HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 004 - PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISSFORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 221 6800
▲ COURT USE ONLY ▲
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.
Indispensable party: Craig Russell, Applicant
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
Case Number:
2018civil01
Plaintiff’s Response to Defendant’s Motion To Dismiss.
Plaintiffs, Eric Sutherland and J & M Distributing, timely file this Response
to Defendants Motion to Dismiss.
Simultaneously, we are filing an Amended Complaint and a combined
Motion for Disqualification/Expansion of Time to amend this pleading.
As pro se litigants in this matter, the Plaintiffs herein use the plural pronouns
(we, us, our) to refer to themselves. Unless otherwise noted, all references to the
Plaintiffs in this pleading where a statement of position on any matter is made or
inferred indicate a jointly adopted position agreed to by both individual plaintiffs.
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INTRODUCTION
On April 25th, 2018, Defendants filed a Motion to Dismiss. Generally, the
Motion to Dismiss alleged 1) a failure to name an indispensable party of unknown
identity referred to only as the owner applicant, 2) a failure to allege all elements
necessary to support a claim for injunctive relief, 3) a typo in the caption of the
complaint, 4) improperly naming the Administrative Branch of the Fort Collins
City Government as a defendant. We address each of these alleged deficiencies in
turn.
1) A FAILURE TO NAME AN INDISPENSABLE PARTY OF UNKNOWN
IDENTITY REFERRED TO ONLY AS THE OWNER APPLICANT,
Perplexingly, the Defendants have failed to identify who the “owner
applicant” is. Additionally, the Defendants have failed to explain how the
interests of this party differ in any way from the interests of the Defendants and
how the rights of this unidentified part may be impaired if not properly named in
this action. Because it is not understood how the rights of this unknown party may
be impaired in the general sense, it is, of course, equally impossible to ascertain
how the rights of this party may be impaired if the relief requested in the 6
individual claims is granted.
Consequently, the Defendants have not even begun an explanation of why
this case should be dismissed.
Instead, Defendants have relied upon citations of case law that are completely
inapposite in this circumstance. The authorities that have been cited by Defendants
apply exclusively to zoning matters. There is no argument about the necessity of
naming an owner of property subject to a contested zoning or rezoning application.
There can be no question that such an owner may very well see his or her use of
property impaired or abridged as a consequence of judicial review of a zoning
decision. However, the matter currently before the court pertains to development
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review, not zoning. In the absence of any explanation of why decisions on
applications for zoning changes are similar to applications for development review
of proposed construction projects, the binding effect of all authorities cited by the
defendant simply does not exist.
As an alternative to simply dismissing the authorities as inapposite here, an
examination of exactly what rights may be impacted by this action is appropriate.
This examination certainly tells us that 1) an entity is in the process of applying for
vested rights of development, 2) as a consequence of a decision of this court to
grant the relief requested in the complaint, this entity may necessarily be obliged to
participate on remand in further proceedings to define the specifications for
development and future business activity required for the final attainment of the
vested rights sought. If these two points 1) and 2) are correct, then this entity
may only be said to experience a disadvantage by virtue of a more circuitous route
to the objective of the application that was commenced. Such a disadvantage is
not an impairment of rights. There certainly is no rational or logic for comparing
this disadvantage to the impairment of rights to use property that is a possibility in
decisions on zoning applications and there is also no rational or logic for
comparing this disadvantage to the impairment of any other legally protected right.
Only two of the 6 claims made in the Complaint are exclusively “abuse of
discretion” type claims under Rule 106. (claims 1 and 2). All other claims have a
basis that is, at least in part, separate from the relief afforded by Rule 106.
Consequently, it is even a further stretch than previously presented to presume that
just because a cause of action arises within the arena of land use it is automatically
subject to the requirements of indispensable parties that the Defendants have
referenced with citations of authorities.
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For the reasons stated above1, we resolutely oppose that part of the Motion to
Dismiss based upon a failure to name a party. However, litigation should never be
about inflexibility that imperils the pursuit of justice. Consequently, we are
amending our Complaint to name as an Indispensable party that person who was
named in the Staff Report that preceded the review of the subject application
before the Planning and Zoning Board. This Staff Report identifies two entities:
APPLICANT: Craig Russell, Russell + Mills Studios 506 S. College Ave,
Suite A Fort Collins, CO 80524
OWNER: Next Chapter Properties - Patrick Quinn 1939 Waukegan Rd,
Suite 105 Glenview, IL 60025
(See Page 1, Agenda Item #5, January 18, 2018 Planning and Zoning Board
meeting.)
The Defendants have complained that the “owner applicant” was not
named. Obviously, the OWNER and the APPLICANT are two different entities.
Upon further investigation and review, the OWNER was eliminated from
consideration as an indispensable party for two reasons: 1) the OWNER lists an
Illinois address and it is not clear whether this court would have personal
jurisdiction over the OWNER, and 2) the OWNER listed in the Staff Report does
not match the owner listed in the public records of the Larimer County Assessor’s
Office for the subject parcel of land and it is unclear whether or not the OWNER,
Next Chapter Properties, has any possessory interest in the subject parcel of
property.
2) A FAILURE TO ALLEGE ALL ELEMENTS NECESSARY TO
SUPPORT A CLAIM FOR INJUNCTIVE RELIEF
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These reasons were explained multiple times in conference with Counsel for Defendant, yet no
contrary reasoning was advanced in refutation of the perspective we present here or in defense of
the rote notion that because zoning actions require the naming of an indispensable party, so must
actions seeking to assure compliance in development review applications.
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The Defendants are correct in this regard. The Complaint has been amended
accordingly.
In addition to providing greater detail in our allegations as found in the
Amended Complaint, we make note here that if the injunctive relief requested is
not granted, the difficulty in time and expense that will accompany the ultimate
favorable rulings we expect, whether in this court or on appeal, may disadvantage
the Defendants and all other parties, (identified or otherwise), in the event that
entitlements are errantly granted by the Defendants in the absence of a stay.
3) A TYPO IN THE CAPTION OF THE COMPLAINT
The Defendants are correct in this regard. The Complaint has been amended
accordingly. We regret the error.
4) IMPROPERLY NAMING THE ADMINISTRATIVE BRANCH OF THE
FORT COLLINS CITY GOVERNMENT AS A DEFENDANT.
In regards to the allegation that the Administrative Branch is improperly
named in this action, we disagree. As a practical matter, lawsuits in state court
that seek to join a municipal corporation do name the municipal corporation or the
governing body of such in the complaint. However, this approach is unacceptable
when the lawsuit is brought to the Municipal Court of the municipal corporation
for the simple fact that the Municipal Court is a component unit of the municipal
corporation. That is to say there is no way to sue the municipal corporation
without also suing the Municipal Court that happens to be hearing the matter.
We confess to the difficulty and ambiguity that is presented by the practical
reality of the situation. We would urge for legislation by City Council that would
make this difficulty cease to exist. Indeed, Plaintiff Eric Sutherland has lobbied
for such change and others as part of a general design to better facilitate resolution
of disputes within the original jurisdiction of the Municipal Court. On a larger
scale, it appears the such difficulties and others that follow from claim of original
jurisdiction that is found in the Charters of many Home Rule cities in Colorado are
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not well understood and certainly ill-addressed. This is one area where the
Malcolm Baldridge award winning city organization might actually show some
leadership.
The situation being what it is at the present time, we feel and we urge this
Court to agree that naming the parties as we have done is acceptable. Certainly, it
would be improper to dismiss this suit on this basis. Whether or not a component
unit of the City that could not be named in a suit in state court may be named in
Municipal Court is beside the point. The point is that the functions and activities
of the Administrative branch of the municipal corporation are under the
jurisdiction of this court regardless of whether the naming convention employed
here meets everyone’s satisfaction. Certainly, the Defendant does not seem to be
arguing otherwise.
WHEREFOR, we respectfully request that this court deny the Motion to Dismiss
and grant leave to file the Amended Complaint that is submitted with this
Response, if such Leave of this Court is necessary, which does not appear to be
necessary.
Respectfully submitted this 17th day of May, 2018.
Eric Sutherland Brian Dwyer
_____Eric Sutherland__________ ___Brian Dwyer__________
Address of Lead Plaintiff
3520 Golden Currant
Fort Collins, CO 80521