HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 002A - PROPOSED ORDERFORT 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.
Case Number:
0101E-01901 LTMlhjl
ORDER RE: MOTION TO DISMISS
THIS MATTER, having come before the Court on the motion of the City of Fort Collins
("the City"), and the Court being duly advised in the premises, hereby FINDS AND ORDERS as
follows:
1. 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 #170034 ("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.
2. 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.
3. The City, on behalf of the named defendants, has filed a motion to dismiss this
action on several different grounds. The Court has weighed the arguments and considered the
applicable legal authority, and concluded that dismissal of the action is proper for the following
reasons:
a) Plaintiffs have failed to join the applicant owner of the Project as a party to this action,
and under Colorado law, the applicant owner is clearly an indispensable party. 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); N'orby 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). That is particularly true here given the nature of the relief sought in the Complaint;
the granting of such relief would most certainly impact the rights of the applicant owner
for this Project, such that any judgment rendered in its absence would be void as a matter
of law. Plaintiffs have refused to voluntarily amend their complaint to name the
applicant owner as a defendant, thus dismissal at this juncture is proper.
b) Plaintiffs have failed to allege all of the necessary elements to support a claim for
injunctive relief under C.R.C.P. 106 and C.R.C.P. 65, namely (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 v. MacFarlane, 648 P.2d 648, 654 (Colo. 1982). Therefore,
notwithstanding the dismissal of the action for failure to name an indispensable party, the
sixth claim for relief must be dismissed for this reason as well.
c) 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, the Plaintiffs have 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. Therefore, because the allegations of the Complaint cannot
sustain a claim under C.R.C.P. 106(a)(2) as a matter of law, dismissal of the action is
proper for this reason too;
d) 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. Accordingly, any all claims against this improperly named defendant are dismissed
for this additional reason.
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WHEREFORE, for these reasons set forth above, the Court dismisses this action in its
entirety without prejudice.
DONE THIS day of May, 2018.
BY THE COURT:
Municipal Court Judge
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