HomeMy WebLinkAbout2018CV2867 - FORT COLLINS MENNONITE FELLOWSHIP AND STEVE RAMER V. CITY OF FORT COLLINS, ET AL - 045 - FIRST AMENDED COMPLAINT1744901.3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-02867-NYW
FORT COLLINS MENNONITE FELLOWSHIP, a Colorado nonprofit corporation, and
STEVE RAMER,
Plaintiffs,
v.
THE CITY OF FORT COLLINS, a home rule municipality,
THE CITY OF FORT COLLINS CITY COUNCIL, and
LAURIE DAVIS,
ROBERT DAVIS,
MARY RAY,
H. STUART MACMILLAN,
HOLLY JOHNSON,
LAURA PETRICK,
DAVE PETRICK,
KATHERINE ACOTT,
WALTER HICKMAN,
PATRICIA DIEHL,
LISA EATON,
FERAH AZIZ,
TARA MCCORMAC,
JENNIFER PETRIK,
PAMELA REFVEM,
MICHAEL MERCER,
DENNIS BOOKSTABER,
BELL GOULD LINDER & SCOTT, P.C.
TOM HALL, and
STEVE ACKERMAN, in their individual capacities.
Defendants.
FIRST AMENDED COMPLAINT AND REQUEST FOR
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Plaintiffs Fort Collins Mennonite Fellowship, a Colorado nonprofit corporation (the
“Fellowship”), and Steve Ramer, Lead Pastor (“Ramer”), by and through their undersigned
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counsel, and for their Complaint and Request for Declaratory Judgment and Injunctive Relief
against Defendants, the City of Fort Collins (the “City”), the City of Fort Collins City Council (the
“City Council,” and collectively with the City, the “City Defendants”), Laurie Davis (“L.
Davis”), Robert Davis (“R. Davis”), Mary Ray (“Ray”), H. Stuart MacMillan (“MacMillan”),
Holly Johnson (“Johnson”), Laura Petrick (“L. Petrick”), Dave Petrick (“D. Petrick”), Katherine
Acott (“Acott”), Walter Hickman (“Hickman”), Patricia Diehl (“Diehl”), Lisa Eaton (“Eaton”),
Ferah Aziz (“Aziz”), Tara McCormac (“McCormac”), Jennifer Petrik (“Petrik”), Pamela Refvem
(“Refvem”), Michael Mercer (“Mercer”), Dennis Bookstaber (“Bookstaber”), Bell Gould Linder
& Scott, P.C. (“BGLS”), Tom Hall (“Hall”), and Steve Ackerman (“Ackerman,” and collectively
with L. Davis, R. Davis, Ray, MacMillan, Johnson, L. Petrick, D. Petrick, Acott, Hickman, Diehl,
Eaton, Aziz, McCormac, Petrik, Refrem, Matthews, Bookstaber, BGLS and Hall, “Individual
Defendants,” and collectively with the City Defendants, “Defendants”), allege as follows:
NATURE OF THE CASE
1. As part of their religious practice of the “radical inclusivity” of Jesus Christ, which
“means working with, having compassion for, and getting to know people who, as Jesus said, are
the ‘least of us’ and are often on the margins of society,” the Fellowship and Ramer, planned to
provide a bank of lockers outside and immediately abutting the church building so that up to 20
persons experiencing homelessness would have an opportunity to safely store their meager
belongings (the “Locker Program”). City staff directed the proposal to the City’s Planning and
Zoning Board (“PZB”), which unanimously approved the proposal with one condition. Individual
Defendants appealed the PZB’s approval to the City Council which, on appeal, imposed
burdensome and restrictive conditions on the Locker Program with which the Fellowship and
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Ramer cannot comply. As a result, without intervention from this Court, the Fellowship and Ramer
must abandon their plan to provide the Locker Program for the impoverished and destitute City
residents the Fellowship had hoped to serve.
2. In this action, the Plaintiffs seek prospective relief under state and federal law,
including the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.
(“RLUIPA”); 42 U.S.C. § 1983, for violations of the United States Constitution; the Colorado
constitution; Colorado Rule of Civil Procedure 57 (“C.R.C.P. 57”); and Colorado Rule of Civil
Procedure 106(a)(4) (“C.R.C.P. 106(a)(4)”) in connection with Defendants’ discriminatory and
unlawful application of the Fort Collins Land Use Code (the “LUC”) and the Fort Collins
Municipal Code (the “FCMC”) and imposition of unreasonable, vague, and overly burdensome
conditions on Plaintiffs’ religious practice of ministering to individuals experiencing
homelessness, by among other things, creating an opportunity for such individuals to store their
limited possessions.
PARTIES AND PROPERTY
3. The Fellowship is a Colorado nonprofit corporation, and a “religious assembly or
institution” under RLUIPA.
4. Ramer is the Pastor for the Fellowship.
5. The Fellowship intends to implement the Locker Program on its property at 300
East Oak Street, in the City (the “Property”).
6. The City is a home rule municipality existing pursuant to Article XX of the
Constitution of the State of Colorado; a “government” pursuant to RLUIPA; and a person acting
under color of state law for purposes of 42 U.S.C. § 1983.
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7. The City Council is the governing body of the City which has authority to adopt
the FCMC and the LUC pursuant to the City’s Home Rule Charter, and such other authorities and
provisions as are established pursuant thereto, and is a government pursuant to RLUIPA and a
person acting under color of state law for purposes of 42 U.S.C. § 1983. The City Council has
authority to hear and decide appeals from decisions of the PZB pursuant to FCMC § 2-47.
8. Individual Defendants are individuals or entities who appealed the PZB’s approval
of the Locker Program to the City Council.
JURISDICTION AND VENUE
9. This Court has jurisdiction over all federal claims in this Complaint under 28 U.S.C.
§§ 1331 and 1343(a).
10. This Court has supplemental jurisdiction over all state law claims pursuant to 28
U.S.C. § 1367(a) as such claims are “so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy.”
11. Venue is proper in this district pursuant to 28 U.S.C. § 1391. All Plaintiffs and all
Defendants are located in this district, and all events giving rise to this action occurred in this
district.
GENERAL ALLEGATIONS
The Fellowship’s Religious Practice
12. The Mennonite faith is a denomination of Anabaptist Christianity founded on
principles of active faith, where members are charged with living their lives outwardly in
accordance with the scripture of Jesus Christ.
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13. The Mennonite belief in active faith includes a call of service and outreach to the
most vulnerable members of the community because, according to the Fellowship’s value
statement (attached hereto as Exhibit 1) “Spirituality and Social Justice are Integrally
Interwoven.”
14. The Fellowship was founded in 1975 and is one of only four Mennonite
congregations in the Northern Colorado region.
15. The Fellowship has owned and occupied the Property since 2002.
16. There are approximately 60 active worshipers in the Fellowship’s congregation.
17. Ramer has acted in his role as Pastor for the Fellowship since 2006.
18. According to its website, the Fellowship is “called by Christ to be inclusive,
compassionate, justice seeking, and peace making.” In fulfilling this call, the Fellowship practices
the “radical inclusivity” of Jesus, which “means working with, having compassion for, and getting
to know people who, as Jesus said, are the ‘least of us’ and are often on the margins of society.”
19. The Property has been and continues to be used for the Fellowship’s religious
ministry and outreach activities.
20. In accordance with its practice of “radical inclusivity,” the Fellowship has a long
history of ministering to individuals experiencing homelessness, including but not limited to:
twice-weekly dinners, temporary indoor living quarters, provision for a warming shelter during
winter months, and educational programming, all of which occur on the Property.
21. In addition to its ministry to individuals experiencing homelessness, the Fellowship
hosts a wide variety of neighborhood and community organizations every night of the week, has
administrative offices for Fellowship staff on site, provides week-long shelter for low income
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families in partnership with a local non-profit called Faith Family Hospitality, and hosts traditional
worship services open to members of the public on Sunday mornings.
22. The Fellowship has several outdoor storage sheds on the Property, which it uses to
store items related to the Fellowship’s religious ministry.
23. The Locker Program is a logical and integral extension of the Fellowship’s religious
practice of “radical inclusivity.”
The City’s Past Treatment of People Experiencing Homelessness
and the Pilot Locker Program
24. On March 21, 2017, the City Council passed an “Appropriate Use of Public
Facilities” ordinance (the “AUPF Ordinance”), which makes it an offense to sit, kneel, or lie on
unapproved objects near transit facilities and public restrooms, and also prohibits citizens from
leaving personal belongings unattended in public spaces.
25. The City Council’s consideration of the AUPF Ordinance prompted fierce
discussion among the City Council, the City, and City residents regarding the issue of homeless
persons having no safe place to store their belongings.
26. Recognizing these consequences of the AUPF Ordinance, the City explored
establishing and funding a locker project for individuals experiencing homelessness, and sought a
service agency to host this pilot project.
27. These efforts culminated in a service agreement between the City and the
Fellowship, entered into on September 29, 2017 (the “Service Agreement”) (attached hereto as
Exhibit 2). Pursuant to the Service Agreement, the Fellowship agreed to supply a row of lockers
on the Property.
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28. Under the Service Agreement, the City agreed to consider funding the installation
and maintenance of lockers on the Property.
29. Nonetheless, on February 6, 2018, City Council voted against providing funds for
the Fellowship’s project.
The Fellowship Proceeds With the Locker Program
30. Following City Council’s denial of funding for the Locker Program, City staff
informed the Fellowship that lockers would be permitted on the Property, and that the Fellowship
could proceed with the Locker Program if it was capable of securing private funding for locker
installation.
31. Shortly thereafter, Ramer and the Fellowship’s Leadership Board of Elders (the
“Elders”) held a meeting to discuss whether the Fellowship should proceed with a locker program.
Believing that it would serve a vital function in the Fellowship’s ministry and outreach to
individuals experiencing homelessness, the Elders agreed to proceed with and implement the
Locker Program.
32. The Fellowship conducted its own fundraising, eventually receiving a donation of
thirteen lockers. The Fellowship then installed eleven lockers on the Property in a manner
consistent with the previous Service Agreement.
33. The Fellowship planned to purchase seven additional lockers, in order to eventually
install a total of twenty lockers on the Property.
34. On April 18, 2018, the Fellowship received a letter from the City’s Planning,
Development and Transportation Department (“PDT”) purporting to require the Fellowship to
seek approval for locker installation via the Minor Amendment process set forth in LUC § 2.2.10.
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The letter offered no rationale or explanation establishing the applicability of the Minor
Amendment process to the Locker Program.
35. In response to PDT’s letter, the Fellowship completed and filed the newly required
Minor Amendment application (the “Application”).
36. When Ramer asked why the City was requiring zoning approvals for the Locker
Program, a City official responded by stating that it was because the lockers served members of
the public.
37. The Locker Program does not purport to serve “members of the public.” The
Locker Program is controlled by the Fellowship and only available to individuals experiencing
homelessness to whom the Fellowship ministers. The Fellowship considers the Locker Program
participants to be members of the Fellowship’s religious community.
The City’s Inconsistent Application of the Minor Amendment Process
38. The LUC is the City’s zoning code, containing the City’s land use regulations.
Relevant provisions of the LUC are attached hereto as Exhibit 3.
39. The Minor Amendment process is described in LUC § 2.2.10.
40. LUC § 2.2.10 is titled “Step 10: Amendments and Changes of Use,” and is the tenth
step in a process that otherwise includes approvals of development plans for new structures or
uses.
41. The LUC does not specify what actions trigger the Minor Amendment process, and
it does not define the term “minor amendment.”
42. LUC § 2.2.10(A) applies the Minor Amendment process in only two scenarios:
(1) “[m]inor amendments to any approved development plan, including any Overall Development
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Plan or Project Development Plan, any site specific development plan, or the existing condition of
a platted property,” or (2) “[c]hanges of use.”
43. Where the development plan or site specific development plan in question was
previously approved administratively—that is, by City staff—the Minor Amendment application
must meet seven approval criteria set forth in LUC § 2.2.10(A)(1) in order to be approved.
44. The seven approval criteria in LUC § 2.2.10(A)(1) pertain exclusively to size, bulk,
use, and character of the subject of the Minor Amendment application.
45. Pursuant to LUC § 2.2.10(A), a Minor Amendment may be approved, conditionally
approved, or denied by the Director of PDT (the “Director”).
46. LUC § 2.2.10(A)(4) authorizes the Director to refer an application for a Minor
Amendment to “the decision maker who approved the development plan proposed to be amended,”
which may include the PZB. In such cases, “[t]he referral of minor amendments or changes of use
to project development plans or final plans approved under [the] Code shall be reviewed and
processed in the same manner as required for the original development plan for which the
amendment or change of use is sought.”
47. LUC § 2.2.10(A)(4) contains no standards to guide the Director’s determination as
to when a Minor Amendment application should be referred to the PZB.
48. On information and belief, the City has not historically required Minor Amendment
approval for a representative sample of other small installations intended for use by non-occupants
of the properties on which they are located (“Non-Occupant Facilities”).
49. The attached Exhibit 4 provides a summary of a public records search relating to a
representative sample of Non-Occupant Facilities, including storage sheds, Little Free Libraries,
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bike racks, video vending machines, and ATMs, for which the City has no record indicating a
Minor Amendment was required, processed, or approved.
50. On information and belief, the City has required Minor Amendment approval for
outdoor storage facilities (“Storage Facilities”) only four times dating back to at least 1970,
despite processing dozens of building permits for sheds during the same timeframe. The
Fellowship’s own outdoor storage sheds were constructed and installed without undergoing a
Minor Amendment process.
51. A Minor Amendment application referred to the PZB requires notice and a public
hearing, and therefore undergoes a more burdensome review process than an administratively-
reviewed application.
52. City Attorney Carrie Daggett (“Daggett”) indicated in a letter dated July 9, 2018
that the Director has referred on a discretionary basis, “at least three” Minor Amendment
applications to a hearing officer or the PZB.
53. The City’s website indicates that, as of the date of filing of this Complaint, the City
is currently processing over 100 applications for Minor Amendments.1
54. Thus, when the City does apply the Minor Amendment process, the vast majority
of applications are processed administratively, as contemplated in LUC § 2.2.10(A).
The City Improperly and In a Discriminatory Manner Applied
the Minor Amendment Process to the Fellowship
55. To date, the City has neither provided any LUC citation, nor does one exist,
triggering any requirement for Minor Amendment approval for the Locker Program.
1 https://www.fcgov.com/developmentreview/proposals/
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56. To date, the City has neither offered any justification based on the LUC, nor does
one exist, for the referral of the Fellowship’s Minor Amendment Application to the PZB.
57. The City has neither presented any records, nor do such records exist, indicating
that the current use and development of the Property were approved by the PZB.
58. The Locker Program does not change any approved development plan, including
any Overall Development Plan or Project Development Plan, any site specific development plan,
or the existing condition of the Property, and it does not change the use of the Property.
59. City officials have offered shifting and ambiguous interpretations as to the
applicability of the Minor Amendment process to the Locker Program, including the above-
referenced statement that the Minor Amendment process applied because the Locker Program
would serve members of the public.
60. In an email dated May 31, 2018, addressed to various City staff members and on
which Ramer was copied, Daggett stated “the approach being taken [by the City] is not quite the
same as the usual process . . .” and cautioned other staff members that “the special discussions
amongst staff could be used as a basis for arguing that we are treating the Church less favorably
than other applicants based on the Church’s religious practices (ministering to the homeless)” (the
“May 31 Email” attached hereto as Exhibit 5).
61. In her email, Daggett recognized both that the Minor Amendment process was
abnormally applied in this case, and that ministering to the homeless is a distinct religious practice
of the Fellowship.
62. At the PZB work session on July 13, 2018, a City staff member stated in reference
to the Application that “this is one of those projects that’s in a gray area in terms of the land use
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code, its applicability. It’s, from a land use perspective, it’s borderline how much [the Minor
Amendment process] really applies . . . .” (emphasis added).
63. Pursuant to the clear terms of the LUC, the Minor Amendment process does not
apply to the Locker Program.
64. Nevertheless, the City proceeded with review of the Application under the Minor
Amendment process.
65. Despite the fact that the City has no record of the PZB approving any development
plan for the Property, and despite the fact that LUC § 2.2.10(A)(4) only authorizes the referral of
applications where the original development plan was approved by the PZB, the Director
nevertheless referred the Application to the PZB for a public hearing that was initially scheduled
for May 31, 2018.
66. Prior to the scheduled PZB hearing on the Application, City staff prepared a report,
dated May 31, 2018, recommending approval of the Application, on the following conditions:
(1) “[n]ightime illumination of the lockers in compliance with Land Use Code Section 3.2.4”;
(2) “[i]nstallation of a security camera to monitor activity around the lockers 24/7; and (3) “[a]
24/7 contact person to respond to issues that may occur related to the storage lockers.”
67. Ramer had previously offered to add a security camera and lighting.
68. In its report, City staff stated that it evaluated the Application and recommended
the conditions of approval on the basis of LUC § 1.2.2(C), which states that a general purpose of
the LUC is “fostering the safe, efficient, and economic use of the land, the city’s transportation
infrastructure, and other public facilities and services.”
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69. The Minor Amendment approval criteria set forth in LUC § 2.2.10(A)(1) do not
include any reference to LUC § 1.2.2(C).
70. One day before the scheduled PZB hearing, on May 30, 2018, Deputy City Manager
Jeff Mihelich (“Mihelich”) informed Ramer via email that the hearing had been postponed due to
“some reservations regarding the safety of the proposed use.”
71. Under the LUC, Mihelich has no authority to review Minor Amendment
applications.
72. After the postponement of the PZB hearing, City staff rescinded the initial staff
report and issued a revised report, dated July 19, 2018, again recommending approval of the
Application, with the following conditions: (1) “[i]nstall a security camera to monitor activities
around the lockers and retain security footage for 7 days”; (2) “[c]hurch staff must be present
during hours of operation”; (3) “[l]imit locker operation between 8 AM and 8 PM”; and
(4) “[r]estrict access to the lockers outside of normal hours of operation of the lockers.”
73. City staff once again relied on LUC § 1.2.2(C)’s general purpose of “fostering the
safe, efficient, and economic use of the land” in offering the updated recommendation.
74. On July 19, 2018, at the rescheduled public hearing, the PZB considered the
Application. Ramer and representatives of the Fellowship testified in support of the Application
and stated that approval of the Application with the conditions as proposed by City staff would
effectively prohibit the Fellowship from operating the Locker Program.
75. At the PZB hearing, several neighbors of the Property offered testimony for and
against the Application. Neighbors opposed to the Application offered comments regarding a
variety of unsubstantiated fears and vague safety concerns.
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76. After considering the testimony at the hearing and record of the Application, the
PZB subsequently approved the Application with only one condition: that the Fellowship install
a security camera to monitor activities around the lockers with footage retained for seven days (the
“Approval,” relevant portions of the hearing transcript referencing the motion made for, and final
approval of, the Application are attached hereto as Exhibit 6).
77. Following the Approval, Ramer and the Fellowship complied with the condition of
approval by installing a security camera, opened some of the lockers, and began allowing Locker
Program participants to store their belongings in the opened lockers.
Neighbors Appeal the PZB’s Approval
78. On August 2, 2018, L. Davis filed a Notice of Appeal on behalf of herself and 46
other individuals, challenging the Approval (the “Appeal”). In a statement appended to the
Appeal, the appellants argued, inter alia, that the PZB erred in approving the Application because
it failed to apply all of the conditions recommended in the staff report.
79. City Council conducted a public hearing considering the Appeal on October 9, 2018
(the “Appeal Hearing”).
80. Under FCMC § 2-48, only a “party-in-interest” may appeal a decision of the PZB.
81. FCMC § 2-46 defines “parties-in-interest” as: (1) the applicant of the project
appealed; (2) parties holding a possessory or proprietary interest in the property at issue; (3) those
who received a City mailed notice of the hearing that resulted in the decision being appealed;
(4) those who submitted written comments to City staff for delivery to the decision maker prior to
the hearing resulting in the decision being appealed; or (5) those who addressed the decision maker
at the hearing that resulted in the decision being appealed.
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82. Individual Defendants each appeared at the Appeal Hearing and identified
themselves as “parties-in-interest.”
83. At the Appeal Hearing, Mayor Wade Troxell stated that the remaining appellants
listed on the initial Notice of Appeal would not be considered “parties-in-interest” for the purposes
of the Appeal and would be dismissed from the Appeal.
84. On information and belief, prior to the Appeal Hearing, the City Council prepared
a draft motion imposing new conditions on the Approval.
85. At the Appeal Hearing, the City Council received testimony from City staff,
counsel for the certain of the appellants, Ramer, and counsel for the Fellowship.
86. During the Appeal Hearing, in response to a question from City Council member
Ray Martinez (“Martinez”) about whether the Fellowship could provide staff supervision of the
Locker Program, undersigned counsel responded that it would be financially prohibitive for the
Fellowship to have staff present for the explicit purpose of monitoring the Locker Program.
87. During the Appeal Hearing, in response to a question from Martinez about whether
volunteers could monitor the Locker Program, Ramer responded that it wasn’t realistically feasible
to set up a 24/7 supervision unit of volunteers.
88. Mayor Pro Tem Gerry Horak (“Horak”) admitted during the Appeal Hearing that
it was not feasible for ATM’s and other similar facilities to have 24-hour supervision or
monitoring.
89. On information and belief, the City has not imposed supervision requirements on
any facility applying for Minor Amendments or otherwise operating outdoor property storage and
retrieval facilities.
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90. At the conclusion of the Appeal Hearing, the City Council unanimously voted to
uphold the Approval, but added additional conditions (the “Conditions”) as follows: (1) “Locker
access shall be limited to between the hours of 6 a.m. and 8 p.m. daily”; (2) “A Fellowship
representative must be present at all times during which locker access is allowed”; and (3) The
Fellowship shall restrict access to the lockers outside of the times when locker access is allowed.
These conditions were memorialized in City Council Resolution 2018-104 (the “Resolution”),
which the City Council approved, as amended, on October 16, 2018 (attached hereto as Exhibit 7).
91. Imposition of the Conditions was a discretionary action taken by City Council, and
the City Defendants have no specific standards, whether in the LUC or otherwise, regarding or
pertaining to imposition of the Conditions.
The Conditions of Approval Are Discriminatory
92. On information and belief, the City has not, whether pursuant to the LUC or other
enactment of the City Council, imposed any limitation or restriction on the hours of operation of
any religious practice of any other religious assembly or institution operating in the City.
93. On information and belief, the City has not, whether pursuant to the LUC or other
enactment of the City Council, imposed any limitation or restriction on the hours of operation of
any other Non-Occupant Facilities in the City, whether operated by a religious or nonreligious
entity.
94. On information and belief, the City has not, whether pursuant to the LUC or other
enactment of the City Council, imposed any limitation or restriction on the hours of operation of
any other similarly-situated institutional or assembly land use in the City, whether operated by a
religious or nonreligious entity.
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95. On information and belief, the City has not, whether pursuant to the LUC or other
enactment of the City Council, imposed any supervision or monitoring requirement on the
religious practice of any other religious assembly or institution operating in the City.
96. On information and belief, the City has not, whether pursuant to the LUC or other
enactment of the City Council, imposed any supervision or monitoring requirement on the
operation of any other Non-Occupant Facilities in the City, whether operated by a religious or
nonreligious entity.
97. On information and belief, the City has not, whether pursuant to the LUC or other
enactment of the City Council, imposed any supervision or monitoring requirement on the
operation of any other similarly-situated institutional or assembly use in the City, whether operated
by a religious or nonreligious entity.
Locker Program Shut Down
98. Due to its financial limitations and the administrative burdens of recruiting and
coordinating volunteers from its small group of participants, the Fellowship cannot provide on-
site monitoring of the Locker Program every day from 6:00 A.M. to 8:00 P.M.
99. The Condition that a Fellowship “representative” be “present at all times during
which locker access is allowed” is vague, confusing, and overly burdensome.
100. The Resolution does not define the term “Fellowship representative,” and City
Council did not do so at the Appeal Hearing.
101. The Resolution does not define what it means to be “present” while the lockers are
in use, and the City Council did not do so at the Appeal Hearing.
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102. The Resolution does not define “supervision” with respect to the Locker Program,
and the City Council did not clarify at the Appeal Hearing what it meant by “supervision” of the
lockers.
103. The second Condition, pertaining to supervision of the Locker Program, is so vague
and unreasonable that Ramer and the Fellowship do not know how to comply with City Council’s
resolution.
104. City Council neither identified any LUC provision, nor does such a provision exist,
authorizing the City Council to impose the Conditions.
105. City Council neither identified any LUC provision, nor does such a provision exist,
clarifying or otherwise defining the supervision requirement.
106. Every day the Fellowship operates the Locker Program, it risks imposition of a fine,
yet it is unsure whether it is complying with the Resolution or not. If the Fellowship is found to
be in violation of the Conditions, it risks a separate fine for each separate day that it is regarded as
being in violation. Given the Fellowship’s limited resources, it cannot reasonably afford to pay
any such fine.
107. Due to the uncertainties and burdens associated with compliance with the
Conditions, the Fellowship notified its locker participants that it intends to terminate the Locker
Program on November 30, 2018.
108. As a direct and proximate result of the City Defendants: (1) acting outside of their
jurisdiction under the LUC and FCMC to require a Minor Amendment application; (2) abusing
their discretion and applying the LUC in an inconsistent and targeted manner; and (3) imposing
overly burdensome Conditions that find no basis in any identifiable regulation or LUC provision,
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the City Defendants have impermissibly discriminated against the Plaintiffs and prevented them
from exercising the core Mennonite religious belief of ministering to individuals experiencing
homelessness.
109. On November 7, 2018, twenty-two days after the City Defendants imposed the
Conditions, Plaintiffs filed a notice (the “RIPRA Notice”) in accordance with the Colorado
Regulatory Impairment of Property Rights Act, Colo. Rev. Stat. § 29-20-201 et seq. (“RIPRA”),
notifying the City Defendants that the Conditions violated the requirement of Colo. Rev. Stat.
§ 29-20-203(2) prohibiting “any discretionary condition upon a land-use approval unless the
condition is based upon duly adopted standards that are sufficiently specific to ensure that the
condition is imposed in a rational and consistent manner.”
110. Once the landowner files such written notice, “[t]he local government shall respond
to such notice within thirty days after the date of such notice by informing the property owner
whether such application or enforcement will proceed as proposed, will be modified, or will be
discontinued.”
111. The City Defendants have not, to date, responded to Plaintiffs’ RIPRA Notice.
FIRST CLAIM FOR RELIEF
(Declaratory Judgment, C.R.C.P. Rule 57)
Against the City Defendants
112. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
111 above.
113. Plaintiffs’ rights, status, or other legal relations are affected by the FCMC and LUC,
which together are municipal ordinances within the meaning of C.R.C.P. 57(b).
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114. There is a present controversy between Plaintiffs and the City Defendants with
respect to the applicability of LUC § 2.2.10 to the Locker Program.
115. LUC § 2.2.10(A) identifies only two conditions under which an applicant must
apply for a Minor Amendment.
116. The Locker Program does not, based upon the text of LUC § 2.2.10(A) or the City’s
prior practice with respect to Non-Occupant Facilities and Storage Facilities, satisfy either of the
two conditions under which an applicant must apply for a Minor Amendment.
117. No other LUC provision exists requiring the Locker Program to undergo the Minor
Amendment process.
118. The Plaintiffs are entitled to declaratory judgment that the LUC does not require
nor authorize the application of the Minor Amendment process for the Locker Program.
SECOND CLAIM FOR RELIEF
(Abuse of Discretion and Exceeding Jurisdiction, Colo. R. Civ. P. 106(a)(4))
Against All Defendants
119. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
118 above.
120. In hearing and approving the Application, the PZB was performing a quasi-judicial
function.
121. In hearing and denying the Appeal while imposing the Conditions, the City Council
was performing a quasi-judicial function.
122. Individual Defendants appealed the Approval.
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123. Pursuant to Colo. R. Civ. P. 106(a)(4), Plaintiffs may obtain relief from this Court
where any governmental body exercising a judicial or quasi-judicial function has exceeded its
jurisdiction or abused its discretion.
124. In requiring the Plaintiffs to file and pursue a Minor Amendment application, when
the LUC does not permit nor require such application, the City exceeded its jurisdiction and abused
its discretion because the City failed to follow its own procedures and applicable law.
125. Colo. Rev. Stat. § 29-20-203(2) provides that “[n]o local government shall impose
any discretionary condition upon a land-use approval unless the condition is based upon duly
adopted standards that are sufficiently specific to ensure that the condition is imposed in a rational
and consistent manner.”
126. In conducting the Appeal Hearing for a Minor Amendment application over which
it had no jurisdiction, and in imposing Conditions which it had no authority to pass or adopt, the
City Council exceeded its jurisdiction and abused its discretion because the City Council failed to
follow its own procedures and applicable law.
127. Plaintiffs are entitled to certiorari review pursuant to Colo. R. Civ. P. 106(a)(4) and
is further entitled to an Order from this Court declaring that the City Defendants exceeded their
jurisdiction and abused their discretion in the application of the Minor Amendment process to the
Locker Program and the imposition of Conditions.
THIRD CLAIM FOR RELIEF
(Discrimination in Violation of RLUIPA, 42 U.S.C. § 2000cc(b)(2))
Against the City Defendants
128. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
127 above.
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129. RLUIPA, 42 U.S.C. § 2000cc(b)(2) provides that “[n]o government shall impose
or implement a land use regulation that discriminates against any assembly or institution on the
basis of religion or religious denomination.”
130. The City imposed and implemented the LUC against the Fellowship by requiring
the Fellowship to apply and pursue the Minor Amendment process, including a public hearing
before the PZB, for the Locker Program, when it had not historically required such approvals for
other Non-Occupant Facilities owned and operated by other religious and nonreligious entities.
131. The City Defendants imposed and implemented the LUC against the Fellowship by
imposing vague and burdensome Conditions on the Fellowship’s use of the Property, when they
have not historically imposed any similar conditions on similarly-situated religious and
nonreligious property owners.
132. The City Council imposed the supervision Condition with knowledge that it was
financially and administratively prohibitive for the Fellowship, while acknowledging that having
constant supervision for other types of Non-Occupant Facilities was infeasible.
133. Plaintiffs are entitled to a declaration that the City Defendants imposed and
implemented the LUC, and imposed and implemented conditions upon the Plaintiffs, in a
discriminatory manner toward Plaintiffs in violation of RLUIPA, 42 U.S.C. § 2000cc(b)(2), and
an order enjoining the City Defendants from imposing and implementing the LUC and the
Conditions in a manner that would prohibit the use and operation of the Locker Program.
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FOURTH CLAIM FOR RELIEF
(Treating a Religious Assembly on Less Than Equal Terms
in Violation of RLUIPA, 42 U.S.C. § 2000cc(b)(2))
Against the City Defendants
134. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
133 above.
135. RLUIPA, 42 U.S.C. § 2000cc(b)(1) provides that “[n]o government shall impose
or implement a land use regulation in a manner that treats a religious assembly or institution on
less than equal terms with a nonreligious assembly or institution.”
136. The City Defendants imposed and implemented the LUC against the Fellowship by
requiring the Fellowship to apply and pursue an arduous Minor Amendment process for the Locker
Program, including a public hearing before the PZB, when they have not historically required
Minor Amendment approval for other Non-Occupant Facilities owned and operated by
nonreligious assemblies or institutions.
137. The City Defendants imposed and implemented the LUC against the Fellowship by
imposing vague and burdensome Conditions on the Fellowship’s use of the Property, when they
have not historically imposed any similar conditions on the practices and operations of
nonreligious assemblies or institutions.
138. Plaintiffs are entitled to a declaration that the City Defendants imposed and
implemented the LUC, and imposed and implemented conditions upon the Plaintiffs, on less than
equal terms with nonreligious assemblies or institutions in violation of RLUIPA, 42 U.S.C.
§ 2000cc(b)(1), and an order enjoining the City Defendants from imposing and implementing the
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LUC and the Conditions in a manner that would prohibit the use and operation of the Locker
Program.
FIFTH CLAIM FOR RELIEF
(Imposition of a Substantial Burden in Violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1))
Against the City Defendants
139. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
138 above.
140. RLUIPA, 42 U.S.C. § 2000cc(a)(1) provides that “[n]o government shall impose
or implement a land use regulation in a manner that imposes a substantial burden on the religious
exercise of a person, including a religious assembly or institution, unless the government
demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in
furtherance of a compelling governmental interest; and (B) is the least restrictive means of
furthering that compelling governmental interest.”
141. RLUIPA, 42 U.S.C. § 2000cc(a)(1) applies where “the substantial burden is
imposed in the implementation of a land use regulation or system of land use regulations, under
which a government makes, or has in place formal or informal procedures or practices that permit
the government to make, individualized assessments of the proposed uses for the property
involved.” 42 U.S.C. § 2000cc(a)(2)(C).
142. The City Defendants made, and the City has in place formal and informal
procedures or practices that permit it to make, individualized assessments of a proposed use of the
Property.
143. The City Defendants’ actions imposing vague and burdensome Conditions on the
Fellowship impose substantial burdens on the Plaintiffs’ religious exercise.
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144. The City Defendants have failed to articulate a compelling governmental interest
that is served by the imposition of such burdens on the Plaintiffs’ religious exercise.
145. The imposition of such burdens on the Fellowship are not the least restrictive means
of furthering any governmental interest.
146. Plaintiffs are entitled to a declaration that the City Defendants imposed and
implemented the LUC in a manner that imposes a substantial burden on the Plaintiffs without
establishing that such burden is the least restrictive means of furthering a compelling governmental
interest in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1), and an order enjoining the City
Defendants from imposing and implementing the LUC and the Conditions in a manner that would
impose such burden.
SIXTH CLAIM FOR RELIEF
(Unconstitutional Vagueness in Violation of
Fourteenth Amendment Right to Due Process, 42 U.S.C. § 1983)
Against the City Defendants
147. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
146 above.
148. The Fourteenth Amendment of the United States Constitution prohibits a state or
any political subdivision thereof from depriving any person of life, liberty, or property without due
process of law (“Due Process Clause”). When a state or any political subdivision thereof passes
a law or regulation, to comport with the Due Process Clause, that law or regulation must give a
person of ordinary intelligence fair notice that his/her contemplated conduct is forbidden.
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149. The Conditions, including but not limited to the requirement that the Fellowship
must “supervise” the Locker Program at all hours of operation, are so vague that they do not give
the Plaintiffs notice of forbidden conduct.
150. The Plaintiffs are entitled to a declaration that the City Defendants’ imposition of
vague Conditions on the Locker Program violated their rights under the Due Process Clause and
42 U.S.C. § 1983, and that such Conditions may not be enforced against the Plaintiffs in pursuing
and implementing the Locker Program.
SEVENTH CLAIM FOR RELIEF
(Unconstitutional Vagueness in Violation of
Right to Due Process, Art II. § 25 of the Colorado Constitution)
Against the City Defendants
151. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
150 above.
152. Article II Section 25 of the Colorado Constitution guarantees due process of law,
and Colorado courts have interpreted that provision as prohibiting laws or regulations that are so
vague that persons of common intelligence must necessarily guess as to the meaning and differ as
to the application (“Colorado Due Process Clause”).
153. The City Defendants’ actions, as set forth above, violated the Plaintiffs’ rights
under the Colorado Due Process Clause in the same manner as set forth above with respect to
violations of the Due Process Clause.
154. The Plaintiffs are entitled to a declaration that the City Defendants’ imposition of
vague Conditions violated their rights under the Colorado Due Process Clause, and that the
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Conditions may not be enforced against the Plaintiffs in pursuing and implementing the Locker
Program.
EIGTH CLAIM FOR RELIEF
(Imposing Discretionary Conditions Not Based Upon Duly Adopted
or Sufficiently Specific Standards in Violation of RIPRA)
Against the City Defendants
155. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through
154 above.
156. Under RIPRA, Colo. Rev. Stat. § 29-20-203(2), a local government is prohibited
from imposing “any discretionary condition upon a land-use approval unless the condition is based
upon duly adopted standards that are sufficiently specific to ensure that the condition is imposed
in a rational and consistent manner.”
157. Under RIPRA, Colo. Rev. Stat. § 29-20-204(2)(e)(II), “[i]f the court determines
that such enforcement or application is not based on a duly adopted law, regulation, policy, or
requirement or that there are not adequate standards and criteria to ensure that such enforcement
or application is rational and consistent, the court shall invalidate the enforcement or application
of the law, regulation, policy, or requirement as applied to the subject property.”
158. The Conditions were discretionary conditions on the approval of the Fellowship’s
Minor Amendment Application.
159. The City does not have any duly adopted standards, whether in the LUC or
otherwise, upon which the Conditions are based.
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160. Because the City does not have sufficiently specific duly adopted standards, in the
LUC or otherwise, pertaining to the Conditions, the City Defendants imposed the Conditions in
violation of RIPRA.
161. The Plaintiffs are entitled to an Order from this Court declaring that the City
Defendants violated RIPRA by imposing arbitrary and irrational Conditions that were not based
on sufficiently specific duly adopted standards, invalidating the Conditions as applied to the
Plaintiffs, and awarding Plaintiffs their costs and reasonable attorneys’ fees.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs respectfully request that this honorable Court afford them the
following relief:
A. Exercising jurisdiction in this action.
B. Issue the following declaratory relief and permanent injunctive relief by declaring
that:
(1) The City improperly applied the Minor Amendment process to the Plaintiffs
with respect to the Locker Program, in violation of the LUC;
(2) The City Defendants abused their discretion and exceeded their jurisdiction
pursuant to C.R.C.P. 106(a)(4);
(3) The City Defendants violated RLUIPA, 42 U.S.C. §§ 2000cc(a)(1), (b)(1),
and (b)(2);
(4) The City Defendants violated 42 U.S.C. § 1983 and the Colorado
Constitution; and
(5) The City Defendants violated RIPRA, Colo. Rev. Stat. § 29-20-203(2).
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C. Pursuant to, inter alia, 42 U.S.C. § 1988, and/or Colo. Rev. Stat. § 29-20-204(2)(f),
awarding the Plaintiffs all of their attorneys’ fees and costs in this action and related actions.
D. Granting the Plaintiffs such other relief as the Court deems just and proper.
Respectfully submitted this 1st
day of February, 2019.
/s/ Brian J. Connolly
Brian J. Connolly
Thomas Macdonald
Andrew L.W. Peters
David A. Brewster
Otten, Johnson, Robinson, Neff
& Ragonetti, P.C.
950 Seventeenth Street, Suite 1600
Denver, Colorado 80202
Telephone: 303 825 8400
Facsimile: 303 825 6525
E-mail: bconnolly@ottenjohnson.com
E-mail: mac@ottenjohnson.com
E-mail: apeters@ottenjohnson.com
E-mail: dbrewster@ottenjohnson.com
Attorneys for Plaintiffs FORT COLLINS
MENNONITE FELLOWSHIP, a Colorado
nonprofit corporation, and STEVE RAMER
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CERTIFICATE OF SERVICE
I hereby certify that on this 1st
day of February, 2019, a true and correct copy of the
foregoing FIRST AMENDED COMPLAINT AND REQUEST FOR
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF was electronically filed with
the Clerk of Court using the CM/ECF system which will send notification of such filing to the
following email addresses:
Andrew D. Ringel
Hall & Evans, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202
ringela@hallevans.com
Attorney for Defendants The City of Fort
Collins and The City of Fort Collins City
Council
/s/ Margo Brown
Margo Brown
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