HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, et al, v. Council of the City of Fort Collins - 027 - Order on Rule 106 ComplaintPage 1 of 33
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Ave., Suite 100 Ft.
Collins, Colorado 80521
Plaintiffs:
SANCTUARY FIELD NEIGHBORHOOD
NETWORK, a Colorado nonprofit corporation;
and MIRANDA SPINDEL,
v.
Defendants:
COUNCIL OF THE CITY OF FORT
COLLINS; and
Intervenors: SOLITAIRE HOMES EAST,
LLC and SOLITAIRE HOMES, LLC
COURT USE ONLY
Case Number: 2022 CV 30661
Division 5A
ORDER REGARDING PLAINTIFFS’ COMPLAINT FOR
JUDICIAL REVIEW UNDER C.R.C.P. 106
THIS MATTER is before the Court on Plaintiffs’ Complaint for Judicial Review, pursuant
to C.R.C.P. 106(a)(4), filed on October 4, 2022. Having reviewed and considered the Notice of
Appeal, Complaint, Answer, the record on appeal, the parties’ briefs, and the parties’ respective
oral arguments before the Court on May 18, 2023, the Court hereby finds and orders as follows:
DATE FILED: July 24, 2023 5:48 PM
CASE NUMBER: 2022CV30661
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BACKGROUND AND PROCEDURAL HISTORY
On October 4, 2022, Plaintiffs Sanctuary Field Neighborhood Network and Miranda
Spindel initiated the present appeal with the filing of their Complaint for Judicial Review under
C.R.C.P. Rule 106(a)(4) and for declaratory relief under C.R.C.P. Rule 57. Plaintiffs seek
review regarding the approval of a land development project approved by the City of Fort
Collins on May 16, 2022. The project, known as the “Sanctuary on the Green,” seeks to develop
housing in an open area in northwest Fort Collins.
On November 5, 2021, Sam Coutts on behalf of the Ripley Design, Inc. (the
“Developer”) submitted its application under the Fort Collins Land Use Code known as a
“Project Development Plan,” specifically PDP No. 210018. The “owner” as set forth in the
Application was Solitaire Fort Collins, LLC. The Applicant proposed to develop vacant land in
Fort Collins, which includes Parcel Nos. 9709104001, 9709104002 and 9709103020, as recorded
with the Larimer County Clerk and Recorder’s Office (collectively, the “Subject Properties”).1
Based upon the provisions of the PDP it was determined to be subject to a Type 1 administrative
review, which the Plaintiffs do not dispute.
A Type 1 review does not require a public hearing with Planning & Zoning Commission,
but rather a hearing 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 City’s Planning Director appointed Marcus McAskin, an
attorney, as the City’s hearing officer (the “Hearing Officer”) to preside over the subject
administrative hearing, pursuant to LUC § 1.4.9(E).
The administrative hearing to review the PDP No. 21008 was held on May 2, 2022 (the
“Hearing”). At the Hearing, the Hearing Officer received various documents, “testimony” or
comments and arguments from the Developer’s team, their attorney, the City Staff, and public
comments (live in person, by remote means, and by email). The evidence includes among many
things, the City’s “Staff Report,” Record, pp. 1009 – 1060, some sections of the LUC, the
Northwest Subarea Plan (“NWSAP”), and comments from 47 members of the community.
On May 16, 2022, the Hearing Officer issued his written Decision, which included
“FINDINGS” and within his Decision, he sets forth various “rulings,” “modifications,” and
“conditions,” and based thereon, approved PDP No. 21008 subject to the stated conditions.
1 For historical context, on February 15, 2019, the Developer previously submitted a Project Development Plan for
the same area to the City (PDP No. 190003), which would require a “Type 2 Review,” under the City Land Use
Code. A Type 2 Review requires a public hearing before the City’s Planning and Zoning Commission (the “P&Z
Commission”). The record reflects that the Commission offered some negative or concerning feedback regarding
possible approval. In any event, the Developer withdrew its proposed PDP No. 190003 before a decision was
reached on that proposed plan.
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The Hearing Officer’s Decision was appealed to the City Council. The Notice of Appeal,
filed by various appellants on May 31, 2022, sought review by the City Council under the City
Code, §§ 2-46 through 2-56. On August 16, 2022, the Council conducted an administrative
hearing on the appeal, and then voted on the record 5-2 to affirm the Decision and also approve
PDP No. 21008. On September 6, 2022, the Council adopted RESOLUTION 2022-095
approving, adopting, and affirming the Hearing Officer’s Decision in all respects. Therefore, the
record and conduct of the Hearing Officer was mirrored and adopted by the Council.
THE CLAIMS AND ISSUES PRESENTED
Introduction:
The Plaintiffs seek a review to determine whether the Hearing Officer “exceeded his
jurisdiction” or “abused his discretion,” in approving the PDP. The Plaintiffs’ appeal raises the
following issues: (1) whether competent evidence supports the Hearing Officer’s Decision and
his associated findings, rulings, conditions, and approval; and (2) whether the applicable law,
ordinances, regulations, and standards were properly applied by him in reaching his Decision.
The Plaintiffs specifically set forth the “Questions Presented” as follows:
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?
Plaintiff’s Opening Brief at p. 5.
The Plaintiffs properly seek judicial review of the Hearing Officer’s Decision, pursuant
to Colorado Rule of Civil Procedure 106(a)(4). “Review under C.R.C.P. 106(a) is available
where any governmental body or officer ‘exercising judicial or quasi-judicial functions has
exceeded its jurisdiction or abused its discretion.’ C.R.C.P. 106(a)(4). C.R.C.P. 106(a) is not an
appropriate vehicle to review legislative actions.” Condiotti v. Bd. of Cnty. Comm'rs of Cnty. of
La Plata, 983 P.2d 184, 186 (Colo. App. 1999).
In addition to a Rule 106(a)(4) review, the Plaintiffs requested declaratory relief, pursuant
to C.R.C.P. 57 and C.R.S. § 13-51-101. In their Complaint, they set forth a conclusory claim for
declaratory relief as their “Second Claim for Relief.” Declaratory relief is appropriate to review
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legislative action, which is “usually reflective of public policy relating to matters of a general
character, is usually prospective in nature, and is not normally restricted to identifiable persons
or groups.” Condiotti, 983 P.2d at 186. Here, Plaintiffs do not seek review of the underlying
enactment of an y land use ordinance, resolution, or standard, which is distinct from their proper
request to review the subject planning Decision.
“A facial challenge to legislative action such as a zoning ordinance or resolution is
permitted under C.R.C.P. 57(b).” Condiotti, 983 P.2d at 186; see Tri–State Generation &
Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo.1982) (facial constitutional challenge
to an ordinance concerns a general rule and is generally a legislative act subject to review under
C.R.C.P. 57, rather than C.R.C.P. 106(a)(4)). While amending a “zoning ordinance of general
application is subject to review pursuant to C.R.C.P. 57; it is not reviewable pursuant to C.R.C.P.
106(a)(4)).” Condiotti, 983 P.2d at 186 (citing Russell v. City of Central, 892 P.2d 432
(Colo.App. 1995)).
Plaintiffs’ briefing here merely makes a passing requested in their conclusion that the
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.”
Opening Brief at p. 19. That relief is outside of the scope of a judicial review, pursuant to
C.R.C.P. 106(a)(4). See Condiotti, 983 P.2d at 186.
The Plaintiffs do not challenge whether any land use regulation, ordinance, or planning
document that was legislatively adopted was done so improperly. The Plaintiffs do not brief any
constitutional issue or any cognizable claim for declaratory relief. Plaintiffs’ listing of the
“Questions Presented” in their Opening Brief at page 5, as set forth below, supports this reading
of their Complaint. Accordingly, declaratory relief under C.R.C.P. 57 is not available.
The City Councils’ affirmance of the Hearing Officer’s Decision is not subject to review.
The Hearing Officer’s Decision was appealed to the City Council. The Notice of Appeal,
filed by various appellants on May 31, 2022, sought review by the City Council under the City
Code, §§ 2-46 through 2-56.2 On August 16, 2022, the Council conducted an administrative
hearing on the appeal, and voted on the record 5-2 to affirm the Decision and approve PDP No.
21008. Next, on September 6, 2022, the Council adopted RESOLUTION 2022-095 approving,
adopting, and affirming the Hearing Officer’s Decision in all respects.
In its Answer Brief, the City asserts that the Hearing Officer’s Decision is not subject to
review, but instead that only the City Council’s affirmance of the Hearing Officer’s Decision is
2 The Notice of Appeal filed with the Council on May 31, 2022, sought review of the Hearing Officer’s Decision on
many grounds not briefed and presented to this Court here. Accordingly, those issues are not addressed.
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subject review under Rule 106(a)(4). Likewise, the City contends that 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.” City Council’s Answer Brief at p. 7.3 The City Council,
however, cites no legal authority for such assertions. See id. The City Council’s assertions
explicitly conflict with the text of Rule 106(a)(4).
Rule 106(a)(4)(I) states that “[r]”eview shall be limited to a determination of whether the
body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the
record before the defendant body or officer.” (Emphasis added.) Similarly, when a trial court’s
judgment on its Rule 106 decision is appealed to the Colorado Court of Appeal, the appellate
review focuses not upon the trial court’s decision, but upon the conduct of the administrative
body or hearing officer. “Review of a governmental body's decision pursuant to Rule 106(a)(4)
requires an appellate court to review the decision of the governmental body itself rather than the
district court's determination regarding the governmental body's decision.” IBC Denver II, LLC
v. City of Wheat Ridge, 183 P.3d 714, 717 (Colo. App. 2008) (quoting Bd. of County Comm'rs v.
O'Dell, 920 P.2d 48, 50 (Colo.1996)).
“In a Rule 106 proceeding, we review the decision of the governmental body itself rather
than the district court's determination regarding the governmental body's decision.” Hills v.
Westminster Mun. Ct., 215 P.3d 1221, 1224 (Colo. App. 2009), aff'd, 245 P.3d 947 (Colo. 2011)
(citing Bd. of County Comm'rs v. O'Dell, 920 P.2d 48, 50 (Colo.1996)).
The Court in Hills explained that “we engage in the same type of record review as did the
district court, and we are not bound by any determination made by the district court. Id. (citing
City & County of Denver v. County Court, 37 P.3d 453, 455–56 (Colo. App. 2001).
Accordingly, this Court’s review under Rule 106 focuses only upon the Hearing Officer’s
Decision and not the City Council’s affirmance. See id.
The City Council affirmed the Hearing Officer’s Decision, but it did not purposefully
receive evidence, weigh any new evidence, or independently apply the law to make its own
decision on the subject PDP.4 The Minutes of the appeal hearing and content of RESOLUTION
3 Solitaire Homes East, LLC and Solitaire Homes, LLC, do not make any such assertions. They address the various
issues in tandem regarding the Decision and affirmance by the City Council.
4 The Record reveals that the Council endeavored to exclude “new evidence” that was not presented and contained in
the record before the Hearing Officer. A site visit was arranged properly, but only one or two Council members
participated. A letter submitted by the Defendants through their attorneys was excluded. And the Developer’s counsel
objected to the presentation by some of the neighbors’ spokesperson as being outside the record. See City Code
Chapter 2, Division 3, Sect. 2-55(e), which allows for such objections. See also City Code Chapter 2, Division 3,
Sect. 2-55(b) (“No new evidence shall be presented to the City Council before or during an appeal hearing, and no
new evidence shall be considered on appeal, except [for some limited exceptions]”). Nevertheless, some arguments
or “presentations” by the parties, public, and comments of the Council or City Staff may have been heard or taken as
“evidence.” They are not material or relevant to this review.
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2022-095 “upheld” the Hearing Officer’s Decision and stated that the “[a]ppeal is without merit
and is denied in its entirety.” RESOLUTION 2022-095 at ¶¶ 11 and 12.
In short, the Hearing Officer’s Decision was adopted and affirmed by the City Council.
Thus, even if the Court were to review the City Council’s hearing, minutes, and resolution
approving the Hearing Officer’s Decision, the review would effectively be the same.
In conclusion, pursuant to the text of Rule 106(a)(4) and the case law discussed above
only the Hearing Officer’s Decision is subject to review here. Accordingly, the Plaintiffs’ Issue
No. 3 is not before the Court and will not be considered.
Only the issues briefed for the Court are subject to review.
The Plaintiffs’ Complaint for Judicial Review presents a variety of issues and alleged
errors that have not been briefed and presented for the Court’s review. Therefore, issues that
were set forth in their Complaint, but that have not been briefed are not subject to review. See
IBC Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 717 (Colo. App. 2008) (“The City
argues in its answer brief that the City Council's decision must be affirmed because IBC did not
challenge all the reasons for the decision in its opening brief. We agree.”).
Similarly, C.A.R. 28(a)(4) generally requires that an opening brief set forth “the
contentions of the appellant with respect to the issues presented, and the reasons therefor, with
citations to the authorities, statutes, and parts of the record relied on.” In re Estate of Hays, 127
Colo. 411, 257 P.2d 972 (1953) (writ of error dismissed where briefs were insufficient to advise
the court of issues presented or merits thereof); Middlemist v. BDO Seidman, LLP, 958 P.2d 486,
495 (Colo.App.1997) (declining to address propriety of trial court's orders where plaintiff failed
to identify specific errors and to provide legal authority).
APPLICABLE LEGAL STANDARDS
“Review under C.R.C.P. 106(a) is available where any governmental body or officer
‘exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its
discretion.’ C.R.C.P. 106(a)(4).” Condiotti 983 P.2d at 186.
In relevant part, C.R.C.P. Rule 106(a)(4) provides:
(4) Where, in any civil matter, any governmental body or officer or any lower judicial body
exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its
discretion, and there is no plain, speedy and adequate remedy otherwise provided by law:
(I) Review shall be limited to a determination of whether the body or officer has exceeded
its jurisdiction or abused its discretion, based on the evidence in the record before the
defendant body or officer.
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“[A]dministrative proceedings are accorded a presumption of validity and all reasonable
doubts as to the correctness of administrative rulings must be resolved in favor of the agency.”
Van Sickle, 797 P.2d 1267, 1272 (Colo. 1990) (citing Hadley v. Moffat County School Dist. RE–
1, 681 P.2d 938, 944 (Colo. 1984); U–Tote–M of Colorado, Inc. v. City of Greenwood Village,
39 Colo. App. 28, 33, 563 P.2d 373, 376 (1977)). The district court is limited to a review of the
record before it, and the introduction of new or additional evidence is generally not appropriate.
Widder v. Durango Sch. Dist. No. 9–R, 85 P.3d 518, 526 (Colo. 2004) (“review is limited to
review of the record to determine whether the governmental tribunal has abused its discretion or
exceeded its jurisdiction”)). Review under Rule 106(a)(4) “does not contemplate a new
evidentiary hearing at the district court level, but rather, contemplates that the district court will
review the record of the proceedings conducted elsewhere.” Widder, at 526.
A Rule 106 review has two primary elements. “Such review is ‘limited to a
determination of whether the body or officer has exceeded its jurisdiction, or abused its
discretion, based on the evidence in the record before the agency.” Save Our Saint Vrain Valley,
Inc. v. Boulder Cnty. Bd. of Adjustment, 2021 COA 44 ¶¶ 28 , 491 P.3d 562, 567 (quoting the
rule)(emphasis added).
An agency abuses its discretion when its decision is:
“(1) not supported by any competent evidence in the record — that is, ‘so devoid of
evidentiary support’ that the decision is arbitrary and capricious — or
(2) based upon misconstruing or misapplying the law.”
Id. at ¶¶ 28, 567 (quoting Rangeview, LLC v. City of Aurora, 2016 COA 108, 381 P.3d 445)
(paragraph structure added). Competent evidence has further been defined to mean “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” City
of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995).
[I]n a C.R.C.P. 106(a)(4) proceeding, the reviewing court may consider, in determining
the existence of an abuse of discretion, whether the hearing officer misconstrued or misapplied
the applicable law.” Canyon Area Residents for the Env't v. Bd. of Cnty. Comm'rs of Jefferson
Cnty., 172 P.3d 905, 907 (Colo. App. 2006) (quoting Van Sickle v. Boyes, 797 P.2d 1267, 1274
(Colo.1990)). “[T]he reviewing court in a C.R.C.P. 106(a)(4) proceeding considers whether the
governmental body misconstrued or misapplied the law.” Friends of the Black Forest Pres.
Plan, Inc. v. Bd. of Cnty. Commissioners of El Paso Cnty., 2016 COA 54, ¶¶ 13-17, 381 P.3d
396, 400.
“In doing so, the reviewing court reviews questions of law, such as the interpretation of a
statute, de novo.” Id. (citing Stevinson Imps., Inc. v. City & Cty. of Denver, 143 P.3d 1099,
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1101 (Colo.App. 2006)). “[W]e review questions of law, such as the interpretation of a statute,
de novo. Stevinson Imps., Inc. at 1101 (citing Ball Corp. v. Fisher, 51 P.3d 1053, 1056
(Colo.App.2001)).
Although interpretation of a statute by the agency charged with its enforcement is entitled
to deference, the court is not bound to defer to an agency decision that misconstrues or
misapplies the law. Stevinson Imps., Inc. at 1102 (citing Ball Corp. at 1056). “A reviewing court
should defer to the governmental body's construction of its statute, and if there is a reasonable
basis for the governmental body's interpretation of the law, the reviewing court may not set aside
the governmental body's decision.” Id. (citing Giuliani, ¶ 40, 303 P.3d 131).
The Colorado Supreme Court in City of Colorado Springs v. Securcare Self Storage, Inc.,
10 P.3d 1244, 1248–49 (Colo. 2000) explains that “Courts interpret the ordinances of local
governments, including zoning ordinances, as they would any other form of legislation. As such,
zoning ordinances are subject to the general canons of statutory interpretation.” More
specifically, the Court explained:
When construing a statute or ordinance, courts must ascertain and give effect to the
intent of the legislative body. Moreover, courts must refrain from rendering
judgments that are inconsistent with that intent. To determine legislative intent, we
therefore look first to the plain language of the ordinance. If courts can give effect
to the ordinary meaning of words used by the legislature, the ordinance should be
construed as written, being mindful of the principle that courts presume that the
legislative body meant what it clearly said. Finally, if the statutory language is clear
and unambiguous, the language should not be subjected to a strained or forced
interpretation.”
Id. at 49. See also Sierra Club v. Billingsley, 166 P.3d 309, 312 (Colo. App. 2007).
These principles have been recently rearticulated in Save Our Saint Vrain Valley, Inc. v.
Boulder Cnty. Bd. of Adjustment, 2021 COA 44, ¶ 29, 491 P.3d 562, 567 (cert. denied Nov. 1,
2021). Zoning ordinances “are subject to the general canons of statutory interpretation.” Id. at
¶ 29 (quoting Sierra Club, 166 P.3d at 312).
“If the language of an administrative rule is ambiguous or unclear, we give great
deference to an agency's interpretation of a rule it is charged with enforcing.” Id. at ¶ 29 (quoting
Sierra Club, 166 P.3d at 312). “The interpretation of an agency is most helpful ‘when the
subject involved calls for the exercise of technical expertise ....’” Id. (quoting Sierra Club, 166
P.3d at 312). “However, if we find the ordinance's plain meaning unambiguous, we construe the
ordinance as written.” Id. at ¶ 29 (citing Sierra Club, 166 P.3d at 312).
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DISCUSSION AND ANALYSIS
ISSUE NO. 1:
Did the Hearing Officer and Council exceed its jurisdiction or abuse its discretion in
approving the incomplete Amended Plan?
Introduction:
The named Applicant, Sam Coutts on behalf of the Ripley Design, Inc., set forth in the
Application that Solitaire Fort Collins, LLC was the “owner.” The Applicant proposed to
develop vacant land in Fort Collins, which includes Parcel Nos. 9709104001, 9709104002 and
9709103020, as recorded with the Larimer County Clerk and Recorder’s Office (collectively, the
“Subject Properties”).
Nevertheless, neither Ripley Design, Inc. nor Solitaire Fort Collins, LLC owned the
Subject Properties. Thus, the listed “owner,” did not hold legal title ownership to the Subject
Properties, which underlies the Plaintiffs’ first issue. Plaintiffs assert for the first time on appeal
that the Hearing Officer and City erred in approving an “incomplete” application and plan based
upon “false” information that should have precluded the PDP from going forward for review.
The record does establish that the Subject Properties were owned by two other entities
although they have similar names: Solitaire Homes East, LLC and Solitaire Homes, LLC
(together, the “Property Owners”). The titled landowner entities, however, were granted
permission by the Court, on December 6, 2022, to intervene in this case to address their interests.
The actual landowners are co-defendants with the City.
Defendants do not dispute that the Applicant, Ripley Design, Inc., and the listed “owner”
Solitaire Fort Collins, LLC were not the titled landowners of the Subject Properties. The
Defendants, however, argue the application and the review process was proper because the
Applicant and listed “owner” had the authority and ability to develop the property even if the
actual title holding landowners were not listed.5
5 Defendants also assert that the record and various documents submitted along with the application for review did
disclose the actual title holding landowners. In fact, the record was supplemented with permission of the Court and
based upon Defendants’ motion to include some such documentation.
Page 10 of 33
Legal Analysis:
On this issue, the Court first finds that the Plaintiffs did not raise this objection below in
the administrative hearings in order to “preserve” it for review here. That failure precludes
review before this Court because the argument was not made in the administrative hearing.6
C.R.C.P. 106(a)(4) “contemplates that the district court will review the record of the
proceedings to make this determination.” Canyon Area Residents for the Env't v. Bd. of Cnty.
Comm'rs of Jefferson Cnty., 172 P.3d 905, 907 (Colo. App. 2006). The district court exercises
no factfinding authority in such cases. Id.
“Because evidence of the contributions was not in the record before the Council and the
neighbors first raised this issue in the district court” the issue was not reviewed by the district nor
the court of appeals. Whitelaw v. Denver City Council, 2017 COA 47, ¶ 35, 405 P.3d 433, 441.
Plaintiffs failed to present evidence and make any objection before the Hearing Officer
regarding the alleged incompleteness or false information in the Application. Therefore, the
issue was not preserved for this Court to review, and it will not be considered.7 See Canyon Area
Residents at 907, Whitelaw at ¶ 35.
ISSUE NO. 2:
Did the Hearing Officer exceed his jurisdiction or abuse his discretion by failing to
consider the NWSAP when interpreting the LUC in the Hearing Officer Decision?
Introduction:
The Plaintiffs contend that the Hearing Officer abused his discretion in several respects
but fundamentally by misreading and misapplying the law. They contend that he misconstrued
and misapplied the LUC and Northwest Subarea Plan (“NWSAP”) related to his approval of
PDP No. 21008. Their Opening Brief summarizes their position on the central issues as follows:
The Hearing Officer’s findings include a determination that the Amended Plan
[PDP No. 21008] is “incompatible” with the NWSAP. Record, Pg. 1004, ¶ C.
6 That procedural principle requiring preservation of an issue is well established and followed throughout all sorts of
review and appeal processes. It is not a “mere technicality” because such a purported error should be addressed in the
decision-making stage of any case, which permits the parties and decision maker to resolve the issue immediately in
those proceedings.
7 Even if the Court considered the issue, the record contains competent evidence that the City impliedly deemed
the application sufficiently complete to move forward to process it and review its merits . That is true even if the
Director did not make an explicit finding to that effect. “An agency's findings of fact may be express or implied.”
Burns v. Bd. of Assessment Appeals of State of Colo., 820 P.2d 1175, 1177 (Colo. App. 1991).
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However, the Hearing Officer also determined that the Amended Plan complied
with the LUC. The Hearing Officer also determined that the Amended Plan [PDP
No. 21008] complied with the LUC. This contradiction appears to have 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.
Opening brief at pp. 9-10.
The City Council asserts the Decision is proper, supported by competent evidence, and
that the Council [and Hearing Officer] properly construed and applied the LUC and NWSAP to
the PDP. In its Answer Brief, the City asserts as follow:
Plaintiffs' argument fails because the plain language of the LUC does not include
compliance with the [NWSAP] as a criterion for approval. Moreover, the plain and
unambiguous language of the [NWSAP] provides that it is not regulatory or binding
in application. Preliminarily, the [NWSAP] contains subjective qualitative
language, while the LUC contains specific quantitative criteria. In reconciling both
documents, the specific controls over the general. … 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 [NWSAP], are regulatory or binding criteria in
land use reviews under the LUC.
City’s Answer Brief at pp. 7-8.
The Solitaire Defendants make similar arguments. For example, they argue, in part, as
follows:
Page 12 of 33
The mere fact that a government entity adopts the master plan does not, standing
alone, allow it to impose a requirement for compliance with that plan as part of its
review of development proposals. [Citation omitted.] In adopting these guidelines,
LUC § 1.2.2 states only that its goal is that “all growth and development which
occurs is consistent with this Code, City Plan and its adopted components,” the
latter of which includes the NWSAP. The L-M-N designation applied to the
Property is not only consistent with the NWSAP, the NWSAP expressly comments
it will be applied to properties such as these.
Solitares’ Answer Brief at p. 16.
Furthermore, they assert that the “NWSAP provides an overall vision and guidance
for new development within its geographic area, but without the required regulatory
standards. The LUC provides the specific, objective and regulatory standards by which
new development is and should be assessed.” Id. at 17. And, “[b]ecause neither Larimer
County nor the City made the NWSAP binding, but stated only that development should
be consistent with it, the question then becomes whether the LUC adopts the NWSAP as a
set of City zoning / land use regulations. It does not.” Id. at p. 18.
Finally, the Solitaire Defendants argue that “Plaintiffs err when they argue: ‘[w]hen
faced with an irreconcilable conundrum between the LUC and NWSAP, the Hearing
Officer chose to throw out the NWSAP.’ [citation omitted] There was neither an
irreconcilable conundrum nor a decision to throw out the NWSAP. To the contrary, the
LUC is the controlling document the Hearing Officer applied, which the Council affirmed
on appeal.” Id. at p. 24.
The Relevant Provisions of the City Charter, Code, Land Use Code, and NWSAP
The central issues in this appeal raise questions regarding the manner in which the
NWSAP applies or relates, if at all, to the PDP; how the City’s Land Use Code (LUC) relates to
the PDP; and how the NWSAP interrelates with the LUC. The parties cite and discuss select
provisions of the LUC and some provisions of the NWSAP that they find supportive of their
respective positions. However, resolution of the issues presented deserves and requires a more
complete review of the City of Fort Collins’ own independent authority, land use ordinances,
resolutions, planning documents, and the legislative intent manifested in them.
Accordingly, the fundamental starting point to address the issues and review whether the
Hearing Officer abused his discretion or misconstrued or misapplied any legal standards is to
evaluate the authority and development of Fort Collin’s own land use standards. The Court’s
review begins with the City Charter and will proceed through the adoptions of the City Code,
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Land Use Code, City Plan, NWSAP, and their respective provisions regarding the City Council’s
stated legislative intentions, definitions, standards, and any other provisions regarding
application or hierarchy.
The City Charter
Fort Collins is a Home Rule City and, therefore, it possesses its own independent
authority to control local land use. See Charter, Article I, §§1-3. The City’s legal evolution is
set forth in the City Code’s Preamble as follows:
The Town of Fort Collins was incorporated by an order of the Board of County
Commissioners of Larimer County, Colorado, on February 3, 1873. The Town of
Fort Collins became a city of the second class on February 2, 1883, and the first
Charter, establishing a Commission form of government, was adopted at an
election held on September 16, 1913. The present C harter of the City of Fort
Collins, establishing the Council -Manager form of government, was adopted by
the electors of the City on October 5, 1954.
The Home Rule status of Fort Collins is relevant here because the City has its own
independent and sweeping authority to plan and control land use.
“Article XX, Section 6, of the state constitution, adopted by the voters in 1912, granted
‘home rule’ to municipalities opting to operate under its provisions and thereby altered the basic
relationship of such municipalities to the state.” City & Cnty. of Denver v. State, 788 P.2d 764,
766 (Colo. 1990).
“In numerous opinions handed down by this court extending over a period of fifty years,
it has been made perfectly clear that when the people adopted Article XX they conferred every
power theretofore possessed by the legislature to authorize municipalities to function in local and
municipal affairs.” Four-Cnty. Metro. Cap. Imp. Dist. v. Bd. of Cnty. Comm'rs of Adams Cnty.,
149 Colo. 284, 294, 369 P.2d 67, 72 (1962)(emphasis in original).
Therefore, Fort Collins’ own land use standards adopted legislatively and related to the
City Charter, City Code, Land Use Code, and associated land use planning documents are
organic and stand alone. “In a home-rule jurisdiction where ‘a home rule ordinance ... and a
state statute conflict with respect to a local matter, the home rule provision supersedes the
conflicting state provision.’” Caldara v. City of Boulder, 955 F.3d 1175, 1179 (10th Cir. 2020)
(quoting City & Cnty. of Denver v. State at 767).
The Fort Collins City Charter provides, in part, at follows:
Article I:
Section 4. - Powers of city.
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The city shall have all the powers granted to municipal corporations and to cities
by the Constitution and general laws of this state, together with all the implied
powers necessary to carry into execution all the powers granted. The enumeration
of particular powers by this Charter shall not be deemed to be exclusive, and in
addition to the powers enumerated or implied, or appropriate to the exercise of
such powers, it is intended that the city shall have and may exercise all powers of
local self-government which, under the Constitution of this state, it would be
competent for this Charter specifically to enumerate. (Emphasis added.)
Article II City Council:
Section 5. - Powers.
All powers of the city and the determination of all matters of policy shall be vested
in the Council except as otherwise provided by this Charter. Without limitation
of the foregoing, the Council shall have power to:
(b) … The city shall provide for all essential administrative functions and public
services, including, but not limited to the following:
…
(8) planning and zoning….
Section 6. - Ordinances, resolutions, motions states:
The Council shall act by ordinance, resolution, or motion. The ayes and nays shall
be recorded on the passage of all ordinances, resolutions, and motions.
Article XIII. - Definitions
Certain words and phrases used in this Charter are hereby declared to ha ve the
following meanings:
"Agency" means any organizational unit of the city.
"City" means the City of Fort Collins, Colorado, a municipal corporation.
"Department" means a primary subdivision of a service area headed by a person
who, regardless of title, is directly responsible to the director of the service area.
"Fort Collins Urban Growth Area" means that geographical area within and
adjacent to the City of Fort Collins identified by Intergovernmental Agreement
between the City of Fort Collins and Larimer County as that area identified for
annexation and urbanizat ion by the City of Fort Collins including the Urban
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Growth Area as it exists on March 5, 1985, together with any amendments or
changes thereto.
With the foregoing Home Rule Charter provisions and their effects set forth, the Court
turns to the development of the City Code and then adoption of the Land Use Code.
Fort Collins Municipal Code :
The Municipal Code contains some fundamental provisions that relate to definitions,
the City Council, and the relationship between the City Code and the Land Use Code as set
forth below. The Land Use Code was adopted and separately codified in 1997.
Chapter 1
Section. 1-2. - Definitions; rules of construction.
In the construction of this Code and of all ordinances, the following definitions
and rules of construction shall apply unless such construction would be
inconsistent with the manifest intent of the City Council :
…
Code. References to the Code shall mean the Code of the City of Fort Collins as
designated in § 1-1.
…
Delegation of authority.
Whenever a provision appears requiring the director of a service area, head of a
department or officer of the Ci ty to do some act or make certain inspections, it is
to be construed to authorize the director of the service area, head of the department
or officer to designate, delegate and authorize subordinates to perform the
required act or make the required inspect ion unless the terms of the provision or
section designate otherwise. …
…
Employee. Employee shall mean a person in the compensated service of the City
except City Councilmembers.
Growth Management Area shall mean the Fort Collins Urban Growth Area as
defined in Article XIII of the Charter of the City, namely, that geographic area
within and adjacent to the City identified by the Intergovernmental Agreement
between the City of Fort Collins and Larimer Co unty as that area identified for
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annexation and urbanization by the City, including the Urban Growth Area as it
exists on March 5, 1985, together with any amendments or changes thereto.
Interpretation . In the interpretation and application of any provision s of this
Code, it shall be held to be at least the minimum requirements adopted for the
promotion of the public health, safety, comfort, convenience and general welfare .
Where any other provision of this Code imposes greater restrictions upon the
subject matter than the general provision imposed by the Code, the provision
imposing the greater restriction or regulation shall be deemed to be controlling .
(Emphasis added.)
…
Nontechnical and technical words. Words and phrases shall be construed
according to the common and approved usage of the language, but technical
words and phrases and such others as may have acquired a peculiar and
appropriate meaning in law shall be construed and understood according to such
meaning. …
Chapter 29 - Zoning/Land Development Code
Sec. 29-1. - Cross reference to Land Use Code
The Land Use Code, as adopted by Ordinance No. 51, 1997, and subsequently
amended by the City Council (the "Land Use Code") is incorporated herein by
this reference. The Land Use Code may be used, as app licable, to support the
implementation of the Code of the City of Fort Collins; and the Code of the City
of Fort Collins may be used, as applicable, to support the implementation of the
Land Use Code. (Ord. No. 182, 1997, 12-2-97)
Chapter 29 of the City Code was amended in 1997, whereby the existing land use system
and code provisions were removed and made “transitional,” and the “Land Use Code” was
adopted and separately codified as such.
The LUC was explicitly adopted by Ordinance No. 51-1997 and was incorporated into
the City Code by Ordinance No. 182-1997. All such ordinances of course contain the text,
findings, and statements that reveal the City Council’s legislative goals and intentions as
discussed more fully below. The relevant provisions of the Land Use Code are set forth next.
Fort Collins Land Use Code (“LUC”):
The relevant provisions of the LUC are set forth below:
Division 1.1 - Organization of Land Use Code
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…
The General Provisions contained in Article 1 address the organization of this
Land Use Code; its title, purpose and authority; the establishment of the Zoning
Map and Zone Districts; rules for interpretation and measurements; rules for
nonconformities and legal matters. (Emphasis added.)
Article 2, Administration, guides the reader through the procedural and decision-
making process by providing divisions pertaining to general procedural
requirements and a twelve-step common development review process, as well as
providing a separate division for each type of development application and other
land use requests.
The General Development Standards contained in Article 3 establish standards
which apply to all types of development applications unless otherwise indicated.
This article is divided into divisions addressing standards for site planning and
design, engineering, environmental and cultural resource protection, compact
urban growth, buildings, transportation and circulation, and supplemental uses.
All zone districts within the City of Fort Collins and their respective list of
permitted uses, prohibited uses and particular development standards are located
in Article 4, District Standards. These zone districts directly relate to the Zoning
Map and Zone Districts established in Article 1.
Definitions of terms used throughout this Land Use Code are included in Article
5.
This method of organization, which distinguishes and separates general
provisions, administration, general development standards, distri ct standards and
definitions, is intended to provide a user -friendly and easily accessible Land Use
Code by consolidating most city regulations addressing land use and
development, standardizing the regulatory format, providing common
development review procedures, separating and clarifying standards and
separating and clarifying definitions. (Emphasis added.)
…
1.2.2 - Purpose
The purpose of this Code is to improve and protect the public health, safety and
welfare by:
(A) ensuring that all growth and development which occurs is consistent with
this Code, City Plan and its adopted components , including, but not limited to,
the Structure Plan, Principles and Policies and associated sub-area plans.
…
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(E) avoiding the inappropriate development of lands and providing for adequate drainage
and reduction of flood damage.
…
(I) minimizing the adverse environmental impacts of development.
…
(L) encouraging the development of vacant properties within established areas.
(M) ensuring that development proposals are sensitive to the character of existing
neighborhoods.
(N) ensuring that development proposals are sensitive to natural areas and features.
(O) encouraging a wide variety of housing opportunities at various densities that are
well-served by public transportation for people of all ages and abilities. (Emphasis
added.)
1.2.4 - Applicability
The provisions of this Code shall apply to any and all development of land within the
municipal boundaries of the City, unless expressly and specifically exempted or provided
otherwise in this Code. no [sic] development shall be undertaken without prior and proper
approval or authorization pursuant to the terms of this Code. all [sic] development shall
comply with the applicable terms, conditions, requirements, standards and procedures
established in this Code .
Except as hereinafter provided, no building, structure or land shall be used and no
building or structure or part ther eof shall be erected, constructed, reconstructed, altered,
repaired, moved or structurally altered except in conformance with the regulations herein
specified for the district in which it is located, nor shall a yard, lot or open space be
reduced in dimens ions or area to an amount less than the minimum requirements set forth
herein or to an amount gr eater than the maximum requirements set forth herein.
This Land Use Code establishes procedural and substantive rules for obtaining the
necessary approval to de velop land and construct buildings and structures. … (Emphasis
added.)
1.2.5 - Minimum Standards
The provisions of this Land Use Code are the minimum standards necessary to
accomplish the purposes of this Land Use Code.
1.3.1 - Establishment of Zone Districts
In order to carry out the purposes of this Code, the City is hereby divided into the
following zone districts:
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Rural Lands District (R -U-L)
Urban Estate District (U-E)
Residential Foothills District (R -F)
Low Density Residential District (R -L)
Low Density Mixed -Use Neighborhood District (L-M-N)
1.3.3 - Establishment of Zone District and Development Standards
The General Development Standards contained in Article 3 include standards
which are applicable to all development unless expressly and specifically
exempted or provided otherwise in this Code. The District Standards contained
in Article 4 are standards which apply to development located within a specified
zone district. The District Standa rds are organized on a zone district by zone
district basis, and specify the purpose of each applicable zone district, the
permitted uses allowed in each zone district, and other standards and criteria
which apply in each zone district. The General Development Standards contained
in Article 3 and the District Standards contained in Article 4 are hereby
established and are declared to be minimum standards . (All emphasis added.)
1.4.1 - Authority
The Director shall have the authority to make all interpretations of the text of this land
use code and the boundaries of zone districts on the zoning map.
…
1.3.4 - Addition of Permitted Uses
(A) Purpose Statement. The purpose of the Addition of Permitted Use process is
to allow for the approval of a particular land use to be located on a specific parcel
within a zone district that otherwise would not permit such a use. … For
residential neighborhoods, land use flex ibility shall be balanced with the existing
residential character . Projects are expected to continue to meet the objectives of
any applicable sub-area plan and City Plan. The process encourages dialogue and
collaboration among applicants, affected property owners, neighbors and City
Staff. (All emphasis added.)
1.4.9 - Rules of Construction for Text
In construing the language of this Land Use Code , the rules set forth in Section
1-2 of the City Code and this Section shall be observed unless such construction
would be inconsistent with the manifest intent of the Council as expressed in this
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Land Use Code or in City Plan Principles and Policies .8 The rules of construction
and definitions set forth herein shall not be applied to any express provisions
excluding such construction, or where the subject matter or context of such
section is repugnant thereto . In the event of a conflict between these rules of
construction and the rules of construction established in Section 1 -2 of the City
Code, these rules shall control.
(A) Generally. All provisions, terms, phrases and expressions contained in the
Land Use Code shall be so construed in order that the intent and meaning
of the Council may be fully carried out . Terms used in the Land Use Code,
unless otherwise specifically provided, shall have the meanings prescribed
by the statutes of this state for the same terms.
In the interpretation and application of any provision of the Land
Use Code, such provision shall be held to be the minimum
requirement adopted for the promotion of the public health, safety,
comfort, convenience and general welfare. Where any provision of
the Land Use Code imposes greater restrictions upon the subject
matter than another provision of the Land Use Code, the provision
imposing the greater restriction or regulation shall be deemed to be
controlling. In other words, the more stringent controls over the
less stringent. (Emphasis added.)
The definitions are intended to be generally construed within the
context of the Land Use Code, except as shall be specified by the
term itself within a given context for a select section of the Land
Use Code.
(B) Text. In case of any difference of meaning or implication between the text
of the Land Use Code and any figure or diagram, the text shall control.
8 The City Plan’s “Principles and Policies” state, in part, as follows: “With diminishing supply of vacant land, a larger
percentage of future growth will probably occur in already developed areas. These principles help the City to manage
growth by encouraging infill and redevelopment, ensuring this development is compatible with the character of the
surrounding neighborhood or area ….” Id. at 36 (emphasis added) (compatibility is defined in the LUC). “Policy
LIV 3.6 - CONTEXT-SENSITIVE DEVELOPMENT Ensure that all development contributes to the positive
character of the surrounding area. Building materials, architectural details, color range, building massing, and
relationships to streets and sidewalks should be tailored to the surrounding area.” Id. at p. 41 (emphasis added).
“Policy LIV 3.4 - DESIGN STANDARDS AND GUIDELINES Maintain a robust set of citywide design standards
as part of the City’s Land Use Code to ensure a flexible, yet predictable, level of quality for future development that
advances the community’s sustainability goals, e.g., climate action. Continue to develop and adopt location-specific
standards or guidelines where unique characteristics exist to promote the compatibility of infill redevelopment.” Id.
at p. 41 (emphasis added). “Policy ENV 1.3 - NATURE IN THE CITY Conserve, protect and enhance natural
resources and high-value biological resources throughout the GMA by: » Directing development away from natural
features to the maximum extent feasible ….” Id. at p. 60.
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(C) Conjunctive/Disjunctive. Unless the context clearly indicates the contrary,
the following words shall be interpreted as follows:
(1) "And" indicates that all connected words or provisions apply.
(2) "Or" or "and/or" indicates that the connected words or provisions may
apply singly or in any combination.
(3) "Either...or" indicates that the connected words or provisions apply
singly but not in combination.
…
(E) Delegation of Authority . Whenever a provision appears requiring the
Director or some other City officer or employee to do some act or perform some
duty, such provision shall be construed as authorizing the Director or other officer
or employee to designate, delegate and authorize another City employee to
perform the required act or duty unless the terms of the provision specify
otherwise. With respect to the review of development applications eligible for
Type 1 review, in addition to or in substitution for delegation to City employees
as above authorized, the Director may engage the services of an attorney with
experience in land use matters.
…
(G) Include. The word "incl uding," "includes," "such as," "additional" or
"supplemental" is illustrative and is not intended as an exhaustive listing, unless
the context clearly indicates the contrary.
…
(I) Shall, May, Should. The word "shall," "will" or "must" is mandatory; "may"
is permissive, "should" is suggestive but not mandatory.
…
1.7.1 - Relationship to Code of the City
This Land Use Code , although not a numbered Chapter of the Code of the City,
is a part of the Code of the City with the same legal significance as though it were
a numbered Chapter. This Land Use Code may be used, as applicable, to support
the implementation of the Code of the City; and the Code of the City may be used,
as applicable, to support the implementation of this Land Use Code. Particularly,
but without limitation, the provisions of Chapter 1 of the Code of the City are
incorporated into this Land Use Code by reference . (Emphasis added.)
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1.7.2 - Conflict with Other Laws
Except as is provided in Section 3.1.2,9 if the provisions of this Land Use Code
are internally conflicting or if they conflict with any other statute, code, local
ordinance, resolution, regulation or other applicable Federal, State or local law,
the more specific standard, limitation or require ment shall govern or prevail to
the extent of the conflict. If neither standard is more specific , then the more
stringent standard, limitation or requirement shall govern or prevail to the extent
of the conflict. (Emphasis added.)
1.7.3 - Severability
It is the legislative intent of the city council in adopting this land use code that all
provisions hereof shall be liberally construed to protect and preserve the peace,
health, safety and general welfare of the inhabitants of the city .10 … (All
emphasis added.)
Article 2 ADMINISTRATION
2.2.7 - Step 7: Public Hearing
(A) Decision maker .
(1) Administrative Review (Type 1 review). An administrative review
process is hereby established wherein certain development applications shall be
processed, reviewed, considered and approved, approved with conditions, or
denied by the Director pursuant to the general procedural requirements contained
in Division 2.1, and the common development review procedures contained
in Division 2.2. For those development applications that are subject to
administrative review, the Director shall be the designated decision maker.
…
(D) Decision and Findings .
9 Section 3.1.2 provides that where a conflict between Article 3 and Article 4 exists “the standard in Article 4 shall ”
prevail.
10 Reiterating the goals and purposes outlined above in §§1.2.2, 1.2.4, 1.7.3.
Page 23 of 33
(1) Decision — Administrative Review (Type 1 review). After
consideration of the development application, the Staff Report and the evidence
from the public hearing, the Director shall close the public hearing. Within ten
(10) working days following the public hearing, the Director shall issue a written
decision to approve, approve with conditions, or deny the development
application based on its compliance with the Standards referenced in Step 8 of the
Common Development Review Procedures (Section 2.2.8). The written decision
shall be mailed to the applicant and any person who provided testimony at the
public hearing.
…
(3) Findings. All decisions shall include at least the following elements:
(a) A clear statement of approval, approval with conditions, or denial,
whichever is appropriate.
(b) A clear statement of the basis upon which the decision was made,
including specific findings of fact with specific reference to the
relevant standards set forth in this Code. (Emphasis added.)
2.2.8 - Step 8: Standards
To approve a development application, the decision maker must first determine
and find that the development application has satisfied and followed the
applicable requirements of this Article 2 and complies with all of the standards
required for the applicable development application (see Step 8: "Standards"
referenced in Divisions 2.3 through 2.11), as modified by any modification of
standards approved under Section 2.8.
2.2.9 - Step 9: Conditions of Approval
The decision maker may impose such conditions on approval of the development
application as are necessary to accomplish the purposes and intent of this Code ,
or such conditions that have a reasonable nexus to potential impacts of the
proposed development, and that are roughly proportional, both in nature and
extent, to the impacts of the proposed development. (Emphasis added.)
…
5.1.1 - General.
Administrative review shall mean review For words, terms and phrases used in
this Land Use Code that are not defined in Section 5.1.2, below, or elsewhere in
Page 24 of 33
this Land Use Code, the Director shall have the authority and power to interpret
or define such words, terms and phrases. In making such interpretations or
definitions, the Director may consult secondary sources related to the planning
and legal professions, such as Black's Law Dictionary (West Publishing
Company, St. Paul, Minn., most current edition), A Survey Of Zoning Definitions
- Planning Advisory Service Report Number 421 by the Director in accordance
with the provisions of Article 2. Also known as Type 1 review. (Emphasis in
original.)
5.1.2 DEFINITIONS
The following words, terms and phrases, when used in this land use code, shall
have the meanings ascribed to them in this section:
…
Character shall mean those attributes, qualities and features that make up and
distinguish a development project and give such project a sense of purpose,
function, definition and uniqueness.
…
Compatibility shall mean the characteristics of different uses or activities or
design which allow them to be located near or adjacent to each other in harmony.
Some elements affecting compatibility include height, scale, mass and bulk of
structures. Other characteristics include pedestrian or vehicular traffic,
circulation, access and parking impacts. Other important characteristics that
affect compatibility are landscaping, lighting, noise, odor and
architecture. Compatibility does not mean "the sam e as."
Rather, compatibility refers to the sensitivity11 of development proposals in
maintaining the character of existing development . (All emphasis added.)
…
Density shall mean the overall average number of dwelling units located on the
gross or net residential acreage (as applicable) contained within the development
and calculated on a per -acre basis. (Emphasis added.)
The Northwest Subarea Plan:
11 “Sensitivity” is used in the statement of the purposes above in Section 1.2.2(M).
Page 25 of 33
The Court has also reviewed the relevant portions of the NWSAP. Chapter 3 of the
NWSAP provides a Land Use Framework applicable to the plan. Relevant provisions are
set for the below:
PURPOSE OF THE FRAMEWORK PLAN
“The Framework Plan proposes land uses for areas that may develop in the future.
Having a plan in place for the area guides the City and County as to whether future
proposed developments are appropriate. The Framework Plan also creates some
level of predictability in what type and intensity can be expected for one’s own
property as well as neighboring properties.” (Emphasis added.)
EXISTING NEIGHBORHOODS
“The Plan does not promote change in existing neighborhoods: they will remain in
the current configuration and pattern. One of the primary objectives of the
Framework Plan is to ensure that future development is compatible with the density
uses and character of existing neighborhoods…” (Emphasis added.)
THE FRAMEWORK PLAN AND ZONING
“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 is not regulatory.12 It is to be used in
conjunction with City and County zoning and development standards.” (Emphasis
added.)
12 The text of this provision indicates it is “not regulatory” but “provides guidance” and dir ects that the Framework
Plan “be used in conjunction with City and County zoning and development standards.” As such, the ordinary
language used shows that the Framework is not controlling one way or another, but instead provides “guidance” in
the totality of the planning and approval processes of both the City and County in “conjunction with [both of their]
zoning and development standards.” The use of the “phrase zoning and development standards” is broad and inclusive.
Accordingly, the Defendants’ assertions that the phrase “not regulatory” means the NWSAP is of no moment, or need
not be considered, are not well founded. Finally, the fact the City Council adopted the NWSAP explicitly, and the
Council did so presumably knowing that it would fall squarely within the purview and standards of the LUC,
specifically sections 1.2.2(A) and 1.2.2(M), which are given full effect under section 1.2.4, further negates the
Defendants’ interpretation. Section 1.2.4 is phrased broadly: “all [sic] development shall comply with the applicable
terms, conditions, requirements, standards and procedures established in this Code.”
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Having reviewed the relevant provisions of the Fort Collins City Charter, Fort Collins
Municipal Code, the LUC, and the NWSAP, the Court must first determine based upon the
referenced documents what impact, if any, the NWSAP was intended to have regarding land use
development; whether it should be considered binding, should be considered in any fashion, or is
merely advisory, as argued by the City and the Solitaire Defendants.
This Court finds and concludes that, as set forth and highlighted above, the plain text of
the City Code and LUC read as a whole require findings regarding consistency of a development
with the LUC and compatibility with existing neighborhoods. Section 1.2.2(A) and (M).13 The
plain text of the various highlighted provisions express a clear legislative intent “ensuring” that
all development is consistent with the LUC and City Plan and the sub-area plans, including the
NWSAP. Id. Section 1.7.2 is explicit in its declaration: “It is the legislative intent of the city
council in adopting this land use code that all provisions hereof shall be liberally construed to
protect and preserve the peace, health, safety, and general welfare of the inhabitants of the city.”
Those code provisions are further buttressed by the plain text of section 1.2.4 stating
explicitly that “all [sic] development shall comply with the applicable terms, conditions,
requirements, standards and procedures established in this Code .”
Moreover, the zoning standards of Division 3 and 4 are the minimum standards based
on the plain text governing those sections as highlighted above. Being a Home Rule City, such
explicit legislative statements, provisions, and mandates are controlling and stand
independently of any other city or county regulation s. They are well woven legislative
declarations that are unambiguous and not subject to interpretation.
No explicit text exists and no legislative intent is evidenced in the LUC that suggests
that subarea plans, including the NWSAP , are not part of the LUC and its associated
“applicable terms, conditions, requirements, standards and procedures ….” Section 1.2.4.
Nevertheless, a review of a recent holding from the Colorado Court of Appeals is
instructive regarding master plans and subarea plans. As noted in Black Forest Preservation
Plan, Inc. v. Board of County Commissioners of El Paso County, 381 P.3d 396 (Colo.App.
2016), master plans may become binding if properly incorporated into a county's legislatively
adopted subdivision, zoning, or other similar land development regulations.
In Black Forest, the Court determined that the Black Forest Preservation Plan
(“BFPP”) was merely advisory and that El Paso County had clearly demonstrated its intent
13 See footnote 12.
Page 27 of 33
that the plan remain advisory and that the Board maintain its considerable discretion in
deciding how to apply the master plan in its decisions on special use applications.
In Black Forest, the Court determined that the BFPP was “advisory” and that
several provisions in the relevant codes, policies, and plans reflected that specific intent:
• The BFPP explicitly states that it “is an advisory rather than a regulatory
planning tool.” Id. at ¶ 42, 381 P.3d at 406.
• “The ‘Holistic Application’ subsection in the Policy Plan explicitly states
that “[t]he applicable policies in this document should be considered and applied
comprehensively rather than singularly,” and that “[i]t is not the intent of this plan
to prescribe a hierarchy of policy statements.” Id. at ¶ 43.
• El Paso County's Land Development Code was “legislatively adopted with
provisions expressly stating that the County's master plan, including the Policy Plan
and BFPP, is made up of advisory documents.” Id. at ¶ 44.
• The Land Development Code “[i]nclusion [of the Master Plan for the
Physical Development] within this Appendix does not constitute adoption of the
referenced documents and regulations, where not otherwise formally adopted by El
Paso County, but acknowledges the ability to utilize the information contained in
those documents in the evaluation of development applications, building permit
authorization, and other actions as provided for in this Code. Id. at ¶ 45.
Ultimately, the Court in Black Forest concluded that Plaintiffs failed to point to any
provisions in the Land Development Code that negate these clear and express statements of El
Paso County's intent to maintain the advisory nature of the County's planning documents.
In contrast, here, there is no clear intention set forth in the relevant provisions that
establish the City’s intention that the NWSAP remaining merely advisory, or that it should not be
considered, and instead that the only criteria by which the PDP should be evaluated is under the
specific zoning requirements set for in Article 3’s General Development Standards and Article
4’s District’s Standards of the LUC. Review of the applicable provisions of the City Code, LUC
and the NWSAP cited above, demonstrate a contrary intent. Indeed, if the City intended that the
NWSAP was only advisory and need not even be considered in evaluating development
proposals, the City could have so stated in clear and unmistakable language.
Page 28 of 33
Based upon the Court’s reading of the LUC as stated above and its determination that the
NWSAP was not intended to be merely advisory, the Court reviews the Decision and specific
Findings of the Hearing Officer.
REVIEW OF THE HEARING OFFICER'S
FINDINGS & DECISION
Introduction:
Based upon the briefing of the parties and issues before the Court as set forth above, not
all the Hearing Officer’s findings have been presented for review. The most relevant findings are
those set forth in paragraphs 3. B., and 3. C., that underly his Decision approving PDP No. 21008.
Finding 3.B. in the Hearing Officer’s Decision states:
B. Where a development plan meets all of the applicable zoning requirements, a
decision maker may not prevent the development by relying on extraneous
considerations. See, e.g., Cherry Hills Resort Dev. Co. v. City of Cherry Hills
Village, 790 P.2d 827, 832 (Colo. 1990); Sherman v. City of Colorado Springs
Planning Comm'n, 763 P.2d 292, 296–97 (Colo. 1988); Bauer v. City of Wheat
Ridge, 182 Colo. 324, 326–27, 513 P.2d 203, 204 (1973). In this case, as evidenced
by the Staff Report and by other evidence reviewed by the Hearing Officer, the
PDP satisfies all applicable requirements of Article 3 and Article 4 of the LUC
(subject to the Modifications of Standards and the Alternative Compliance Request,
as noted).
Finding 3. C. in the Hearing Officer’s Decision states:
C. Although the NSP 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,” [In footnote 2, the Hearing Officer cites the “NSP, p. 9 ‘Visions and
Key Strategies’).”] the NSP lacks sufficient guidance as to how to alleviate negative
effects caused by development which otherwise complies with City zoning
regulations (in this case, the applicable provisions of Article 3 and Article 4 of the
LUC, including the City’s Low Density Mixed-Use Neighborhood District
regulations). Absent clear guidelines or standards set forth in the NSP against which
the PDP may be judged, the NSP is insufficient to provide “all users and potential
users of land with notice of the particular standards and requirements imposed by
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the [City] for [development plan] approval.” Cherry Hills Resort Dev., 790 P.2d at
832; citing Beaver Meadows v. Board of County Comm'rs, 709 P.2d 928 (Colo.
1985). The Hearing Officer concludes that the NSP lacks sufficient guidelines or
standards on which to deny the PDP for the Project. (Emphasis added.)
The Court determines that the Hearing Officer’s findings as reflected in paragraphs 3.B.
and 3.C. are based upon inaccurate applications of the law and a legal determination by the
Hearing Officer that the NWSAP is “extraneous,” is merely advisory, fails to provide sufficient
guidelines as to evaluate and address “incompatibility,” and need not be considered in any way.
These findings constitute an abuse of discretion, under the legal standards that have been
discussed above and when considering the specific provisions and plain text of the LUC set forth
above.
Moreover, the line of authority cited by the Hearing Officer and discussed in Cherry Hills
Resort Dev. Co. and the other cited cases, has been clarified, in substantial part and is
distinguishable from this case based on the analysis by the Colorado Supreme Court in City of
Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1251 (Colo. 2000). The
Supreme Court in Securcare Self Storage, Inc. concluded, among other things, as follows:
Here, the Zoning Code provisions clearly grant the Planning Commission the
authority to deny a permitted use on the grounds that the use is incompatible with
the surrounding area. As explained earlier, the Zoning Code provisions mandate
that the Planning Commission review a permitted use to ensure that it is compatible
with the surrounding area.
Securcare Self Storage, Inc., 10 P.3d at 1253.
Fort Collins’ LUC and the underlying ordinances involved and codified in the LUC,
include both the City Plan and the NWSAP. The plain text of those ordinances bring those plans
into Fort Collins’ land use planning and approval system. The Hearing Office abused his
discretion and erred by failing to give any consideration to the plain text of the LUC and how it
incorporates the City Plan and NWSAP. The subject LUC provisions referencing the City Plan
and the NWSAP and the underlying ordinances and City Council Resolutions adopting the City
Plan and NWSAP establish the Council’s clear and explicit legislative intent to make approval of
any land use plan subject to the various standards, criteria, and policies contained therein.
The excerpts of the LUC outlined above state, in part, as follows:
1.2.2 - Purpose
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The purpose of this Code is to improve and protect the public health, safety and
welfare by:
(A) ensuring that all growth and development which occurs is consistent with
this Code, City Plan and its adopted components, including, but not limited to,
the Structure Plan, Principles and Policies and associated sub-area plans.
…
(L) encouraging the development of vacant properties within established areas.
(M) ensuring that development proposals are sensitive to the character o f
existing neighborhoods . (Emphasis added.)
Those purposes and references to subarea plans are explicit and bring them into the
review and approval processes. No statutory construction is needed other than to recognize and
give effect to the plain text. The reference to subarea plans in § 1.2.2(A), was included in the
original Land Use Code adopted on March 4, 1997. In its briefing and in oral argument, the City
asserted that those stated purposes and references to the City Plan and the NWSAP amount to
mere aspirational goals and nothing more for a host of reasons. Nevertheless, based upon the
plain text, the Court rejects such arguments.
Furthermore, in the next section of the LUC, the Code notes that the City has the
authority to adopt the Code under its Home Rule Charter. See § 1.2.3 . The importance of Home
Rule authority is set forth above and gives additional weight to the plain text of Fort Collins’
LUC and further reveals that reliance on Cherry Hills is an error of law.
In the next section, the LUC states:
1.2.4 - Applicability
The provisions of this Code shall apply to any and all development of land within the
municipal boundaries of the City, unless expressly and specifically exempted or provided
otherwise in this Code. no [sic] development shall be undertaken without prior and proper
approval or authorization pursuant to the terms of this Code . all [sic] development shall
comply with the applicable terms, conditions, requirements, standards and procedures
established in this Code.
Except as hereinafter provided, no building, structure or land shall be used and no
building or structure or part thereof shall be erected, constructed, reconstructed, altered,
repaired, moved or structurally altered except in conformance with the regulations herein
specified for the district in which it is located, nor shall a yard, lot or open space be
reduced in dimensions or area to an amount less than the minimum requirements set forth
herein or to an amount greater than the maximum require ments set forth herein.
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This Land Use Code establishes procedural and substantive rules for obtaining the
necessary approval to develop land and construct buildings and structures. … (Emphasis
added.)
Accordingly, the provisions of the LUC, which include the City Plan and NWSAP, apply
to all land use development. The provision is clear and unambiguous stating that “all
development shall comply with the applicable terms, conditions, requirements, standards and
procedures established in this Code. Section 1.2.4 is broadly stated and subjects all
development planning and approval to all of the LUC standards, criteria, and embedded
policies.
The NWSAP was adopted as part of the City Plan on December 19, 2006 and
likewise was adopted by the County since it was a joint planning effort. RESOLUTION
2006-120.14
It manifests Fort Collins City Council’s legislative goal and intent to bring the
subarea plan into the City Plan and further include it within the LUC given the Code’s
own explicit references to and inclusion of the City Plan and associated subarea plans in
§ 1.2.2 (A). That section also explicitly states the purpose of the Code is to “improve and
protect the public health, safety and welfare by … (M) ensuring that development
proposals are sensitive to the character of existing neighborhoods.15
As the Hearing Officer set forth in Finding 3.A, the public comment “is properly
characterized as against the approval of the PDP, for various reasons including noncompliance
14 The NWSAP was a “joint project between the City of Fort Collins and Larimer County, developed over the past 18
month ….” Id.
15 Chapter 3 of the NWSAP sets forth the Land Use Framework, which on pages 13 and 15 references Chapter
6 and some of the Plan’s “Goals, Policies & Strategies” on pages 32-23. Those include, in part, for
example:
“GOALS AND POLICIES Goal LU-1 Neighborhood Character Retained
The Northwest Subarea will retain its character and integrity through the appropriate placement and density
of new housing that is compatible with existing neighborhoods.
Policy LU-1.1
Stable County and City Neighborhoods Maintain existing stable County and City subdivisions and
neighborhoods.
Policy LU-1.2
Framework Plan Guides Development Adhere to the Framework Plan for the Northwest Subarea in the design
and review of developments. (See Figure 5 - Framework Plan on page 12.) All new development and
redevelopment activity in the Northwest Subarea should follow this Plan and its guidelines and applicable
regulations.”
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with certain provisions of the Northwest Subarea Plan (2006) (“NSP”) ….” To the extent the
record may evidence any noncompliance or incompatibility with the NWSAP, or any other LUC
prescribed terms, conditions, requirements, standards, procedures and associated policies, such
evidence may not be ignored. Such evidence should be considered appropriately pursuant to the
LUC consistent with the legal analysis herein.16
Therefore, the Hearing Office’s conclusion that he had no authority to consider the
NWSAP or to determine if the proposed development was “compatible” with the existing
neighborhood is legally erroneous and he abused his discretion in failing to give any
consideration to the NWSAP.17 Similarly, the Hearing Officer’s conclusion that the NWSAP
lacks sufficient “specificity” to warrant or require consideration in the review and approval
process is misplaced as well.18
In determining that the Hearing Officer applied the wrong legal standard and abused his
discretion in failing to consider the provisions of the NWSAP, the Court is not expressing any
opinion as to whether the PDP is compatible or incompatible with the character of the existing
neighborhood. Further, the LUC makes it clear that “compatibility” does not mean “the same
as.”
CONCLUSION AND ORDER
For the foregoing reasons, the Hearing Officer’s Findings and Decision approving the
PDP No. 21088 and Council’s approval of the same are hereby set aside and vacated, and the
matter is remanded for further proceedings in accord with the Court’s analysis and findings set
forth specifically here.
On remand, the Hearing Office must consider and apply the LUC, as set forth herein, and
rely upon and be guided by the proper and applicable case law as set forth herein. Furthermore,
the Officer must consider, evaluate the criteria of the NWSAP, and apply it within the Officer’s
16 See, e.g., section 2.2.7(D)(1) regarding “the evidence from the public hearing….”
17 As noted above, Compatibility is defined in LUC section 5.1.2: “Compatibility shall mean the characteristics of
different uses or activities or design, which allow them to be located near or adjacent to each other in harmony. Some
elements affecting compatibility include height, scale, mass and bulk of structures. Other characteristics include
pedestrian or vehicular traffic, circulation, access and parking impacts. Other important chara cteristics that affect
compatibility are landscaping, lighting, noise, odor and architecture. Compatibility does not mean “the same as.”
18 See, e.g., Securcare Self Storage, Inc., 10 P.3d at 1250 (“More importantly, “[n]o development plan shall be
approved unless the plan ... is consistent with the intent and purpose of the Zoning Code and is compatible with the
land uses surrounding the site.”); Quaker Ct. Liab. Co. v. Bd. of Cnty. Comm'rs of Cnty. of Jefferson, 109 P.3d 1027,
1032 (Colo. App. 2004) (discussing specificity and noting broad criteria such as “‘[c]ompatability with the
surrounding area’ and ‘harmony with the character of the neighborhood’ when applied in conjunction with more
specific criteria relating to utilities and traffic” satisfy the specificity requirement) (quoting Tri–State, supra, 647 P.2d
at 678–79)).
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discretion in order to review, evaluate, make findings, and render a well-founded Decision based
upon the law, which may include different or new findings and conditions as warranted. The
Court, however, does not seek to limit the Hearing Officer’s discretion or prescribe any particular
determination.
SO ORDERED: July 24, 2023.
BY THE COURT:
__________________________________
District Court Judge