HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 039 - RESPONSE IN OPPOSITION TO PLAINTIFF'S FIRST AMENDED MOTION FOR RECONSIDERATION OF ORDER GRANTING MOTION TO DISMISSDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
ERIC SUTHERLAND, pro se
v.
Defendants:
THE CITY OF FORT COLLINS, a home rule municipality
in the State of Colorado; STEVE MILLER, in his capacity as
the Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and
Indispensable Parties: THE TIMNATH DEVELOPMENT
AUTHORITY, an Urban Renewal Authority; and
COMPASS MORTGAGE CORPORATION, an Alabama
company doing business in Colorado.
Counsel for The Timnath Development Authority and
Compass Mortgage Corporation:
Eric R. Burris, admitted pro hac vice
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
Phone: 505.244.0770
Email: eburris@bhfs.com
Cole J. Woodward, #50199
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Email: cwoodward@bhfs.com
Co-Counsel for The Timnath Development Authority:
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA & WALDRON
2154 E. Commons Ave., Suite 2000
Centennial, CO 80122
Phone: 303.858.1800
Emails: rrogers@wbapc.com; clekahal@wbapc.com
Case Number: 2018CV149
Division: 3C
RESPONSE IN OPPOSITION TO PLAINTIFF’S FIRST AMENDED MOTION
FOR RECONSIDERATION OF ORDER GRANTING MOTION TO DISMISS
DATE FILED: August 3, 2018 9:03 AM
FILING ID: 87D8A9FE688F5
CASE NUMBER: 2018CV149
2
The Timnath Development Authority (“TDA”) and Compass Mortgage Corporation
(“Compass”), by and through their counsel of record, White Bear Ankele Tanaka & Waldron
Attorneys at Law and Brownstein Hyatt Farber Schreck, LLP, hereby submit the following
Response in Opposition to Plaintiff’s First Amended Motion for Reconsideration of Order
Granting Motion to Dismiss.
INTRODUCTION
Plaintiff’s First Amended Motion for Reconsideration of Order Granting Motion to
Dismiss (the “Motion”) alleges that this Court committed a “manifest error of law” when it
ordered that the claims against Compass and TDA in Plaintiff’s Unamended Complaint for
Declaratory Judgement and Equitable Relief (the “Complaint”) be dismissed. Plaintiff’s Motion
reiterates the same arguments that the Court weighed and rejected with respect to Plaintiff’s
standing in this matter. The Court determined in its Order Granting Defendants Timnath
Development Authority and Compass Mortgage Corporation’s Joint Motion to Dismiss (the
“Order”) that Plaintiff failed to allege facts that grant him standing to enforce Colorado’s Urban
Renewal Act (the “URA”) at C.R.S. 31-25-101, et seq. Plaintiff’s Motion offers no new legal or
factual arguments; it merely restates the position Plaintiff took in his Amended Response to TDA
and Compass’ Joint Motion to Dismiss and Request for Expedited Briefing (the “Response”) and
at the June 27, 2018 hearing, where both sides presented testimony and argument on TDA and
Compass’ Joint Motion to Dismiss and Request for Expedited Briefing and Hearing (the “Joint
Motion to Dismiss”). Plaintiff’s position contravenes existing case law, and the plain language
of the URA. In light of these facts, TDA and Compass request that this Court deny Plaintiff’s
Motion.
3
ARGUMENT
A. Plaintiff’s Motion for Reconsideration Contains No New Factual Allegations
or Legal Argument.
Plaintiff correctly notes that motions to reconsider are disfavored under Colorado law.
Mot. at 3; see Colo.R.Civ.P. 121 § 1-15(11) (“A party moving to reconsider must show more
than a disagreement with the court’s decision.”). Plaintiff’s Motion fails to meet this threshold
requirement. It provides the Court with no new factual allegations or legal argument. Indeed,
Plaintiff’s Motion declares that “[a]ll facts and legal argument necessary to establish the
jurisdiction of the Court for these two averments were presented in my [Response].” Mot. at 4.
At no point does Plaintiff’s Motion even purport to advance novel allegations or legal theories
material to the Court’s ruling. Plaintiff’s Motion fails to identify any “manifest error of fact or
law that clearly mandates a different result . . . .” Colo.R.Civ.P. 121 § 1-15(11). The Court may
deny Plaintiff’s Motion on that basis alone.
B. Plaintiff Lacks Standing Because He Cannot Allege a Cognizable Injury-In-
Fact to a Legally Protected Interest Under Colorado Law.
Plaintiff alleges that as a taxpayer residing within the jurisdiction of the Poudre School
District, he will sustain an injury-in-fact in the form of increased property taxes as a result of
TDA’s collection of Tax Increment Financing (TIF) revenues, allocated to it in accordance with
the URA. Mot. at 4. The Colorado Court of Appeals rejected this same argument in Olson v.
City of Golden, 53 P.3d 747 (Colo. App. 2002).
The Olson court dismissed a taxpayer’s attempt to enforce the provisions of the URA for
lack of standing on three independent grounds. First, it found that the increase in taxes alleged
by the taxpayer was too speculative to support the taxpayer’s claim of standing, as it was
premised on a number of intermediary actions by governmental entities that might or might not
4
actually take place. Id. at 752. Second, it rejected the taxpayer’s argument in light of prudential
limits on standing, rooted in separation of powers, which prohibit the judicial branch from
usurping the constitutional powers of the other co-equal branches of government. Id. at 750.
Third, it found that the plain language of the URA statute indicated that the Legislature did not
intend to grant taxpayers standing to enforce its terms. Id. at 752.
All three of the grounds for dismissing the taxpayer’s claims identified by the Olson court
are present here as well. See Joint Mot. to Dismiss at 8. The tax increase alleged by Plaintiff is
speculative in the sense that an increase will only occur if the Poudre School District takes the
necessary steps to increase its mill levy rate. That act has not taken place, and may never take
place. Even if Poudre School District did take the necessary steps to increase its mill levy rate,
that increase might be attributable to factors other than the TDA’s collection of TIF revenues.
Thus, Plaintiff’s alleged injury is speculative in nature, and does not constitute an injury-in-fact.
The injury alleged by Plaintiff here is a taxpayer injury that, by Plaintiff’s own
admission, could equally be alleged by any taxpayer within the Poudre School District’s
jurisdiction. The prudential limitations on standing identified by the Olson court deny Plaintiff
standing under the facts presented here.
Finally, Plaintiff’s Motion makes no attempt to refute the core holding of Olson, which
states that the plain language of the URA does not grant a legally protected interest to taxpayers,
and thus they lack standing to enforce its provisions. Olson, 53 P.3d at 752-53. The Olson court
found “no legislative intent to grant taxpayers the right to enforce [the URA].” Id. at 752. In the
absence of a legally protected interest, Plaintiff cannot establish standing with respect to the
claims made in his Complaint.
5
C. Plaintiff’s Motion Does Not Explain How the Absence of Briefing from
Defendants Miller and Josey Constitutes a Manifest Error of Fact or Law.
Plaintiff accuses TDA and Compass of hijacking these proceedings by waiving service of
Plaintiff’s Complaint and filing the Joint Motion to Dismiss before the Complaint was served on
Defendant Steve Miller and Irene Josey. Mot. at 5-6. Plaintiff’s Motion does not indicate
whether or how briefing from these two parties could have altered the Court’s analysis with
respect to the standing issue.
Plaintiff’s insistence that TDA and Compass are not the Defendants in this action is
merely an effort to avoid the central holding of Olson through semantic game-playing. As the
Court noted in its Order, “it is evident that the suit is, in fact, a thinly veiled attack on Defendant
TDA’s compliance with the URA for which Plaintiff lacks standing to proceed.” Order at 3.
Plaintiff’s attempts to obscure the identity of the true parties in interest in this suit do not enable
him to circumvent the black letter law established in Olson.
CONCLUSION
Based on the foregoing, Defendants Timnath Development Authority and Compass
Mortgage Corporation request that this Court deny Plaintiff’s Motion for Reconsideration of
Order Granting Motion to Dismiss.
6
DATED this 3
rd
day of August, 2018.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Original signature on file at offices of Brownstein Hyatt Farber Schreck
pursuant to C.R.C.P. 121 § 1-26
By: s/Cole J. Woodward
Eric R. Burris, admitted pro hac vice
Cole J. Woodward, #50199
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA AND WALDRON
Attorneys for The Timnath Development Authority and
Compass Mortgage Corporation
7
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 3
rd
day of August, 2018, a true and correct
copy of the foregoing RESPONSE IN OPPOSITION TO PLAINTIFF’S FIRST AMENDED
MOTION FOR RECONSIDERATION OF ORDER GRANTING MOTION TO DISMISS
was filed with the Court and served via Colorado Courts E-filing System on pro se Plaintiff as
follows:
By E-Mail and Regular Mail
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone: 970.224.4509
Email: sutherix@yahoo.com
s/Penny G. Lalonde
Penny G. Lalonde, Paralegal
17151188