HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/16/2006 - ITEMS RELATING TO THE AMENDMENT OF THE APPEALS PRO ITEM NUMBER: 31 A-C
AGENDA ITEM SUMMARY DATE: May 16, 2006
FORT COLLINS CITY COUNCIL STAFF: Steve Roy
Greg Byrne
SUBJECT
Items Relating to the Amendment of the Appeals Process Contained in Chapter 2, Article II,
Division 3 of the City Code.
RECOMMENDATION
Staff recommends adoption on First Reading of Ordinance No. 088, 2006, adoption of Option #2
of Ordinance No. 089, 2006, and adoption of any of the three optional versions of Ordinance No.
090, 2006.
EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 088, 2006, Making Various Amendments to Chapter 2,
Article II Division 3 of the City Code Pertaining to the Appeals Process.
B. First Reading of Ordinance No. 089, 2006, Amending Chapter 2, Article 11, Division 3 of
the City Code with Regard to the Grounds upon which Appeals to the City Council are
Decided.
C. First Reading of Ordinance No. 090, 2006, Amending Chapter 2, Article II, Division 3 of
the City Code Pertaining to the Filing of Appeals by Members of the City Council.
Ordinance No. 088, 2006,makes various amendments to the appeals process that are perceived to
be non-controversial.
Ordinance No. 089, 2006, (Options 1 and 2)pertains to the basis for Council's decision on appeal.
Option#1 would retain the existing provision that limits the grounds to those stated in the notice of
appeal and eliminates the opportunity for Councilmembers to add additional issues prior to the
appeal. Option#2 would allow the Council to address issues relevant to the appeal even if they were
not raised by the appellant in the notice of appeal.
Ordinance No.090,2006,(Options 1,2 and 3)pertains to appeals filed by Councilmembers. Option
#1 would eliminate the ability of Councilmembers to file an appeal. Option #2 would retain
Councilmembers'ability to file an appeal and states that the fact that a Councilmember has filed an
appeal does not, in itself, prevent the Councilmember from participating in hearing the appeal.
Option#3 again retains Councilmembers' ability to file an appeal but states that a Councilmember
who does so should not participate in hearing the appeal.
May 16, 2006 -2- Item No. 31 A-C
One other possible change discussed at the work session on April 11, 2006, that is not included in
these ordinances is a proposed amendment that would eliminate the ability of members of the
general public to file an appeal or participate in the hearing of an appeal. The City Attorney is
recommending consideration of that proposed amendment be postponed pending the outcome of a
civil action in the local District Court in which the Court is expected to address the question of
whether members of the general public have standing to contest City Council's site-specific land use
decisions in court.
BACKGROUND
At the work session on April 11, 2006, Council considered several proposed amendments to the
process contained in Chapter 2,Article II, Division 3 of the City Code pertaining to appeals to the
Council. At the conclusion of the discussion, Council directed staff to prepare several ordinances
that would allow Council to first adopt those changes that were perceived as noncontroversial and
fairly routine in nature,and then consider options relating to certain other changes. Toward that end,
staff has prepared three ordinances for Council's consideration.
Ordinance No.088,2006,Making Various Amendments to Chapter 2,Article II Division 3 of
the Code of the City of Fort Collins Pertaining to the Appeals Process.
This ordinance would:
• add a definition of evidence;
• limit the submission of written materials prior to the appeal hearing to those
materials that are relevant to allegations that the decision maker considered evidence
relevant to its findings which was substantially false or grossly misleading;
• discourage ex-parte contacts on the part of Councilmembers prior to hearing an
appeal;
• state that, if Council remands the matter for rehearing, such remand shall include
direction as to the scope of the rehearing.
Ordinance No. 089,2006,Amending Chapter 2,Article II,Division 3 of the Code of the City
of Fort Collins with Regard to the Grounds upon which Appeals to the City Council are
Decided.
This ordinance presents two options relating to the scope of the appeal hearing. At present,the Code
states Council's decision on appeal will be based upon the record on appeal,the relevant provisions
of the Code and Charter, the grounds for appeal cited in the notice of appeal and any additional
issues identified by a member of the City Council at least seven calendar days prior to the date of
the hearing. Staff believes this provision unduly limits the scope of the appeal and prevents Council
from addressing issues relevant to the appeal that might not have been raised by the appellant. Two
options are presented for Council's consideration. Both would eliminate the need for Council
members to identify additional issues prior to the appeal hearing.
Option#1 would continue to limit the scope of Council's review to the grounds stated in the notice
of appeal.
May 16, 2006 -3- Item No. 31 A-C
Option #2 would allow the Council to raise additional issues at the appeal hearing even if those
issues have not been raised by the appellant in the notice of appeal. Staff recommends adoption of
Option #2.
Ordinance No. 090,2006,Amending Chapter 2,Article II, Division 3 of the Code of the City
of Fort Collins Pertaining to the Filing of Appeals by Members of the City Council.
This ordinance deals with appeals filed by Councilmembers.
Option #1 would eliminate the ability of Councilmembers to file appeals. Option #2 would
continue to allow for the filing of appeals by Councilmembers and would allow Councilmembers
who file a notice of appeal to still participate in the appeal hearing unless other circumstances exist
which call into question the impartiality of the Councilmembers. Option #3 would continue to
allow Councilmembers to file appeals and would require Councilmembers who do so to refrain from
participating in the appeal hearing.
One other change that had been recommended by staff prior to the work session was to eliminate
the ability of members of the general public to file an appeal or to participate in an appeal hearing.
Staff based this recommendation on their opinion that the appeal process should be reserved to those
parties-in-interest who are more directly affected by the decision in question than members of the
general public. Staff is recommending Council postpone consideration of this proposed amendment
pending the outcome of a lawsuit in the Larimer County District Court where the Court is
considering the City's motion to dismiss based upon the plaintiffs lack of standing. Staff believes
the Court's ruling may alleviate the need to consider this Code change if it appears from the ruling
that granting a member of the public the right to file an appeal to Council and participate in the
appeal hearing does not necessarily give that person standing to challenge the Council's decision in
Court.
At the work session, Council also directed the City Attorney to consult with other Front Range
municipalities regarding their appeals process in order to see how those municipalities deal with
some of the issues addressed at the Work Session. Four municipalities responded to staffs inquiry.
The appeal procedures in those municipalities vary widely as to whether appeal hearings are based
on the record or are "de novo" (entirely new hearings); whether the record on appeal can be
supplemented by additional evidence at the appeal hearing; whether participation is open to any
member of the public or limited to the applicant and abutting property owners;and whether Council
members can appeal (or is "call up for review") decisions of boards and commissions.
ORDINANCE NO, 088, 2006
OF THE COUNCIL OF THE CITY OF FORT COLLINS
MAKING VARIOUS AMENDMENTS TO CHAPTER 2, ARTICLE II
DIVISION 3 OF THE CODE OF THE CITY OF FORT COLLINS
PERTAINING TO THE APPEALS PROCESS
WHEREAS , Chapter 2, Article II, Division 3 of the City Code establishes a procedure
whereby the final decisions of boards, commissions and other decision makers can be appealed to
the City Council ; and
WHEREAS , the Council recently considered at a work session certain proposed changes to
that appeals process that have been recommended by City staff; and
WHEREAS , after considering those recommendations, the Council has determined that the
changes provided for below would help clarify the appeals process and make it more understandable
to the general public and would also increase the efficiency of the appeals process .
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows :
Section 1 . That Section 2-46 of the Code of the City of Fort Collins is hereby amended
to add a definition of "evidence, " to read as follows :
Evidence shall mean any legally probative information, whether verbal, written,
graphic or otherwise, presented at the hearing to support or refute a particular
proposition or conclusion. Evidence shall not include argument as to how
information offered as evidence should be viewed by the City Council .
Section 2 . That Section 2-54(b) of the Code of the City of Fort Collins is hereby amended
so as to read in its entirety as follows :
Sec. 2 -54. Scheduling of the hearing.
(b) Any written materials that any party-in-interest may wish the City Council
to consider in deciding the appeal and that fall within the exception to new evidence
contained in § 2- 56(b)( 1 ) shall be submitted to the City Clerk no later than 12 : 00
p.m. on the Wednesday immediately preceding the date upon which the hearing on
the appeal is scheduled to be held. Such materials shall then be included by the City
Clerk in the agenda materials pertaining to the appeal.
Section 3 . That Chapter 2, Article II, Division 3 of the Code of the City of Fort Collins
is hereby amended by the addition of a new Section 2-55 which shall read in its entirety as follows,
with all subsequent sections in said Division to be renumbered accordingly:
Sec. 2-55. No ex parte contacts .
In order to afford all parties-in-interest a fair opportunity to respond to the
information upon which the City Council is to base its decision on appeal, and in
order to preserve the impartiality of Councilmembers hearing the appeal, all
Councilmembers who intend to participate in hearing the appeal shall, to extent
reasonably possible, avoid communications with parties-in-interest and members of
the general public regarding the merits of the appeal prior to the hearing on the
appeal.
Section 4 . That Section 2-56(d)(2) of the Code of the City of Fort Collins is hereby amended
so as to read in its entirety as follows :
Sec. 2-59. New evidence ; scope of review; alternative actions available to
the City Council; date of final action.
(d) At the conclusion of such hearing, the City Council shall uphold, overturn
or modify the decision of the board, commission or other decision maker; provided,
however, that:
( 1 ) The City Council shall instead remand the matter for rehearing if it finds
that the appellant was denied a fair hearing before the board, commission
or other decision maker for any of the reasons stated in Paragraph 2-48 (2) .
(2) The City Council may also remand the matter for rehearing in order for the
board, commission or other decision maker to receive and consider
additional information with regard to any issue raised on appeal. Any such
remand shall include direction from the City Council to the board,
commission or other decision maker as to the issues to be considered at the
re-hearing.
Introduced, considered favorably on first reading, and ordered published this 16th day of
May, A.D . 2006, and to be presented for final passage on the 6th day of June, A.D . 2006 .
Mayor
ATTEST :
City Clerk
Passed and adopted on final reading on the 6th day of June, A.D . 2006 .
Mayor
ATTEST :
City Clerk
ORDINANCE NO, 089, 2006
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 2, ARTICLE II, DIVISION 3 OF THE CODE
OF THE CITY OF FORT COLLINS WITH REGARD TO THE GROUNDS
UPON WHICH APPEALS TO THE CITY COUNCIL ARE DECIDED
WHEREAS , Chapter 2 , Article II, Division 3 of the City Code establishes a procedure
whereby the final decisions of boards, commissions and other decision makers can be appealed to
the City Council ; and
WHEREAS , the Council recently considered at a work session certain proposed changes to
that appeals process that have been recommended by City staff; and
WHEREAS , one of the recommended changes had to do with the grounds upon which
Council decides appeals under Section 2-56(a) of the Code ; and
WHEREAS , after considering alternative ways in which the above-referenced Code section
might be amended, Council has determined that (Option # 1 ) the language in the Code should be
amended to clarify that issues not raised in the notice of appeal should not be considered by the
Council in deciding the appeal (or Option #2) in hearing an appeal, the Council should be at liberty
to consider all issues relevant to the appeal, whether or not such issues were raised by the appellant
in the notice of appeal.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Section 2-56(a) of the Code of the City of Fort Collins is hereby amended to read
as follows :
OPTION #1
(a) The City Council shall consider an appeal based upon the record on appeal,
the relevant provisions of the Code and Charter, and the grounds for appeal cited in
the notice of appeal and any additional issues identified by a member of the eity
eouncii prior to the hearing. Any such additional issues nmst be identified in writing
and filed with the eity elerk no later than seven (7) calendar days prior to the dat�t
of the hearing. Issues not raised in the notice of appeal shall not be considered by
the City Council in deciding the appeal.
OPTION #2
(a) The City Council shall consider an appeal based upon the record on appeal
and the relevant provisions of the Code and Charte ,
the notice of appeal mid any additional issues identified by a member of the ei
eouncii prior to the hearing. Any such additional issues nmst be identified in writin 6g
and filed with the eity elerk no later than seven (7) calendar days prior to the dat�a
of the hearit . Issues relevant to the appeal may be addressed by the City Council
at the hearing on the appeal whether or not such issues were raised by the
appellant(s) in the notice of appeal.
Introduced, considered favorably on first reading, and ordered published this 16th day of
May, A.D . 2006, and to be presented for final passage on the 6th day of June, A.D . 2006 .
Mayor
ATTEST :
City Clerk
Passed and adopted on final reading on the 6th day of June , A . D . 2006 .
Mayor
ATTEST :
City Clerk
ORDINANCE NO, 090, 2006
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 2, ARTICLE II, DIVISION 3
OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO
THE FILING OF APPEALS BY MEMBERS OF THE CITY COUNCIL
WHEREAS , Chapter 2, Article II, Division 3 of the City Code establishes a procedure
whereby the final decisions of boards, commissions and other decision makers can be appealed to
the City Council ; and
WHEREAS , the Council recently considered at a work session certain proposed changes to
that appeals process that have been recommended by City staff; and
WHEREAS, among the changes recommendedby staff is clarification of the Code provision
pertaining to appeals filed by members of the City Council; and
WHEREAS , after considering various alternative ways in which the provisions of the Code
may be changed in this regard, the Council has determined that (Option # 1 ) the ability to file appeals
should be limited to parties-in-interest other than the City Council or (Option #2) the Code should
be clarified to expressly state that Council members filing an appeal may still participate in the
hearing of an appeal or (Option #3 ) Council members filing an appeal should not participate in the
hearing of the appeal .
OPTION #1
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows :
Section 1 . That the definition of "Party-in-interest" contained Section 2-46 of the Code
of the City of Fort Collins is hereby amended to read as follows :
Party-in-interest shall mean a person who or organization which has standing to
appeal the final decision of a board, commission or other decision maker. Such
standing to appeal shall be limited to the following :
( 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 eity eotnicii as represented by the request of a single nicillber -Of
Section 2 . That Section 2-48(b) of the Code of the City of Fort Collins is hereby
amended to read as follows :
(b) Except for appeals by menarbers of the eity eouncil, ttThe permissible
grounds for appeal shall be limited to allegations that the board, commission or other
decision maker committed one ( 1 ) or more of the following errors :
( 1 ) Failure to properly interpret and apply relevant provisions of the Code and
Charter.
(2) Failure to conduct a fair hearing in that:
a. The board, commission or other decision maker exceeded its
authority or jurisdiction as contained in the Code or Charter;
b . The board, commission or other decision maker substantially ignored
its previously established rules of procedure ;
c . The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant.
fbr appeal, but shall include a general description of the issues to be considere
on appeal . Upon the filing of any such appeal, the director of the aff�eted ei
SCIVICC a-Ra Shall identif the specific eode provisions that may pertain to the
issues raised by such appeal and shall provide such information to the eity eler
prior to the diate that the notice of hearing on the appeal is to be maited by-the
Appeaf s filed by members of the eity eouncit need not in6ade specific groi
eity elerk to parfies-in-interest under § 2-54. Said information shall the
mailed to the parties-in-interest together with the notice of he i �
Section 3 . That Section 2-49 of the Code of the City of Fort Collins is hereby amended
to read as follows :
An appeal shall be taken by filing a notice of appeal of the final decision of a
board, commission or other decision maker to which this Division applies with the
City Clerk within fourteen ( 14) days after the action which is the subject of the
appeal. Such notice of appeal shall be signed by all appellants and shall include the
following :
( 1 ) The action of the board, commission or other decision maker which is the
subject of the appeal;
(2) The date of such action;
(3 ) The name, address, telephone number and relationship of each appellant to
the subject of the action of the board, commission or other decision maker;
and
(4) For all appeals except those filed by members of eity , The
grounds for the appeal, including specific allegations of error and a
summary of the facts contained in the record on appeal which support those
allegations ; and
(5 ) In the case of an appeal by more than one ( 1 ) appellant, the name, address
and telephone number of one ( 1 ) such appellant who shall be authorized to
receive, on behalf of all appellants, any notice required to be mailed by the
City to the appellants under the provisions of § 2-50 .
Section 4. That Section 2-52 of the Code of the City of Fort Collins is hereby amended
to read as follows :
Sec. 2-52. Cost of appeal.
in all appeals except those filed by members of the eity , The appellant
shall be charged a fee of one hundred dollars ($ 100 . ) for the cost of the appeal, to be
paid to the City Clerk at the time of the filing of the notice of appeal .
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OPTION #2
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Section 2-48 of the Code of the City of Fort Collins is hereby amended to read as
follows :
Sec. 2 -48. Appeal of final decision permitted; effect of appeal ; grounds for
appeal.
(a) A party-in-interest may appeal to the City Council the final decision of any
board, commission or other decision maker to which this appeal procedure applies
in the manner provided in this Division. Any action taken in reliance upon any
decision of a board, commission or other decision maker that is subject to appeal
under the provisions of this Division shall be totally at the risk of the person(s)
taking such action until all appeal rights related to such decision have been
exhausted, and the City shall not be liable for any damages arising from any such
action taken during said period of time.
(b) Except for appeals by members of the City Council, the permissible
grounds for appeal shall be limited to allegations that the board, commission or other
decision maker committed one ( 1 ) or more of the following errors :
( 1 ) Failure to properly interpret and apply relevant provisions of the Code and
Charter.
(2) Failure to conduct a fair hearing in that:
a. The board, commission or other decision maker exceeded its
authority or jurisdiction as contained in the Code or Charter;
b . The board, commission or other decision maker substantially ignored
its previously established rules of procedure ;
c . The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant.
(c) Appeals filed by members of the City Council need not include specific
grounds for appeal, but shall include a general description of the issues to be
considered on appeal. Upon the filing of any such appeal, the director of the affected
City service area shall identify the specific Code provisions that may pertain to the
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issues raised by such appeal and shall provide such information to the City Clerk
prior to the date that the notice of hearing on the appeal is to be mailed by the City
Clerk to parties-in-interest under § 2-54 . Said information shall then be mailed to the
parties-in-interest together with the notice of hearing. The fact that a
Councilmember has filed a notice of appeal on behalf of the City Council shall not,
in itself, disqualify such Councilmember from participating in hearing the appeal.
OPTION #3
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Section 2-48 of the Code of the City of Fort Collins is hereby amended to read as
follows :
Sec. 2-48. Appeal of final decision permitted ; effect of appeal; grounds for
appeal.
(a) A party-in-interest may appeal to the City Council the final decision of any
board, commission or other decision maker to which this appeal procedure applies
in the manner provided in this Division. Any action taken in reliance upon any
decision of a board, commission or other decision maker that is subject to appeal
under the provisions of this Division shall be totally at the risk of the person(s)
taking such action until all appeal rights related to such decision have been
exhausted, and the City shall not be liable for any damages arising from any such
action taken during said period of time.
(b) Except for appeals by members of the City Council, the permissible
grounds for appeal shall be limited to allegations that the board, commission or other
decision maker committed one ( 1 ) or more of the following errors :
( 1 ) Failure to properly interpret and apply relevant provisions of the Code and
Charter.
(2) Failure to conduct a fair hearing in that:
a. The board, commission or other decision maker exceeded its
authority or jurisdiction as contained in the Code or Charter;
b . The board, commission or other decision maker substantially ignored
its previously established rules of procedure ;
c . The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
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d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant.
(c) Appeals filed by members of the City Council need not include specific
grounds for appeal, but shall include a general description of the issues to be
considered on appeal. Upon the filing of any such appeal, the director of the affected
City service area shall identify the specific Code provisions that may pertain to the
issues raised by such appeal and shall provide such information to the City Clerk
prior to the date that the notice of hearing on the appeal is to be mailed by the City
Clerk to parties-in-interest under § 2-54. Said information shall then be mailed to the
parties-in-interest together with the notice of hearing. Councilmembers who file an
appeal shall not participate in hearing the appeal.
Introduced, considered favorably on first reading, and ordered published this 16th day of
May, A.D . 2006, and to be presented for final passage on the 6th day of June, A. D . 2006 .
Mayor
ATTEST :
City Clerk
Passed and adopted on final reading on the 6th day of June, A . D . 2006 .
Mayor
ATTEST :
City Clerk
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