HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 027 - PLAINTIFF'S REPLY 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
REPLY IN SUPPORT OF PLAINTIFFS’ AMENDED OPENING BRIEF
Plaintiffs, Eric Sutherland and Brian Dwyer, file this Reply in Support of the
Opening Brief as ordered by the Court.
I. OVERVIEW
The Defendants in this matter have both filed Answer Briefs. This Court
has allowed the Plaintiffs an opportunity for Reply. Here it is.
It is tiresome and frustrating to deliberate or litigate with anyone who plays
their role as a fountain of bad faith. The Defendants mischaracterize the nature of
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Plaintiff’s claims. The Defendants invent creative interpretations of law with
absolutely no basis. The Defendants ignore arguments that are presented and then
point accusingly, “they have never made argument”. The Defendants overlook
the advantage that service of the public interest would bring to all. It is soul
defeating to engage with others that lead with bad faith. It takes its toll.
However, in the service of the public interest, the Plaintiffs do herein make
Reply for the purposes of preserving some respect for the Laws of the City of Fort
Collins and the rights enjoyed by the citizens thereof.
II. PLAINTIFFS HAVE ACKNOWLEDGED AND OBSERVED
LIMITATIONS ON RULE 106 ACTIONS.
Here is an excellent example of bad faith on the Part of the Defendant City
of Fort Collins. Licensed Attorney Kimberly Schutt, while writing for the City,
has stated that the Plaintiffs completely ignored the standard that must be applied
to allegations of abuse of discretion under Rule 106 C.R.C.P. See City’s Answer
Brief at p. 4 “Plaintiffs’ Opening brief completely ignores the important standard
of review that applies …” Ms. Schutt then proceeds to provide an excellent,
concise treatment of the standard of review for Rule 106(a)(4) actions.
There is a problem with Ms. Schutt’s statement. Plaintiffs did acknowledge
and observe the standard of review. Very simply, Plaintiffs conceded that the
standard of review is overwhelmingly construed to preserve the discretion of
decision makers in quasi-judicial proceedings. There is nothing that Ms. Schutt
has said in her excellent, concise treatment of this matter of law that was not
already conceded and then some in Plaintiffs Opening Brief. See especially
footnote #3, Amended Opening Brief at p. 5.
There is another problem with Ms. Schutt’s statement. Only two of the 5
claims made by the Plaintiffs were Rule 106-type abuse of discretion allegations.
Claims 3,4 and 5 were not abuse of discretion claims. See Amended Opening
Brief at p. 5.
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There is no doubt that Ms. Schutt absolutely, positively knew what was
going on. When one does not have facts and law on their side, one makes false
statements and proceeds in a manner as though nothing going on in the rest of the
Universe has any bearing on the case.
III. A CONDITON MAY NOT FUNDAMENTALLY CHANGE THE
DEVELOPMENT REVIEW PROCEDURE AS LAID OUT IN
CHAPTER 2 OF THE LAND USE CODE.
The City is arguing that the Planning and Zoning Board may dispose of any
application for development review merely by approving the application with
conditions that staff shall, henceforth, be tasked with any and all determinations as
to the compatibility of designs, compliance with standards and all other
responsibilities that are assigned by Code to the Planning and Zoning Board.
The preceding statement is not hyperbole, it is a sensible conclusion that
may be drawn from the position that the City of Fort Collins is arguing. If it is not
sensible, then the City has an obligation here to explain what limitations exist for
the application of conditions.1 The Plaintiffs’ argument, very simply, is that the P
& Z Board abdicated its decision making authority as to the compatibility of a
trash enclosure to others. By doing so P & Z effectively eliminated any
opportunity for review of this issue by citizens who had a right under the LUC and
City Code to challenge a deficient finding of compliance. In response, the City of
Fort Collins is now arguing that a condition of approval may allow the
responsibility to be abdicated to others. See City’s Answer Brief at p. 7.
To put a more technical spin on it, the City is arguing that a single citation of
the LUC, 2.2.5, which only allows for staff recommendations for conditions to
eliminate areas of noncompliance, is dispositive of the ability of the P & Z to
1
Plaintiffs hereby state, in advance, that they do not oppose a surreply brief made by the city to
address the limitations that might exist, if any, on the use of conditions to subvert the legislative
intent and letter of the law of the LUC.
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subvert any and all requirements of the LUC by applying conditions. No other
citation regarding ‘conditions’ is provided by the City or exists in the LUC that
might be construed to mean ‘conditions’ defeat ‘law’. This can not possibly be a
proper interpretation of the purpose of ‘conditions’ or else any and all standards
and procedures of the LUC could all be selectively or summarily vanquished by
the application of conditions.
Furthermore, the ‘condition’ that the City insists was properly applied to the
approval of the application has the effect of modifying procedure not the substane
of requirements. Abdication of duly delegated responsibility for making a decision
on a matter of compatibility to another is a change in procedure. The P & Z may
not be considered to be vested with legislating changes to procedure under any
circumstances. Nothing in any City Law vests the P & Z with that authority.
Rather, City Council is the sole authority to make changes to the development
review procedure by Ordinance adopted in a manner consistent with the City
Charter.2
As if to totally immerse themselves in bad faith, the City has even gone to
the trouble of citing the wrong portion of the LUC 3.2.5, sub-section (H), in order
to deflect attention from the actual substance of the claim that Plaintiffs had
actually made. See sub§ A. of City’s Answer Brief at p. 7. Plaintiffs specifically
cited LUC 3.2.5 (A) and its requirements for compatibility of trash enclosures with
adjacent land uses. See Amended Opening Brief at p. 9. Plaintiffs’ only interest in
this issue was the failure of the P & Z to make a finding of compatibility because
they had been given no information on which to base a decision. Similarly, the
2
Comppiance with the Charter requirements for enacting Ordinances is something that the City
has been quite challenged to do this year. This has lead to false representations being made to
the purchasers of $144 million in bonds. Nothing could be more screwed. Plaintiff Eric
Sutheralnd is way ot of his pay grade in that matter but is still attempting as best as possible to
look after the public interest. See 8
th
District Court Case No. 2018CV149.
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citizens who participated in the development review process were also deprived of
the ability to play their role.3
The City appears to justify the improper actions of the P & Z and also City
Council by holding that not all design details must be completed upon the time of
development review. This position, of course, runs counter to the requirement of
the LUC, 2.4.2(H) step 8, that Plaintiffs have averred was ignored by P & Z and
City Council leading to abuse of discretion. All standards of the LUC must be met
with the exception of those addressed by modifications of standards. Here, all
means all. All does not mean some. Contrary to the City’s knowing, willing
misinterpretation of the LUC, a deficiency in a development review application
such as the failure to produce a design of a trash enclosure should be met with a
continuance of the item until a subsequent meeting, not an impermissible condition
attached to the approval.
IV. THE ENTIRETY OF PLAINTIFFS POSITION ON CONNECTIVITY
IS MISUNDERSTOOD BY CITY DEFENDANTS.
The City Defendants begin their examination of Plaintiffs’ second claim for
relief by stating: ”The City Council did not abuse its discretion in upholding the
Board’s approval of the Project simply because the PDP did not include the
bicycle/pedestrian path urged by Eric Sutherland ….” City’s Answer Brief at p.
10.
In reality, Plaintiff Eric Sutherland did not request or seek a bicycle
pedestrian path. Plaintiffs (pl) Eric Sutherland and Brian Dwyer did not file this
lawsuit seeking a bicycle/pedestrian path. Here again, the attorney for the City
3
It was argued by the Plaintiffs that the complete absence of any determination by the decision
maker tasked with making decisions was unmistakably an abuse of discretion. The Defendants
were encouraged to confront the allegation of complete absence with citation of a portion of the
record that defeated the allegation. No citation was provided.
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has mischaracterized an argument in order to shoot something down even if it
bears no relation to the actual dispute presented.
Plaintiffs in this case have sought only the dedication of a right-of-way across
the subject property in a manner consistent with a plan for eventually constructing
a bicycle/pedestrian path. In other places, people call this planning. In Fort
Collins, it is a bridge to far.
The desirability of such a path may not be disputed. Indeed, four of the
seven city council members who heard the appeal expressed some form of affinity
for the prospect of a trail in this location, although most of these comments came
immediately after the hearing was concluded and are not part of the transcript.
The desirability of a trails segment in this location is known to have been
expressed as a community concern to Plaintiff Eric Sutherland for over 15 years.
Discussions about this trail segment occurred several times during the planning
stages of the Bus Rapid Transit route that runs immediately to the West of the
subject property. The desirability of this trail segment is made even more
significant at this time owing to the recent opening of a Charter school for 6-12th
graders immediately to the South of the subject property.
Yet, no matter how desirable, the only way such a trail segment will come
into being is if the appropriate steps are taken when the opportunity is presented.
In this case, an opportunity for the City to take ownership of a right-of-way across
the subject property…and only the subject property…by virtue of a dedication of a
right-of-way as a condition of approval would be missed if it is not required as a
consequence of approval.
Connection to adjacent parcels is a requirement of the LUC. The LUC
sections cited by the Plaintiffs are dispositive to this situation. See Amended
Opening Brief at p. 9 citing LUC section 3.2.2(B) and 3.6.2(O).
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This connectivity requirement has no relationship whatsoever with levels of
service and the citations of the LUC that the City relies on its treatment of the 2nd
claim. Level of service requirements gauge access of a proposed development to
the public rights of way such as streets and trails that allow access to and from
subject parcel. These are two distinctly different sets of requirements pertaining
to access. Plaintiffs have not disputed that access to streets and trails was wanting.
Rather, Plaintiffs have disputed that connections to adjacent parcels was
completely absent.4
As the above treatment of just the City’s argument of the 2nd claim shows, it
can take more verbage in a brief to defeat a mischaracterization of a claim and
proposed misapplication of law than it takes to make said mischaracterization and
misapplication. The Plaintiffs will have no more of this.
IV. PLAINTIFFS NEED NOT AND WILL NOT EXHAUST THEMSELVES
TO ADDRESS FURTHER ARGUMENT MADE IN BAD FAITH
The treatment of the just the three topics covered in the three preceding
sections of this Reply provide far more refutation of the City’s position than is
necessary or deserved. To the extent that Defendant Next Chapter’s arguments
also bubble with bad faith, they may also be construed to be equally without merit.
A request for judicial review of a justiciable matter is not request for an
opportunity to spend one’s time responding to nonsense forwarded for the purposes
of obfuscation and confusion. The Plaintiffs will not spend any more time doing
this.
The preceding treatment of the law pertaining to failure of the City
organization to abide by the plain and simple requirements of the Land Use Code
and the City Code, made manifest by an abuse of discretion by Defendant City
4
Please reference the prior argument holding that a quasi-judicial decision in which any
substance for a requirement of law was completely absent is unquestionably an abuse of
discretion.
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Council, is sufficient to require this Court to order remand. Additionally, the
position of the Plaintiffs on the other 4 claims speaks for itself on the basis of the
pleadings presented.
Plaintiffs will be making motion to this Court for a Hearing. There does not
appear to be any issues of fact to resolve by trial. However, to the extent that this
Court finds matters of law may not be adequately resolved on the basis of the
pleadings, oral argument would be welcomed by the Plaintiffs.
V. CONCLUSION
Great import will attend the decision this Court may now make.
Development review in the City of Fort Collins has, to date, been a series of
kangaroo courts. As a result, the little “c” city of Fort Collins, i.e. the community
that calls Fort Collins home, is failing to achieve its potential in many ways.
This should not be happening here. We should not be failing in this area.
Fort Collins should be an exemplary model of a community growing while
improving quality of life for its residents and visitors. Things like unsightly trash
enclosures and lost opportunity to create connections throughout the city are
noticeable attributes of recent development. The legislative intent of the Land Use
Code breaths of the intent to make the citizens of the community the ultimate
enforcers of its provisions. However, kangaroo courts have evolved to effectively
deny the citizens their right to participation and enforcement.
This Court is not the last buttress against a total washout of rule of law.
Plaintiffs have rights of appeal to the District and beyond … if only for the
purposes of the trash enclosure and right-of-way issue that have been further
explained in this brief. That would be so unnecessary considering that this whole
matter really would not have been open in this Court for longer than a month if not
for the practitioners of bad faith named as Defendants in this matter.
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This Court does have the power to establish rule of law in this matter. This
Court also has the opportunity to restore integrity to the development review
process and respect for the role of our Court in municipal matters. The role that an
independent judiciary plays in our society is precious. Our nation would not be the
prosperous and nurturing place that it is now without justice. It is now time for a
Home Rule municipality of the State of Colorado to enjoy justice from this
Municipal Court under its authorizations found in the City Charter of the City of
Fort Collins in accordance with the Colorado constitution, Article XX section 6.
Respectfully submitted this 4th day of October, 2018
Eric Sutherland Brian Dwyer
___Eric Sutherland____________ ____Brian Dwyer__
Address of Lead Plaintiff
3520 Golden Currant
Fort Collins, CO 80521
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing REPLY IN
SUPPORT OF AMENDED OPENING BRIEF was served by electronic mail on this court and
the following.
Jeffrey Cullers
Kim Schutt
___Eric Sutherland_____