HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 023 - PLAINTIFF'S OPENING BRIEFFORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 221 6800
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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.
Intervenor: NEXT CHAPTER PROPERTIES, LLC
Parties without attorney
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
(970) 224 4509
sutherix@yahoo.om
Brian Dwyer
2001 S. College Ave.
Fort Collins, CO 80525
(970) 484 0866
bdwyer1199@gmail.com
Case Number:
2018civil01
OPENING BRIEF
Plaintiffs, Eric Sutherland and Brian Dwyer, file this Opening Brief as
ordered by the Court.
Introductory Celebration
Good cause exists to now celebrate the occasion of actually having a duly
appointed judicial officer review the merits of an action in which a few of the
many deficiencies of the City of Fort Collins development review process are
presented. In the only previous action properly filed with the Municipal Court of
the City of Fort Collins, case no. 2018civil01, the Plaintiffs were forced to simply
cease litigation because an unappointed person insisted on presiding over that
matter. It was claimed that this person, Geri Joneson, had been appointed by
2
virtue of an Intergovernmental Agreement between Fort Collins, Greeley and
Loveland. Yet, even if appointment by virtue of some IGA were construed to be
consistent with the provision of the city Charter of the City of Fort Collins, Article
XII section 1, and this could never be the case, the IGA was never duly approved
by the City Council of the City of Fort Collins. Truth is stranger than fiction.
Followed by more of the typical dispappointments
The defendants in this case have long since left the rails of any track to a
successful outcome. This failure is unquestionably due to the Defendant City 1)
refusing to abide by the plain and simple requirements of the Land Use Code and
2) standing for the idea that somehow prevailing in litigation, regardless of the
outcome, is equivalent to successful pursuit of the general interests of the public
and the participants in the development review process.
The procedure began to come apart from the very beginning. The claims for
relief that Mr. Dwyer and Mr. Sutherland brought to this court were, by design,
intended to be as reasonable as possible and crafted with intent to eliminate any
and all obstacles to extremely speedy resolution of all matters. In other words, we
tackled only those problems that met the following criteria; 1) each claim
presented a simple solution that could be obtained in short order, 2) each claim was
facially sufficient to be decided in our favor on the merits, and 3) the relief
requested represented the absolute minimum that could reasonably be expected
from the protections afforded by the Land Use Code.
From a practical standpoint, our claims militated a quick remand to the
Planning and Zoning Board where, with the exception of the relief requested in
Claim 51, actions could be taken to eliminate every single objection to the proposed
project that we had presented in short order. It was also hoped for, but without
expectation, that the Planning and Zoning Board would also be persuaded to apply
conditions, as is their authority under the LUC, that might eliminate future
headaches for the business that Mr. Dwyer operates in the vicinity and also address
the need for improved bicycle and pedestrian connections in the area.
Nothing doing. At this point, there may be no question that the Defendants
have interposed frivolous and meritless opposition. Ironically, the Defendants are
apparently the ones to suffer at this point. See especially Affidavit of Patrick
Quinn filed July 12. Co-operative discussions leading to agreements to simply
follow the plain and simple requirements of the Land Use Code, eliminate
1
The relief requested in Claim 5 could not be resolved to allow the applicant’s project to move
forward without legislation from City Council to provide a mechanism of enforcement for
conditions that were applied and only useful if expected to run in perpetuity.
3
ambiguities in expectations and set this project on a path toward success could
have taken place. They did not.
This proceeding truly left the rails upon the filing of Next Chapter’s Motion
to Expedite Briefing Schedule, filed with this court on July 12 with a proposed
Order filed on July 18th, 2018. In this Motion, Next Chapter held for a position
similar to one stated earlier by Counsel for Administrative Branch and Council of
City of Fort Collins, the “City Defendants”, in conference. This position lumped
the claims for declaratory judgment, Claims 3,4 and 5, in with the claims alleging
abuse of discretion, Claims 1 and 2, and insisted all claims were subject to
adjudication under Rule 106. Despite our protestations, the Defendants insisted
on taking this path. Not only were Claims 3,4 and 5 framed as requests for
declaratory judgment in the 2nd Amended Complaint, these claims could not
possibly be construed as allegations of abuse of discretion subject to judicial
review under C.R.C.P Rule 106. See Snyder v. City of Lakewood 542 P. 2d 371
189 Colo. 1975. This deficiency in the Defendant’s position is better explained in
ARGUMENT below, but is also mentioned here to explain how impossibly
impractical the Defendant’s position has become.
Finally, the usefulness, necessity and efficacy of certifying any part of the
record of the court below seemed to completely escaped the Defendants. This
subject led to the conclusion made by the City Defendants that we, the Plaintiffs,
had “shirked” our responsibilities in this case by failing to request that a record be
certified. See City Defendants’ Designation and Submission of Certified Record.
We disagree. We did not avoid any responsibility or jeopardize either our position
or any practical element of this procedure by electing not to have any element of
the record of the court below certified or entered into this proceeding. First off,
only 2 of our 5 claims alleged abuse of discretion and were, therefore, subject to
the requirements of Rule 106 where certification of the record is implicated.
Secondly, those 2 claims unmistakably alleged that an abuse of discretion had
occurred by virtue of a complete absence2 of any showing that a requirement of the
Land Use Code had been complied with. Third and lastly, no provision of Rule
106 precludes reliance upon the normal rules of evidence in a civil proceeding.
To the very limited extent that any evidence that might be found in the record of
the court below may be needed to support our argument, it may be entered into the
proceeding.
2
As a general rule of thumb, allegations of abuse of discretion in which a complete absence of
compliance with a legal standard are the only claims that have a snowball’s chance of succeeding
in a Rule 106 proceeding. The applicable standard for reviewing an abuse of discretion allows
for judicial reversal in a quasi-judicial matter only when there is a showing of a complete
disregard for the standard or malfeasance. Otherwise, the reviewing court is obliged to defer to
the discretion of the decision maker.
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It is impossible to prove a complete absence of compliance with a specific
provision of the Land Use Code has occurred without an analysis of every single
component of the record to show that … ‘nope … it did not happen here either.’
Thus, it is our expectation and should be the conclusion of this Court that an
allegation of a complete absence of compliance shifts the burden of proof away
from the Plaintiffs to the Defendants. If there is any evidence in the record or in
any other form that anything that a complete absence of compliance exists in the
two instances where we allege it does exist, then the Defendants are free to point
that out. This position had been shared with the Defendants by email and it is
perplexing beyond our capacity to understand why it was not understood and, if
objected to, refuted in conference. We can only conclude that the Defendants
found that the very expensive process of certifying an entire record only to show
that, nope, there is absolutely no evidence to refute the allegation that a complete
absence of compliance with a legal standard is, indeed, the truth of the matter was
just to great a temptation to ignore. This must be especially true since it afforded
the opportunity to allege that we were shirking our responsibilities.
Remarkably, this Court appears to have no other option at this juncture than
to Order the remand we sought to stipulate to from the beginning. In other words,
the meritless opposition entered by the Defendants has delivered no advantage to
them. It can also be said that the public benefit that Mr. Dwyer and I aspired to
with the filing of this case is no closer at hand either. Sad situation all around.
ARGUMENT
This Court must grant the relief requested on Claims 1-5 in the 2nd Amended
Compaint for the reasons outlined below. We begin with a short discussion of
how the burden of proof must be apportioned in the courts below and also in this
proceeding in accordance with the requirements of the Land Use Code. Next, a
simple examination of the 5 claims is made.
A. Sufficient Allegation and Burden of Proof in Development Review Hearings
and Appeals.
To begin, we note here that Mr. Sutherland has, for years, raised questions
and concerns about how the burden of proof should be apportioned in a hearing of
a development review application before the Planning and Zoning Board or
Hearing Officer3. It makes absolutely no sense to commence any quasi-judicial or
3
Mr. Sutherland has elevated these concerns to the so-called citizen representatives that happen
to take seats on Council. Blank looks there as well. Of course, the present Council is not unlike
previous Councils in that it is composed entirely of people who see their raison d’etre as rubber
stamping things that are put in front of them by city staff. No independent legislative purview is
known to exist anywhere in City Council, even though issues such as legislating on
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judicial proceeding without first having firmly apportioned the burden of proof.
The absence of a standard to be followed in this regard has been a constant source
of confusion for everyone involved, especially for the members of the Planning
and Zoning Board itself. The number of times the issue has been raised is equal in
number to the times that every face in the room has gone blank. This is either
simply a bridge to far for the staff members of the planning department and the city
attorneys, or else there is great apprehension about actually apportioning the
burden of proof where it belongs… squarely on the shoulders of the applicant.
This entire case is not justiciable without a determination of how burden of
proof must be apportioned in the courts below. Fortunately, this question of law
may only be reasonably settled by finding that the burden of proof for showing that
a development proposal complies with all requirements of the Land Use Code lies
exclusively with the applicant. The burden may fall on no other shoulders.
Applicants have access to city staff and their resources, citizen participants do not.
Applicants have the exclusive discretion over if and how a development proposal
may be modified to comply with the requirements of Code, citizen participants do
not. Etc.
Having determined where the burden of proof lies, it is then necessary to
determine upon what circumstances the proof must be shown by an applicant.
Again, this case is not justiciable without such a determination. This question of
law may also be reasonably settled by holding for a two part methodology; 1) any
allegation of a substantive failure to comply with a requirement of the Land Use
Code must be met with a showing of proof satisfactory to the decision maker, and
2) in the absence of a showing, the application must be deemed to be insufficient.
Having now determined the criteria for sufficient allegation, it is also
necessary to determine when such allegation must be made by a citizen participant
in the process. Here, the conclusion is not as readily apparent. Upon careful
examination of the alternatives, we urge this Court to conclude that the time to
enter an allegation must be upon filing a Notice of Appeal for review by City
Council. This may seem a bit out of time in that appeals of development review
decisions brought before Council are not de novo hearings. In other words,
concluding in accordance with the theory of law presented here allows a citizen
participant, aka party in interest, to allege insufficiency of a development
application at a time, appeal to Council, where the applicant may not respond with
(cont’d.)..
apportionment of burden of proof in quasi-judicial proceedings and other similar topics lie well
within the authority of Council under the City Charter.
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an amendment to his application. In this event remand to the tribunal of origin is
the only alternative.4
The similarities between the apportionment of burden of proof presented here
and other areas of Colorado law are obvious. Citations are unnecessary. All the
same, this is a matter of first impression for this court and the ultimate resolution
of the questions of law necessary to adjudicate this matter lie in the sound
discretion of this court. If there is another standard for sufficient allegation or
burden of proof that serves the purposes of judicial efficiency and the ends of
justice, this Court is free to adopt that instead. However, in the absence of a
competing theory of law, we urge this Court to adopt something substantially
similar to that presented here for adjudicating this matter and also recommend
adoption of these principles as a matter of precedent in the Municipal Court of the
City of Fort Collins for all future actions. May it be hereafter known by all parties
to quasi-judicial proceedings that the burden of proof lies with the applicant and by
what means a sufficient challenge may be made by a party in interest.
B. Claims 1 and 2 must be decided in favor of Plaintiffs.
The following facts may not be disputed; 1) on appeal to Council,
Sutherland and Patterson alleged failure to comply with the relevant provisions of
the Land Use Code for trash enclosures and bicycle/pedestrian connectivity, 2) no
refutation of the allegations were made by the applicant or even city staff on behalf
of the applicant in which a showing of compliance was indicated, indeed, a
complete absence of compliance was present.
In regard to the allegation of insufficiency of the design of the trash
enclosure, LUC section 3.2.5(A) states:
“ Purpose. The purpose of this Section is to ensure the provision of areas, compatible
with surrounding land uses, for the collection, separation, storage, loading and pickup of
trash and recyclable materials.”
Because no design details, other than a basic outline of the footprint of the
proposed trash enclosure, had been submitted to the P & Z board, it is axiomatic
that the P & Z board abused its discretion by approving the project in a manner that
is inconsistent with the requirements of Land Use Code section 2.4.2(H) step 8. It
is impossible for an assessment of compatibility with surrounding land uses to be
made with only a diagram showing a footprint. Similarly, it is axiomatic that
Defendant City Council also abused its discretion by failing to acknowledge the
4
For whatever reason, remand to the P & Z or Hearing Officer to correct for insufficiencies (or,
in the alternative, denial of the application) is avoided like the plague. Yet, this is the only
outcome that is consistent with the procedures defined in City Code for conduct of an appeal.
7
sufficiency of the allegation made by Sutherland and Patterson and find the
complete absence of compliance with LUC section 3.2.5(A). 5
In regard to the allegation of insufficiency of the connectivity between the
subject property and the commercial and transit area to the south, LUC section
3.2.2 (B) states:
General Standard . The parking and circulation system within each development
shall accommodate the movement of vehicles, bicycles, pedestrians and transit,
throughout the proposed development and to and from surrounding areas, safely and
conveniently, and shall contribute to the attractiveness of the development. The on-
site pedestrian system must provide adequate directness, continuity, street crossings,
visible interest and security as defined by the standards in this Section. The on-site
bicycle system must connect to the City's on-street bikeway network. Connections to
the off-road trail system shall be made, to the extent reasonably feasible.
Also Land Use Code section 3.6.2 (0) states:
Easements. Easements shall be controlled by the following requirements:
…..
(2) Pedestrian and bicycle paths shall be provided to accommodate safe and convenient
pedestrian and bicycle movement throughout the subdivision and to and from existing
and future adjacent neighborhoods and other development; …
Furthermore, numerous other sections of the Land Use Code may be interpreted to
require connectivity for bicycles and pedestrians.
No design details were provided indicating any intent to comply with these
standards. No easement on the existing property was indicated, let alone
dedicated, for this purpose. A complete absence of compliance was present. It is
axiomatic that the P & Z board abused its discretion by approving the project in a
manner that is inconsistent with the requirements of Land Use Code section
2.4.2(H) step 8. Similarly, it is axiomatic that Defendant City Council also abused
its discretion by failing to acknowledge the sufficiency of the allegation made by
Sutherland and Patterson and find the complete absence of compliance with LUC
secton 3.2.2(B) and all other sections of the LUC requiring adequate bicycle and
pedestrian connectivity.
C. Claims 3 and 4 must be decided in favor of Plaintiffs.
The third and fourth claims for relief in the 2nd Amended Petition speak for
themselves. A test for vagueness must be applied. A statute which either requires
5
Although not necessary for the purposes of a judicial determination that Council abused
its discretion, the record does show that P & Z collectively, without a vote, abdicated their
authority and responsibility to make an assessment of compatibility by telling staff to just come
up with something please. See Exhibit 1 which conveniently excises the only piece of the record
with any relevancy to this claim for this Court’s easy access.
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or forbids an act in terms so vague that men of common intelligence must guess at
its meaning and differ as to its application violates the first essential of due process
of law. Memorial Trusts, Inc. v. Beery, 144 Colo. 448, 356 P.2d 884 (1960) Rules
and procedures for interpreting statutes also apply to the interpretation of local
ordinances and codes. ( citation omitted.)
Here, the terms “car share” and “transit passes” could mean many, many
different things. Very few of these available meanings might equate to a strategy
for reducing the need for onsite parking in a manner equivalent to the reduction
that has been granted in this development application.
Certainly, the opportunity existed for the Planning and Zoning board or City
Council to apply conditions to the approval of the development application that
would have defined what these ambiguous terms mean, but that did not happen.
Of course, the entire intent underlying Claims 3 and 4 was a remand in a manner
that this Court found proper so that sufficient definitions and conditions could be
adopted and imposed. It seemed so simple at the time of crafting the complaint
and still seems so simple now. But look where we ended up. Intervenor Next
Chapter Properties now complains of significant financial losses attributable to this
litigation. Would a speedy remand have been so onerous? Would the costs of
resolving this dispute through compromise and access to the proper channels have
cost nearly as much as the applicant now claims to have lost?
D. Claim 5 must be decided in favor of the Plaintiffs.
Claim 5 as presented in the 2nd Amended Complaint speaks for itself. Of all
the claims presented, this is the only claim for relief that could not have been
resolved by a simple remand to a lower tribunal. This is because the laws of the
City of Fort Collins provide for no means of enforcing a forward looking6
condition like an effective car sharing plan or a requirement that all residents of a
development be perpetually granted annual transit passes. In the hearing of the
appeal before Council, a member of the planning staff did make reference to the
concept that a forward looking condition or requirement of the LUC might be
included as a provision of a contractual agreement between the developer and the
City of Fort Collins. The inference made on that occasion may have been that
6
A “forward looking condition” for the purposes of this brief and others, is a condition or
requirement that is intended to be in effect after the issuance of a certificate of occupancy, “CO”
and survive in perpetuity thereafter. All requirements of the original LUC were designed to be
verifiable at the time of issuance of a CO and were, thus, enforceable by virtue of withholding a
CO if the requirements had not been met. Some recent additions, such as mitigation strategies
for parking requirements in the Transit Oriented Development district, were legislated without
thought given to how they would be enforced. The same is often true for last minute conditions
applied to development applications by decision makers or Council on appeal.
9
such a provision would be enforceable by the City of Fort Collins upon suit
seeking specific performance of the contract provision, which is a procedure that
must be taken in the district court.
In contrast, laws enacted by City Council could easily provide for relief for
noncompliance in this Municipal Court. Fines and other penalties for
noncompliance are a much more expedient means of enforcement than specific
performance. This area of law is not pre-empted by the state and there is reason to
speculate that the General Assembly may not legislate in this area as it lies in the
area of planning and zoning and may be deemed to be exclusively of local concern.
Certainly nothing proscribes Council from legislating in this area.
Regardless of whether or not City Council should elect to legislate7 in this
area, the simple truth of the situation is that the public is currently deprived of the
protections that the parking standards for development in the TOD are intended to
provide when unenforceable “mitigation strategies” are employed and/or granted to
reduce the number of parking spaces required. A brief look at the history of
another multi-unit housing development that was built adjacent to the subject
property shows just how much pain is felt in the surrounding area when residential
construction does not include adequate parking.
In the absence of any accessable means of enforcing a forward looking
condition, and a civil lawsuit for the purposes of claiming specific performance is
not an acceptable means of enforcement, forward looking conditions may not be
relied upon to serve the purposes of reducing the total number of parking spaces
required in the development. Thus, even if non-vague and meaningful standards
for “car share” and “transit passes” were to be developed and imposed as
conditions of this project, the public would still not be protected without adequate
enforcement mechanisms.
Of course, it lies far outside the jurisdiction of this court to Order the City
Defendants to pass legislation providing for an effective enforcement mechanism.
However, issuing declaratory judgment as requested does lie within this courts
jurisdiction as a court of record in the State of Colorado. C.R.S. 13-51-105.
CONCLUSTION
7
By elect to legislate, we mean be obliged to rubber stamp legislation originating in the halls of
the city administration in the incredibly unlikely event that someone actually attempts to address
the enforceability of forward looking conditions.
10
For the reasons stated above, we respectfully request that this Court grant the 3
claims for declaratory relief requested, claims 3,4 and 5, and also make findings
consistent with the allegations of abuse of discretion in claims 1 and 2.
Respectfully submitted this 21st day of August, 2018
Eric Sutherland Brian Dwyer
___Eric Sutherland____________ __ __________
Address of Lead Plaintiff
3520 Golden Currant
Fort Collins, CO 80521