HomeMy WebLinkAboutMULBERRY LEMAY CROSSINGS, LOT ONE, FILING ONE - FINAL PUD - 36-96D - LEGAL DOCS - LEGAL COMMUNICATIONdetermine how previously enacted public policies (such as Fort Collins' LDGS Regulations) will
be administered or executed. City of Idaho Springs v. Blackwell, 731 P.2d 1250 (Colo. 1987).
It is therefore our opinion that the "approval" of the Mulberry-Lemay Crossing
Preliminary PUD by Initiated Ordinance is invalid and of no legal effect. More likely than not
under Colorado law, the actions of the Planning and Zoning Board in denying the PUD and of
City Council in upholding the denial were administrative or quasi-judicial, and not legislative.
Margolis v. District Court, 638 P.2d 297 (Colo. 1981).
As such, substantial questions exist as to the validity and legal effect, if any, of the
Initiated Ordinance, and as to the City's apparent reliance upon the course and integrity of the
application process thus far. Inasmuch as the City intends to proceed with final review of the
Afalbern,-Lemay Crossing PUD application in January, this office is instructed to challenge the
propriety of final review where preliminary approval of the Project was never properly obtained.
Accordingly, please be advised that upon the City's issuance of a formal public notice
setting the final review hearing, this office will pursue all available legal and equitable remedies
to enjoin the City from conducting further review of the Mulberry-Lemay Grossing PUD Plan.
In connection therewith, a civil action, if filed, will also seek judicial review and determination
of the merits of the Aulberry-Leniay Project in all respects.
,-V-45Y tnily yours
ARTIl`T & M FY, LLC
Christopher M. Ernst
cc: C.A.R.S. Committee
Stephen Roy, Fort Collins City Attorney
Fort Collins Planning & Zoning
A1ulberry-Lemay Crossings PUD
December 10, 1999
Page 3
3. Thereafter, the applicant filed Civil Action No.99-CV-139 in Larimer County
District Court, setting forth four (4) claims for relief and seeking judicial review of
Council's actions in upholding the denial by the Planning Board.- Although the
Complaint was subsequently dismissed, the Complaint states on its face that "[t]he
actions and decisions of City Council complained of herein were taken by the City
Council as an inferior tribunal exercising quasi-judicial 11 udicial functions." Complaint, 24.
4. In connection therewith, an Initiated Ordinance was submitted to City Council
which purported to overturn both the Planning Board denial and the Council decision
upholding the denial. The Ordinance was ultimately referred to the Fort Collins
electorate for a vote, notwithstanding the fact that the actions underlying both the
Complaint and Initiative were quasi-judicial in nature.
5. The Ordinance submitted to the voters in April 1999 provided, in part:
A. "That the Project is approved on the basis that it complies Nvith all relevant
provisions of the Code and Charter of the City." Ordinance, Section 2.
B. "That the November 5, 1998 decision of the Board to deny the project is
overturned on the grounds that the Board failed to properly interpret and
apply relevant provisions of the Code and Charter of the City in denying
the Project." Ordinance, Section 3.
C. "That Resolution 99-6 of the City Council upholding the Board's denial of
the Project and making certain findings of fact related thereto is hereby
reversed and superceded in its entirety by the provisions of this
Ordinance." Ordinance, Section 5.
By its plain language, the Initiated Ordinance purports to reverse administrative action
and/or quasi-judicial determination by the Planning Board and City Council. However, such
matters are not properly subject to the powers of initiative and referendum. It is our position that
an Initiated Ordinance, even if passed, cannot operate to confer administrative approval or
overturn quasi-judicial denial of a Preliminary PUD application.
As stated, it has come to our attention that the City intends to proceed with final review
of the PUD. As justification therefor, the City is ostensibly relying upon broadly -worded
initiative provisions in the Fort Collins City Charter. Notwithstanding the Charter provisions, it
is respectfully submitted that the powers of initiative and referendum are not unlimited, and are
generally restricted to legislative matters. In fact, the right of referendum applies only to
legislative actions of a governing authority, and the same limitation is applicable to the power of
initiative. In short, the initiative power extends to the people's right to legislate, and not to
hhulbeny-Lemay Crossings PUD
December 10, 1999
Page 2
1
John R. Mehaffy
Lawrence C. Rider
Donald J. Humphrey
Joel C. Maguire
Matthew S. Humphrey
Jonathan L MLller
Laura S. Moore
Christopher M Ernst
MARTIN & MEHAFFY, LLC
Attorneys and Counselors at Law
December 10, A99
FL
Via Certified Alail
Mr. Ray Martinez, Mayor
Mr. John Fischbach, City Manager
City of Fort Collins
P.O. Box 580
Fort Collins, Colorado 80522
Re: Mulberry-Lemay Crossing. Preliminary and Final PUD
Dear Mr. Martinez and Mr. Fischbach:
James G. Martin
(retired)
Marpuet R. Brubaker, LLC
Special Counsel
QZP Brighton
This office represents the Citizens Against Regional Super -center ("CARS"), a registered
political issue committee representing concerned citizens in the City of Fort Collins. Our firm
has been retained to assist CARS in relation to the above -referenced development Project.
At this time, it is our understanding that the City intends to proceed with processing of
the Mulbeny-Lemgv Crossing preliminary PUD application. In particular, it seems that
administrative review of the Final PUD application is proposed for public hearing sometime
during January, 2000. Our understanding of the Project thus far is as follows:
1. On November 5, 1998, the City of Fort Collins Planning and Zoning Board held a
public hearing to review the Mulberrv-Lema}, Crossing Preliminary PUD application.
The application was denied based upon the Board's determination that the Preliminary
PUD Plan failed to satisfy applicable criteria of the City's Land Development Guidance
System ("LDGS"). It seems that the Project failed to comply with several provisions of
the LDGS Regulations, including but not limited to Criteria A-1.2, A-2.1, A-2.2, A-2.3,
and A-2.6.
2. On November 13, 1998, the applicant appealed the denial to City Council.
Accordingly, Council held a public hearing on December 15, 1998 to review the action
taken by the Planning and Zoning Board, and Council thereupon affirmed and upheld the
dcnial. The written findings and conclusions regarding the appeal are set forth in
Resolution No. 99-6, adopted January 5, 1999.
1655 Walnut Street Suite 300 Boulder, CO 80302 Phone 303 442-3375 Fax 303 444-8398 e-mail mmllc@aol.com
Brighton Professional Building 105 Bridge Street Brighton, CO 80601 Phone 303 659-0731 Fax 303 659-0752