HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 021 - ORDER AMENDING SCHEDULE FOR CERTIFICATION AND FILING OF RECORD AND FOR FILING OF BRIEFSRE'zll—�DVED
Fort Collins Municipal Court,
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Larimer County, Colorado
FORT COLLINS MUNICIPAL COURT
Court Address: 215 N. Mason St., 1 st floor
P.O. Box 580
Fort Collins, CO 80522
e COURT USE ONLY
Court Phone: 970-221-6800
Civil Case No.: 2018-CIVIL-01
PLAINTIFFS: ERIC SUTHERLAND; and BRIAN DWYER
V.
DEFENDANTS: 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
Intervenor: Next Chapter Properties, LLC, an Illinois
limited liability company
ORDER AMENDING SCHEDULE FOR CERTIFICATION AND FILING OF RECORD AND
FOR FILING OF BRIEFS
This matter is before the Court on the City Defendants' Motion for Clarification of the
Court's Order of July 23, 2018 setting a schedule for certification of the record and for filing of
briefs, entered with regard to Intervenor Next Chapter Properties, LLC motion to expedite the
briefing schedule. In its July 23rd Order, the Court noted that its review pursuant to C.R.C.P.
106(a)(4) is not de novo but "shall be limited to a determination of whether the body [the Fort
Collins City Council] has exceeded its jurisdiction or abused its discretion, based on the
evidence in the record before the defendant body..." C.R.C.P. 106(a)(4)(I). The Court also
noted that "to date, while all parties' pleadings have referred to `the record' and to `the
transcript,' no such record or transcript of the proceedings before either the Planning and Zoning
Board or the City Council concerning the Johnson Drive Apartments Project Development Plan,
PDP #170034, has been certified or otherwise presented to the Court for its review." (The Court
also hereby notes that even those portions of the record purportedly attached to Plaintiffs'
Second Amended Complaint, including "the appeal", were not, in fact, attached, and have not
been certified for the Court's review.)
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The City Defendants now take issue with the Court's Order that scheduled a simultaneous
deadline for all parties to this action for certification of the record, asserting that such a
simultaneous deadline shifts the burden of certification of, and payment for, the record, to
Defendants. The Court's previous Order was issued pursuant to C.R.C.P. 106(a)(4)(VIII), which
provides that "[t]he court may accelerate or continue any action which, in the discretion of the
court, requires acceleration or continuance." This certainly includes the schedule for
certification of the record. In addition, the Court took into account the fact that Plaintiffs are pro
se, and that the Intervenor's motion to expedite the briefing expressed an understandable
urgency to get this matter resolved (although the Court notes that setting forth an expedited
briefing schedule in proceedings dependent on the review of the record which makes no
provision for the certification of the record is a bit disingenuous). All of that being said, the City
Defendants' request to stagger the certification schedule is not unreasonable, although it will
delay the proceedings further. The City Defendants' request to delay production of portions of
the record while they are being prepare, however, is DENIED. This matter has been pending for
several months, during which the City Defendants have been on notice that the record in this
matter is at issue. In addition, the City Defendants' Answer to Plaintiffs' Second Amended
Complaint refers repeatedly to "the appeal," to matters that were discussed before both the
Board and City Council, and to the `hearing transcript," (See, e.g., Paragraphs 18, 19, and 22 of
Defendants' Answer), which leads the Court to conclude that those items already exist and have
been reviewed by counsel for the City Defendants. No additional time should therefore be
necessary to prepare and certify those items of the record for the Court's review if, in fact, any
party designates them for such review.
Therefore, pursuant to C.R.C.P. 106(a)(4)(VIII), the Court hereby ORDERS as follows:
a. Plaintiffs shall certify and advance payment for or file with the Court and to all other
parties those portions of the record concerning PDP#170034 that they wish the Court to
review no later than Thursday, August 2, 2018;
b. City Defendants and Intervenor Next Chapter Properties shall certify and file with the
Court and to all other parties those additional portions of the record they wish the Court
to review no later than Thursday, August 9, 2018.
c. Plaintiffs' opening brief shall be filed no later than August 30, 2018;
d. Response briefs shall be filed no later than September 20, 2018;
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e. Plaintiffs' reply brief shall be filed no later than October 4, 2018.
1T 1S SO ORDERED, this 31' day of July, 2018.
Lisa D. Hamilton-Fieldman
Municipal Judge (Temporary)
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