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HomeMy WebLinkAbout2022CV30661 - Sanctuary Field Neighborhood Network, Et Al, V. Council Of The City Of Fort Collins - 016 - City's Answer Brief 1 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX DISTRICT COURT, LARIMER COUNTY, COLORADO 201 La Porte Ave., Suite 100 Fort Collins, CO 80521 ▲ COURT USE ONLY ▲ Plaintiffs: SANCTUARY FIELD NEIGHBORHOOD NETWORK, a Colorado nonprofit corporation; and MIRANDA SPINDEL, v. Defendants: CITY COUNCIL OF THE CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of Colorado; SOLITAIRE HOMES EAST, LLC and SOLITAIRE HOMES, LLC Attorneys for Defendant: Attorney: Corey Y. Hoffmann, No. 24920 Katharine J. Vera, No. 53995 Firm Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, CO 80202 Phone: (303) 825-6444 E-mail: cyh@hpwclaw.com kjv@hpwclaw.com Case No.: 2022CV30661 Division: 5A ANSWER BRIEF OF DEFENDANT CITY COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Defendant, City Council of the City of Fort Collins, Colorado ("City Council" or "Defendant") by and through its undersigned counsel, Hoffmann, Parker, Wilson & Carberry, P.C., hereby submits this Answer Brief. I. INTRODUCTION AND FACTUAL BACKGROUND This is a matter brought pursuant to C.R.C.P. 106(a)(4) in which Plaintiffs are seeking judicial review of the decision of City Council affirming a Hearing Officer's decision dated May 16, 2022, approving the Sanctuary on the Green Project Development Plan (the "PDP"). 2 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX Factually, on February 15, 2019, Solitaire Homes East, LLC and Solitaire Homes, LLC (jointly, "Solitaire" or the "Applicant") submitted its first PDP application for the subject site. At that time, the application proposed a different mix of residential development than the PDP that is the subject of this appeal. Solitaire withdrew its initial application and submitted a new application on November 5, 2021, which is the subject of this case. The revised PDP at issue here proposed the development of 212 residential dwelling units, a one-acre park, and about 14 acres of open space on a 41 -acre parcel of vacant land located northwest of the North Taft Hill Road and Laporte Avenue intersection (the "Property"). This PDP proposed a mix of two-family dwellings, single -family attached dwellings, and single- family detached dwellings with a density of approximately 5.13 dwelling units per gross acre. The Property is located in the City's Low Density Mixed-Use Neighborhood District (the "L-M- N District"). On May 2, 2022, an Administrative Hearing was held to consider the application for the PDP. The PDP was reviewed for compliance with the City's Land Use Code (the "LUC") and also for overall conformity with the City's Northwest Subarea Plan (the "NSP"). The NSP is a planning document that acts as a guide for future land use and identifies goals and policies for development in the defined area of the NSP, which includes the Property. The City-appointed Hearing Officer issued a Decision on May 16, 2022, finding that the PDP satisfied all applicable requirements of the LUC, subject to two modifications. In approving the PDP, the Hearing Officer found that although the NSP evidences an intent to remain a "low density residential area," the PDP complied with the LUC and the NSP does not provide specific guidelines or standards against which the PDP may be judged. Record, 1004. 3 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX A Notice of Appeal (the "Notice") of the Hearing Officer's decision was filed on May 31, 2022, by the Plaintiff Sanctuary Field Neighborhood Network, alleging that the Hearing Officer failed to conduct a fair hearing because he failed to properly interpret and apply sections of the LUC. City Council heard the appeal on August 16, 2022, and affirmed the Hearing Officer's Decision to approve the PDP. City Council issued thorough written findings of fact affirming the decision to approve the PDP in Resolution 2022-095. Record, 1450-53. As it relates to this case, City Council found that the Hearing Officer properly interpreted and applied LUC Sections 1.2.2 and 4.5(D)(1). Record, 1451. Plaintiffs seek review of the City Council's decision. II. STANDARD OF REVIEW Review under C.R.C.P. 106(a)(4) is the method to challenge a governmental body's exercise of a quasi-judicial function. C.R.C.P. 106(a)(4); Condiotti v. Board of County Comm'rs of the County of LaPlata, 983 P.2d 184, 186 (Colo. App. 1999). An action is quasi-judicial when it "involves the determination of rights, duties, or obligations of specific parties by applying existing legal standards to past or present facts to resolve the particular interest in question." Native American Rights Fund, Inc v. City of Boulder, 97 P.3d 283, 287 (Colo. App. 2004); Condiotti v. Board of County Comm’rs of the County of LaPlata, 983 P.2d at 186. The scope of a C.R.C.P. 106(a)(4) judicial review proceeding is limited to a review of the record; a court is not the fact finder and cannot weigh the evidence or substitute its own judgment for that of the government body. Kruse v. Town of Castle Rock, 192 P.3d 591 (Colo. App. 2008); Bd. Of County Comm’rs v. O'Dell, 920 P.2d 48, 50 (Colo. 1996). In this regard, governmental proceedings are accorded a presumption of validity and regularity, and all reasonable doubts as to the correctness of the governmental body's rulings 4 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX must be resolved in its favor. City & County of Denver v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo. App. 2002). The burden is on the party challenging a governmental body's action to overcome the presumption that the government's acts were proper . Id. Colorado case law is clear that review under Rule 106(a)(4) is sharply limited to the following standard: C.R.C.P. 106(a)(4) provides for judicial review of a decision of any governmental body or officer exercising judicial or quasi -judicial functions for the limited purpose of determining whether the body or officer exceeded its jurisdiction or abused its discretion. Widder v. Durango Sch. Dist. No. 9–R, 85 P.3d 518, 526 (Colo. 2004). "Abuse of discretion means that the decision under review is not reasonably supported by any competent evidence in the record." Kruse, supra at 601. Colorado case law is also clear that, if supported by "some competent evidence in the record," the lower tribunal's findings of fact are binding on appeal, and the reviewing court "may not substitute its judgment for that of the fact finder"—even "if evidence is conflicting." Stamm v. City and County of Denver, 856 P.2d 54, 57 (Colo. App. 1993). Colorado courts have interpreted the "no competent evidence" standard to refer to a decision by a lower tribunal that is "so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Ross v. Fire and Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo. 1986) (see also City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995); Morris-Schindler, LLC v. City and County of Denver, 251 P.3d 1076, 1081-82 (Colo. App. 2010). However, an action by an administrative [body] is not arbitrary or an abuse of discretion when the reasonableness of the [body's] action is open to a fair difference of opinion, or when there is room for more than one opinion. Khelik v. City & Cnty. of Denver, 411 P.3d 1020, 1023 (Colo. App. 2016). 5 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX Plaintiffs contend that the City Council's approval of the PDP is suspect because it failed to correctly interpret and apply the City's LUC and the NSP. While interpretation of a city code is reviewed de novo, interpretations of the code by the governmental entity charged with administering it are afforded deference if they are consistent with the drafters' overall intent. Whitelaw v. Denver City Council, 405 P.3d 433, 438 (Colo. App. 2017). "Generally, a reviewing court should defer to the construction of a statute by the administrative officials charged with its enforcement" and "[i]f there is a reasonable basis for an administrative board's interpretation of the law, we may not set aside the decision on that ground." City and County of Denver v. Board of Adjustment for City and County of Denver, 55 P.3d 252, 254 (Colo. App. 2002). III. ARGUMENT A. Plaintiffs' claim that the Property is not owned by the Applicant cannot be considered because it is being raised for the first time and was not made a part of the record. Colorado case precedent is clear that review under C.R.C.P. 106(a)(4) is strictly limited to a review of the record before the court. Kruse, 192 P.3d at 591. Plaintiffs did not argue that the Applicant is not the property owner of the Property at the hearing before the Hearing Officer on May 2, 2022, at the City Council hearing on August 16, 2022, or in their Complaint. Nonetheless, the record specifically includes (1) the subdivision plat, which lists a Solitaire entity as the owner of the Property, and (2) an April 2022 letter from C. White, counsel for Solitaire, listing Solitaire as the owner of the Property. R ecord, 379, 505. The LUC requires only that an application and accompanying materials contain sufficient information for the City's Director of the Community Development and Neighborhood Services 6 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX Department (the "Director") to determine in the Director's discretion, "whether or not the applicant, developer, or owner have the requisite power, authority, clear title, good standing, qualifications, and ability" to proceed with an application and development. The LUC does not, however, require that the applicant be the actual landowner. LUC § 2.2.3. The determination that Solitaire's application was complete, and that Solitaire had the authority under LUC § 2.2.3(C)(1) to develop the Property was made by the Director and was not an issue before the Hearing Officer or City Council. Record, 11-16; 997-1007. Therefore, the issue is simply not reviewable. A similar issue was addressed dispositively in Whitelaw v. Denver City Council, 405 P.3d 433, in which the plaintiffs in a Rule 106(a)(4) case contended for the first time at district court that their due process rights had been violated by a city council rezoning vote because some council members received political contributions from lobbyists and were biased. 405 P.3d at 441. The Court of Appeals, agreeing with the district court in the case, determined that the court’s review was limited to the record that was before the city council, and that evidence of the political contributions was not in the record before the council. Id. Additionally, the court found that the plaintiffs had raised the issue for the first time in district court. Id. The court determined that it could not review the political contributions issue because it was based on facts outside the record of the Rule 106 proceeding. Id. Here, the Rule 106(a)(4) review in this case is limited to the evidence in the record and accordingly the Court cannot review the sufficiency of Solitaire's application. Even assuming that this Court seeks to address this issue on the merits, competent evidence in the record including the above referenced subdivision plat, and the April 2022 letter 7 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX from C. White, counsel for Solitaire, shows that Solitaire was found to have the necessary ownership interest to proceed with the application . Record, 379, 505. Thus, Plaintiffs' argument fails both procedurally and substantively for purposes of review pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. B. City Council’s decision affirming the Hearing Officer’s approval of the PDP must be upheld because it was based on competent evidence in the record. The fundamental question in this case is whether City Council 's decision to affirm the Hearing Officer's approval of the PDP is supported by competent evidence in the record. Plaintiffs' opening brief conflates the issue that is subject to review in this case. The Hearing Officer's decision to approve the PDP is not at issue in this case —only the City Council's determination to affirm the Hearing Officer's decision is ripe for judicial review. Likewise, the Hearing Officer's interpretation of the LUC is not at issue in this case —only the City Council's determination to uphold the Hearing Officer's Decision. Interpretation of LUC and NSP Plaintiffs' sole claim relating to the decision of the City Council is that it failed to properly interpret the LUC in concert with the NSP. Plaintiffs argue that City Council was required to follow the provisions of the NSP and that it erred in failing to do so. Plaintiffs cite to a "purpose" section of the LUC to support this contention. LUC Section 1.2.2 states that the purpose of the LUC "is to improve and protect the public health, safety, and welfare by: ensuring that all growth and development which occurs is consistent with [th e LUC], City Plan and its adopted components, including, but not limited to, … associated sub-area plans." Plaintiffs' argument fails because the plain language of the LUC does not include compliance with the NSP 8 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX as a criterion for approval. Moreover, the plain and unambiguous language of the NSP provides that it is not regulatory or binding in application. Preliminarily, the NSP contains subjective qualitative language, while the LUC contains specific quantitative criteria. In reconciling both documents, the specific controls over the general. See Telluride Resort & Spa, L.P. v. Colorado Dep’t of Revenue, 40 P.3d 1260 (Colo. 2002) ("If different statutory provisions are in conflict or cannot be harmonized, the specific provision controls over the general provision"). More particularly, the purpose section of the LUC is not one of the criteria upon which the City Council acting in its quasi- judicial capacity relies on in making a final decision. Instead, the purpose section provides guidance on the general objectives of the LUC —for example, "encouraging innovations in land development and renewal" and "reducing energy consumption and demand." LUC § 1.2.2(B), (H). The purpose section does not impose specific regulations. Also, the LUC does not contain any other provisions nor do the Plaintiffs cite to any provisions in the LUC that provide or even suggest the City's sub-area plans, like the NSP, are regulatory or binding criteria in land use reviews under the LUC. The City's treatment of the NSP is also consistent with C.R.S. § 31-23-206(1) which provides that a municipality's master plan is an advisory document unless it is specifically made binding by inclusion in the municipality's land development regulations. See also Theobald v. Bd. of Cnty. Comm'rs, Summit Cnty., 644 P.2d 942, 948 (Colo. 1982) (master plans are advisory in nature, not the equivalent of zoning, "nor binding upon the zoning discretion of the legislative body"). Moreover, and perhaps most important, the NSP itself states that its provisions are not mandatory. In setting forth guidelines for development and residential design in the northwest 9 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX area, the NSP states: "The guidelines, as part of the Plan, are not mandatory at this time." Record, 1968. Chapter 3 of the NSP contains the "Framework Plan," which is a plan for future land uses in the NSP area that "puts policies in place for the City [of Fort Collins] and [Larimer] County to follow when private property owners come forward with development proposals" and also provides for allowable density and uses. Record, 1936. The NSP Framework Plan expressly states that it is not regulatory or binding: The City and County staff and officials will use the Framework Plan as they review development proposals. The Framework Plan provides guidance to land uses, activities, and density levels, but it is not regulatory. It is to be used in conjunction with City and County zoning and development standards. [Emphasis added.] Id. Finally, even if the City was required to comply with the provisions of the NSP, competent evidence exists in the record demonstrating that approving the PDP is consistent with the NSP. Plaintiffs' Opening Brief appears to suggest that the City Council 's approval of the PDP is inconsistent with the NSP's stated goal that "as new development occurs, it should be of low intensity to be compatible with the diversity and semirural feel of the area " and also the goal of the NSP that "neighborhoods be protected from incompatible development." Record, 1957. However, the NSP itself provides that the L-M-N District allows housing up to 8 units per acre (Record, 1941), while the LUC allows 9 housing units per acre in the L-M-N District. LUC Section 4.5.D.1. The Property is in the L-M-N District and the PDP as approved here proposes 5.13 dwelling units per acre. The NSP also recognizes that future development may be inconsistent with existing development. "As new development occurs, subdivisions may be larger in scale than past developments and could be very different in character from existing neighborhoods." Record, 1968. Thus, competent and substantial evidence in the record supports 10 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX the decision of the City Council in this matter even if the NSP were to be considered regulatory and binding. Accordingly, the City Council's determination that the Hearing Officer properly interpreted and applied LUC Section 4.5(D)(1) is supported by competent evidence because the PDP both satisfied the maximum density of 9 dwelling units per acre in the L-M-N District and complied with the maximum density recommendations of the NSP. Record, 1452. Plaintiffs' claim that City Council somehow misinterpreted the LUC and NSP must fail because there is a reasonable basis for City Council 's interpretation of the LUC in coordination with the NSP. Consistent with City and County of Denver v. Board of Adjustment for City and County of Denver, 55 P.3d at 254, this Court should defer to the interpretation and application of the LUC and the NSP by the administrative officials charged with its enforcement where, as here, there is reasonable basis for the City Council 's interpretation of the City's regulatory documents. The City Council did not, therefore, abuse its discretion in upholding the Hearing Officer 's approval of the PDP. Plaintiffs' characterization that City Council "disregarded the NSP" is simply not accurate. City Council interpreted the LUC and NSP and harmonized the Code and sub-area plan in determining that the PDP was compliant. Accordingly, there is no legal or factual basis for this Court to overturn the decision of the City Council because its decision is supported by competent evidence in the record, and the City Council's interpretation of its own provisions is entitled to deference because it has a reasonable basis in fact. 11 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX IV. CONCLUSION The City Council's decision to affirm the Hearing Officer's approval of the PDP is sufficiently supported by more than competent evidence in the record. Plaintiffs' argument that the City Council's interpretation of the LUC should be set aside fails because the City Council interpretation is reasonable and based on a plain reading of both documents. Defendant therefore respectfully requests that the Court affirm the decision of the City Council. Dated this 6th day of March, 2023. HOFFMANN, PARKER, WILSON & CARBERRY, P.C. By: /s/ Corey Y. Hoffmann Corey Y. Hoffmann Katharine J. Vera ATTORNEYS FOR DEFENDANT CITY COUNCIL OF THE CITY OF FORT COLLINS, COLORADO 12 3/6/2023 Q:\USERS\FORT COLLINS\LITIGATION\SANCTUARY\PLEADINGS\ANSWER BRIEF-030623.DOCX CERTIFICATE OF SERVICE I certify that on this 6th day of March, 2023, I caused a true and correct copy of the foregoing ANSWER BRIEF OF DEFENDANT CITY COUNCIL OF THE CITY OF FORT COLLINS, COLORADO to be served via CCES, electronic mail, and/or U.S. mail on the following: Frascona, Joiner, Goodman and Greenstein, P.C. Andrew Pipes 4750 Table Mesa Drive Boulder, CO 80305-5500 Attorney for Plaintiffs Ballard Spahr LLP Andrew J. Petrie Andrew Valencia 1225 17th St., Ste. 2300 Denver, CO 80202 (303) 292-2400 petriea@ballardspahr.com valenciaa@ballardspahr.com Attorneys for Defendants Solitaire Homes East, LLC and Solitaire Homes, LLC ____________________________________ Jenny Latta, Legal Assistant