, … associated sub-area plans." Plaintiffs'
argument fails because the plain language of the LUC does not include compliance with the NSP
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as a criterion for approval. Moreover, the plain and unambiguous language of the NSP provides
that it is not regulatory or binding in application.
Preliminarily, the NSP contains subjective qualitative language, while the LUC contains
specific quantitative criteria. In reconciling both documents, the specific controls over the
general. See Telluride Resort & Spa, L.P. v. Colorado Dep’t of Revenue, 40 P.3d 1260 (Colo.
2002) ("If different statutory provisions are in conflict or cannot be harmonized,
the specific provision controls over the general provision"). More particularly, the purpose
section of the LUC is not one of the criteria upon which the City Council acting in its quasi-
judicial capacity relies on in making a final decision. Instead, the purpose section provides
guidance on the general objectives of the LUC —for example, "encouraging innovations in land
development and renewal" and "reducing energy consumption and demand." LUC § 1.2.2(B),
(H). The purpose section does not impose specific regulations. Also, the LUC does not contain
any other provisions nor do the Plaintiffs cite to any provisions in the LUC that provide or even
suggest the City's sub-area plans, like the NSP, are regulatory or binding criteria in land use
reviews under the LUC.
The City's treatment of the NSP is also consistent with C.R.S. § 31-23-206(1) which
provides that a municipality's master plan is an advisory document unless it is specifically made
binding by inclusion in the municipality's land development regulations. See also Theobald v.
Bd. of Cnty. Comm'rs, Summit Cnty., 644 P.2d 942, 948 (Colo. 1982) (master plans are advisory
in nature, not the equivalent of zoning, "nor binding upon the zoning discretion of the legislative
body"). Moreover, and perhaps most important, the NSP itself states that its provisions are not
mandatory. In setting forth guidelines for development and residential design in the northwest
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area, the NSP states: "The guidelines, as part of the Plan, are not mandatory at this time."
Record, 1968. Chapter 3 of the NSP contains the "Framework Plan," which is a plan for future
land uses in the NSP area that "puts policies in place for the City [of Fort Collins] and [Larimer]
County to follow when private property owners come forward with development proposals" and
also provides for allowable density and uses. Record, 1936. The NSP Framework Plan
expressly states that it is not regulatory or binding:
The City and County staff and officials will use the Framework Plan as they review
development proposals. The Framework Plan provides guidance to land uses,
activities, and density levels, but it is not regulatory. It is to be used in conjunction
with City and County zoning and development standards. [Emphasis added.]
Id.
Finally, even if the City was required to comply with the provisions of the NSP,
competent evidence exists in the record demonstrating that approving the PDP is consistent with
the NSP. Plaintiffs' Opening Brief appears to suggest that the City Council 's approval of the
PDP is inconsistent with the NSP's stated goal that "as new development occurs, it should be of
low intensity to be compatible with the diversity and semirural feel of the area " and also the goal
of the NSP that "neighborhoods be protected from incompatible development." Record, 1957.
However, the NSP itself provides that the L-M-N District allows housing up to 8 units per acre
(Record, 1941), while the LUC allows 9 housing units per acre in the L-M-N District. LUC
Section 4.5.D.1. The Property is in the L-M-N District and the PDP as approved here proposes
5.13 dwelling units per acre. The NSP also recognizes that future development may be
inconsistent with existing development. "As new development occurs, subdivisions may be
larger in scale than past developments and could be very different in character from existing
neighborhoods." Record, 1968. Thus, competent and substantial evidence in the record supports
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the decision of the City Council in this matter even if the NSP were to be considered regulatory
and binding.
Accordingly, the City Council's determination that the Hearing Officer properly
interpreted and applied LUC Section 4.5(D)(1) is supported by competent evidence because the
PDP both satisfied the maximum density of 9 dwelling units per acre in the L-M-N District and
complied with the maximum density recommendations of the NSP. Record, 1452. Plaintiffs'
claim that City Council somehow misinterpreted the LUC and NSP must fail because there is a
reasonable basis for City Council 's interpretation of the LUC in coordination with the NSP.
Consistent with City and County of Denver v. Board of Adjustment for City and County of
Denver, 55 P.3d at 254, this Court should defer to the interpretation and application of the LUC
and the NSP by the administrative officials charged with its enforcement where, as here, there is
reasonable basis for the City Council 's interpretation of the City's regulatory documents. The
City Council did not, therefore, abuse its discretion in upholding the Hearing Officer 's approval
of the PDP.
Plaintiffs' characterization that City Council "disregarded the NSP" is simply not
accurate. City Council interpreted the LUC and NSP and harmonized the Code and sub-area
plan in determining that the PDP was compliant. Accordingly, there is no legal or factual basis
for this Court to overturn the decision of the City Council because its decision is supported by
competent evidence in the record, and the City Council's interpretation of its own provisions is
entitled to deference because it has a reasonable basis in fact.
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IV. CONCLUSION
The City Council's decision to affirm the Hearing Officer's approval of the PDP is
sufficiently supported by more than competent evidence in the record. Plaintiffs' argument that
the City Council's interpretation of the LUC should be set aside fails because the City Council
interpretation is reasonable and based on a plain reading of both documents. Defendant therefore
respectfully requests that the Court affirm the decision of the City Council.
Dated this 6th day of March, 2023.
HOFFMANN, PARKER, WILSON &
CARBERRY, P.C.
By: /s/ Corey Y. Hoffmann
Corey Y. Hoffmann
Katharine J. Vera
ATTORNEYS FOR DEFENDANT CITY
COUNCIL OF THE CITY OF FORT
COLLINS, COLORADO
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CERTIFICATE OF SERVICE
I certify that on this 6th day of March, 2023, I caused a true and correct copy of the
foregoing ANSWER BRIEF OF DEFENDANT CITY COUNCIL OF THE CITY OF
FORT COLLINS, COLORADO to be served via CCES, electronic mail, and/or U.S. mail on
the following:
Frascona, Joiner, Goodman and Greenstein, P.C.
Andrew Pipes
4750 Table Mesa Drive
Boulder, CO 80305-5500
Attorney for Plaintiffs
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
Attorneys for Defendants Solitaire Homes East, LLC
and Solitaire Homes, LLC
____________________________________
Jenny Latta, Legal Assistant