HomeMy WebLinkAbout2018CV125 - RORY HEATH V. CITY OF FORT COLLINS, ET AL - 003 - DEFENDANT'S UPOPPOSED MOTION FOR ENLARGEMENT OF TIME TO FILE RESPONSIVE PLEADINGDISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2761
Plaintiff: RORY HEATH, as an individual plaintiff and
on behalf of other concerned residents and parties,
v.
Defendants: CITY OF FORT COLLINS CITY
COUNCIL, a municipal governing body; and the CITY
OF FORT COLLINS.
COURT USE ONLY
Kimberly B. Schutt, #25947
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
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: jduval@fcgov.com
Case Number: 18CV125
Courtroom: 5A
DEFENDANTS’ UNOPPOSED MOTION FOR ENLARGEMENT OF TIME
TO FILE RESPONSIVE PLEADING
Defendants, City of Fort Collins City Council and the City of Fort Collins [“the City”],
by and through their counsel, WICK & TRAUTWEIN, LLC and the Fort Collins City Attorney’s
Office, respectfully submits the following unopposed motion for enlargement of time to file a
responsive pleading in this Rule 106 action initiated by the Plaintiff, Rory Heath. In support
hereof, the City states as follows:
1. RULE 121 CERTIFICATION: Undersigned counsel for the City hereby
advises the Court that she has conferred extensively with the Plaintiff regarding the issues
discussed below and the requested enlargement of time. Undersigned counsel is authorized to
state that Plaintiff consents to the relief requested.
DATE FILED: April 2, 2018 2:13 PM
FILING ID: 8AFBDBA5AAAC7
CASE NUMBER: 2018CV125
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2. The Plaintiff has filed a Complaint requesting this Court to review and reverse the
City Council’s decision from February 13, 2018, in which it upheld the City’s Planning and
Zoning Board approval of a housing project known as Union on Elizabeth. The Complaint was
served on the City on March 13, 2018. Therefore, under C.R.C.P. 106(a)(4)(II) and C.R.C.P.
12(a)(1), the City’s Answer to the Amended Complaint would ordinarily be due this coming
Tuesday, April 3, 2018, which is 21 days after service.
3. The City believes the Plaintiff has failed to join an indispensable party to this
action, namely the applicant owner for the Union on Elizabeth project. The Colorado appellate
courts have repeatedly held that a zoning applicant is an indispensable party to a Rule 106(a)(4)
action challenging that particular zoning decision made by a governmental body. Black Canyon
Citizens Coalition, Inc., 80 P.3d 932, 933 (Colo. App. 2003); Thorne v. Bd. Of County Com’rs of
Fremont County, 638 P.2d 69, 71 (Colo. 1981); Norby v. City of Boulder, 577 P.2d 277, 280
(Colo. 1978); Hidden Lake Development Co. v. District Court, 515 P.2d 632, 635 (Colo. 1973);
Hennigh v. County Com’rs, 450 P.2d 73 (Colo. 1969).
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4. As noted above, undersigned counsel has conferred with the Plaintiff regarding
this issue, to determine whether the Plaintiff will voluntarily amend his Complaint to name the
applicant as an additional defendant, or whether the City needs to file a motion to dismiss his
Complaint for failure to join an indispensable party. Plaintiff has indicated he needs more time
to research the case law that defense counsel provided to him last week (namely that set forth
above) and to do additional research. The parties have thus agreed to a brief enlargement of the
responsible pleading deadline, subject to this Court’s approval, in order to resolve this critical
issue.
5. Accordingly, the City seeks a brief one-week enlargement of the deadline to
respond to the Complaint, extending it to Tuesday, April 10, 2018. Of course, if the Plaintiff
elects to voluntarily amend his Complaint to join the applicant owner for the Union on Elizabeth
project, it will have the effect of creating a new deadline 21-days after the City is served with the
amended complaint.
6. This motion is made in good faith and in cooperation with the pro se Plaintiff in
this case. No prejudice should be incurred to any party, as reflected by the consent and
agreements described above.
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In fact, as reflected in these cited cases, it used to be that the applicant had to be named as a
defendant within the former 30-day time period for filing a Rule 106(a)(4) challenge to a zoning
decision, otherwise the action was subject to dismissal with prejudice for having been untimely
perfected. However, Rule 106(b) has since been modified to avoid this trap, expressly
authorizing amendments to add, dismiss or substitute parties, with such amendment relating back
to the date of the filing of the original complaint. Black Canyon Citizens Coalition, Inc., 80 P.3d
at 933. The applicant is nevertheless considered an indispensable party, and failure to name it as
a defendant or to take appropriate steps to add it as a party warrants dismissal.
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WHEREFORE, the City respectfully requests the Court enter an order enlarging its
deadline to respond to the Plaintiff’s Complaint to Tuesday, April 10, 2018, with the
understanding that if Plaintiff voluntarily amends his Complaint to join the applicant as a
defendant, the deadline for a responsive pleading will then be 21 days after an Amended
Complaint is filed and served on the City.
RESPECTFULLY SUBMITTED this 2
nd
day of April, 2018.
WICK & TRAUTWEIN, LLC
This document was served electronically pursuant to
C.R.C.P. 121 §1-26. The original pleading signed by
Kimberly B. Schutt is on file at the offices of Wick &
Trautwein, LLC
By: s/Kimberly B. Schutt
Kimberly B. Schutt, #25947
Attorneys for Defendant
And
John R. Duval, #10185
FORT COLLINS CITY ATTORNEY’S OFFICE
P.O. Box 580
Fort Collins, CO 80522
(970) 221-6520
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CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANTS’ UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO FILE
RESPONSIVE PLEADING was filed via Colorado Courts E-Filing System and served this 2
nd
day of April, 2018, on the following:
Rory Heath
2831 Ridgeglen Way
Colorado Springs, CO 80918
Via email to roryheath1@gmail.com
/s/ Jody L. Minch_______________________
[The original certificate of electronic filing signed by Jody L. Minch
is on file with the law offices of Wick & Trautwein, LLC.]