HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 002 - MOTION TO DISMISSFORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521
Phone: (970) 221-6800
Plaintiffs: Eric Sutherland; and J&M Distributing
d/b/a Fort Collins Muffler and Automotive
V.
Defendants: THE CITY COUNCIL OF THE CITY OF
FORT COLLINS, the governing body of a Colorado COURT USE ONLY
municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry.
Kimberly B. Schutt, N25947 Case Number:
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3 2018-CIVILOI
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
FAX Number: (970) 482-8929
MOTION TO DISMISS
COMES NOW the City of Fort Collins ("the City"), on behalf of the City Council of the
City of Fort Collins and the improperly named "Administration Branch of the City of Fort
Collins," through its counsel, Kimberly B. Schutt of Wick & Trautwein, LLC, and respectfully
submits the following motion to dismiss.
RULE 121 CERTIFICATION
Undersigned counsel first advises the Court that she attempted to confer with the
plaintiffs about the relief requested in this motion, and had several email communications with
"lead Plaintiff' Eric Sutherland in an attempt to address these issues. Bryan Dwyer, the
representative for co -plaintiff J&M Distributing d/b/a Fort Collins Muffler and Automotive, was
copied on those discussions but did not participate. As discussed in more detail below, and as is
reflected in Exhibit 1 attached to this motion, the parties were unable to come to an agreement as
to the legal problems outlined below. Therefore, the City is seeking relief from the Court.
1
I. INTRODUCTION
Plaintiffs have filed this action seeing relief under C.R.C.P. 106, requesting declaratory
and injunctive relief related to the City's approval of the Preliminary Development Plan for the
Johnson Drive Apartments Project, PDP 4170034 ("the Project"). The action is before this Court
after Plaintiff Eric Sutherland appealed the City's Planning and Zoning Board ("the Board")
approval of the Project to the City Council, which heard the appeal on February 27, 2018.
Following the hearing, the City Council denied the appeal and upheld the Board's approval of
the Project, specifically finding 1) the Board did not fail to properly conduct a fair hearing and 2)
the Board did not fail to properly interpret and apply certain sections of the City's Land Use
Code. See, Resolution 2018-023, attached to the Complaint.
Plaintiffs have petitioned this Court for further review of the City Council's decision
under C.R.C.P. 106. The Complaint makes numerous allegations that the City Council allegedly
abused its discretion in approving the Project and rejecting the plaintiffs' grounds for appeal
below, and seeks 1) to remand the matter back to the City Council, with instructions to remand
the matter back to the Board, for various additional determinations related to the Project; and 2)
to enjoin further administrative action for the Project, including approval of the Final
Development Plan, and construction of any improvements for the Project. However,
notwithstanding this requested relief which would clearly impact the progression of the Project
and the rights of the owners of the property, Plaintiffs have not made the applicant owner a party
to this action.
As set forth below, there are a number of legal problems with the Complaint which
require dismissal, or, alternatively, at least further orders from this Court in order for this matter
to properly proceed:
2
1) Plaintiffs have failed and refused to join an indispensable party, namely the applicant
owner of the Project;
2) Plaintiffs have failed to allege all of the necessary elements to support a claim for
injunctive relief under C.R.C.P. 65, requiring dismissal of the sixth claim for relief;
3) Plaintiffs' Complaint specifically seeks relief under C.R.C.P. 106(a)(2) which is in the
nature of mandamus, but the Complaint repeatedly asserts abuses of discretion on the part
of City Council, which are more properly brought under C.R.C.P. 106(a)(4). Though
Plaintiff Eric Sutherland has acknowledged the error, he has not taken simple, appropriate
action to amend the Complaint in this regard; an email to the municipal court clerk does
not fulfill a party's obligations under the rules of procedure to ensure that claims are
properly plead.
4) Plaintiffs have improperly named the Administrative Branch as a defendant, when it is a
subdivision or branch of the municipal corporation under the City Charter and municipal
code.
Wherefore, for these reasons discussed in more detail below, the City respectfully requests
the Court dismiss this action.
II. ARGUMENT
A. Plaintiffs have failed to loin an indispensable party under C.R.C.P. 19, as a matter
of law.
As noted above, and as is reflected in the Complaint, the relief sought by the Plaintiffs in
this action, if granted, would directly impact the progression of the Project. Plaintiffs seek to
have this matter remanded back to the Board for further determinations regarding the design of
the trash enclosure (first claim for relief), design of the right of way conveyance (second claim
for relief), "Car Share" requirements related to the required parking spaces for the Project (third
3
and fifth claims for relief), and "Transit Pass" conditions related to the required parking spaces
for the Project (fourth and fifth claim for relief). Plaintiffs in their sixth claim for relief also
specifically ask the Court to enjoin any further administrative action that would further
construction of improvements on the Project, and to enjoin approval of the Final Development
Plan. Plaintiffs themselves within their Complaint allege that the development review process
creates vested rights in property owners. Yet, the Plaintiffs have failed to join as parties to this
action the very persons whose rights would be directly affected by the relief sought here.
The Colorado appellate courts have repeatedly held that a zoning applicant is an
indispensable party under C.R.C.P. 19 in a Rule 106(a)(4) action challenging the 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)., The applicant owner is an indispensable party, as a matter of law,
because (as acknowledged by Plaintiffs' own Complaint) it has rights established by the zoning
decision being challenged. Hidden Lake Development Co., 515 P.2d at 635. "That right cannot
be abrogated by judicial action unless the [applicant] is before the court to assert its defenses."
Id.
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.
M
This is especially true in this case, where the plaintiffs seek to enjoin the Project applicant
from proceeding with construction of any improvements on its property, and for further
administrative action on the Project, including approval of the Final Development Plan. Under
C.R.C.P. 65, no injunctive relief can be issued without the plaintiffs being made to give adequate
security for the payment of such costs and damages as may be incurred or suffered by any party
who is found to have been wrongfully enjoined or restrained. Here, the applicant owner would
certainly have costs and damages which would need to be considered if the Project is prevented
from proceeding, and presumably would wish to defend against the enjoining of the Project from
continuing through the planning and zoning process. Therefore, to the extent the claim for
injunctive relief is even properly plead (as discussed below), the applicant owner is most
certainly an indispensable party who will be impacted by the relief sought here.
A judgment which adversely affects an indispensable party who is not joined is void, and
thus "due process of law requires that those parties whose interests are at stake be before the
court." Id. Indeed, failure to join an indispensable party is considered to be such an "egregious
defect" that the court may dismiss the action on its own motion; Id.; Hicks v. Joondeph, 232 P.3d
248, 252 (Colo. App. 2009).
As noted above in the Rule 121 Certification and as is reflected in the attached Exhibit 1,
undersigned counsel advised the Plaintiffs of the need to join the applicant owner as an
indispensable party to this action more than a week ago, and they have failed and refused to take
appropriate steps to do so. Accordingly, this Court may properly dismiss the action; under the
legal authority discussed above, allowing it to proceed with the participation of the applicant
owner would otherwise result in a void judgment.
5
B. Plaintiffs have failed to state a claim for injunctive relief under Rules 106 and 65,
requiring dismissal of the sixth claim for relief.
As noted above, the Plaintiffs' sixth claim for relief specifically seeks to enjoin further
administrative action on the Project, as well as construction of any improvements on it. To the
extent the Plaintiffs are seeking relief under Rule 106(a)(4) rather than Rule 106(a)(2), as
discussed further below, Rule 106(a)(4)(IV) allows for the proceeding or decision of the body
being reviewed to be stayed, subject to C.R.C.P. 65. However, the Colorado appellate courts
have emphasized that such injunctive relief should be "exercised sparingly and cautiously with a
full conviction on the part of the trial court of its urgent necessity." Board of County Com'rs ,
County of Eagle, State of Colo. V. Fixed Base Operators, Inc., 939 P.2d 464, 467 (Colo. App.
1997); Rathke v. MacFarlane, 648 P.2d 648, 654 (Colo. 1982). This is particularly true with
regard to injunctive relief sought against another branch of government, in deference to the
doctrine of separation of powers. Fixed Base Operators, Inc., 939 P.2d at 466-67.
According to Rathke, supra, the granting of injunctive relief requires a plaintiff to
establish certain prerequisites: (1) a reasonable probability of success on the merits; (2) a danger
of real, immediate and irreparable injury which may be prevented by injunctive relief, (3) that
there is no plain, speedy, and adequate remedy at law; and (4) that the granting of a preliminary
injunction will not disserve the public interest. Rathke, 648 P.2d at 653-54. These criteria must
all be satisfied prior to the granting of injunctive relief, if each criterion cannot be met, injunctive
relief is not available. Id.
The Plaintiffs have not even alleged all of these necessary elements in seeking to enjoin
continuation of the development process and construction of the Project, let alone established
them. Plaintiffs allege only that they "are at risk of injury," but fail to allege or demonstrate any
real, immediate and irreparable injury; in fact, the other allegations of the Complaint would
0
demonstrate otherwise. The other three prerequisites have likewise not been alleged.
Accordingly, this claim must be dismissed under Rule 12(b)(5) for failure to state a claim for
which relief can be granted, notwithstanding the necessary dismissal of the entire action for
failure to join an indispensable party.
C. Plaintiffs' Complaint fails to state a claim for which relief can be granted under
Rule 106(a)(2).
Plaintiffs' Complaint expressly states it is being brought under C.R.C.P. 106(a)(2).
However, Rule 106(a)(2) provides for relief in the nature of mandamus. Colorado case law
makes clear that this type of relief is narrowly interpreted to be used only for compelling a public
official to perform an act which involves no exercise of discretion. See, e.g., Brown v. Barnes,
476 P.2d 295, 296 (Colo. App. 1970). Here, the Complaint specifically alleges that the City
Council was acting in a quasi-judicial capacity, and that its decisions are subject to an abuse of
discretion standard on review. The Complaint then goes on to allege in numerous instances that
the City Council abused its discretion.
As noted in the email sent to the municipal court clerk, attached hereto as Exhibit 1,
Plaintiff Eric Sutherland has acknowledged this error. However, the Plaintiffs have failed to take
simple and appropriate steps to amend the Complaint, as requested by the City. The rules of
procedure applicable to this Court do not allow amendment by email. Accordingly, for this
additional reason, the Complaint fails to state a claim upon which relief can be granted as a
matter of law and must be dismissed.
7
D. The Complaint has improperly named as a defendant the "Administrative Branch
of the City of Fort Collins."
Finally, notwithstanding all of the other problems noted above, the Complaint has also
named an improper defendant. 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 proper defendant under the circumstances alleged, not the "Administrative Branch." See, City
Charter IV, § 2 and City Code.Chapter 2, Article V.
Wherefore, the Complaint must be dismissed as against this improperly named defendant
for this additional reason.
III. CONCLUSION
Based upon all of the reasons and authority discussed above, the Court must conclude
that this action cannot proceed as alleged by the Plaintiffs and must be dismissed as a matter of
law.
WHEREFORE, the City respectfully requests, on behalf of the City Council and
improperly named "Administrative Branch", that the Court dismiss this action, and grant any
further relief the Court deems just and proper. Alternatively, the City respectfully requests the
Court order the Plaintiffs to amend the Complaint by a date certain in order to address the legal
deficiencies outlined above.
DATED this 25"' day of April, 2018.
Respectfully submitted,
WICK & TRAUTWEIN, LLC
By:
Kimbe4 B. Schutt, r`25947
Attorneys for the Ci y
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing MOTION
TO DISMISS and proposed ORDER RE: MOTION TO DISMISS was SERVED via email this
25'h day of April, 2018, on the following:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521 Via email to sutherix@yahoo.com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Avenue
Fort Collins, CO 80525 bdwyer1199@gmail.com
�`T
kschutt@wicklaw.com
From:
Eric Sutherland <sutherix@yahoo.com>
Sent:
Friday, April 20, 2018 11:39 AM
To:
PNetherton@fcgov.com
Cc:
Brian Dwyer; K. Schutt; Carrie Daggett
Subject:
Fw: City of Fort Collins Municipal Action 2018 01
Ms. Netherton,
Please make note of a typographical error that appears in the caption of the complaint in Civil 2018
01, Sutherland v. City Council.
I mistakenly titled our complaint as seeking relief under C.R.C.P. Rule 106(a)(2). I meant
106(a)(4). I offer my apologies if this has created any difficulties for the court. I do not imagine that
anyone was confused. We are not seeking relief in the form of mandamus. We are alleging abuse
of discretion.
I would greatly appeciate it if the court could take notice of this error until such time as it may be
perfected by further action by the plaintiffs. The emails, below, provide ample evidence that the
defendants in the case are aware of our mistake and our confession as to the fact that a mistake was
made.
I make this request with some understanding that the procedures of the municipal court can be
somewhat relaxed at times. An order, for example, made with the threat of citation for contempt for
non-compliance, may be issued without any evidence that the presiding judge ever saw the order, let
alone isssued it. Under the circumstances, I feel confident that all parties to the case and the court
itself may look beyond my typographical error until such time as the complaint may be amended.
From what I gather, the defendants in this case will be motioning the court for disimissal prior to filing
a responsive pleading. Ms. Schutt writes (below): "in order to protect the responsive deadline
pleading". Perhaps she meant to say "responsive pleading deadline". Mistakes happen. I think it is
incumbent upon all of us in the pursuit of justice to accomodate and compensate for mistakes where
they occur. Because a motion to dismiss may be forthcoming, I would like to reserve my right to
motion the court for amendment of the complaint until such time as the motion to dismiss is filed.
By the way, do you know if the Chief Judge will be appointing someone to adjudicate this matter and
when that might happen?
Eric Sutherland
----- Forwarded Message -----
From: "kschutt@wicklaw.com" <kschutt@wicklaw.com> EXHIB
To: 'Eric Sutherland' <sutherix@yahoo.com>; bdwyer1199@gmail.com
Cc: CDAGGETT@fcgov.com; 'Cary Alton' <calton@fcgov.com>
Sent: Friday, April 20. 2018 10:16 AM
Subject: RE: City of Fort Collins Municipal Action 2018 01
Good morning, Mr. Sutherland and Mr. Dwyer —
I understood from our email exchange on Monday that you intended to file an amended complaint to
at least address the erroneous reference to Rule 106(a)(2). However, as of this morning no such
amended complaint has been received by my office or filed with the court.
Please take care of this amendment as soon as possible, given the approaching deadline for our
responsive pleading. We are operating on the understanding that service occurred on April 4th, but
please let me know immediately if you have a different understanding, since you have not filed a
return of service with the Court either.
We are prepared to proceed with filing our motion to dismiss on all bases, in order to protect the
responsive deadline pleading, if an amended complaint is not received by close of business on
Monday. Again, please take care of this amendment immediately in order to allow for this matter to
proceed in the most efficient manner possible.
Thank you for your prompt attention to this matter.
Kimberly B. Schutt, Esq.
WICK
TRAUTWEIN
. aftwM
P'M 1972
Wick & Trautwein, LLC
323 S. College Avenue, Suite 3
Fort Collins, CO 80524
P: 970-482-4011 * 866-686-1410
F: 970-482-8929
http://www,wicklaw.com/
CONFIDENTIALITY NOTICE: This electronic mail transmission and any accompanying documents
contain information belonging to the sender which may be confidential and legally privileged. This
information is intended only for the use of the individual or entity to whom this electronic mail
transmission was sent as indicated above. If you are not the intended recipient, any disclosure,
copying, distribution, or action taken in reliance on the contents of the information contained in
this transmission is strictly prohibited. If you have received this transmission in error, please call me
at 970-482-4011 or toll free at 866-686-1410 to let me know and delete the message. Thank you.
From: Eric Sutherland <sutherix@yahoo.com>
Sent: Monday, April 16, 2018 4:45 PM
To: kschutt@wicklaw.com; bdwyer1199@gmail.com
Cc: 'John Duval' <jduval@fcgov.com>; CDAGGETT@fcgov.com
Subject: Re: City of Fort Collins Municipal Action 2018 01
The applicant submits a application for a PDP. Much is uncertain. There is ample opportunity to
revise the proposed design in response to staff concerns or the improved understanding of the
requirements of the LUC.
When the application is submitted for a review hearing, the applicant understands that only a finding
that all the applicable requirements of the LUC are met will result in approval ... and that approval is
subject to appeal by a party in interest. "Appeal" means, of course, an initial appeal to City
Council. However, there can be no expectation that a favorable decision by Council is the terminus of
the appeal process. The jurisdiction of the municipal court simply is not limited in this way.
Now, failure of any interested party to file a Notice of Appeal with the City Clerk may unquestionably
be construed to be a lapse of all rights of appeal. At that point, an applicant and the planning
department may presume that rights to move forward with the process are unrestricted regardless of
whether disputes regarding conformance with the LUC are still lingering. Alternatively, if an
interested party files a Notice of Appeal, the march forward is halted pending the resolution of the
allegations on appeal.
This is the part that I do not get ... you seem to be suggesting that despite the fact the next step in the
appeal process has been taken, the applicant's rights or the defendant's rights to march forward and
attain approval of an FDP should not be impaired as they were upon the filing of a Notice of Appeal. I
don't understand the basis of this suggestion and find it counter to the legislative intent underlying the
LUC and principles of due process.
I look at it two ways, which can be seen to unified in their purpose. 1.) your interpretation allows for
steam rolling a deficient application through development review. There can be no arguing that this
is, in fact, consistent with the operational paradigm of the planning department, but I object for various
reasons. 2.) The operational principle underlying allowing participation of people besides the
applicant is to ensure that a deficient application does not move forward.
I just don't read anything in Rule 19 or the case law that supports your position here. The current
situation is, as I have already described, significantly different from a rezone or special use. You are
painting with to broad a brush. It is understandable how rule 19 applies to the applicant in such a
situation. The reversal of a zoning decision by a reviewing court could have significant impacts on
both the municipal corporation and applicant, making the applicant indispensable.
The case law that you want to look at differentiates between inidispensability and right to
intervene. The latter is clear here, but you have presented no argument for the former. Whoever the
applicant is in this situation, and I will ask if Mr. Dwyer knows anything more about his, her or its
identity than I do, he, she or it is not so situated that the disposition of this action in his, her or its
absence will impair or impede any rights that might be claimed relating to the subject matter of this
action. You do not seem to be implying otherwise. Rather, you are simply arguing that inapplicable
case law is applicable and I have a sense of deja vu.
I would like to say here that I do have a message for whoever the applicant might be. I can't be to
specific in this email but I can say that the message references the horse he, she or it rode in here
on. I remember a party in opposition to the appeal making a statement that the subject parcel was
chosen for development because it was situated close to various means of connection to the greater
community: MAX, Mason Trail and Spring Creek Trail. Yet the carpetbagger was unwilling to make
any concessions toward completing the connections available in the area to provide for pedestrian
and bicycle travel to the commercial areas to the south including vital connection to Spring Creek
station.
Subject to change upon consultation with my co -plaintiff, I will not plan on amending the complaint to
add an indispensable party. All I can ask here is that you please make any motion to dismiss for
failure to name an indispensable party specific to one or more claims and identify which ones they
are.
Eric Sutherland
From: "kschuttnc wicklaw.com" <kschutt(d)wicklaw.com>
To: 'Eric Sutherland' <sutherix(avahoo.com>; bdwver1199(cilpmail.com
Cc: 'John Duval' <iduval(a)fcgov.com>; CDAGGETT(o)fccov.com
Sent: Monday, April 16, 2018 3:14 PM
Subject: RE: City of Fort Collins Municipal Action 2018 01
Good afternoon. Mr. Sutherland:
Thank you for your acknowledgment that your complaint sought relief under the wrong subsection of
Rule 106. Based on your email, we understand that you will be filing an amended complaint to
address that error. Please do so as soon as possible so that this matter can proceed in the most
orderly fashion.
In that same spirit, I regret that my letter to you challenged your standing to bring this claim. An
earlier draft of my letter was inadvertently sent to you this morning. Based on research done after
that letter was originally written, the City had decided not to raise that issue and that paragraph was
supposed to have been removed from the letter. I regret any confusion it may have caused.
With those issues conceded, however, we continue to disagree with your assessment of the
indispensable party issue. Rule 19 of the Colorado Rules of Procedure states that an interested party
who is properly subject to service shall be joined as a party. Again, the case law cited in my letter
makes clear that an applicant is an indispensable party in Rule 106 actions such as this one, which
seek court review of a planning and zoning decision impacting that applicant. Indeed, your email
acknowledges that the applicant owner here has rights which may be negatively impacted by the
court's determination of the issues you have raised. That party's identity and contact information is of
public record in the planning documents presented at the City Council hearing. Accordingly, under
Rule 19 and the relevant case law, the Court shall order the applicant to be made a party; if you fail to
take appropriate steps to do so, then your case is subject to dismissal. It is not incumbent upon the
applicant to file a motion to intervene.
Again, please amend your complaint as soon as possible to address these procedural issues so that
we can move forward in the most efficient manner to have the Court address the substantive issues
raised.
Thank you,
Kimberly B. Schutt, Esq.
WICK
TRAUTWEIN
Esr. un2
Wick & Trautwein, LLC
323 S. College Avenue, Suite 3
Fort Collins, CO 80524
P: 970-482-4011 * 866-686-1410
F: 970-482-8929
hftp://www.wicklaw.com/
CONFIDENTIALITY NOTICE: This electronic mail transmission and any accompanying documents
contain information belonging to the sender which may be confidential and legally privileged. This
information is intended only for the use of the individual or entity to whom this electronic mail
transmission was sent as indicated above. If you are not the intended recipient, any disclosure,
copying, distribution, or action taken in reliance on the contents of the information contained in
this transmission is strictly prohibited. If you have received this transmission in error, please call me
at 970-482-4011 or toll free at 866-686-1410 to let me know and delete the message. Thank you.
From: Eric Sutherland <sutherixCcDvahoo.com>
Sent: Monday, April 16, 2018 12:09 PM
To: Jody Minch <Iminch(a)wicklaw.com>; bdwyer1199 aAgmail.com; Carrie Daggett
<cdaggett(@fcgov.com>; Kim Schutt <kschutt(a)wicklaw.com>; John Duval <Iduval fcgov.com>
Cc: Cameron Gloss <cgloss (a)fcgov.com>; City Leaders <cityleaders@fcgov.com>; Laurie Kadrich
<Ikadrich (a)fcgov.com>; Tom Leeson <tleeson(a)fcgov.com>
Subject: Re: City of Fort Collins Municipal Action 2018 01
Hi Ms. Schutt,
Thanks for your letter. My co -plaintiff, J&M, and especially its president, Brian Dwyer, has
experienced a very significant loss since the filing of the complaint. I am responding here without
consultation of J & M for the sake of time and in consideration of the circumstances. Consequently,
my responses here are subject to change upon consultation with my co -plaintiff.
You raise the following issues:
1) The complaint did, indeed, cite the wrong sub -section of Rule 106. 1 regret the error and agree that
an amended complaint is in order.
2) Failure to name an indispensable party
PART ONE - in which I make general observations.
I do not agree that the action appealed in this case is a zoning decision. I do not dispute that the
approval of a PDP can implicate zoning by way of a request for modification of standards, but the
PDP appealed here did not. Whether or not a PDP that does not
I do not dispute that the applicant may have rights that may be negatively affected by a decision
of the court. At this time, I have no reason to believe that a motion to intervene made by the applicant
would be opposed for any reason other than the fact that there does not appear to be any difference
whatsoever between the interests of the city and the interests of the applicant, which is, by itself, a
defense of grounds for dismissal.
At the present time, I do not have any idea who the applicant is. I am sure he introduced himself
at the appeal hearing and I would suspect that I could get some information from the Defendant City
Administration. It is also possible that Brian Dwyer may have information in this regard.
With the exception of the Sixth claim for relief, it does not appear that the belief that the applicant
is an indispensable party rests upon the substance of the claims being made. I do not dispute that a
single claim made without naming an indispensable party is grounds for dismissal of that claim. I do
not agree, however, that because a single claim may be so dismissed that all claims may be
dismissed.
PART TWO - in which I make defense of the complaint as filed in regard to the absence of naming
the applicant.
I do not agree that the applicant is an indispensable party in this action. The approval of an
application for a PDP is an intermediate step in the process of attaining vested rights for the
development of a property. Although an unchallenged PDP may be seen as a valuable attribute by a.
property owner and may even be viewed in the marketplace to increase the value of a property, it
does not, by itself, represent a final action granting rights to the property owner other than a right to
pursue further process towards attainment of vested rights. In this regard, the approval of a PDP
departs substantially from the approval of a rezone or application for special use in a manner similar
to Hidden Lake, Norby, Hennigh, etc.
Our request of certiorari review by the municipal court is not a review of rights that would otherwise
be granted and held. Rather, it is an appeal of an intermediate process at the only point at which
parties may request review in protection of their rights. Reliance on the authorities stated in your
letter is misplaced. Certainly, the defendants have the right to seek dismissal on this ground, but
such a request of the court needs to be be viewed as a matter of first impression.
With regard to the First and Second claims for relief, there are currently no obstacles that would
bar the applicant from proceeding in the sequence of events towards the rights that he or she
seeks. Frankly, this additional step of review by the Municipal Court should be viewed as an
unwelcome departure from the path to an FDP and development agreement that the applicant could
have traveled if the basic provisions of our laws had been respected. The applicant does, of course,
have the option of refusing the amendment of his or her application to conform with the requirements
of the LUC and thus abandoning his application, but that is his or her choice. Thus, this action
represents merely a more circuitous route to attainment of rights, not a request for denial of
rights. The distinction is significant.
With regard to the Third and Fourth claims for relief, it is not unimaginable that the
unconsitutionally vague provisions of the Land Use Code could be accomodated by the application of
conditions that adequately defined the meaning of 'car share' and 'transit passes' if such definitions
could reasonably be construed to provide for the equivalent of the reduction in parking spaces that
were allowed under these mitigation strategies. As in first two claims, this action represents merely a
more circuitous route if the ambiguities noted in the appeal can be reasonably resolved.
Regarding the Fifth Claim for relief, the obstacle presented may be overcome by legislation that
affects the rights of the defendant administrative branch to enforce provisions of a development
agreement in municipal court. Municipal code already allows, for example, for the city to assert its
rights under U+2 under civil action taken in the municipal court. The inability of the city to take
similar actions when confronted with disregard of provisions of development agreements is a
deficiency that renders enforcement of forward looking conditions applied to the grant of development
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rights all but unenforceable. However, in the absence of ability to enforce forward looking conditions,
the obstacle remains.
Looking at claims 3-5 as a whole, it must be viewed that defects in the codified development
review process do not impair the rights of the applicant. Unquestionably, the applicant has a right to
the approval of a PDP if ALL the requirements of the LUC are met. However, vague provisions and
inability to enforce forward looking requirements are imperfections that prevent the ALL requirements
of the LUC from being met. The fault here lies with the City, not the applicant. Thus it is proper to
join the defendants and only the named defendants in claims 3-5.
Only with regard to the Sixth claim of relief do I find any argument alleging failure to name an
indispensable party worthy of consideration. I am presuming that your argument would go
something like "the applicant has a right to continue on his, her or it's path towards an FDP, your
complaint seeks to stay abridge that right until this matter is resolved, the applicant has substantive
rights that a require his, her or its participation in this proceeding under the Rules." In particular, you
mention posting a bond to protect the interests of the applicant. I answer this argument, and excuse
me if I have misapprehended your argument, by noting that the rights of all interested parties are
protected by rights of appeal. Consideration of an application for a PDP is a quasi-judicial. No
mystery there. ( I don't know if I could have been clearer in the appeal before Council that anything
other than a remand or satisfactory argument that defeated our allegations would result in the action
that was taken.) Thus, I don't believe that an applicant has a right to progress in development
review until all rights of appeal of interested parties have lapsed. It is part of the process.
We can view this subject from a different perspective. What would the result be if the Sixth claim
for relief were withdrawn or dismissed? This would create an absurd result where the applicant was
marching forward toward the completion of a next step that was entirely dependent upon the
unassailable completion of a previous step ... which is likely to be found deficient either in Municipal
Court, (should we actually get that far this time) or in a superior couert.
In other words Ms. Schutt, our system has been designed to disallow the city tribunals from acting
like the Kangaroo Courts that they have become. As a consequence of that design, an applicant's
rights to participation in this appeal must be asserted by motion to intervene or not at all. If no
motion to intervene is made, then the applicants has no more rights to participate in this appeal than
Mr. Dwyer or I have to participate in the review of the FDP.
3) Sutherland has no standing.
Much of the argument to refute your position here can be borrowed from 2.) above. The broad
standing bestowed upon citizens in appeals before Council survives into appeals of Council
decisions. However, rather than simply rest on this general argument, an examination of standing
under the Wemberly test is appropriate. Both prongs can be seen to be satisfied. By adopting the
LUC the city has created legally protected rights to all persons who have interest that the community
develops in conformance with standards that have been agreed to and codified. The LUC provides
for a determination of the property rights of all citizens of Fort Collins, be they lease -hold rights that
are distant from subject parcel(s) or a property ownership of the subject parcel(s) themselves.
In the instant case, injury -in -fact may be presumed to be sustained by Sutherland without correction
of the deficiencies of the PDP that are realized by a failure to provide for adequate connectivity for
pedestrian and bicycle travel, for example, or untenable aesthetics of trash enclosures for
another. There simply is no rational basis to conclude that only owners of property proximate to the
subject parcels have a legally protected right to be be free of such deficiencies. Rather, the right to
ensure that the community develops in a manner consistent with the standards of the LUC as
determined and controlled by the process defined in the LUC is a property right held in common by a
very large group of people. The design of the system is such that an individual may assert his or her
rights in connection with all other similarly situated people without the necessity of forming a class.
Once again, the legal process must be construed as providing a means for just resolution of disputes,
not a means of perpetuating the practices of Kangaroo Courts.
No previous Council has ever seen it appropriate to limit the standing of anyone in such matters
before the municipal court. There can be no question that Council is the only legislative body that
might so limit standing.
Even though standing was the key issue in Town of Frisco v. Baum, there was no question of Baum's
standing to appeal to some higher court based upon the Wemberly test, although the which higher
court to appeal to did end up being a matter of some discussion. A review of the Baum's situation in
that case reveals that his claimed injury could be reasonably seen to be shared by a very large group
of people with interest in how Frisco developed.
In the event that the broad standing that is claimed above is not available, Sutherland is a property
owner in the city of fort collins. The valuation of his property is impacted by the livability of the
community that surrounds that property. That metric is influenced by market forces that are not
disconnected from the application of the LUC. A tangible economic injury can reasonably be
concluded to follow from the disregard of the provisions of the LUC in general and in the specific
situations represented by the claims.
Furthermore, the broad standing bestowed on taxpayers may be presumed to grant standing in this
case. See Freedon from Religion v. Hickenlooper, Barber v. Ritter. Whether or not development
complies with the requirements of the LUC has a direct bearing on the use of tax dollars by the
defendant administrative branch. Taxpayers have a right to ensure that inappropriate development
does not drain public resources and may profess injury in the event that the LUC is disregarded.
4.) No rules or laws exist to define who can and can't be sued in municipal court. The difficulty of
proceeding in this or any other legal action in municipal court is well understood at this time.
Although many factors influence a "best approach" decision about how to name defendants in this
action, there is one inscrutable immutable. Naming the City as a whole as one would name the a
defendant in state court would mean that the plaintiffs here were suing the municipal court that they
are filing the suit into. (The municipal court is a component unit of the city. See Article XII of the City
Charter.)
It is interesting to note that appeals of decisions of municipal courts in Colorado as allowed under the
state rules for district courts often name the municipal court as a separate entity. I have not figured
that one out.
But putting all of the arguments defending the approach taken aside, the fact remains that this is a
moot point because naming the component units of the city as defined by provisions in the charter
may be construed by the municipal court and all parties to have sufficiently named the defendants as
component units or as the city as a whole.
CONCLUSION
With the exception of my careless error in using a 7 instead of a '4' in the caption of the complaint, I
find all of your allegations to be groundless in that they are unsupported by persuasive argument.
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That said, you should be aware that a motion to dismiss for any of your stated reasons, simply means
an appeal if it is granted. Could this be yet another circuitous departure from the path that should
have been taken here?
There is good cause for anyone to conclude that the Office of the City Attorney is more intent on
litigating for'wins' than for effecting optimal public policy that serves the interests of the citizens of
Fort Collins. This, coupled with a deficient understanding of law, has created some bad outcomes
and is likely to do the same here. I can't imagine that any applicant would not see a remand to P &
Z as a vastly superior alternative than appeals into the judicial system.
I would like to see our development review process reformed to accomplish the following changes:
1.) A petition for rehearing a decision in a PDP application may be brought to the decision maker
(Type 1 and Type 2) within 14 days of a decision. This would be analogous to the relief allowed
litigants in our trial and appellate courts.
2.) The decision as to whether to grant a rehearing or not would be different for Type 1 and Type 2
hearings. In the case of Type 1 hearings, the decision would lie exclusively in the sound discretion of
the Director and could not be delegated to others. If a petition for rehearing is granted by the
Director, only the Director may be the decision maker.
In the case of the P & Z the decision would be made by the Board at its next regularly scheduled
meeting or special meeting except that any single member of the P & Z could certify to the remainder
of the Board that, in his or her opinion, a rehearing was warranted. In the latter case, the rehearing
itself could be held at the next regularly scheduled meeting or special meeting.
3.) An appeal of a decision may still proceed directly to Council without need for a petition for
rehearing being filed. However, Council may only hear allegations that are substantially similar to
those made prior to or during the original hearing or were made in a petition for rehearing that was
properly filed. Again, this would be analogous to the time -proven methodology of our civil justice
system.
The above changes would dramatically reduce the burden on staff, council and the public. The above
changes would dramatically improve the outcomes of the development review process.
I would urge the Office of the City Attorney to pursue these changes rather than opposing this
appeal. The system has not evolved to remove deficiencies. No one in the City has the vision or
insight necessary to make the present system work correctly or understand what is keeping that from
happening.
Try making something better instead of making things worse.
Eric Sutherland
PS The attached file is now a public record subject to inspection by the public.
From: Jodn
y Minch <IminchCcDwicklaw.com>
To: sutherixavahoo.com; bdwyer1199(ZDgmail.com
Cc: Kim Schutt <kschutt wicklaw.com>; John Duval <jduval fcgov.com>; Carrie Daggett
<cdaggett(aa-)fcgov.com>
Sent: Monday, April 16, 2018 8:11 AM
Subject: City of Fort Collins Municipal Action 2018 01
Please see attached correspondence from Ms. Schutt regarding the referenced matter.
Jody L. Minch
Paralegal to Robin L. Wick, Kimberly B. Schutt
and Michael S. Samelson
Wick & Trautwein, LLC
P.O. Box 2166
Fort Collins, CO 80522
(970) 482-4011
Fax: (970) 482-8929
CONFIDENTIALITY NOTICE: This message is intended only for the named recipient and may
contain confidential or privileged information. It is protected by the Electronic Communications
Privacy Act, 18 USC sections 2510-21, and is legally privileged. If you are not the named recipient,
please delete the message and contact the sender at (970) 482-4011 or by reply email indicating that
you received this message in error.
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