HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 034 - DECISION AND ORDERPage 1 of 10
Fort Collins Municipal Court,
Larimer County, Colorado
Court Address: 215 N. Mason St., 1st
floor
P.O. Box 580
Fort Collins, CO 80522
Court Phone: 970-221-6800
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
COURT USE ONLY
Civil Case No.: 2018-CIVIL-01
DECISION AND ORDER
Appearances: Eric Sutherland and Brian Dwyer, Plaintiffs, pro se
City of Fort Collins, by and through Kimberly B. Schutt, Esq.
Intervenor Next Chapter Properties, by and through Jeffrey B.
Cullers, Esq.
This matter is before the Court for review pursuant to C.R.C.P. 106(a)(4)1
, to review the
City's approval of a Preliminary Development Plan ("PDP") for the Johnson Drive Apartments
Project, PDP#! 70034 ("the Project").
PROCEDURAL HISTORY
The City's Planning and Zoning Board ("the Board") initially approved the PDP after
hearing on January 18, 2018. Plaintiff Eric Sutherland appealed the Board’s approval of the
PDP to the City Council, which heard the appeal on February 27, 2018. Following the hearing,
the City Council denied the appeal and upheld the Board's approval of the PDP, finding that the
1 Municipal Court has jurisdiction under this provision of the state Rule pursuant to Town of Frisco v. Baum, 90 P.3d
845 (Colo. 2004).
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Board did not fail to properly conduct a fair hearing and that the Board did not fail to properly
interpret and apply certain sections of the City’s Land Use Code (“LUC”) in its approval of the
PDP with conditions. See, Resolution 2018-023. Record E.
Plaintiff Eric Sutherland originally filed his complaint with a business, J & M Distributing,
DBA Fort Collins Muffler and Automotive, as co-plaintiff. That complaint named as an
indispensable party an individual named Craig Russell, erroneously referred to in the amended
complaint as the Applicant. The case was originally assigned to a different judge, but was
reassigned to the undersigned after Plaintffs filed a motion to disqualify. After a series of
motions and orders, Plaintiff J & M, a business which could not proceed pro se, was replaced by
Plaintiff Dwyer, Mr. Russell was dismissed as not an indispensable party, and Next Chapter
Properties, the Applicant for approval of the Project, was permitted to intervene.
After another series of pleadings, Plaintiffs filed their Second Amended Complaint on
June 15, 2018, to which the City and the Intervenor filed answers. Despite it being their burden
to do so pursuant to Rule 106(a)(4), Plaintiffs never designated any portion of the record below
for review. Eventually Next Chapter Properties filed a Motion to Expedite Briefing Schedule,
and the City filed the certified record on September 5, 2018. Due to the nature of the
proceedings under Rule 106, no hearing was held, but briefs were filed by all parties. The
matter is now ripe for decision.
STATEMENT OF FACTS
The Court hereby adopts the citation convention for the certified record set forth in
footnote 1 of the City’s Answer Brief, as well as the unopposed Statement of Facts set forth in
the City’s Answer Brief. The Certified Record was submitted to the Court in PDF format. The
citations to the record will generally refer to the page number of the particular PDF document
constituting that part of the record. However, to the extent possible, the references to the page
numbers for the transcript of the Board hearing will also indicate the number as it is reflected on
the bottom of each page of the actual transcript, which differs from the page number of the PDF
document, since it is one of many items included within that part of Record A. For the City
Council hearing transcript, the page numbers for the transcript correspond with the page
numbers of the PDF.
The subject Project proposes a five-story mixed-use building at the southwest corner of
Johnson Drive and Spring Court in the central part of Fort Collins, Colorado, near the
Colorado State University ("CSU") campus. The project includes a total of 192 dwelling units
and 412 bedrooms, which are expected to be occupied primarily by college students. Record A,
Item 1 Part 7, at p. 40.
The proposed site includes a total of 2.5 acres within the General Commercial (C·G)
Zone District and the Transit-Oriented Development (TOD) Overlay Zone, which is explained
below. A total of 261 off-street parking spaces are proposed within a parking garage located
within the first two levels of the building. Record A, Item J Part 7, at p. 40.
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The Board reviewed the PDP for the Project at a hearing held on January 18, 2018. At
the hearing, the City Planning Staff presented its report on the Project [Record A, Item 1,
Attachment 8, at p.20], consisting of 18 narrative pages outlining details of the Project, the Staff
conclusions that the Project met applicable provisions of the City's LUC, and its
recommendation that the Board approve the Project with two specific conditions:
"1) The applicant shall provide, no later than Final Plan approval, a detailed trash
and recycling enclosure design, including truck access and circulation, compactor
and/or dumpster locations, in a manner substantially compliant with the Planning
and Zoning Board approval and in accordance with adopted Engineering Standards and Trash
and Recycling Standards in Section 3.2.5 of the Land Use Code, and
2) The applicant shall provide, no later than Final Plan approval, material samples
and colors to ensure compliance with Section 3.10.S(C) of the Land Use Code."
The Staff report also included extensive attachments consisting of building plans, traffic
impact studies, landscape and lighting plans, etc. Planning Staff and representatives of Next
Chapter Properties addressed Board questions at the hearing, and members of the public
(including Plaintiff Eric Sutherland) also spoke at the hearing, as is reflected in the transcript of
that hearing found in the record. Record A, Item 1, Part 7, at p. 15.
At the conclusion of the hearing, the Board voted unanimously to approve the PDP
subject to the two conditions recommended by the City Planning Staff. Record A, Item 1, Part 7,
pp. 36-37 (pages 21-22 of the transcript).
On February I, 2018, Plaintiff Eric Sutherland and another individual not a party to this
action, Paul Patterson, filed an appeal to the City Council seeking review of the Board's
approval of the Project. Record A, Item 1, Attachment 7, p. 13.
The City Council considered the appeal in a quasi-judicial hearing held February 27,
2018, as is reflected in the transcript included in the record. Record D. At the hearing, City
Council had before it all of the information considered by the Board, including a transcript of the
hearing held January 18, 2018, and also took testimony from City Planning Staff,
representatives of Next Chapter Properties, the two appellants, and Plaintiff Brian Dwyer.
At the conclusion of the February 27th hearing, based upon the evidence before it, the
City Council voted unanimously to uphold the Board's decision approving the PDP, finding it
properly interpreted and applied the relevant provisions of the LUC. Record D, at. pp. 36-37.
That decision was embodied in Resolution 2018-023, adopted by City Council at its next regular
meeting on March 6, 2018, and found in the record. Record E.
INTRODUCTORY NOTE
Before turning to resolution of the Plaintiffs’ specific claims, a brief discussion of the
unique and challenging aspects of this case is warranted. Civil litigation such as this case is not
in the ordinary course of business for municipal courts; adapting the Rules of Civil Procedure to
fit the circumstances of this case, and determining the limits of the Court’s jurisdiction under this
carve out of what is normally district court jurisdiction was a bit like untying a Gordian knot.
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Unfortunately, despite their protests to the contrary, Plaintiffs have failed to appreciate the
limited nature of a Rule 106 proceeding, as well as the burden of proof which falls on plaintiffs in
Rule 106(a)(4) proceedings. Plaintiffs failed to certify any portion of the record below for review,
and failed and refused to cite to any portion of the record the City designated in support of their
arguments; their arguments have been laced unnecessarily with hyperbole and invective and
overbroad and conclusory statements. These failures, particularly those involving the record,
could have resulted in a summary decision against Plaintiffs; however, in the spirit embodied by
the City’s decision to certify the record so as to get to a decision on the merits, that decision on
the merits follows.
ANALYSIS AND CONCLUSIONS OF LAW
This Court has jurisdiction over local land use matters pursuant to C.R.C.P. 106(a)(4) and
pursuant to the Charter of the City of Fort Collins, which vests exclusive jurisdiction to decide
matters arising under the Charter in its Municipal Court. See Town of Frisco v. Baum, 90 P.3d
845 (Colo. 2004). C.R.S. 13-51-5-101 also arguably vests this Court as a court of record with
jurisdiction over local land use matters. As part of qualifying for relief under C.R.C.P. 106(a)(4),
the decision must have been issued by a government body or officer acting in quasi-judicial role.
Quasi-judicial decisions are generally characterized as actions taken by a government body or
officer where (1) a local or state law requires that notice be given before the action is taken; (2)
a local or state law requires that a hearing be conducted before the action is taken; and (3) a
local or state law directs that the action results from the application of prescribed criteria to the
individual facts of the case. See Baldauf v. Roberts, 37 P.3d 483 (Colo. App. 2001). “’A general
rule or policy which is applicable to an open class of individuals, interests, or situations’” rather
than to a specific piece of property, is not subject to review under Rule 106(a)(4). Snyder v. City
of Lakewood, 542 P.2d 371 (1975), overruled on other grounds by Margolis v. Dist. Court, 638
P.2d 297, 299 (Colo. 1981)
In a Rule 106(a)(4) proceeding, the court’s review is limited to whether the governmental
body’s decision was an abuse of discretion or was made in excess of its jurisdiction, which
occurs if no competent evidence in the record before that body supports its decision. C.R.C.P.
106(a)(4)(I); Whitelaw v. Denver City Council, 2017 WL 1279771; see also Verrier v. Colo. Dep’t
of Corr., 77 P.3d 875, 879 (Colo. App. 2003); Alpenhof, LLC v. City of Ouray, 297 P.3d 1052,
1055 (Colo. App. 2013). “’No competent evidence’ means that the decision is ‘so devoid of
evidentiary support that it can only be explained as an arbitrary and capricious exercise of
authority.’” Whitelaw, 2017 WL 1279771, quoting Canyon Area Residents v. Bd. of Cty.
Comm’rs, 172 P.3d 905, 907 (Colo. App. 2006) (in turn quoting Bd. of Cty. Comm’rs v. O’Dell,
920 P.2d 48, 50 (Colo. 1996)). The person challenging the governmental action bears the
burden of proving abuse of discretion, and that no competent evidence supports the decision.
Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo. App. 2008).
An agency’s misinterpretation or misapplication of governing law may constitute an
alternative ground for finding an abuse of discretion under C.R.C.P. 106(a)(4). Whitelaw, supra;
see also Roalstad v. City of Lafayette, 2015 COA ¶ 13, 363 P.3d 790, 793. “While interpretation
of a city code is reviewed de novo, interpretations of the code by the governmental entity
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charged with administering it deserve deference if they are consistent with the drafters’ overall
intent.” Whitelaw, supra; see also Alpenhof, ¶ 10, 297 P.3d at 1055.
Unfortunately, Plaintiffs have conflated and confused these standards and burdens of
proof as they apply to many of Plaintiffs’ claims. For example, in their fifth claim for relief,
Plaintffs focus on a provision in the LUC that provides a developer with the benefit of building
fewer required parking spaces if it adopts certain mitigation strategies. Plaintiffs argue that this
portion of the LUC is not rational because it allows the developer to reap a significant benefit
without any guarantee that the mitigation strategies will be implemented or effective; by the time
the failure of the mitigation is evident, say Plaintiffs, the damage is done—the project cannot be
rebuilt, the parking deficiency cannot be remediated. However valid this argument may or may
not be, it is simply not something that can be fixed judicially. The enactment of that LUC
provision was a legislative act, not a quasi-judicial one, and it is therefore not subject to this
Court’s review pursuant to Rule 106(a)(4).
Problems of the same nature plague Plaintiffs’ first and second claims for relief: Plaintiffs
seek to have this Court change or adopt hearing procedures for the approval of PDPs by the
Board and by Council, including the role staff should play in that process, and upon whom the
burden of proof should fall in such proceedings. See, e.g., Opening Brief (“OB”) at 4-6.
Plaintiffs also seek to limit the Board and Council’s authority to impose conditions on the
approval of a PDP, so that those conditions cannot assist the project’s compliance with any of
the LUC’s substantive requirements, despite the provisions of LUC 2.2.9, which allows the
decision maker to “impose conditions on approval of the development application as are
necessary to accomplish the purposes and intent of this Code,” and of LUC 2.2.5, which permits
staff to recommend conditions for approval “to eliminate any areas of noncompliance or mitigate
any adverse effects of the development proposal. OB at 6-7. Again, these are provisions of the
LUC, see, e.g., LUC Sections 2.2.5 and 2.2.7(A)(2), concerning hearing procedures, i.e.,
legislative enactments by Council; any deficiencies therein must be remedied legislatively by
Council, or challenged through declaratory judgment (see below for this issue), and cannot be
addressed in the context of a Rule 106(a)(4) proceeding.
This Court arguably has jurisdiction to hear actions for declaratory judgment pursuant to
C.R.C.P. 57 and 13-51-101 et seq, C.R.S. Rule 57 is limited to “[d]istrict and superior courts
within their respective jurisdictions”, but the statute has no such limitation, and case law often
discuss Rule 106(a)4) and Rule 57 as two sides of the review coin, quasi-judicial and legislative.
See, e.g., Russell v. City of Central, 892 P.2d 432 (Colo. App. 1985). Given the Town of Frisco
v. Baum decision regarding jurisdiction under Rule 106(a)(4), this Court concludes it does have
jurisdiction under the proper circumstances to award declaratory relief. However, both the
statute and Rule 57 include the following limiting language: “When declaratory relief is sought,
all persons shall be made parties who have or claim any interest which would be affected by the
declaration, and no declaration shall prejudice the rights of persons not parties to the
proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise,
such municipality shall be made a party, and is entitled to be heard, and if the statute,
ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall
also be served with a copy of the proceeding and is entitled to be heard.” 13-51-115, C.R.S.;
C.R.C.P. 57(j).
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Plaintiffs’ Third Claim for relief seeks a declaration that “[t]he mitigation strategy for ‘car
share’ [in the TOD set forth in LUC section 3.2.2(K)] is unconstitutionally vague.” Second
Amended Complaint at ¶41. Plaintiffs’ Fourth Claim for relief requests “that this court issue a
declaration that the mitigation strategy for ‘transit passes’ [in the TOD set forth in section
3.2.2(K) of the LUC] is unconstitutionally vague.” Second Amended Complaint at ¶47. At the
City Council hearing, Plaintiff Eric Sutherland also asserted that the LUC provisions concerning
the TOD parking mitigation strategies “are the equivalent of an unconstitutional law and must be
deemed a nullity when considering the sufficiency of the PDP.” Record A, Item 1, Part 8, p.22.
“A municipal court can only exercise jurisdiction over matters that are of local or municipal
concern.” Town of Frisco v. Baum, 90 P.3d 845 (Colo. 2004). The requirement of Rule 57(j)
and of 13-51-115 that actions seeking to declare ordinances unconstitutional must be served on
the state attorney general clearly indicates that such a declaration is of statewide, rather than
strictly local or municipal, concern. This Court therefore does not have jurisdiction to grant the
relief requested in Plaintiffs’ Third and Fourth Claims for relief, and as part of their Fifth Claim for
relief, and those claims or parts thereof are hereby DENIED. (The Court would also note that
there was no compliance in this case with the requirement that the attorney general be served
with the complaint.)
As to the declaratory judgment components of Claims 1, 2, and 5 discussed above that
do not involve claims of unconstitutionality, the Court has two concerns that preclude it from
providing the requested relief. The first concern is again from the language of Rule 57(j) and
13-51-115, this being the first clause of the paragraph: “[w]hen declaratory relief is sought, all
persons shall be made parties who have or claim any interest which would be affected by the
declaration, and no declaration shall prejudice the rights of persons not parties to the
proceeding.” If this Court were, for example, to declare invalid that portion of the LUC that
permits a reduction in the number of parking spaces to be built in return for certain mitigation
strategies, the rights of not only this Applicant, Next Chapter Properties, but every potential
developer applicant, every Fort Collins property owner contemplating selling their property for
development, would be affected by that declaration. That concern applies to the other portions
of the LUC objected to by Plaintiffs, as well—the elimination of the ability of the Board and
Council to approve an application with conditions could potentially affect every current and
future applicant for development in the City. This dovetails with the other concern this Court has
with providing the relief requested by Plaintiffs, the scope of relief requested. Rule 57(b)
provides in relevant part “[a]ny person . . . whose rights, status, or other legal relations are
affected by a . . . municipal ordinance . . . may have determined any question of construction or
validity arising under the . . .ordinance . . . and obtain a declaration of rights, status, or other
legal relations thereunder.” Plaintiffs in this case don’t just seek a declaration of rights or pose a
question of construction as to how these Code provisions are being applied to this specific
project in a way that affects their specific rights in this instance, they are seeking declarations
that would potentially nullify the application of these Code provisions throughout the City based
on their alleged effect on one specific project. In some instances they are not just seeking a
declaration of rights, but a rewriting of the disputed provisions. These are legislative roles, not
judicial ones, and this Court will simply not cross that line.
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Having sorted out those claims made by Plaintiffs that it cannot decide, this Court now
turns to those portions of the claims that it does have jurisdiction to decide. Those questions
are: 1) Did Council abuse its discretion in approving the PDP with the condition that “[t]he
applicant shall provide, no later than Final Plan approval, a detailed trash and recycling
enclosure design, including truck access and circulation, compactor and/or dumpster locations,
in a manner substantially compliant with the Planning and Zoning Board approval and in
accordance with adopted Engineering Standards and Trash and Recycling Standards in Section
3.2.5 of the Land Use Code,” rather than remanding the application to the Board for the
Applicant to provide specific materials and design proposals for the trash/recycling enclosure?
2) Did Council abuse its discretion in approving the PDP without requiring the Applicant to
dedicate “a right-of-way across the subject property in a manner consistent with a plan for
eventually constructing a bicycle/pedestrian path?” (Reply at 6) 3) Did Council abuse its
discretion by approving the PDP with reduced parking (from 309 to 261 spaces) without
requiring specific provisions for the implementation of the parking mitigation strategies the PDP
was adopting, including auditing and enforcement of “transit passes” and “car share”?
1) Did Council abuse its discretion in approving the PDP with the condition that “[t]he
applicant shall provide, no later than Final Plan approval, a detailed trash and recycling
enclosure design, including truck access and circulation, compactor and/or dumpster locations,
in a manner substantially compliant with the Planning and Zoning Board approval and in
accordance with adopted Engineering Standards and Trash and Recycling Standards in Section
3.2.5 of the Land Use Code,” rather than remanding the application to the Board for the
Applicant to provide specific materials and design proposals for the trash/recycling enclosure?
The Court again notes that Plaintiffs’ penchant for using hyperbole, overbreadth, and
conclusory statements in their arguments has made it difficult to sort out legitimate arguments
from rhetoric. For example, Plaintiffs repeatedly argue that there was a “complete absence”
(their emphasis) of information concerning the trash enclosure from which to discern its
compatibility with surrounding land uses as required by the LUC. Plaintiffs conceded in these
arguments, however, that the plan did include “a basic outline of the footprint of the proposed
trash enclosure,” OB at 6; a review of the site plans presented to Council, shows drawings that
include dimensions and location relative to the rest of the structure and to the site. See Record
A, Item 1, part 7, p.19:32-38. The condition imposed on the PDP concerning the trash enclosure
was not just that it would comply with the LUC, but that the design would be “substantially
compliant with the Planning and Zoning Board approval.” At the Board hearing, Staffmember
Holland stated that “we would be looking at a brick enclosure with some articulation and
coursing to provide more detail” Record A, Item 1, part 7, p.33:1-10; and Boardmember Hansen
made the following remarks concerning the trash enclosure: “I think the…the trash
enclosure…there’s a design standard in the Land Use Code for those. It needs to match the
building. It’s…functionally, I think it kind of needs to go where it’s at. That’s in a lot more visible
location than we usually see a trash enclosure, so, if we get a motion that…I think there’s a
proposed condition associated with that. I think it should address a height and design standard,
just because it’s in a really highly visible location on a highly trafficked trail. People passing it at
a pedestrian speed instead of a vehicle speed; you have a lot more time to experience
that…that structure.” Record A, Item 1, part 7, p.34:20-25. These comments clearly indicate
that the Board (and through the Board, the Council) was cognizant of the need to provide a
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trash enclosure “compatible with surrounding land uses.” Indeed, it appears that it was staff’s
concerns about that compatibility that had sent the question of the trash enclosure back to the
Applicant to upgrade the design, accessibility, and materials of the enclosure to be comparable
with the rest of the project. See, e.g., Record A, Item 1, part 7, p.19:32-38. In addition, as both
the City and the Intervenor/Applicant noted, the plan in dispute here is not the final plan;
conditions are imposed precisely so that the final plan can take into account concerns and
suggestions developed from the Board, the Council, and the public during hearing. Under these
circumstances the Court concludes that Plaintiffs have failed to meet their burden of proof to
show that Council abused its discretion by approving the PDP with condition number 1 included.
2) Did Council abuse its discretion in approving the PDP without requiring the Applicant
to dedicate “a right-of-way across the subject property in a manner consistent with a plan for
eventually constructing a bicycle/pedestrian path?” (Reply at 6)
It was not clear to the Court until after rereading the pleadings and the record that
Plaintiffs are not asking for the present construction of this pathway, but the dedication of
a right-of-way for future construction of a pathway (although at the Council hearing Plaintiff
Eric Sutherland was still appealing based on his assertion that “the PDP failed to provide a
pedestrian/bicycle pathway to the commercial areas to the south, even though such a
pathway is completely within the realm of possibility.” Record A, Item 1, Part 7 at p.53 and
Part 8 at p.3.) One major problem with this requested relief is its speculative nature.
While it may have been wise in Plaintiffs’ opinion for the City planners to have designed a
network of pathways awaiting the dedication of rights-of-way and the funds for
construction to effectuate it, that planning has not been done. The property to the south of
the subject property across which the pathway envisioned by Plaintiffs would go is not
owned by the owner of the subject property, and no right-of-way designation across that
property yet exists. Thus the extent of any right-of-way across the subject property, and
its location, are completely unknown. Crafting a legal document involving these kinds of
unknown variables to dedicate such a right-of-way may not even be legally possible; at a
minimum that the Board and Council did not do so as a condition of approving this PDP
was not an abuse of discretion.
3) Did Council abuse its discretion by approving the PDP with reduced parking (from 309
to 261 spaces) without requiring specific provisions for the implementation of the parking
mitigation strategies the PDP was adopting, including auditing and enforcement of “transit
passes” and “car share”?
As noted above, Plaintiffs’ primary dispute with the parking space issue is that the LUC is
structured in such a way that the developer receives the significant benefit of parking space
reduction without having actually provided any consideration for that benefit or facing any
sanction if the consideration in the form of the after-provided mitigation strategies fails. That is,
once the project is built with 261 rather than 309 parking spaces, those additional parking
spaces cannot be added later, whether or not the developer actually performs on its promise to
implement transit pass and car sharing programs. As the Court has previously noted, this is a
legislative issue that this Court cannot address. However, the questions raised by Plaintiffs
concerning actual implementation of the mitigation strategies, see, e.g., Plaintiffs’ Fifth Claim for
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relief, in general, Plaintiffs’ OB at 8-9, Intervenor’s Answer Brief at 14-15, including monitoring
and enforcement, involve specific application of provisions of the LUC to the subject PDP, and
are therefore within this Court’s purview pursuant to Rule 106(a)(4). The Intervenor’s Answer
Brief at page 5 notes that “if Next Generation (sic) or a subsequent owner fails to comply with
the parking scheme as approved, that person is subject to enforcement actions.” However, as
Plaintiffs note, what constitutes compliance, who is responsible for monitoring compliance, and
what that monitoring would entail, who would be responsible for bringing an enforcement action,
and what sanctions might look like, are all unknowns in this PDP.
Section 2-4-201 of the Colorado Revised Statutes provides as follows:
2-4-201. Intentions in the enactment of statutes. (1) In enacting a statute, it is
presumed that:
(a) Compliance with the constitutions of the state of Colorado and the United
States is intended;
(b) The entire statute is intended to be effective;
(c) A just and reasonable result is intended;
(d) A result feasible of execution is intended;
(e) Public interest is favored over any private interest.
In section 3.2.2(K)(1)(a)1.a. of the LUC, in the chart denominated “Demand Mitigation
Strategy/Parking Requirement Reduction”, “Demand Mitigation Strategy” is followed by two
asterisks; the two asterisks provision reads as follows: “All demand mitigation strategies shall be
shown on the site plan and in the Development Agreement and shall be subject to audit for
the duration of the project.” (emphasis supplied). See Record A, Item 1, part 6, p.10 and part
8, p.29. To achieve “a result feasible of execution,” the Court interprets this language to mean
that specifics for implementing these mitigation strategies must be included in the Development
Agreement so that what constitutes compliance is clear and so that auditing and enforcement
provisions are in place and binding “for the duration of the project;” mere recitation of the
mitigation strategies being adopted is not enough. A review of the record indicates that this
issue was a concern for the Board and staff,2
but that no requirement had been imposed on the
Applicant through the PDP to provide specifics about when and how the mitigation strategies
would be implemented, or about how compliance would be measured, or noncompliance
sanctioned. The Court concludes that failure of the Board and Council to correct this deficiency
(as with the trash enclosure issue, it could have imposed a condition that appropriate auditing
and enforcement mechanisms be included before Final Plan approval), constitutes an abuse of
discretion as a misinterpretation or misapplication of governing law (the LUC).
2 BOARDMEMBER JENNIFER CARPENTER: So, are you saying, Jason, then, that it’s not really
under our purview to decide whether or not to grant these mitigation pieces based on this particular
project as long as they actually meet the standard? MR. HOLLAND: Provided that they meet the standard and that
they document that…essentially, the requirement, for example, they were asking for car share. The requirement
here is that that particular demand mitigation strategy is recorded and documented on the plan, and then staff has
the…as you see in this note…the ability to audit that requirement for the duration of the project. So, if they
provide…the developer is required, if they are providing car share, the developer is responsible for ensuring that
the car share is provided. And then the City has the ability to audit that requirement to see that it’s met. But, beyond
that, I suppose it’s like any standard that is in the Land Use Code. The metric is described and they’re meeting the
requirement. Record A, Item 1, Part 7, p.27:28-38.
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ORDER
Plaintiffs’ Fifth Claim for Relief is GRANTED IN PART as follows: The PDP is
REMANDED to the Planning and Zoning Board solely for the limited purpose of including in the
Development Agreement provisions consistent with this ruling that will persist for the duration of
the project and that provide for the auditing and enforcement of the transit pass and car sharing
mitigation strategies. These provisions shall be included in the Final Plan for the approval of the
Board and Council; a second full review of the PDP is not required. The remainder of Plaintiffs’
Claims for Relief are DENIED as discussed herein.
Plaintiffs’ Motion for Clarification filed November 21, 2018 is DENIED AS MOOT.
IT IS SO ORDERED, this 3rd day of December, 2018.
____________________
Lisa D. Hamilton-Fieldman
Municipal Judge (Temporary)