HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 038 - CITY'S RESPONSE TO PLAINTIFF SUTHERLAND'S MOTION FOR AMENDMENT OF FINDINGS AND JUDGMENT PURSUANT TO C.R.C.P. 59FORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521
Phone: (970) 221-6800
Plaintiffs: Eric Sutherland; and J&M Distributing
d/b/a Fort Collins Muffler and Automotive
V.
Defendants: THE CITY COUNCIL OF THE CITY OF COURT USE ONLY
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.
Kimberly B. Schutt, #25947 Case Number:
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3 2018-CIVILOI
P.O. Box 2166, For[ Collins, CO 80522
Phone Number: (970) 482-4011
E-mail: kschutt@wicklaw.com
FAX Number: 970 482-8929
CITY DEFENDANTS' RESPONSE TO
PLAINTIFF SUTHERLAND'S MOTION FOR AMENDMENT OF FINDINGS AND
JUDGMENT PURSUANT TO C.R.C.P. 59
COMES NOW the City of Fort Collins ("the City"), on behalf of the City Council of the
City of Fort Collins and the improperly named "Administration Branch of the City of Fort
Collins," through its counsel, Kimberly B. Schutt of Wick & Trautwein, LLC, and respectfully
responds to Plaintiff Sutherland's motion to amend the Court's findings and judgment pursuant
to C.R.C.P. 59, as follows:
1. Plaintiff Sutherland has submitted a motion pursuant to C.R.C.P. 59, arguing that
the Court allegedly misapprehended the nature and substance of the Plaintiffs' claims and that it
should either set the matter for a hearing, or simply grant the relief originally requested in the
Plaintiffs' Second Amended Complaint. Simply put, Plaintiff Sutherland's motion fails to
articulate any rational basis for amending the Court's findings and judgment under the standards
of C.R.C.P. 59.
2. First, Plaintiff Sutherland argues that the Plaintiffs' claims were allegedly a
"hybrid of Rule 106 and Rule 57 type claims," and argues the Court erroneously "took it upon
itself to read into each of the claims 1-5 a duality that did not exist." However, Sutherland's
assertions belie the express allegations of his own Second Amended Complaint. More
specifically, paragraphs 40, 46 and 56 of the Second Amended Complaint specifically assert that
the City Council allegedly abused its discretion with regard to the issues raised in the third,
fourth and fifth claims for relief. Accordingly, notwithstanding the assertions now made by
Sutherland in his Rule 59 motion, his third, fourth and fifth claims did indeed invoke review
under C.R.C.P. 106 and the Court correctly determined those claims under the proper standard of
review.
3. Further, to the extent the Plaintiffs attempted to couch some of their allegations
as requests for "declaratory relief' in their third, fourth and fifth claims for relief, by arguing
the terms "car share" and "transit passes" were unconstitutionally vague and not subject to
enforcement by the City, legally these arguments did not create a separate cause of action for
declaratory relief under C.R.C.P. 57. Rather, because City Council considered and rejected
those same vagueness arguments as part of its decision below, that legal conclusion was not
subject to de novo review on appeal in this Rule 106 action, but rather had to be affirmed if
supported by a reasonable basis. Quaker Court Ltd. Liability Co. v. Board of County Com'rs of
County of Jefferson, 109 P.3d 1027, 1030 (Colo. App. 2004). As argued in the City
Defendants' Answer Brief, this Court could find such a reasonable basis, based upon the
evidence in the record, the common sense meaning of those terms (particularly as applied in
this context) and the applicable legal authority. Therefore, there is no error requiring
amendment of the Court's findings and judgment for the reasons asserted by Sutherland.
4. Plaintiff Sutherland's motion also, once again, argues the Court somehow
erred by taking into consideration the record that was certified by the City in this case, when
the Plaintiffs failed to carry out their obligation to designate one. Such assertions continue to
be wholly without merit, as this Court could not logically or legally review the Rule 106 claims
raised by the Plaintiffs' own complaint, and their allegations of abuse of discretion on the part
of City Council, without reviewing the record that was before City Council below. Contrary to
Sutherland's assertions, there was no "subterfuge" on the part of the City in certifying the
record; quite to the contrary, it was providing the Court with the very information needed to
reach a decision on the merits since the Plaintiffs themselves failed to do so. The Court did
exactly what it was supposed to do under the express provisions of C.R.C.P. 106 by reviewing
that record as part of its determination here.
5. The balance of the Plaintiff Sutherland's Rule 59 motion is generally a stream -
of -consciousness series of accusations against the Court and regurgitation of the arguments
previously made in the Plaintiffs' Opening Brief. Those arguments articulate no specific error
or rational basis for altering or amending the Court's judgment. However, in Section E on
page 6 of Sutherland's motion, he appears to agree that the Court exceeded its authority or
jurisdiction under Rule 106 by ordering a remand with further instructions on what should be
done with the parking mitigation strategies, as asserted in the City's own Rule 59 motion. For
the reasons stated above, however, the City disagrees with his remaining statements that the
fifth claim for relief presented a claim for declaratory judgment which should have been
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granted by the Court, and with his assertions that there allegedly are no means of enforcing the
car share and transit pass requirements reflected on the Site Plan as part of the parking
mitigation strategies. As discussed in the City's Rule 59 motion, the City's Land Use Code
contains specific enforcement mechanisms for those requirements, just like any other elements
of the Project Development Plan. Therefore, though Sutherland appears to concede that the
relief granted by the Court on the fifth claim for relief was improperly granted, the City
disagrees with his statement as to what the "correct result" should be.
6. Finally, the City disagrees with Sutherland's assertion that an "immediately
scheduled hearing" for presentation of oral arguments is needed here. For the reasons set forth
above, Sutherland has raised no legal error that requires altering or amending the judgment, let
alone great debate or further argument. Moreover, the City's Rule 59 motion addressing the
legal error in the remand on the fifth claim for relief is very narrow and should not require a
hearing, to the extent that one is allowed under Rule 106 or Rule 59 in the first instance.
WHEREFORE, the City Defendants respectfully request the Court deny Plaintiff
Sutherland's Rule 59 motion.
DATED this 2"d day of January, 2019.
Respectfully submitted,
WICK & TRAUTWEfN, LLC
By: G+LLB
Kirber4 B. Schut #25947
Attorneys for e improperly named
defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing CITY'S
RESPONSE TO PLAINTIFF SUTHERLAND'S MOTION TO AMEND THE FINDINGS AND
JUDGMENT PURSUANT TO C.R.C.P. 59 was served this 2No day of January, 2019, via email
transmission on the following:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521
sutherix@vahoo.com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Avenue
Fort Collins, CO 80525 bdwver1199@jmail.com
Jeffrey Cullers
Herms & Herrera, LLC
3600 S. College Avenue, Ste. 204
Fort Collins, CO 80525
ief@hhlawoffice.com
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