HomeMy WebLinkAbout2017CV01 - HOFFMAN & HUNT V. CITY OF FORT COLLINS, ET AL - 006 - ANSWERFORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521
Phone: (970) 221-6800
Plaintiffs: COLLEEN HOFFMAN, RICK HOFFMAN,
and ANN HUNT,
V.
Defendants: THE CITY COUNCIL OF THE CITY OF COURT USE ONLY
FORT COLLINS, the governing body of a Colorado
municipal corporation; and THE ADMINISTRATION .
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry.
Kimberly B. Schutt, #25947 Case Number:
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3 2017-CIVILOI
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
FAX Number: (970) 482-8929
John R. Duval, # 10185
FORT COLLINS CITY ATTORNEY'S OFFICE
P.O. Box 580
Fort Collins, CO 80522
Phone: (970) 221-6520
Email: iduvalna,fcgov.com
COMES NOW the City of Fort Collins ("the City"), by and through its counsel,
Kimberly B. Schutt of Wick & Trautwein, LLC, and John R. Duval of the Fort Collins City
Attorney's Office, and on behalf of the above -named defendants and in Answer to the Plaintiffs'
Complaint and Request for Injunctive Relief, states to the Court as follows:
1. The first part of the Plaintiffs' Complaint, entitled "Introduction," does not appear
to make factual allegations that require a response in the way of an admission or denial. Rather,
it appears to be a statement of Plaintiffs' position regarding the lack of procedural rules at that
time for an action seeking review pursuant to Article VII, Section 1, of the City Charter.
However, on April 18, 2017, the City Council adopted on second reading Ordinance 052, 2017,
amending Chapter 19 of the City Code to adopt the Colorado Rules of Civil Procedure to apply
to all actions filed in municipal court. That ordinance went into effect on April 28, 2017.
Therefore, it is the City's position that, pursuant to this ordinance, the Colorado Rules of Civil
Procedure, including C.R.C.P. 106 and C.R.C.P. 65, apply to this action, and that a clear and
adequate process exists for review of the alleged abused of discretion which the Plaintiffs have
raised in their Complaint, and which the City generally denies. To the extent the "Introduction"
is deemed to contain any substantive allegations which are not contained within the body of the
Plaintiffs' Complaint and thereby addressed in the admissions and denials below, the City
generally denies said allegations.
2. With regard to Paragraph 1 of the Plaintiffs' Complaint, the City admits that it is a
home rule municipality located in Larimer County, Colorado and organized by a City Charter
adopted in accordance with Article XX, Section 6 of the Colorado Constitution. The City also
admits that, pursuant to Chapter 2, Article III, Section 1, the City Manager, who is currently
Darin Atteberry, is the chief executive officer and head of the administrative branch of the city
government. The powers and duties of the City Manager and the administrative branch of
government, particularly as they relate to planning and zoning issues, are set forth in numerous
provisions of the City Charter, City Code and Land Use Code ["LUC"], which provisions speak
for themselves. However, the City denies that the "Administrative Branch of the City of Fort
Collins" is a properly named defendant, as the administrative branch of the City is not a legal
entity capable of being sued separate and apart from the City of Fort Collins itself. All
departments and branches of its government are part of the municipal corporation, such that the
City itself is the only proper defendant under the circumstances alleged. See, City Charter IV, § 2
and City Code Chapter 2, Article V. It thus answers this Complaint on behalf of the improperly
named defendant.
3. The City admits the allegations of Paragraph 2 of the Plaintiffs' Complaint.
4. With regard to the allegations of Paragraph 3 of the Plaintiffs' Complaint, the City
admits on information and belief that the Plaintiffs reside in the City of Fort Collins in the
vicinity of the Landmark Apartments development, and thus are interested parties. The City
further admits that Plaintiffs Ann Hunt and Colleen Hoffman were appellants before the City
Council in the proceedings held on January 31, 2017.
5. With regard to the allegations of Paragraph 4 of the Plaintiffs' Complaint, the City
admits that Article VII, Section 1 of the City Charter confers original jurisdiction on the
municipal court to hear all matters arising under the City's Code and Charter. The City further
admits that the issues raised in this action arise under the City's Code and Charter, such that that
this Court has original jurisdiction and is the proper venue for this action, though the Plaintiffs
also had an available remedy in state district court under C.R.C.P. 106 and 65.
6. With regard to the allegations in Paragraph 5 of the Plaintiffs' Complaint, the City
admits the Plaintiffs' Complaint alleges an abuse of discretion on the part of the City Council.
The City also admits that the Plaintiffs allege in their Complaint that they were caused certain
damages or deprived of certain rights by the purported abuse of discretion. However, the City
denies that any such abuse of discretion or deprivation/damage occurred here. The City admits
the Municipal Court has subject matter jurisdiction over the matter based on what has been
alleged in the Plaintiffs' Complaint.
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7. The City denies the allegations of Paragraph 6 of the Plaintiffs' Complaint, as
stated. Article III, Section 2 of the City Charter sets forth the powers and duties of the City
Manager, in the proper administration of the affairs of the City, including the power to enforce
the laws and ordinances of the City. Those provisions speak for themselves. Further, as stated in
Paragraph 2 above, the City denies that "the Administrative Branch of the City of Fort Collins"
is a properly named defendant, because it is not a separate legal entity, such that the Municipal
Court does not have jurisdiction over it as an individual branch of government. The City admits,
however that the Municipal Court does have jurisdiction over the City of Fort Collins, which is
answering this Complaint on behalf of the improperly named defendant. To the extent that the
remaining allegations of Paragraph 6 of the Complaint assert that the City, through its City
Manager, failed to enforce the laws and ordinances of the City, the City hereby denies the same.
8. With regard to the allegations of Paragraph 7 of the Plaintiffs' Complaint, the City
admits that the decisions of the City Council, when acting in a quasi-judicial capacity, are subject
to further review by a superior court, and that the Municipal Court has jurisdiction to conduct
such review under Article VII, Section 1, of the City Charter. To the extent Paragraph 7 of the
Plaintiffs' Complaint contains any further allegations, the City denies the same.
9. With regard to the allegations of Paragraph 8 of the Plaintiffs' Complaint, the City
admits that, on November 10, 2016, the Board reviewed and approved the Landmark Apartments
Expansion Project Development Plan PDP#160013 ("the PDP" or "Project"). To the extent
Paragraph 8 of the Plaintiffs' Complaint contains any further allegations, the City denies the
same.
10. The City admits the allegations of Paragraph 9 of the Plaintiffs' Complaint.
11. With regard to the allegations in Paragraph 10 of the Plaintiffs' Complaint, the
City admits that the appeals generally alleged that the Board failed to conduct a fair hearing and
also failed to properly interpret and apply relevant sections of the LUC. The appeals, which
were attached to the Plaintiffs' Complaint as exhibits 1 and 2, speak for themselves.
12. With regard to the allegations in Paragraph 11 of the Plaintiffs' Complaint, the
City admits that the City Council consolidated and heard both appeals in a hearing held on
January 31, 2017, after giving proper notice pursuant to Chapter 2, Article II, Division 3 of the
City Code. The City also admits that the City Council reviewed the record on appeal and the
applicable provisions of the LUC, and heard presentations from the interested parties, and that
the City planning staff also presented information at the appeal hearing. The City denies the
remaining allegations of Paragraph 11 of the Plaintiffs' Complaint.
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13. The City denies the allegations of Paragraph 12 of the Plaintiffs' Complaint.
14. With regard to the allegations of Paragraph 13 of the Plaintiffs' Complaint, the
City admits that the Notice of Appeal of Per Hogestad, the co -appellant whose appeal was
consolidated with the appeal of the Plaintiffs, averred that the requirements of LUC 3.4.1 were
not satisfied. The City denies the remaining allegations of Paragraph 13 of the Plaintiffs'
Complaint.
15. With regard to the allegations of Paragraph 14 of the Plaintiffs' Complaint, the
City admits that the two notices of appeal filed by the Plaintiffs and by co -appellant Per
Hogestad, consolidated for hearing by the City Council, averred that the compatibility
requirements of LUC 3.5 were not satisfied. The City denies the remaining allegations of
Paragraph 14 of the Plaintiffs' Complaint.
16. The City denies Paragraph 15 of the Plaintiffs' Complaint, as stated, with regard
to the allegations that the Project was treated by City planning staff as an expansion of the
existing Landmark Apartments development. The Project was treated as an extension for
purposes of integration compatibility and shared facilities. However, because it is on a separate
parcel and could be sold independently of the existing apartment complex, the LUC standards
were applied as if it was an independent project. The City denies the remaining allegations of
Paragraph 15 of the Plaintiffs' Complaint.
17. With regard to the allegations of Paragraph 16 of the Plaintiffs' Complaint, the
City admits that City Council considered an Ecological Characterization Study (ECS) as part of
its review of the issues raised in the two appeals. The City denies the remaining allegations of
Paragraph 15 of the Plaintiffs' Complaint, and states that Section 3.4.1(D) of the LUC speaks for
itself.
18. With regard to the allegations of Paragraph 17 of the Plaintiffs' Complaint, the
City admits that, at the City Council hearing on January 31, 2017, Councilman Gino Campana
made a motion, seconded by Councilmember Ray Martinez, to uphold the decision of the Board
subject to the addition of certain conditions, and that the City Council voted unanimously in
favor of said motion. The City further admits that the City Council at its next regular meeting
adopted Resolution 2017-0111, attached to the Plaintiff s Complaint as Exhibit 3, which speaks
for itself.
19. In answer to paragraph 18 of the Plaintiffs' Complaint, the City incorporates
herein by reference the answers set forth above in paragraphs 1 through 18 of this Answer.
20. In response to the allegations of Paragraphs 19 and 20 of the Plaintiffs'
Complaint, the City admits that Resolution 2017-011, contains statements to the effect alleged in
those paragraphs, in pertinent part, in its findings of fact and conclusion. The subject Resolution
attached to the Plaintiffs' Complaint as exhibit 3 speaks for itself.
21. The City denies the allegations of Paragraph 21 of the Plaintiffs' Complaint.
22. In answer to paragraph 22 of the Plaintiffs' Complaint, the City incorporates
herein by reference the answers set forth above in paragraphs 1 through 21 of this Answer.
23. The City denies the allegations of Paragraph 23 of the Plaintiffs' Complaint.
24. The City denies the allegations of Paragraph 24 of the Plaintiffs' Complaint.
Section 3.4. 1 (E)(2)(c) of the LUC speaks for itself.
25. In answer to paragraph 25 of the Plaintiffs' Complaint, the City incorporates
herein by reference the answers set forth above in paragraphs 1 through 24 of this Answer.
26. The City denies the allegations of Paragraphs 26 and 27 of the Plaintiffs'
Complaint.
27. In answer to paragraph 28 of the Plaintiffs' Complaint, the City incorporates
herein by reference the answers set forth above in paragraphs 1 through 27 of this Answer.
28. The City denies the allegations of Paragraphs 29 and 30 of the Plaintiffs'
Complaint.
29. In answer to paragraph 31 of the Plaintiffs' Complaint, the City incorporates
herein by reference the answers set forth above in paragraphs 1 through 28 of this Answer.
30. The City denies the allegations of Paragraphs 32 and 33 of the Plaintiffs'
Complaint. The ECS speaks for itself.
31. In answer to paragraph 34 of the Plaintiffs' Complaint, the City incorporates
herein by reference the answers set forth above in paragraphs 1 through 30 of this Answer.
32. The City denies the allegations of Paragraphs 35 and 36 of the Plaintiffs'
Complaint.
33. The City hereby denies each and every allegation of the Plaintiff's Complaint not
expressly admitted hereinabove.
AFFIRMATIVE DEFENSES
1. The Plaintiffs' Complaint fails to state a claim upon which relief can be granted.
2. The City Council's Resolution is supported by controlling provisions of the City Charter
Fort Collins Municipal Code and Land Use Code, as well as competent evidence in the
record, such that the City Council has not abused its discretion.
3. One or more of the Plaintiffs' claims are barred by the doctrine of waiver and/or estoppel.
4. Plaintiffs' allegations consist largely of legal conclusions and interpretations of City
Code provisions and other documents, all of which speak for themselves.
Plaintiffs have failed to allege sufficient grounds to support imposition of injunctive relief
under C.R.C.P. 65, and have also failed to post required security to obtain said relief, and
thus any claim for injunctive relief is without merit and must be dismissed as a matter of
law.
6. Plaintiffs have failed to join an indispensable party to this action.
7. Defendants reserve the right to add or delete affirmative defenses based on information
gathered in the investigation or discovery of this case.
WHEREFORE, Defendant City of Fort Collins respectfully prays that the Court enter
judgment in its favor and against the Plaintiffs, upholding all of the actions of the City Council,
and award the City its reasonable attorney's fees, expert witness fees, costs and such further
relief as the Court shall deem just and proper.
DATED this 12°i day of May, 2017.
Respectfully submitted,
WICK & TRAUTWEIN, LLC
By: —A� —a��P —
Kimb ly B. Sch , #25947
Atto ys for the ity of Fort Collins
And
John R. Duval, #10185
FORT COLLINS CITY ATTORNEY'S OFFICE
P.O. Box 580
Fort Collins, CO 80522
(970)221-6520
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing ANSWER
was SERVED via U.S. Mail and email this 121h day of May, 2017, on the following:
Colleen Hoffinan
1804 Wallenberg Drive
Fort Collins, CO 80526
cohoff2comcast.net
Rick Hoffman
1804 Wallenberg
Fort Collins, CO 80526
Rick-hoffman@comcast.net
Ann Hunt
1800 Wallenberg Drive
Fort Collins, CO 80526
ARH4Qcomcast.net