HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 001 - SUMMONS AND COMPLAINTFORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 2216800
Plaintiffs: Eric Sutherland,, J & M Distributing, DBA Fort
Collins Muffler and Automotive
V.
Defendant: THE CITY COUNCIL OF THE CITY OF 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
. COURT USE ONLY .
Case Number:
MUNICIPAL COURT CIVIL SUMMONS
TO THE ABOVE NAMED DEFENDANT: The Administration Branch of the City of Fort Collins under
city Manager Darin Atteberry. 300 Laporte Ave. Fort Collins, Co 80521 (970) 221-6506
YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court an answer or other
response to the attached COMPLAINT BROUGHT UNDER C.R.C.P. RULE 106(A)(2), REQUEST FOR
INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT RELIEF. Your answer or other response is due within
21 days after such service upon you.
If you fail to file your answer or other response to the Complaint in writing within the applicable time
period, the Court may enter judgment by default against you.
Dated: 1 I
Clerk of Court/C rk
Signature of Plaintiff
3520 Golden Currant, Fort Collins, CO 80521
Address of Plaintiff
(970) 224 4509
Plaintiffs Phone Number
This Summons is issued pursuant to Rule 4, C.R.C.P . A copy of the complaint must be served
with this Summons.
FORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 2216800
Plaintiffs: Eric Sutherland, J & M Distributing, DBA Fort
Collins Muffler and Automotive
V.
Defendant: THE CITY COUNCIL OF THE CITY OF 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.
Parties without attorney
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
(970) 224 4509
sutherix@yahoo.om
J & M Distributing, DBA Fort Collins Muffler and Automotive
Brian Dwyer, President
2001 S. College Ave.
Fort Collins, CO 80525
(970) 484 0866
bdwyer1199@gmail.com
COURT USE ONLY
Case Number:
6zL'zi-
Z0fC6 0t
COMPLAINT BROUGHT UNDER C.R.C.P. RULE 106(A)(2), REQUEST FOR INJUNCTIVE RELIEF AND
DECLARATORY JUDGMENT
Plaintiffs, Eric Sutherland and J & M Distributing, in this Complaint
alleging abuse of discretion by the City Council of the City of Fort Collins and
request for injunctive relief, hereby state and allege as follows:
Introduction
The City of Fort Collins (the City) is a home rule municipality in the state of
Colorado. Pursuant to authority granted Article XX section 6 of the Colorado
Constitution, the City of Fort Collins has adopted a City Charter. By adoption of a
home rule City Charter (the Charter), the City has claimed authority over all
planning and zoning issues in the City. All powers of the city and the
determination of all matters of policy pertaining to planning and zoning are vested
in the Defendant City Council. See Charter Article II section 5 (b) (8).
The powers of the City in the field of planning and zoning include the
exclusive authorization for the construction of improvements on real property
within the corporate limits of the City and no improvements may be constructed
without such authorization. The process of granting authorization for the
construction of improvements, also referred to as vested rights, is generally known
as development review and is defined and controlled by the laws of the City of Fort
Collins as adopted by Ordinance of the Council and amended from time to time in
the City Code, the Land Use Code and the zoning map.
The development review process grants vested rights upon favorable
findings in a public hearing held by a decision maker, who thereafter makes a
determination as to whether or not the proposed development conforms with
standards for development and use found in the Land Use Code and the zoning
map. Such public hearing and resulting decision are quasi-judicial and may be
appealed to the Council in accordance with procedure established in the City Code.
The City Council's review of a decision from a lower tribunal is also quasi-judicial
in nature. As such, an abuse of discretion by the City Council is subject to appeal
to a court of competent jurisdiction. This complaint is such an appeal.
Article VII section 1 of the Charter states, in relevant part:
There shall be a Municipal Court vested with original jurisdiction of all causes
arising under the City's Charter and ordinances....
Rules of procedure, costs and fees shall be enacted by the Council upon
recommendation of the Municipal Judge.
The Supreme Court of the State of Colorado has ruled that language substantially
similar to that of Article VII section 1 means precisely what it says. The Municipal
Court of the City of Fort Collins has exclusive original jurisdiction over this matter.
See Town of Frisco v Baum, 90 P. 3d 845 (Colo 845). In response to the first ever
civil suit filed in this court in 2017, 17civi101, defendant City Council did adopt
procedures for adjudicating civil matters brought to the municipal court. See
Ordinance 052, 2017 adopted on 2" reading April 181h, 2017. The effect of Ord.
052 was to adopt the Colorado Rules of Civil Procedure C.R.C.P. to govern the
procedures in this court in all civil matters arising from Charter, Code and City
Ordinances.
The City of Fort Collins has, for a long period of time, conducted its
administrative and quasi-judicial affairs in the arena of development review with a
general disregard for rule of law. The legislative intent of the standards for
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development review and the very modest protections that such standards provide
the citizens of Fort Collins. are ill. observed. The present case brought before the
Municipal Court brings the bad faith and exploitation into view and exposes
various deficiencies in process at the same time. The failure to refine and evolve
process and the absence of fidelity to the purpose of the ordinances that control
development review may be traced to an administrative paradigm that has lost sight
of the public interest.
Parties
1. The City of Fort Collins 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.
2. The Defendant Administrative Branch of the City of Fort Collins is under
the supervision and control of the City Manager, Darin Atteberry, pursuant to
Article III of the Charter. In particular, the administrative affairs of the Defendant
Administrative Branch include the granting of final vested rights in development
review proceedings including but not limited to the execution of a development
agreement with the City, re -platting of land and the approval of a Final
Development Plan (FDP) in accordance with Division 2.5 of the Land Use Code.
3. The Defendant City Council of the City of Fort Collins is the governing
body of the City of Fort Collins pursuant to Article II of the charter. In particular,
the Defendant City Council's review of appeals from development review hearings
conducted by the Planning and Zoning Board lies in mandamus and is
quasi-judicial in nature.
4. Although individually named, both the Administrative Branch and City
Council are components of the City of Fort Collins, an independent sub -division of
the state of Colorado. Whether these two parties is named individually or
collectively is of no consequence in this matter in terms of the relief requested.
This court has jurisdiction over both.
5. Plaintiff Eric Sutherland is a citizen of Fort Collins. Sutherland was an
interested party in the review of the application for vested rights by the Fort Collins
Planning and Zoning Board by virtue of appearing at the Planning and Zoning
Board hearing and providing public comment. Sutherland was one of two
appellants who filed a joint appeal of the Planning and Zoning Board decision.
6. Plaintiff J & M Distributing (J & M) is an S-corporation with operations
in Fort Collins doing business as Fort Collins Muffler and Auto. The President of
J & M Distributing, Brian Dwyer, represented the company with comments to
Council on the occasion of the appeal of the Planning and Zoning Board decision
3
in PDP# 170034. J & M Distributing was an interested parry for purposes of
appeal by virtue of property owned by the company within the notification area of
for the Planning and Zoning Board hearing.
Venue
7. The Municipal Court of the City of Fort Collins has original jurisdiction
of all matters arising from the Charter and ordinances of the City of Fort Collins.
(See Introduction and Article VII of the Charter). All matters complained of and
all requests for injunctive relief here arise from the Charter and ordinances of the
City. All actions of the Defendant City Council complained of herein are matters
of exclusively local interest. All controlling laws in this matter are local laws that
have been duly adopted in a field of exclusively local interest. All administrative
actions of the Defendant Administrative Branch sought to be enjoined and
restrained by the Plaintiffs are exclusively matters of local control. Venue is proper
in this court.
Jurisdiction
8. The Plaintiffs herein allege an abuse of discretion by the Defendant City
Council in failing to ensure that the laws of the City of Fort Collins applicable to
review of a proposed construction of improvements on property within the city
limits were applied uniformly and fairly. Said laws create for the Plaintiffs a
legally protected right to the use and enjoyment of the Fort Collins community
whether on public or private property. The Plaintiffs further allege that this abuse
of discretion will deprive Plaintiffs of property rights and rights under law. The
Land Use Code of the City of Fort Collins creates legally protected rights for
citizens. All citizens of Fort Collins have the legal expectation that the
community they live in or own property in will develop in the manner agreed to by
the adoption of the Land Use Code. Any development that proceeds in a manner
inconsistent with the requirements of the Land Use Code creates an injury -in -fact
whether it be a tangible or intangible injury. The Muncipal Court of the City of
Fort Collins has subject matter jurisdiction over this dispute.
9. The Defendant Administrative Branch of the City of Fort Collins is
required by Article III section 2 (f) to enforce the laws and ordinances of the city.
The award of vested development rights to a party for a proposed construction of
improvements that is inconsistent and incompatible with the standards of the Land
Use Code is a failure to enforce the laws and ordinances of the city. The
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Municipal Court of the City of Fort Collins has jurisdiction over the Defendant
Administrative Branch in this dispute.
10. The decisions of the Defendant City Council of the City of Fort Collins,
when acting in a quasi-judicial capacity for the purposes of reviewing matters of
exclusively local interest is subject to further judicial review by a superior court.
The Municipal Court of the city of Fort Collins is a superior court by virtue of
Article VII of the Charter and the decision of the Colorado Supreme Court in Town
of Frisco a Baum, supra. The Municipal Court of the City of Fort Collins has
jurisdiction over the Defendant City Council in this dispute.
General allegations
11. On January 18th, 2018, the Planning and Zoning Board (the "Board")
reviewed and approved the Johnson Drive Apartments Project Development Plan
PDP#170034 (the "PDP" or "Project").
12. A Notice of Appeal of the Board's approval of the PDP was filed with
the City Clerk on February 1, 2018, pursuant to Chapter 2, Article II, Division 3, of
the City Code by Eric Sutherland and another citizen of Fort Collins. See exhibit 1.
13. Generally, the appeal noted in the preceding paragraph alleged that the
Planning and Zoning Board had failed to apply relevant standards of the Land Use
Code. See Grounds for the Appeal 1-4. A fifth Grounds alleged that standards
appearing in the LUC were unconstitutionally vague and were also unenforceable
and were therefore insufficient for the purposes of protecting the rights of the
public set forth in the LUC. Also, the appeal alleged that the Board received and
considered evidence that was substantially false or misleading.
14.On February 27, 2018, the defendant City Council, after notice given in
accordance with Chapter 2, Article II, Division 3, of the City Code, considered the
Appeal. As is the custom of Defendant Administrative Branch, the staff of the
City of Fort Collins planning department participated in the appeal process in a
substantial capacity with an undisputable bias shown to the position of the
opponent of the Appeal.
15. Defendant City Council, by motion and affirmative vote, found that the
Appeal was without merit as to all allegations. The practical effect of that
decision was made official pursuant to City Code by the adoption, at its next
regular meeting held on March 6, 2018, of RESOLUTION 2018-023 OF THE COUNCIL
OF THE CITY OF FORT COLLINS ADOPTING FINDINGS OF FACT AND
CONCLUSIONS MAKING FINDINGS OF FACT AND CONCLUSIONS OF LAW
REGARDING THE APPEAL OF THE PLANNING AND ZONING BOARD'S DECISION
APPROVING THE JOHNSON DRIVE APARTMENTS PROJECT DEVELOPMENT PLAN
PDP170034. See exhibit 2, the Resolution.
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First claim for relief
16. The Plaintiffs incorporate the General Allegations as if fully set forth
herein.
17. The first of five grounds for the appeal generally alleged that deferring
the sufficiency of any aspect of a development controlled by the Land Use Code
runs counter to the legislative intent of the Code and alleged that a determination of
the sufficiency of a design for a trash enclosure as controlled by LUC section
3.10.5(C) had been deferred. This allegation is unquestionably an allegation that
the Board had failed to properly interpret and apply LUC section 2.4.2(H), Step 8.
See Exhibit 1.
17. The materials presented to the Planning and Zoning Board did not
include a design schematic or specifications of any kind that described the trash
enclosure other than a plan view that indicated the location and approximate size of
the footprint of a proposed trash enclosure.
18. As it applies specifically to this claim, the specifications for the
sufficiency of a trash enclosure require compatibility with adjacent land uses. See
Land Use Code section 3.10.5(C).
19. The adjacent land uses of the proposed trash enclosure are a
well -traveled pedestrian and bicycle trail and a real gem of a public park. In
particular, the trail passes right next to the proposed site of the trash enclosure as it
makes a tight curve. The presence of a potential trash enclosure, if added to this
location, will be the dominant feature proximate to any user of the trail.
20. The transcript of the January 18, 2018 Planning and Zoning Board
hearing clearly indicates that the Board did not pass any judgment let alone a
judgment on the compatibility of the proposed design with adjacent land uses.
21. Instead, the record of the hearing shows the Board deferring a decision
on compatibility to others.
22. Under the Land Use Code, a determination of the compatibility of a trash
enclosure lies exclusively in the sound discretion of the Board.
23. In considering the matter of the abdication of the Board to judge the
sufficiency of a design for a trash enclosure as to its compatibility, defendant City
Council abused its discretion by disregarding the preponderance of evidence that
indicated that the Board had abdicated its exclusive discretion over compatibility to
others in a manner that is inconsistent with the requirements of Land Use Code
section 2.4.2(H) step 8.
M
24. It is without question that the record on appeal shows the defendant City
Council misapprehending the allegation and relying upon fraudulent assurances
and mistaken representations from city staff to conclude that somehow the Board,
which had not seen a design for trash enclosure, had somehow judged the
sufficiency of the trash enclosure as to its compatibility with adjacent land uses. In
fact, city staff erroneously represented that the trash enclosure, which had never
been documented with design specifications, met the requirements of the Land Use
Code.
25. The First grounds for Appeal was a correct and accurate representation
of the requirements of the Land Use Code and the failure of the Board to properly
interpret and apply these requirements. Defendant City Council abused its
discretion by disregarding matters of fact and law and finding that the First
Grounds for Appeal was without merit. This matter must be remanded to
defendant City Council with instructions to remand this matter back to the Board
for a determination of the sufficiency of a design for a trash enclosure.
Second claim for relief
26. The Plaintiffs incorporate the General Allegations and the First claim for
relief as if fully set forth herein.
27. The Second grounds for the appeal generally complained that the PDP
was not in compliance with the requirements of the General Commerical Zone,
Land Use Code section 4.21. Specifically, the Appeal noted the absence of a
pedestrian/bicycle pathway from the subject property to the adjacent property to
the South and points beyond including the MAX BRT station, (Spring Creek
Station.) The suggested remedy for the deficiency brought forth in the Second
grounds was, at a minimum, a dedication of public right of way.
28. Although suggested as a remedy, the failure to dedicate a right of way
was the crux of the allegation in the Second grounds for the Appeal.
29. In addition to the requirements for the General Commercial Zone, the
Land Use Code contains many requirements for connectivity of subject parcels to
adjacent and proximate parcels and areas. Specifically, Land Use Code section
3.2.2 contains several requirements for connectivity that operate harmoniously and
in support of the General Commercial Zone requirements.
30. Under modern rules of pleading, courts look to the "essence of a claim
regardless of how it is denominated." Bainbridge, Inc. a Travelers Casualty Co.,
159 P.3d 748, 755 (Colo.App.2006); see also Hutchinson a Hutchinson, 149 Colo.
38, 419 367 P.2d 594, 596 (1961) ("The substance of the claim rather than the
appellation applied to the pleading by the litigant is what controls."); Sheffield
7
Services Co. a Trowbridge, 211 RM 714, 718 (Colo.App.2009) ("the claim's
substance rather than [its] appellation ... controls"). Although specific citations of
provisions of the Land Use Code such as 3.2.2 were not presented upon appeal, the
essence of the claim was unquestionably clear.
31. The defendant City Council misapprehended the requirements of the
Land Use Code in regards to the failure of the Board to require connectivity of the
subject parcel with the area to the South including Spring Creek Station.
Specifically, defendant City Council, at the urging of Councilman Gerry Horak,
invented a theory that connectivity is only required when a sub -area plan has been
developed that prescribes certain trails or other public rights of way. Reliance on
this theory, as opposed to the actual requirements of the Land Use Code was
misplaced and resulted in an abuse of discretion when finding the allegations of the
Second grounds for the Appeal to be meritless.
32. Additionally, several members of Defendant City Council voiced support
for improved connectivity in this area and the deficiencies of pedestrian and
bicycle connections that presently exist.
33. The Second grounds for Appeal was a correct and accurate
representation of the requirements of the Land Use Code and the failure of the
Board to interpret and apply these requirements. Defendant City Council abused
its discretion by disregarding matters of fact and law and finding that the First
Grounds for the Appeal was without merit. This matter must be remanded to
defendant City Council with instructions to remand this matter back to the Board
for inclusion of proper design and right of way conveyance in keeping with the
requirements of connectivity for bicyclists and pedestrians as specified in the Land
Use Code.
Third claim for relief
34. The Plaintiffs incorporate the General Allegations and the First and
Second claims for relief as if fully set forth herein.
35. The Fifth grounds for the Appeal generally alleged that allowances that
provide for a reduction of the number of parking spaces built into a residential
housing project in the Transit Oriented Development ("TOD") zone are
unconstitutionally vague and unenforceable. Reliance upon unconstitutionally
vague and unenforceable allowances, which are also referred to as mitigation
strategies, subverts the legislative intent of the Land Use Cole and abridges the
rights of all citizens within the community in general and residents and business of
neighboring properties in particular.
LI
36. The PDP was not clear as to what mitigation strategies the applicant was
claiming, however, it was assumed that 1.) Car sharing and 2.) transit passes were
claimed and responsible for a reduction in the number of parking spaces that were
otherwise required. The requirements for parking in the TOD and the mitigation
strategies that may be employed to reduce the number of parking spaces are found
in Land Use Code section 3.2.2 (K).
37. No operational understanding of what "Car Share" means or requires of
the applicant was adduced by the Board during the hearing of the PDP. No
expectation of what could be expected was defined or explained. No conditions
for approval relating to this issue were imposed.
38. The mitigation strategy for "Car Share" in the TOD is unconstitutionally
vague. As such, it is improper to rely upon any claim that the requirements for
parking may be reduced as a result of compliance with this standard in the absence
of definitions or operational understandings that are captured in the course of
development review, most likely as the imposition of conditions.
39. The Defendant City Council misapprehended the sufficiency of the
mitigation strategy pertaining to "Car Share" while failing to note that the Board
had taken no steps to assure compliance with the legislative intent of the parking
requirements in the TOD in light of an unconstitutionally vague mitigation strategy
and the absence of any attempt to define the necessary elements of the strategy.
40. The Fifth grounds for the Appeal was a correct and accurate
representation of the vagueness of the mitigation strategy described only as "Car
Share" and the failure of the Board to properly specify conditions to ensure that a
reduction in required parking spaces did not compromise the legislative intent of
the parking requirements for residential housing in the TOD. Defendant City
Council abused its discretion by disregarding matters of fact and law and finding
that the Fifth Grounds for the Appeal was without merit as it pertained to the
vagueness of the "Car Share" allowance. This matter must be remanded to
defendant City Council with instructions to remand this matter back to the Board
for the specification of conditions for "Car Share" commensurate with the
reduction of parking spaces associated with the claimed level of "Car Share" upon
which the reduction was based.
41. The Plaintiffs respectfully request that this court issue a declaration that
the mitigation strategy for "Car Share" is unconstitutionally vague and that without
further clarification presented in codified ordinance of the City of Fort Collins do
not represent an adequate means for effecting a reduction of parking spaces that
would otherwise be required in the TOD.
L']
Fourth claim for relief
42. The Plaintiffs. iftcorporate:the General Allegations and the first, second
and third claims for relief as if fully set forth herein.
43. No operational understanding of what "Transit Passes" means or requires
of the applicant was adduced by the Board during the hearing of the PDP. No
expectation of what could be expected was defined or explained. No conditions
for approval relating to this issue were imposed.
44. The mitigation strategy for "Transit Passes" in the TOD is
unconstitutionally vague. As such, it is improper to rely upon any claim that the
requirements for parking may be reduced as a result of compliance with this
standard in the absence of the definitions or operational understandings that are
captured in the course of development review, most likely as the imposition of
conditions.
45. The Defendant City Council misapprehended the sufficiency of the
mitigation strategy pertaining to "Transit Passes" while failing to note that the
Board had taken no steps to assure compliance with the legislative intent of the
parking requirements in the TOD in light of an unconstitutionally vague mitigation
strategy and the absence of any attempt to define the necessary elements of the
strategy.
46. The Fifth grounds for the Appeal was a correct and accurate
representation of the vagueness of the mitigation strategy described only as
"Transit Passes" and the failure of the Board to properly specify conditions to
ensure that a reduction in required parking spaces did not compromise the
legislative intent of the parking requirements for residential housing in the TOD.
Defendant City Council abused its discretion by disregarding matters of fact and
law and finding that the Fifth Grounds for the Appeal was without merit as it
pertained to the vagueness of the "Transit Passes" allowance. This matter must be
remanded to defendant City Council with instructions to remand this matter back to
the Board for the specification of conditions for "Transit Passes" commensurate
with the reduction of parking spaces associated with the claimed level of "Car
Share" upon which the reduction was based.
47. The Plaintiffs respectfully request that this court issue a declaration that
the mitigation strategy for "Transit Passes" is unconstitutionally vague and that
without further clarification presented in codified ordinance of the City of Fort
Collins do not represent an adequate means for effecting a reduction of parking
spaces that would otherwise be required in the TOD.
Fifth claim for relief
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48. The Plaintiffs incorporate the General Allegations and the first, second
third and fourth claims for relief as if fully set forth herein.
49. The adoption of a mitigation strategy for either "Car Share" or "Transit
Passes" is meaningless in terms of effecting the legislative intent of the parking
requirements in the TOD without a guaranty that these strategies will be employed.
50. With the exception of those requirements allowing and disallowing for
specific uses of property in different zone districts that are found in Article 4 of the
Land Use Code, all other standards of development are enforceable by the
defendant City Administration by virtue of the ability to deny a certificate of
occupancy to a development that has not complied with the standards.
51. Article 4 standards for use are enforceable under a paradigm of local and
state laws for the maintenance of zone districts.
52. "Car Share" and "Transit Passes" can not be construed to be a use in
keeping with the uses defined and in Article 4. Furthermore, "Car Share" and
"Transit Passes" are not specific to a zone district as they are only relevant in the
context of parking standards in the TOD. "Car Share" and "Transit Passes" may
not be enforced by the application of state and local laws in the event of a failure to
comply with whatever "Car Share" and "Transit Passes" may be deemed to be.
53. No other means of enforcing "Car Share" or "Transit Passes" exists that
may be relied upon for assurance that the mitigation presumed to compensate for a
reduction in the number of parking spaces will fulfill the legislative intent of the
parking standard for residential development in the TOD.
54. In the Appeal, city staff erroneously suggested that relief would be
available by virtue of language added to a development agreement. This statement
is only accurate to the extent that a court of law may order specific performance for
a breach of contract. Such a remedy is unacceptable in that it relies upon state
courts for enforcement, requires civil action on the part of the City of Fort Collins
and provides for no disincentive or penalty for non-compliance.
55. As a Home Rule City, defendant City Council has the authority to
legislate in the area of enforcement of terms of development agreements including
the imposition of fines and/or imprisonment for violations of terms of development
agreements. However, defendant City Council has not so legislated.
56. The Fifth grounds for the Appeal was a correct and accurate
representation of the unenforceability of the mitigation strategies described only as
"Car Share" and "Transit Passes". Defendant City Council abused its discretion
by disregarding matters of fact and law by finding that the Fifth Grounds for the
11
Appeal was without merit as it pertained to the unenforceability of the "Car Share"
and "Transit Passes" allowance.
57. The Plaintiffs respectfully request that this Court issue a declaration that
the unenforceability of "Car Share" and "Transit Passes" precludes any reduction
in the number of parking spaces required of residential housing in the TOD as a
mitigation strategy.
Sixth claim for relief
58. The Plaintiffs incorporate the General Allegations and all previous
claims for relief as if fully set forth herein.
59. The Plaintiffs are at risk of injury should the Defendant Administrative
Branch execute a development agreement or grant approval of a Final
Development Plan (FDP) on the basis of the deficient approval of the PDP by the
Planning and Zoning Board and the abuse of discretion of the Defendant City
Council complained of herein.
60. The Defendant Administrative Branch must be enjoined and ordered to
refrain from any administrative action that would further the construction of
improvements as have been unlawfully granted approval by the actions of the
Defendant City Council during the pendency of the resolution of this complaint
including any appeals to a higher court.
61. The Plaintiffs respectfully request that this court enjoin further
administrative actions including the approval of a Final Design Plan as defined by
Division 2.5 of the Land Use Code.
Prayer for relief
WHEREFOR, Plaintiffs pray that this Court issue the aforementioned declarations
and injunction; enter judgment for Plaintiffs on each operable claim; and provide
such other and further relief as the Court deems just and proper.
Respectfully submitted this 3' day of April, 2018
Eric Sutherland Brian Dwyer
12
Address of Lead Plaintiff
3520 Golden Currant
Fort Collins, CO 80521
11
For City Clerk's Use Only: Date Filed: Cal I
,g �pe,�led:
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Decision Ter (Board, Commission, or Other):
M Initials:
Date of Action:
I/a /Zo18
Appellant/Appellant Representative (if more than one appellant): Name, address, telephone number(s), and email address of an
individual appellant authorized to receive, on behalf of all appellants, any notice required to be mailed by the City to the appellants.
Name; Phone #:
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5�D �Dc, �,�fy (Z2, r .arc" i) 1` I+�FQ1C i✓
The Decision Maker committed one (1) or more of the following errors (check all that apply):
j� Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code, and Charter.
List relevant Code and/or Charter provision(s) here, by wecific Section and subsection/subparagraph:
GG rB=i20"-D5 K> P 1)
(Attach additional sheets as necessary)
QFailure to conduct a fair hearing in that:
The Board, Commission, or Other Decision Maker exceeded its authority or jurisdiction as contained in
the Code or Charter;
❑The Board, Commission, or Other Decision Maker substantially ignored its previously established rules
of procedure;
The Board, Commission, or Other Decision Maker considered evidence relevant to its findings which
was substantially false or grossly misleading. Describe any new evidence the appellant intends to
submit at the hearing on the appeal in support of these allegations2: T i I„ t+CII-A,onc
di L t, A aet HJ.-%tL., rrortze--� �..,..i r ._ i - n
k;
- . or
The Board, Commission, or Other Decision Maker improperly failed to receive all relevant evidence
offered by the appellant.
The Board, Commission, or Other Decision Maker was biased against the appellant by reason of a
conflict of interest or other close business, person or social relationship that interfered with the
decision maker's independence of judgment. Describe any new evidence the appellant intends to
submit at the hearing on the appeal in support of these allegations:
Instructions:
1. For each allegation marked above, please attach a separate summary of the facts contained in the record
which support the allegation. Each summary is limited to two pages, Times New Roman 12 point font. Please
restate allegation at top of first page of each summary.
2. No new evidence will be received at the hearing in support of these allegations unless it is either described
above or offered in response to questions presented by Councilmembers at the hearine.
APPELLANTS
Nje:
Date:
S'ii aattur - -
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Email:
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Address: /
Phone #:
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Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
Name:
Date:
Signature:
Email:
cr-s 0 net
Address:
Phone #:
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Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
Name:
Date:
Signature:
Email:
Address:
Phone #:
Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
Name:
Date:
Signature:
Email:
Address:
Phone #:
Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
ATTACH ADDITIONAL SIGNATURE SHEETS AS NECESSARY
Addendum to Notice of Appeal for the Appeal of PDP 170034: Johnson Dr. Apartments.
The grounds for the appeal are as such.
1) The entire concept of the Planning and Zoning Board (P&Z) 'deferring' a determination of the sufficiency of
any aspect of a development controlled by the LUC runs counter to the legislative intent of the Code and
creates an absurd result. Imposing conditions that purport to require compliance at some later time runs
contrary to the entire framework for the quasi-judicial determinations that are required of the P & Z board by the
LUC.
In particular and as it applies to this matter, the P&Z failed to properly apply Section 2.4.2 (H), which states:
Step 8 (Standards): Applicable. A project development plan shall comply with all General Development Standards
applicable to the development proposal (Article 3 and the applicable District Standards (Article); and
The P & Z Board approved the PDP with two conditions. From the staff packet, which was only 891 pages long
(128 Mbytes), see page 510
Staff recommends that the Planning and Zoning Board approve The Johnson Drive Apartments
Project Development Plan PDP170034 based on the findings of fact and two conditions of
approval included in this staff report, subject to the following conditions:
1) The applicant shall provide, no later than Final Plan approval, a detailed trash and
recycling enclosure design, including truck access and circulation, compactor and/or
dumpster locations, in a manner substantially compliant with the Planning and Zoning
Board approval and in accordance with adopted Engineering Standards and Trash and
Recycling Standards in Section 3.2.5 of the Land Use Code.
2) The applicant shall provide, no later than Final Plan approval, material samples and
colors to ensure compliance with Section 3.10.5(C) of the Land Use Code.
It is axiomatic that the PDP did not meet all the standards of the LUC if conditions must be imposed to bring the
design into compliance at some later date and time. This is precisely the sort of issue that an attorney paid to
advise staff and the P&Z should identify as a clear deficiency in process. The LUC requires that the decision
maker find that the PDP meets all of the development standards. Not almost all. An approval with
conditions that certain standards that were not met by the application be complied with by some sort of soon -to -
be -forthcoming design modification is a de facto recognition and finding that the application did not meet the
standards. Period. It could not get more idiotic than this.
Furthermore, by delaying the disclosure of what the ultimate design will be, the P & Z and staff have effectively
removed the ultimate enforcers of the LUC ... the citizens ... from the development review process. Rights of
appeal will lapse before we have any idea what -so -ever whether or not the proposed design modifications
actually meet the standards of the LUC.
If this departure from the legislative intent of the development review process is allowed to stand, what's next?
Will applicants start showing up with half completed PDP's and the expectation that P & Z will simply approve
them with a suite of conditions that "require' all deficient or non-existent details be fleshed out at some point in
the future?
2 ) The PDP is not in compliance with the requirements of the General Commercial Zone. The standards for
General Commercial, 4.21 of the LUC, has this. to say:
While some General Commercial District areas may continue to meet the need for auto -related and other auto -
oriented uses, it is the City's intent that the General Commercial District emphasize safe and convenient
personal mobility in many forms, with planning and design that accommodates pedestrians.
General Commercial is required to have infrastructure to allow pedestrian access. The PDP failed to provide a
pedestrian/bicycle pathway to the commercial areas to the South, even though such a pathway is completely
within the realm of possibility.
The area of the parcel to be developed immediately to the South of the building has the Sherwood Lateral
canal located on a small hillside. The canal could easily be run through a pipeline for this short stretch and a
park -like environment with a sloping trail that cuts diagonally from the southern end of Spring Court up to the
commercial area to the south could be constructed. The construction of this trail would create a direct access
from the Spring Creek trail to the Spring Creek Max station and everything else that is proximity to the station,
including two grocery stores. The trail could be ADA compliant and handle bike and pedestrian traffic.
The PDP that was approved did not even have a dedication of a right of way for the trail/pathway to the South.
The failure to include a dedication of right of way as a condition of approval is an unacceptable failure of the
PDP to comply with the intent and specific standards of the LUC. No one appears to understand the most
basic concepts of urban landscape architecture. Making connections like that is the essence of urban
planning. There is absolutely no reason in the world why the trail should not be part of the plan. The best and
highest use of that area is for a trail. The development has absolutely no other costs associated with a new
street network. The developer can and should pay to put that trail in, but even if that is not going to happen
the City should be granted an easement to the property to build something in the future. A trail might come
close to paying for itself just for transportation of workers and light materials during construction if it were done
right. The only difficulty is that a culvert can't be installed when there is water in the ditch, which makes the
timing of the appeal and everything else that much more problematic if the applicant was contemplating
construction this summer.
In the packet for the meeting, the potential of a trail was discussed several times. In one section, the applicant
seemed to state that some sort of pedestrian access to the South was part of the application. In another part of
the packet, the applicant seems to suggest that the area adjacent to the Sherwood Lateral is a 'natural area'. If
it is a natural area, then the PDP is deficient in terms of the buffers required and other aspects of the LUC. But
it is not a 'natural area'. It is an area capable of conveying both water and people in a landscaped open space
that is equivalent if not far superior to what exists there now in terms of wildlife or other ecological value.
3 ) The P&Z failed to properly apply Section 3.4.1 (1) (2) of the LUC in abcordance with the plain and simple
meaning of the standard and the precedent that had been established upon appeal to City Council of a
previous appeal of a major amendment that proposed a parking garage on the opposite side of creekside park.
In the precedent action, a previous Council determined that a four story parking garage on the North side of
Creek side park was not acceptable under the LUC. Here is the relevant text from the findings resolution of
Council after the Cunniff appeal of the parking garage:
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that, pursuant
to Section 2-57(g) of the City Code, the City Council hereby makes the following findings of fact and
conclusions:
9. That the grounds for appeal as stated in the Appellants' Notices of Appeal conform to the requirements of
Section 2-48 of the City Code.
2. That the Hearing Officer did not fail to conduct a fair hearing. - 2 -
3. That the Hearing Officer failed to properly interpret and apply Sections 3.4.1(I)(2) and 3.5.1(J) of the Land
Use Code with regard to the impact of the major amendment upon Spring Creek.
The Resolution can be found here:
htto://citydocs.fcgov.com/?cmd=convert&vid=72&docid=2267616&dt=&doc download date=JUN 03
2014&ITEM NUMBER=
Here is 3.4.1(1), which is cited in the Resolution
([)Design and Aesthetics.
(2) Visual Character of Natural Features. Projects shall be designed to minimize the degradation of the visual character of
affected natural features within the site and to minimize the obstruction of scenic views to and from the natural features
within the site.
In a previous appeal, a precedent was set that is applicable to the 3.4.1(1) in general but is also specific to this
specific area. In that appeal, Council required that.a plan for 4 story parking garage be downsized to a 3 story
garage. It is unquestionable that applying this precedent to the instant PDP requires that a finding that the
design as proposed is incompatible with the standard. Not only is the proposed apartment building taller and
wider than the parking garage, but it is: 1) closer to the park, 2) much closer to the visited areas of the park, 3)
not buffered by the creek and unvisited areas on the north side of the creek, and 4) in between the park and the
sun during the day, i.e. solar access is impaired.
4.) The P&Z failed to properly apply section 3.10.5 (17)(3). This standard is applicable to all is an important
standard that is not complied with in this development.
(3) Buildings greater than two (2) stories in height shall also be designed so that upper portions of the building
are stepped back from the base. The adequacy of upper floor step -backs shall be determined by the extent to
which they advance the following objectives:
(a) providing pedestrian scale along sidewalks and outdoor spaces,
(b) enhancing compatibility with the scale and massing of nearby buildings;
(c) preserving key sunshine patterns in adjacent spaces, and
(d) preserving views.
There is no question about the applicability of this section to the LUC. It simply was not considered or applied.
All four objectives are applicable here and the proposed building is insufficient in all four categories.
The desire for increased density at this location is understandable. However, considering the failings of this
project to create sufficient pedestrian and bicycle access, this standard must be applied. Note the similarity of
this ground for the appeal to #3 above.
5) The 'mitigation strategies' claimed in this PDP to effect a reduction in the number of parking spaces are
inherently unenforceable and inconsistent with the framework of the Land Use Code. This Grounds for the
Appeal asserts that these provisions of the LUC are the equivalent of an unconstitutional law and must be
deemed a nullity when considering the sufficiency of the PDP.
The Land Use Code provides for a means of establishing mandatory design standards for development.
Unfortunately, the purpose and legislative intent of the LUC is, at times, a mystery to staff and decision makers.
One such source of confusion arises when staff or decision makers are tempted to use the LUC to control the
business activities of property after a certificate of occupancy (CO) is issued by the city. Of course, the
general development standards of the LUC control only what gets built with the understanding that the city has
the right to deny CO to any development that is not constructed in accordance with a PDP. While it is true that
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the district standards (chapter 4) prescribe use and are enforceable long after the CO is issued, the district
standards themselves are codified by Ordinance of Council.
Against the backdrop of the basic realities of our system of development review including the enforcement
powers of the city, applying a condition to a PDP that prescribes that a certain business practice or other
regulation be applied is fundamentally incompatible with the purpose and enforcement of the LUC. Similarly, a
standard within the LUC that prescribes a business practice or, as in this case, allows a certain standard to be
relaxed if a business practice is followed is fundamentally incompatible with the purpose and enforcement of
the LUC.
It is unquestionable that no party including the city has any right or authority to enforce a condition, for
example, that all residents of the proposed residential housing project be provided with transit passes at any
given time or in perpetuity. Consequently, allowing a reduction in the number of parking spaces required by the
applicant because some sort of unenforceable and problematic "promise" has been made simply contravenes
the legislative intent and operation of the LUC. Such a 'mitigation' strategy was imprudent in its origins and is,
unfortunately, characteristic of the lack of understanding that attends the Planning Department as a whole.
As a consequence of the above discussion, both mitigation strategies proposed by the applicant must be
construed to be nullities. The parking proposed is insufficient to meet the standards required in the TOD.
As an additional complication pertaining to the sufficiency of the parking proposed by the applicant, there were
three `mitigation' strategies proposed by the applicant to justify providing fewer parking places than required by
the LUC for a development in the TOD. 1. Car sharing, 2. Transit passes, and 3. High Level of Service (LOS)
grades for pedestrian and bicycle mobility and access. Somehow, those three strategies were reduced to only
the first two strategies in staffs analysis of the PDP. Regardless, all three 'mitigation' strategies are
unacceptable because the third strategy is clearly not met as discussed in the 2"d Grounds for Appeal above.
(Indirect and cumbersome pedestrian access to the commercial areas to the South.)
To make things even worse, the applicant, through his consultant, admits that the LOS for bicycle access is
not sufficient because of the insufficiency of the street network in the area. This insufficiency is claimed to be
overcome by the presence of the two major bike trails in the area, Spring Creek and Mason. This claim
obviously has merit. Yet, under the plain and simple meaning of the LUC, a request for a modification of the
standard to allow bike trails to be substituted for streets should have been forthcoming, but wasn't. This is just
another example of the inattention to procedure that is characteristic of the Planning department.
From a practical standpoint, it should be recognized that the requirements for parking in the TOD and all other
areas of the City were created in large part to eliminate the effect of spill over parking. In this regard, transit
passes cannot be shown to achieve the desired result. Car sharing probably can. However, the enforcement
of a car sharing plan must be something that can be verified at the time a CO is issued. The City should look
at securing easements within the parking facilities of any project that wishes to reduce the number of otherwise
required parking spaces. However, such an easement is not part of this PDP and, consequently, Council has
no other choice but to overrule P& Z.
CERTIFICATION
STATE OF COLORADO )
COUNTY OF LARIMER ) ss
CITY OF FORT COLLINS )
I, Aimee Jensen, Deputy City Clerk of the City of Fort Collins, Colorado, do
hereby certify that the attached is a true and correct copy of Resolution 2018-023 of the
Council of the City of Fort Collins, Making Findings of Fact and Conclusions of Law
Regarding the Appeals of the Planning and Zoning Board's Decision Approving the
Johnson Drive Apartments Project Development Plan PDP170034, as the same
remains on file in the office of the City Clerk.
WITNESS my hand and seal of said City of Fort Collins, Colorado, this 3rd day
of April 2018.
(SEAL) �oY.: `;�eputy City Clerk
•;� ity of Fort Collins
SEAL
RESOLUTION 2018-023
OF THE COUNCIL OF THE CITY OF FORT COLLINS
MAKING FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE
APPEAL OF THE PLANNING AND ZONING BOARD'S DECISION APPROVING THE
JOHNSON DRIVE APARTMENTS PROJECT DEVELOPMENT PLAN PDP170034
WHEREAS, on January 18, 2018, the Planning and Zoning Board (the "Board") reviewed
and approved the Johnson Drive Apartments Project Development Plan PDP 170034 (the "PDP");
and
WHEREAS, on February 1, 2018, Eric Sutherland and Paul Patterson (the "Appellants")
filed an appeal (the "Notice of Appeal") of the P&Z approval of the PDP with the City Clerk; and
WHEREAS, the Appellants asserted in the Notice of Appeal that the Board failed to
conduct a fair hearing because it considered evidence relevant to its findings which was
substantially false or grossly misleading; and
WHEREAS, the Appellants also asserted in the Notice of Appeal that the Board failed to
properly interpret and apply Land Use Code Sections 2.4.2(H), 3.2.2(K), 3.4.1(I)(2), 3.6.4,
3.10.5(F)(3), and 4.21; and
WHEREAS, on February 27, 2018, the City Council, after notice given in accordance with
Chapter 2, Article II, Division 3, of the City Code, considered the appeal, reviewed the record on
appeal; received new evidence for consideration, and heard presentations from the Appellants and
other parties -in -interest in support of the appeal and the opponent of the appeal, the PDP applicant;
and
WHEREAS, after discussion, the City Council found and concluded based on the evidence
in the record and presented at the February 27, 2018, hearing that the Board did not fail to conduct
a fair hearing on January 18, 2018, because the Board did not consider evidence relevant to its
findings which was substantially false or grossly misleading; and
WHEREAS, after discussion, the City Council found and concluded based on the evidence
in the record and presented at the February 27, 2018, hearing that the Board did not fail to properly
interpret and apply 'Land Use Code Sections 2.4.2(H), 3.2.2(K), 3.4.1(I)(2), 3.6.4, 3.10.5(F)(3),
and 4.21; and
WHEREAS, Council finds that Appellants' appeal is without merit in its entirety and is
denied, and the Board's January 18, 2018, decision in PDP 170034 is'upheld; and
WHEREAS, City Code Section 2-55(g) provides that no later than the date of its next
regular meeting after the hearing of an appeal, City Council shall adopt, by resolution, findings of
fact in support of its decision on the Appeal.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that, pursuant to Section 2-55(g) of the City Code, the City Council hereby makes and
adopts the following findings of fact and conclusions:
1. That the City Council hereby makes and adopts the determinations and findings contained
in the recitals set forth above.
2. That the grounds for appeal stated in the Notice of Appeal conform to the'requirements of
Section 2-48 of the City Code.
3. That based on the evidence in the record and presented at the February 27, 2018, Council
hearing, the Appellants' allegation that the Board failed to conduct a fair hearing is without
merit and is denied in its entirety.
4. That based on the evidence in the record and presented at the February 27, 2018, Council
hearing, the Appellants' allegation that the Board failed to properly interpret and apply the
identified provisions of the Land Use Code is without merit and is denied in its entirety.
5.• That the Board's January 18, 2018, decision in PDP170034 is upheld.
6. That adoption of this Resolution shall constitute the final action of the City Council in
accordance with City Code Section 2-55(g).
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 6th
day of March, A.D. 2018.
Mayor
ATTEST:
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