HomeMy WebLinkAboutMINUTES-01/15/2008-RegularJanuary 15, 2008
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, January 15, 2008,
at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered
by the following Councilmembers: Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy, and Troxell.
Staff Members Present: Atteberry, Krajicek, Roy.
Citizen Participation
Vivian Armendariz, 820 Merganser Drive, showed photos demonstrating snow removal issues and
urged Council and the community to clear sidewalks and curb cuts.
Eric Sutherland, 631 LaPorte Avenue, spoke about renewal energy credit purchases by Platte River
Power Authority on behalf of rate payers in Fort Collins. He did not believe the policy of purchasing
renewable energy credits as a strategy to combat climate change and resource depletion was an
effective use of funds.
Joe Rowan, 621 Gilgalad Way, stated transportation issues did not seem to be a high priority for
Council and should be addressed on a regular basis. He was disappointed Council did not act on the
Resolution that would have approved the I-25/392 IGA with Windsor.
Brian Schumm, 5807 Ballina Court, had concerns regarding the South College Corridor Plan as he
had met with staff to talk about possible changes to the Plan and felt staff had already predetermined
the outcome of a review of the Plan. He believed the rezoning of East Skyway justified the rezoning
of other property on the east side of Aran Street.
Clint Skutchan, 719 Great Plains Court, stated his concern about transportation issues that have not
been addressed, either on the local level or regionally. He asked why the I-25 Gateways discussion
was moved from a regular work session time to a retreat setting.
Cheryl Distaso, 135 South Sunset, thanked the Mayor for reading the proclamation for MLK Day
and urged Council to adopt a resolution calling for withdrawal of troops from the war in Iraq.
Nancy York, 130 South Whitcomb, stated the public participation process should be improved.
Council should prioritize on the main issues of the City and stay focused to be more efficient.
Ben Schrader, 928 Pioneer Avenue, quoted Dr. Martin Luther King, Jr and asked Council to adopt
a resolution calling for withdrawal of troops from the war in Iraq.
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Citizen Participation Follow-up
Mayor Hutchinson stated a special retreat is planned for February 8 to focus on transportation issues.
A retreat provides an opportunity for Council to focus on certain topics and to decide how to
proceed.
Councilmember Manvel stated one topic discussed at a recent Metropolitan Planning Organization
meeting was formation of a continuing committee to examine RTAs and other possibilities for
regional transportation cooperation. He has been appointed to that committee.
Councilmember Poppaw stated the six-month planning calendar has four different topics concerning
transportation that Council will consider. Regional cooperation means community separators, open
space and good land use planning as well as considering an RTA.
City Manager Atteberry stated his intention to schedule another retreat in March for Council to focus
on the "price of government," including transportation funding, health and safety funding, pavement
management and parks maintenance.
Councilmember Troxell encouraged the citizen concerned about renewable energy credits to become
involved in the Fort ZED process through UniverCity Connections. This process is examining ways
to turn renewable energy credits into a source of profit to help fund items internally. The Electric
Board's work plan for 2008 also addresses this issue. He noted the Governor was silent about
transportation issues in his "State of the State" address which indicates local governments have to
do more to improve transportation problems and interchanges. He asked that the Aran Street zoning
be included in the South College Corridor Plan.
Councilmember Brown asked if the February 8 retreat would be taped and televised at a later date.
City Manager Atteberry noted the retreat would be held at an off -site location to provide room to
examine maps and other exhibits. Since the retreat will be off -site, Cable 14 cannot broadcast the
retreat live, but will tape it for televising.
Councilmember Ohlson asked for a follow-up on the snow removal from curb cuts. He noted the
retreats would provide additional time to focus on transportation issues and to discuss ways to
provide funding for those issues. He asked for a memo explaining renewable energy credits and
options for their use and suggested the Electric Board study this issue further.
AEenda Review
City Manager Atteberry withdrew Item #16 First Reading of Ordinance No. 006, 2008, Designating
Grandview Cemetery, 1900 West Mountain Avenue, as a Fort Collins Landmark Pursuant to
Chapter 14 of the City Code to be presented to Council at a later date.
Patrick Reeves withdrew Item #13 First Reading of Ordinance No. 003, 2008, Amending Chapter
2, Division 3 of the City Code Pertaining to Appeals to the City Council.
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Brian Schumm withdrew Item #7 Second Reading of Ordinance No. 146, 2007, Amending the
Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain
Property Known as the East Skyway Rezoning.
CONSENT CALENDAR
6. Consideration and Approval of the Minutes of the November 20. 2007, December 4, 2007
and December 18 2007 Regular Meetings and the November 27, 2007 Adiourned Meeting.
Second Reading of Ordinance No 146 2007 Amending the Zoning Man of the City of Fort
Collins by Changing the Zoning Classification for that Certain Property Known as the East
Skyway Rezoning.
The land along Skyway Drive, east of College Avenue, was annexed into the City as part of
Phase I of the Southwest Enclave Annexation in April 2007, under a Structure Plan
designation of Urban Estate (U-E). The original intent of designating U-E for these
properties was to acknowledge the existing large -lot County parcels zoned Farming in the
County; U-E is the City's zoning that is most similar to the County's zoning.
Staff has since considered the situation along this part of East Skyway in much more detail,
in extensive discussions with owners, neighbors, and the County. These discussions have
been prompted by issues related to an existing business at 209 East Skyway and by the recent
annexation process in 2007. Staff finds that the properties along Skyway do not reflect the
character of the Farming or Urban Estate designations, but bear closer resemblance to both
the commercial uses in the area and the existing residential neighborhood (which is more
dense than Urban Estate) to the north and east. This Ordinance, unanimously adopted on
First Reading on December 18, 2007, rezones the property located at 209 East Skyway to a
combination of Commercial on the west 2/3 of the property and Low Density Residential on
the east 1 /3 of the property. It also rezones 225 East Skyway Drive to Low Density Mixed -
Use Neighborhood and the City -owned parcel east of Claire Court to the Open Lands, Parks
and Stream Corridor designation.
Second Reading of Ordinance No 151 2007 Amending City Code Sections 23-127 and 23-
130 Pertaining to Disposition of Stolen Found or Abandoned Personal Property.
The Recycled Bike Project enables the partnership between the City of Fort Collins and the
FC Bike Co-op to collect, store, and repair found, abandoned/donated bicycles, and to place
these refurbished bicycles back into the community, rather than being shipped to California
for auction. Refurbished bicycles will be used in an Earn -a -Bike program, the future Bike
Library, and/or given to those who qualify as financially challenged or "at risk." Bicycle
frames and parts that cannot be repaired or reused will be recycled. This Ordinance,
unanimously adopted on First Reading on December 18, 2007, will amend the City Code to
allow the processing of the abandoned/donated bicycles.
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9. Second Reading of Ordinance No 152 2007 Authorizing the Lease of a Residence on City -
Owned Property at Reservoir Ridge Natural Area to the Facility Attendant for Up to Five
Years.
This Ordinance, unanimously adopted on First Reading on December 18, 2007, authorizes
the lease of a residence, located on the Reservoir Ridge Natural Area, to the Facility
Attendant of Primrose Studio.
10. Second Reading of Ordinance No 153 2007 Designating the Hoel House, 616 Locust
Street Fort Collins Colorado as a Fort Collins Landmark Pursuant to Chanter 14 ofthe City
Code.
Ordinance No. 153, 2007, unanimously adopted on First Reading on December 18, 2007,
designates the Hoel House, 616 Locust Street, as a Fort Collins Landmark. The owners of
the property, Ellen Richey and Douglas Simons, are initiating this request.
11. First Reading of Ordinance No 001 2008 AppropriatingUnanticipated Grant Revenue in
the General Fund for the Fort Collins Police Services Victim Services Team.
The Fort Collins Police Services Victim Services Team has been awarded a 12-month grant
in the amount of $33,150 for the period from January 1, 2008 through December 31, 2008,
by the Eighth Judicial District Victims Assistance and Law Enforcement (V.A.L.E.) Board
to help fund services provided by this team. These funds will be used for a part-time, paid
victim advocate who provides crisis intervention services during weekday hours and is
housed in the Victim Services office. These funds will also pay for some of the operational
expenses needed to provide 24-hour a day, 7-day a week services to victims of crime in the
community.
12. First Reading of Ordinance No 002 2008 Appropriating Unanticipated Revenue in the
Street Oversizing Fund for Transfer to the Capital Projects Fund - Harmony Road and
Ziegler Road Improvements - Front Range Village Development Capital Project and
Authorizing the Transfer of Appropriations Between Funds to Construct Sidewalk
Improvements on the North Side of Harmony Road from Ziegler Road to Lady Moon Drive.
Since Transfort has re-established the Harmony transit route, staff has been working on
sidewalk improvements for Harmony Road to support pedestrian accessibility. Workingwith
private development and the Pedestrian Access Program, several gaps of missing sidewalk
have been installed along Harmony Road. Staffbegan working with Avago Corporation and
Hewlett Packard Company as adjacent property owners to explore the feasibility of installing
an eight -foot wide sidewalk on the north side of Harmony, from Ziegler Road to Lady Moon
Drive (approximately 3900linear feet). Both companies have agreed to contribute their local
street portion for the construction of the improvements. The Street Oversizing Program will
contribute for the oversized portion of the sidewalk and install a bus stop at Lady Moon, in
accordance with normal program policies.
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13. First Reading of Ordinance No 003 2008 AmendingChapter2 Division 3oftheCitvCode
Pertaining to Appeals to the City Council.
This Ordinance would amend Chapter 2, Division 3 of the City Code pertaining to appeals
to the City Council in two respects. First, the Ordinance would clarify which parties -in -
interest, as defined in the Code, are entitled to seek judicial review of the Council's
determination of an appeal. Second, the Ordinance would explicitly authorize
Councilmembers to inspect the site of development project plans or other proposals that are
the subject of a Council appeal and would prescribe the terms and conditions under which
such site inspections may occur.
14, First Reading of Ordinance No 004 2008 Authorizingthe a Acquisition by Eminent Domain
Proceedings of Certain Lands Necessary to Construct Public inrovements and Widen West
Harmony Road from South College Avenue to Seneca Street.
West Harmony Road is a major east -west arterial route in the City of Fort Collins.
Numerous sections of this corridor have been widened, but there are some portions that
remain two lanes. As a result, the roadway generally functions as a two-lane between
College Avenue and Seneca Street. The Harmony/Shields intersection produces long delays
and has one of the highest accident rates in the City. For these reasons, improvements to this
corridor have been prioritized by the City of Fort Collins. To meet the proposed construction
schedule for the Project, timely acquisition of the property interests along West Harmony
Road is necessary.
15. First Reading of Ordinance No 005 2008 Authorizing Conveyance of an Easement for Two
Pedestrian Bridges to Poudre Valley Health Care Inc.. d/b/a Poudre Valley Health Systems
"PVH"
PVH has a project development plan known as "Poudre Valley Hospital Parking Structure
and Medical Office Building" ("the Project"). The plan was approved by the Planning and
Zoning Board on September 20, 2007. This plan includes the construction of a new
employee parking structure and a new medical office building. Also as part of the plan, PVH
desires to construct two pedestrian bridges. One of the proposed bridges will span Garfield
Street and the proposed second bridge will span Lemay Avenue. PVH is still working
getting the final plans approved.
16. First Reading of Ordinance No 006 2008 Designating Grandview Cemetery 1900 West
Mountain Avenue as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code.
The owner of the property, the City of Fort Collins, is initiating this request for Fort Collins
Landmark designation for the property. Having outstanding historical significance,
Grandview Cemetery is unusual in that it is eligible for designation as a Fort Collins
Landmark under all four designation standards. Established in 1887, Grandview is the oldest
operating cemetery in the city. The cemetery is associated with events significant to the
founding and early growth of Fort Collins. People interred at this site include some of the
January 15, 2008
city's, and indeed, Colorado's, most influential politicians, business people, and pioneers.
The property's historic structures and landscape features, such as its unique moss rock
bridge, circular gravel drive layout, moss rock planters, marble, granite, flagstone, sandstone,
and cast iron grave markers, and the historic New Mercer Ditch which bisects the cemetery
grounds, embody distinctive characteristics of design and construction. Furthermore, the
historic office building built by the Civilian Conservation Corps in the 1930s, is important
both architecturally and historically. Finally, the cemetery serves as a record of the city's
past and will continue to provide important information for future researchers.
17. Resolution 2008-001 Finding Substantial Compliance and Initiating Annexation Proceedings
for the Thorland Annexation No. 1.
The applicants and property owners, Miles and Jennifer Thorland, have submitted a written
petition requesting annexation of 1.66 acres located on the north side of Kechter Road
approximately 800 feet east of South Timberline Road. It is the northerly portion of Lot 1
of the Blehm Subdivision in Larimer County. The other portion of Lot 1 of the Blehm
Subdivision is adjacent to the south of the property. The Stetson Creek residential
development is adjacent to the north of the property. The property is undeveloped and is in
the FA 1 - Farming District in Larimer County. The requested zoning for this annexation is
UE - Urban Estate. The surrounding properties are currently zoned RL - Low Density
Residential in the City to the north and FAl - Farming in Larimer County to the west, east,
and south.
18. Resolution 2008-002 Finding Substantial Compliance and Initiating Annexation Proceedings
for the Thorland Annexation No. 2.
The applicants and property owners, Miles and Jennifer Thorland, have submitted a written
petition requesting annexation of 5.18 acres located on the north side of Kechter Road,
approximately 800 feet east of South Timberline Road. It is the southerly portion of Lot 1
of the Blehm Subdivision in Larimer County. The other portion of Lot 1 of the Blehm
Subdivision is adjacent to the north of the property. The property is partially developed (with
one single-family residence and outbuildings) and is in the FA 1 - Farming District in Larimer
County. The requested zoning for this annexation is UE - Urban Estate. The surrounding
properties are currently zoned FA 1 - Farming in Larimer County to the west, north, east, and
south.
19. Resolution 2008-003 Approving Expenditures from the Art in Public Places Reserve
Account in the Cultural Services and Facilities Fund to Commission an Artist to Create Art
Elements for the Southeast Branch Library Project.
This Resolution would approve expenditures of $51,480 for design, materials, installation
and contingency for a project with the artist Barbara Baer to create sculptural elements for
the Southeast Branch Library Project.
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20. Resolution 2008-004 Approving Expenditures from the Art in Public Places Reserve
Account in the Storm Drainage Fund to Commission an Artist to Create Art Enhancements
for the Red Fox Meadows Natural Area Project.
This Resolution would approve expenditures of $190,000 for design, materials, installation
and contingency for a project with the artist Barb McKee of Surface Strategy to create artistic
enhancements for the stormwater structures at the Red Fox Meadows Natural Area.
21, Resolution 2008-005 Authorizing the Grant of License to Enter on Ci1yPropertv to Verizon
Wireless.
The City of Fort Collins and Verizon Wireless are in the process of negotiating a possible
lease of City property which would include future cell tower improvements to be located on
the Senior Center building, 1200 Raintree Drive. Verizon Wireless has requested that the
City grant permission to enter the Senior Center property to conduct preliminary engineering
and architectural surveys within the next six months in order to draft plans for the proposed
cell tower location.
22. Resolution 2008-006 Authorizing the Execution of Intergovernmental Agreements Between
the City and the Colorado Department of Transportation for the Grant of Congestion
Mitigation and Air Ouality Improvement Funds for the FC Bikes Program and the FC Bike
Library.
The Federal Highway Administration's CMAQ program awarded the City's FC Bikes
program two grants for the 2008 and 2009 budget cycle. The CMAQ grants fund 82.79%
of two separate programs, the existing FC Bikes program and the new FC Bike Library
Project. In order to initiate Federal funding, the 2008 contracts must be signed by the City
Manager. These contracts are for 2008 only. The 2009 CMAQ contracts will be resubmitted
to City Council in early 2009.
23. Resolution 2008-007 Adopting the Sixth Amendment to the City for Fort Collins General
Employees' Retirement Plan as Amended and Restated December 31, 2001.
The City of Fort Collins General Employees' Retirement Plan (the Plan) provides retirement
benefits for approximately 143 retirees and beneficiaries and covers approximately 274
active employees and approximately 124 vested former employees as of the last valuation
report.
Recent changes in federal legislation and Internal Revenue Service regulations have required
changes to the Plan. Also, clarification changes have been recommended. Outside legal
counsel and the City Attorney's Office have prepared changes to the plan to comply with
these changes.
None of the changes will result in an increased cost to the City or the Plan.
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24. Routine Deed.
Deed of Dedication for Right -of -Way, for public street purposes, located East Harmony
Road. Monetary consideration: $10.
***END CONSENT***
Ordinances on Second Reading were read by title by City Clerk Krajicek.
Second Reading of Ordinance No. 146, 2007, Amending the Zoning Map of the City of Fort
Collins by Changing the Zoning Classification for that Certain Property Known as the East
Skyway Rezoning.
8. Second Reading of Ordinance No. 151, 2007, Amending City Code Sections 23-127 and 23-
130 Pertaining to Disposition of Stolen, Found or Abandoned Personal Property.
9. Second Reading of Ordinance No. 152, 2007, Authorizing the Lease of a Residence on City -
Owned Property at Reservoir Ridge Natural Area to the Facility Attendant for Up to Five
Years.
10. Second Reading of Ordinance No. 153, 2007, Designating the Hoel House, 616 Locust
Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City
Code.
Ordinances on First Reading were read by title by City Clerk Krajicek.
11, First Reading of Ordinance No. 001, 2008, Appropriating Unanticipated Grant Revenue in
the General Fund for the Fort Collins Police Services Victim Services Team.
12. First Reading of Ordinance No. 002, 2008, Appropriating Unanticipated Revenue in the
Street Oversizing Fund for Transfer to the Capital Projects Fund - Harmony Road and
Ziegler Road Improvements - Front Range Village Development Capital Project and
Authorizing the Transfer of Appropriations Between Funds to Construct Sidewalk
Improvements on the North Side of Harmony Road from Ziegler Road to Lady Moon Drive.
13. First Reading of Ordinance No. 003, 2008, Amending Chapter 2, Division 3 of the City Code
Pertaining to Appeals to the City Council.
14. First Reading of Ordinance No. 004, 2008, Authorizing the Acquisition by Eminent Domain
Proceedings of Certain Lands Necessary to Construct Public Improvements and Widen West
Harmony Road from South College Avenue to Seneca Street.
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January 15, 2008
15. First Reading of Ordinance No. 005, 2008, Authorizing Conveyance of an Easement for Two
Pedestrian Bridges to Poudre Valley Health Care, Inc., d/b/a Poudre Valley Health Systems
("PVH").
Councilmember Manvel made amotion, seconded by Councilmember Poppaw, to adopt and approve
all items not withdrawn from the Consent Calendar. Yeas: Brown, Hutchinson, Manvel, Ohlson,
Poppaw, Roy and Troxell. Nays: none
THE MOTION CARRIED.
Staff Reports
City Manager Atteberryrecognized Sergeant Dan Murphy of Police Services, who received an award
from the Downtown Rotary Club for his dedication and leadership in providing training for Fort
Collins police officers in safe tactical operations and emergency service.
Mike Freeman, Chief Financial Officer, introduced Kelly Peters who will serve half-time as the
City's economic and policy advisor.
Councilmember Reports
Councilmember Poppaw stated one topic presented to the Poudre School District/City/Larimer
County meeting was "Teen Safe Driving" and she asked if a link to "Teen Safe Driving" campaign
could be added to the City's website as a way to provide more information to parents about programs
that promote safe driving habits for teens.
Councilmember Troxell stated the improvements proposed for Harmony Road west of College are
long overdue. He asked if the power line located west of Front Range Community College could
be located underground. He also asked if any changes were planned for the retention pond located
east of Seneca Street so that overflow would be directed onto Harmony and not into the
neighborhood.
Ordinance No. 146,2007,
Amending the Zoning Map of the City of Fort Collins by Changing
the Zoning Classification for that Certain Property
Known as the East Skyway Rezoning. Adopted on Second Reading
The following is staff's memorandum on this item.
"EXECUTIVE SUMMARY
The land along Skyway Drive, east of College Avenue, was annexed into the City as part of Phase
I of the Southwest Enclave Annexation in April 2007, under a Structure Plan designation of Urban
Estate (U-E). The original intent of designating U-E for these properties was to acknowledge the
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existing large -lot Countyparcels zoned Farming in the County; U-E is the City's zoning that is most
similar to the County's zoning.
Staff has since considered the situation along this part of East Skyway in much more detail, in
extensive discussions with owners, neighbors, and the County. These discussions have been
prompted by issues related to an existing business at 209 East Skyway and by the recent annexation
process in 2007. Staff f nds that the properties along Skyway do not reflect the character of the
Farming or Urban Estate designations, but bear closer resemblance to both the commercial uses
in the area and the existing residential neighborhood (which is more dense than Urban Estate) to
the north and east. This Ordinance, unanimously adopted on First Reading on December 18, 2007,
rezones the property located at 209 East Skyway to a combination of Commercial on the west 213
of the property and Low Density Residential on the east 113 of the property. It also rezones 225 East
Skyway Drive to Low Density Mixed -Use Neighborhood and the City -owned parcel east of Claire
Court to the Open Lands, Parks and Stream Corridor designation. "
Councilmember Ohlson asked if citizens who spoke under the "Citizen Participation" portion of a
meeting regarding an item on the Consent Calendar should then be able to pull an item off the
Consent Calendar and speak again on that item. The idea of allowing comment on Consent items
during "Citizen Participation" was to permit citizen comments without the necessity of pulling the
item. City Attorney Roy agreed the intent was not to allow opportunity to speak twice on an issue.
Brian Schumm, 5807 Ballina Court, stated his concern with rezoning the property at 209 East
Skyway as Council did not have the history of issues with the property. The property owners could
continue their business with the current zoning and did not need the rezoning. He urged Council to
reject the rezoning proposal.
Councilmember Roy made a motion, seconded by Councilmember Troxell, to adopt Ordinance No.
146, 2007 on Second Reading. Yeas: Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy and
Troxell. Nays: none
THE MOTION CARRIED.
Ordinance No. 003, 2008,
Amending Chapter 2, Division 3 of the City Code Pertaining to
Appeals to the City Council Adopted as Amended on First Readin¢
The following is staffs memorandum on this item.
"EXECUTIVE SUMMARY
This Ordinance would amend Chapter 2, Division 3 of the City Code pertaining to appeals to the
City Council in two respects. First, the Ordinance would clarify which parties -in -interest, as
defined in the Code, are entitled to seekjudicial review of the Council's determination of an appeal.
Second, the Ordinance would explicitly authorize Councilmembers to inspect the site ofdevelopment
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project plans or other proposals that are the subject of a Council appeal and would prescribe the
terms and conditions under which such site inspections may occur.
BACKGROUND
The City Code, in Chapter 2, Division 3, establishes a procedure under which the decisions of
certain boards and commissions and other decision makers of the City can be appealed to the City
Council. The Ordinance proposes two amendments to the provisions of those Code sections.
STANDING TO SEEK JUDICIAL REVIEW
The first of the amendments would clarify which of the "parties -in -interest, " as that term is defined
in Section 2-46 of the Code, have standing not only to file appeals with the Council and to address
the Council at the hearings held on those appeals but also to seekjudicial review of the Council's
determination of an appeal. The Code defines the following as parties -in -interest; however, it is
silent as to which of the parties -in -interest may appeal Council's decision to the district court.
(1) The applicant;
(2) Any party holding a proprietary or possessory interest in the real or personal
property which was the subject of the decision of the board, commission or other
decision maker whose action is to be appealed;
(3) Any person to whom or organization to which the City mailed notice of the hearing
of the board, commission or other decision maker;
(4) Any person who or organization which sent written comments to the board,
commission or other decision maker prior to the action which is to be appealed;
(5) Any person who appeared before the board, commission or other decision maker at
the hearing on the action which is to be appealed;
(6) The City Council as represented by the request of a single member of the City
Council.
In 2005, the City Council heard an appeal of a hearing officer's denial of a proposed project
development plan to be located at the intersection of College Avenue and Cherry Street. At the
conclusion of the appeal hearing, the Council overturned the decision of the hearing officer and
approved the plan. The Council's decision was appealed to court by Patrick Reeves, a resident of
the City. Mr. Reeves qualified as a party -in -interest under the provisions of the City Code because
he had submitted comments to the hearing officer regarding the development proposal and had
appeared at the appeal hearing. However, Mr. Reeves' property is not located in close proximity
to the site of the development project and he did not assert any damages that he would sustain as
a property owner as a result of the Council's approval of the project. Instead, the injury he asserted
was aesthetic in nature and had to do with his use of the Poudre River, the Poudre River Trail,
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College Avenue and other public facilities and amenities located near the project. Essentially, he
asserted that his enjoyment of these facilities would be diminished by construction of the project.
The City moved to dismiss Mr. Reeves' appeal on the grounds that he lacked legal standing to
appeal the Council decision. The test for legal standing is twofold. First, a party must have a
legally protected interest in the decision. Second, he or she must allege some "injury in fact" that
would result from the decision. The trial court granted the City's motion to dismiss because of a
lack ofstanding. However, the Colorado Court of Appeals reversed the trial court's decision and
reinstated the complaint. In doing so, the Court of Appeals held that, in adopting the City's Land
Use Code and the appeals provision of the City Code, the City Council had given all parties -in -
interest under Section 2-46 the same rights of participation and appeal as applicants for
development approval and had conferred on thoseparties-in-interest a legal interest in the Council's
determination of the appeal that they might not otherwise have under the law. Thus, the Courtfound
that all such parties -in- interest have standing to such judicial review of the Court's decision
City staff is recommending that Council amend the Code to limit the right ofjudicial review to those
parties -in -interest who have a direct stake in the outcome ofthe appeal, that is, those who fall within
the first three categories of the definition of parties -in -interest; the applicant; persons or entities
that hold a proprietary or possessery interest in the real property that is the subject of the appeal;
and any person to whom or organization to which the City mailed notice of the hearing before the
original decision maker (those within the "notice zone " of the affected property).
Staff makes this recommendation because it believes that, while the input of all parties -in -interest
is helpful to the Council in deciding an appeal and the opportunityfor such input should be extended
to all interested parties who have participated in the original hearing, the right ofjudicial appeal
should be limited to those who are most directly affected by the outcome of the appeal, both because
of the expense incurred by the City in defending such court actions and because of the considerable
delay that generally results from judicial review of these kinds of decisions. This expense and delay
could very likely thwart the approval and construction of development proposals that meet all the
City requirements and that may be important to the economic well-being of the City.
Accordingly, the amendment would still allow all persons to participate in the administrative
proceedings related to development proposals but would limit those who can pursue judicial review.
SITE INSPECTIONS
The second proposed amendment is being presented at the request of several Councilmembers, and
it would amend the Code so as to expresslypermit Councilmembers to inspect the real property that
is the subject of an appeal. At present, the Code limits Council's consideration ofan appeal to the
record of the proceedings before the decision maker, the relevant provisions of the Code and
Charter, and the grounds for appeal cited in the notice of appeal. New evidence is not to be
considered on appeal except when offered in support of or in opposition to an allegation that the
decision maker considered evidence that was substantially false or grossly misleading or when
offered by City staff or parties -in -interest in response to questions presented by Councilmembers.
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The proposed amendment would allow Councilmembers to obtain additional information related
to the appeal by inspecting the site of the development project plan or other proposal that is the
subject of the appeal, and to take that information into consideration when determining the appeal.
Staff is offering several guidelines as to how these site inspections can occur, while still protecting
the due process rights of the parties -in -interest involved in the appeal.
Those proposed guidelines are as follows:
1. If a Councilmember wishes to inspect the site of a project development plan or other
proposal that is the subject of an appeal, he or she could, no later than ten days prior to the
date of the hearing on the appeal, request that the City Manager schedule such inspection.
Upon receipt of such a request, the City Manager would forthwith schedule the inspection
for a date and time when he or she believes that the majority of Council will be able to
attend.
2. No less than five (5) days prior to the date of the hearing on the appeal, the City Clerk would
mail notice of the proposed site inspection to the appellant and to all parties -in -interest to
whom notice of the appeal hearing was sent by the City Clerk under Section 1-54(a).
3. The appellant and such parties -in -interest would be entitled to attend the inspection, along
with any members of City staff whose presence is requested by the City Manager.
4. Any Councilmembers conducting a site inspection under this provision would be required
to state for the record, at the time of the hearing on the appeal, any observations they made
or conversations they had at the site which they believe may be relevant to their
determination of the appeal.
5. The requirements of this provision would not apply to observations made of the site by
Councilmembers during the course of their travels within public rights -of -way adjacent to
the site, but only to site inspections conducted for the express purpose of gathering
additional information that may assist them in determining the appeal. "
City Attorney Roy stated the ordinance contains two parts that could be divided into separate
ordinances. (Secretary's note: referred to in these minutes as Ordinance No. 003A and No. 003B.)
The ordinance addresses proposed amendments to the same chapter and division of the City Code
that refers to appeals to City Council from the decisions of certain other boards, commissions or
decision -makers. The first amendment would differentiate between various parties -in -interest and
their ability to seek judicial review of Council's decision on appeal. The second amendment
addresses the ability of Councilmembers to inspect the site of a project development plan or other
proposal that is the subject of an appeal. The first amendment arises from a decision by the Colorado
Court of Appeals in a recent law suit in which the City was involved in which Patrick Reeves sought
to overturn a Council decision approving a local development project in court in a Rule 106 (4)(a)
action. The City filed a motion to dismiss for lack of standing. Standing is a principle by which the
courts screen cases to determine if a plaintiff (a) has a legally protected interest in the outcome of
the decision and (b) has suffered some injury, in fact. When those two requirements are met, the
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court decides it is not interjecting itself into administrative affairs inappropriately and it is not
deciding a purely academic issue. The Court granted the City's motion to dismiss and the Court of
Appeals overturned that decision. The City did not appeal that decision to the Colorado Supreme
Court. Instead, a provision is now presented to Council that would recognize the applicant, those
who have a legal interest in the site where the development project is proposed and those to whom
the City mailed notice and considered to be directly impacted by the proposal as parties -in -interest
who would receive a legally protected interest so they could seek judicial review to challenge the
legality of the Council's decision. Other parties -in -interest who had chosen to appear before the
decision maker or to send written comments would have the full right to participate in the entire
administrative process, including the Council appeal, but, unless theyhad aright under common law,
would not be allowed to seek judicial review of Council's decision.
Patrick Reeves, 810 Maple Street, stated the proposed change to the City Code seeks to limit the
access of ordinary citizens to the courts in the event of an erroneous Council decision. He asked how
many times judicial review had been requested by citizens. The City defines the extent of the notice
zone so the City would have the sole authority to specify who does or does not have the right to seek
judicial review. He urged Council to vote against this amendment to the City Code.
Councilmember Poppaw asked how many times had judicial review had been requested by citizens.
City Attorney Roy stated Mr. Reeve's case was the only time he could recall that litigation was
brought about by someone outside the notice zone or was not the applicant or had a legal interest in
the project. He noted the Court's opinion stated the City's definition of parties -in -interest was
different from many state statutes. The Court has said the Land Use Code and the Municipal Code,
in combination, include a class of individuals who otherwise might not have a legally protected
interest under common law as well as expands the class beyond those who have such common law
protected interest. Council has the ability to expand the notice zone and to determine, through Code
provisions, who should be able to test the legality of decisions. If Council believes certain situations
required a larger notice zone, it could require additional notice which would expand the group of
people who would be eligible to seek judicial review. The number of lawsuits filed by people who
might not even be residents of the city would probably be quite low.
Councilmember Poppaw asked if expanding the notice zone would need approval from the entire
Council. Cameron Gloss, Current Planning Director, stated a change was made to the Code two
years ago that expanded the notice zone from 500 feet to 800 feet from the application. Some notice
zones are as large as 1000 feet. Staff has the discretion, depending on the situation, to enlarge the
notice zone. He stated staff is diligent about contacting the public when development applications
are received. There is a standard notification area with potential to expand that area. Signs are
posted on the subject property. Neighborhood meetings are required prior to development and staff
often meets with neighborhood groups that are in close proximity to a site. In Mr. Reeve's case, his
neighborhood was far outside the notice zone but staff met with the neighborhood to provide
information. He supported the proposed Code change that was before Council.
Councilmember Poppaw asked under whose direction could the notice zone be expanded and she
questioned how this amendment would not limit citizen participation. City Attorney Roy stated the
Ordinance did limit the category of citizens whom the City believes should be able to challenge a
Council decision in court. It is not limiting the category of persons who can participate in the
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administrative process. The Council could only change the size of the notice zone through changing
the Code requirement. Council could change the requirement to a set number of feet or to set criteria
when the notice zone should go beyond the requirement. Under the current Code, staff has the
discretion to change the size of the notice zone.
Councilmember Manvel asked why participation from citizens outside the notice zone is allowed.
City Attorney Roy stated Council believes the original decision maker and the Council are interested
in hearing a community perspective on site -specific proposals.
Councilmember Manvel noted a citizen bringing forward a lawsuit against the City would seem to
indicate a serious interest and involvement in a project, even if they live far from the project as it is
not easy to bring a lawsuit. City Attorney Roy stated a person who pursues litigation is seriously
interested in the outcome. The question for Council to consider is if a serious interest is the measure
Council should use to confer a legally protected interest on those individuals. Consideration must
given to the potential delay and possible detriment to the City and the particular developer as well
as the rights of the entire community and perhaps people outside the community who are interested
in the outcome.
Councilmember Manvel stated a lawsuit could not be brought by any citizen, but must be brought
by one who participated in the process. City Attorney Roy stated one issue in the litigation brought
by Mr. Reeves was whether or not purely aesthetic interest sufficed for the purposes of injury in fact.
The proposed project was a building that was allegedly taller than should have been approved and
the height of the building would have diminished the desirability of other facilities in the area for
certain citizens, including the plaintiff. The City argued that the Court generally required a more
direct and tangible kind of injury in fact. The Court decided the City had conferred a legally
protected interest on the plaintiff and went on to say the injury in fact is that the decision may have
been arbitrary. It then creates the opportunity for someone, by reason of being a party -in -interest,
to take the City to court, irrespective of the nature of the more tangible injury to a property such as
dust, noise, and traffic, primarily by solely alleging the decision failed to conform to the criteria. It
widens the group of people who can challenge a decision because the Court inflated the two prongs
of criteria. The Court has said that if the City intends to confer legally protected interest on this
group, the Court would not look at whether the injury was economic or aesthetic injury, but would
say the injury criteria was satisfied because the alleged was an unlawful decision. The Court
decision does widen the group of people. While it probably will not open the floodgates of litigation
against the City, if there is a critical development Council has decided is important to the economic
development of the City and Council supports, should that development, or any other development
legitimately be put on hold for a considerable period of time pending the outcome of a suit brought
by someone who does not have a direct stake in the outcome.
Councilmember Manvel noted there has only been one case where someone outside the notice zone
or was not the applicant or had a legal interest in the project brought a lawsuit and he did not believe
it likely there would be others brought in the future.
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Mayor Hutchinson asked if citizen participation would be compromised in any way with this Code
change. City Attorney Roy stated the Code change would not limit anyone's right to address Council
or the lower body. It would limit the right to file a lawsuit.
Mayor Hutchinson stated citizen participation would not be limited in the process but it was logical
to place some restraints on who can bring a lawsuit after an appeal. This limitation is not a violation
of the concept of open government. District voting is one example of limitations placed on voters.
While the entire city may be affected by the vote for a Councilmember in one District, only those
living in the District can actually vote for that Councilmember. City Attorney Roy stated the policy
decisionbefore Council was to determine the balancebetween encouraging widespread participation
in City decision making and expressing an intent that any and all of those persons can challenge
those decisions in court.
Mayor Hutchinson asked in the case cited by the City Attorney, how far did the plaintiff live from
the proposed project. City Attorney Roy stated the plaintiff lived about eight blocks away.
Councilmember Poppaw stated her belief that citizens should be allowed the opportunity to
participate, even to bring a lawsuit, if they have such compelling interest in ensuring the decision
making is done in a way that is fair.
Councilmember Troxell stated citizen participation should be balanced with property rights. The
Code change before Council does correct that balance as it does provide the legally protected interest
for those parties who are the applicant, those who have an interest in the site of development and
those within a defined area around the development. That limitation is important to protect property
rights. The proposed change is abalance between open government and the open process. All things
can be heard, but limiting the ability to bring a lawsuit to those who actually have a protected interest
is an important balance reached by the proposed ordinance.
Councilmember Troxell made a motion, seconded by Councilmember Brown, to adopt Ordinance
003A, 2008, on First Reading, which would place limits on parties -in -interest seeking judicial
review.
Councilmember Ohlson stated citizens should be able to take whatever actions they deem necessary
to change a decision they view as damaging to the community, no matter whether they live in close
proximity to a project or not. The ability of citizens to bring lawsuits provides a checks and balances
on local government and on what is or is not approved and he did not consider that ability should
be limited. He noted the lawsuit that prompted this proposed change concerned a property that had
no residences nearby. He requested that the new Director of Planning, Development and
Transportation examine the notification policy to determine if more notification should be done.
Councilmember Manvel stated the lawsuit that has brought this proposed Code change is a rare
occurrence. He did not want to send the message that Fort Collins, having been sued, wants to close
the door to the rare instance of a person who wants to question a decision. He did not believe there
was a serious barrier to development with the current process and Code. He did not support the
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motion as he did not believe it would stop someone who truly wanted to bring a lawsuit against the
City.
Mayor Hutchinson stated this Ordinance did not close avenues for open government and it is in the
best interest of the City to have these protections.
The vote on the motion was as follows: Yeas: Brown, Hutchinson, Troxell. Nays: Manvel, Ohlson,
Poppaw and Roy.
THE MOTION FAILED.
City Attorney Roy stated the second part of the Ordinance is a proposed amendment to establish a
procedure whereby the Council as a whole or Councilmembers individually, could inspect the site
of project development plan or other kind of proposal that is the subject of an appeal by providing
notice to the City Manager of his/her interest in seeing the site and submitting that notice no less than
ten days before the date of the hearing on the appeal. At that point, the City Manager would
schedule the site inspection for a date and time when he thinks most Councilmembers can attend.
There could be more than one site visit if the date and time could not accommodate everyone.
Notice would be given by the City Clerk to the parties -in -interest who were involved in the appeal
so they, too, could attend. After the inspection, if Councilmembers believed they had seen or heard
something during the inspection that did not appear on the record and they thought it was important
to their deliberations, they would disclose that on the record at the hearing and give the parties -in -
interest an opportunity to respond to what they had seen or heard.
Councilmember Roy made a motion, seconded by Councilmember Poppaw, to adopt Ordinance No.
003B, 2008, on First Reading.
Councilmember Manvel asked if more than one visit could be scheduled if one Councilmember was
unable to attend the proposed site visit. City Attorney Roy stated a second request could be
submitted. The arrangements need to be made as far in advance as possible. City Manager Atteberry
stated it is possible two or three site visits could be planned.
Councilmember Manvel asked if such formal planning and notification was necessary. CityAttorney
Roy stated language is included in the proposed amendment that allows anyone to drive by the site
during their regular travels in the city but the formal planning and notification in this amendment is
necessary to protect the due process rights of the parties -in -interest so that Councilmembers are not
making decisions about appeals based upon observations or conversations unknown to others.
Quasi-judicial decisions are to be based on the record, and other information made available to
everybody in the process. Certain criteria are to be applied. The proposed amendment tries to ensure
that everyone who has an interest in the proposal will know and have an opportunity to speak to the
grounds upon which the Council makes its decision.
Councilmember Manvel asked if the notification requirements were necessary or would submitting
any observations made during a random site visit into the record be sufficient. City Attorney Roy
stated some parties -in -interest might want to see what Councilmembers are seeing and they should
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have an opportunity to be present when Councilmembers make a site visit. The proposed
amendment gives parties -in -interest the same opportunity so they do not have to be concerned at the
hearing of the appeal whether all Councilmembers are remembering and recounting everything they
might have seen or heard that is entering into their decision. The parties -in -interest have an
opportunity to be present when Councilmembers are present and see and hear what Councilmembers
see and hear.
Mayor Hutchinson stated the ten-day notification from Councilmembers is necessary so to allow
time for arrangements to be made and notifications sent and he requested the City Manager ensure
that Councilmembers be made aware of upcoming appeals. City Manager Atteberry stated the City
Clerk will put a notice in Council materials well before the ten day notification deadline that will
remind Councilmembers of the deadline to file a notice of request for a site visit.
The vote on the motion was as follows: Yeas: Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy
and Troxell. Nays: none
THE MOTION CARRIED.
Other Business
Councilmember Roy stated he received a complaint from a citizen regarding violations of the leash
law in Overland Park. He noted the complaint was unsigned and asked that the citizens identify
themselves so that he can address their concerns. City Manager Attebeny indicated he would request
a follow up on the issues in the complaint.
Councilmember Ohlson stated asked for interim solutions for disposal of compact fluorescent lights
as most citizens will not transport used CLFs to the hazardous materials waste site at the landfill.
Alternative disposal solutions need to be discussed.
Councilmember Ohlson asked if it was possible for municipalities to give themselves 1041
regulatory powers, as was suggested in an article in the Coloradoan. If the City had 1041 regulatory
powers, then it could regulate easements on natural areas. He requested a work session on 1041
regulations and what controls can the City exercise over power poles, water lines and easements.
Adjournment
The meeting adjourned at 8:00 p.m. �%�V •
Mayo
ATTEST:
404L �k & A� 64
City Clerk
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