HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 039 - NEXT CHAPTER PROPERTIES, LLC'S RESPONSE TO THE RULE 59 MOTIONS1
Fort Collins Municipal Court
215 N. Mason
Fort Collins, CO 80521
(970) 221-6800
Plaintiffs: Erik 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
Jeffrey B. Cullers, No. 41969
Herms & Herrera, LLC
Attorneys for Next Chapter Properties, LLC
3600 S. College Ave., Suite 204
Fort Collins, CO 80525
Phone Number: 970-498-9999
Fax Number: 970-472-5365
E-Mail: jeff@hhlawoffice.com
Case Number: 2018civil01
NEXT CHAPTER PROPERTIES, LLC’s
RESPONSE TO THE RULE 59 MOTIONS
Comes now Next Chapter Properties, LLC, (“Next Chapter”), by and through its attorney
Jeffrey Cullers of the law firm Herms & Herrera, LLC, and submits this Response to the Rule 59
Motions filed by Eric Sutherland (“Sutherland Motion”) and the City of Fort Collins (“Fort
Collins Motion”), as follows:
I. SUTHERLAND MOTION
A. Next Chapter’s Motivations.
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Next Chapter will address only certain portions of the Sutherland Motion. First, Next
Chapter addresses the portion of Page 3 suggesting that Next Chapter has abandoned the Project
and is not a “motivated developer.” The Court should be aware that at this point, Next Chapter
still desires to build the Project. Next Chapter considers it impractical and unnecessary to return
to the Planning and Zoning process and address Mr. Sutherland’s concerns. Next Chapter views
this litigation as an effort by Mr. Sutherland to force changes in the City of Fort Collins’ policies,
practices, and land use code. Unfortunately, Next Chapter finds itself drawn into the middle of
this dispute. Next Chapter’s primary interest lies in seeing the instant litigation resolved.
B. Claim 5.
Next Chapter agrees with Sutherland that it was improper for the Court to order a remand
of this matter to the Planning and Zoning Board so that specific provisions could be added
concerning the auditing and enforcement of the parking mitigation strategies. However, the
Court should simply deny relief on Claim 5 rather than amend its Order to provide the
declaratory judgment sought by Plaintiffs.
Plaintiffs’ primary complaint in Claim 5 is that the Fort Collins Land Use Code is itself
deficient regarding enforcement of parking mitigation strategies; Mr. Sutherland would like to
see the City legislate a fix to this perceived issue but admits that such is not a possible outcome
of this litigation. See Sutherland Amended Opening Brief, at 12; see also Sutherland Brief, at 7.
Sutherland also admits that this alleged issue cannot be solved by a remand. See Sutherland
Amended Opening Brief, at 11. As a next-best outcome, Sutherland asks the Court to declare that
the unenforceability of “car share” and “Transit Pass” strategies precludes any reduction in the
number of parking spaces. See Plaintiffs’ Amended Complaint (filed April 3, 2018), at ¶ 57;
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Plaintiffs’s Second Amended Complaint (Filed June 15, 2018), at ¶ 57. Essentially, Mr.
Sutherland wishes the Court to throw out the baby with the bathwater, that is, find that no project
(including the one at issue) may implement parking mitigation strategies in the LUC because
they are fatally flawed. See id. Sutherland again urges such outcome in his Rule 59 Motion, with
full recognition that such ruling would threaten the Project. See Sutherland Motion, at 7, in the
second and third full paragraphs and Conclusion.
The City of Fort Collins, in its own Rule 59 Motion, deftly explains how future
development processes address parking mitigation enforcement. However, the Court can and
should deny Claim 5 and the Sutherland Motion as to Claim 5 on another, more straightforward
basis by construing Claim 5 entirely as a declaratory judgment claim. Although Mr. Sutherland
has articulated Claim 5 as a declaratory judgment from the beginning, Next Chapter perceives
that the Court recast such claim to be, at least in part, a Rule 106 matter over which it has
jurisdiction. (See Decision and Order, at 7 first paragraph). This decision resulted in the Court’s
remand of Claim 5 to address Plaintiffs’ concerns about enforcement in the context of the
specific Project at issue. However, such relief was not even requested by Mr. Sutherland, and
Next Chapter opposes it because of the delay it would cause to the Project.
In sum, Claim 5 was and has always been presented by Mr. Sutherland as a declaratory
judgment claim. Respectfully, Next Chapter posits that the Court erred in recasting Claim 5 in
terms of whether the City of Fort Collins abused its discretion by approving the Project with
reduced parking spaces. See Decision and Order, at 8. Accordingly, Next Chapter requests that
the Court deny the Sutherland Motion and amend its Decision and Order to find that Claim 5 is
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wholly barred for the reasons that Claims 3 and 4 were barred, namely, that the Court lacks
jurisdiction over such declaratory judgment claims.
II. FORT COLLINS MOTION
Next Chapter generally agrees with the arguments in the Fort Collins Motion and concurs
with the prayer for relief. However, as explained above, Next Chapter believes that the Court
should address as solely a declaratory judgment matter Mr. Sutherland’s Claim 5, and dispose of
it on that basis.
WHEREFORE, Intervenor Next Chapter Properties, LLC prays that the Court deny the
Sutherland Motion in its entirety and amend its Decision and Order by denying Claim 5, whether
on the basis articulated by the City of Fort Collins or the basis described herein.
Respectfully submitted this 2nd day of January, 2019
HERMS & HERRERA, LLC
/s/ Jeffrey B. Cullers [Signature on File]
Jeffrey B. Cullers, #41969
Attorney for Intervenor
E-Filed copy of document with original signature
maintained by the filing party
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 2nd day of December, 2019 a true and
correct copy of the above and foregoing was filed via email and served on all parties via email
as follows:
Eric Sutherland
5
3520 Golden Currant
Fort Collins, CO 80521
sutherix@yahoo.com
Brian Dwyer
2001 S. College Ave.
Fort Collins, CO 80525
bdwyer1199@gmail.com
Kimberly Schutt
Wick & Trautwein
323 South College Avenue #3
Fort Collins, CO 80524
kschutt@wicklaw.com
/s/Jeffrey Cullers_____________
Jeffery B. Cullers
E-Filed copy of document with original signature
maintained by the filing party