HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 06/06/2006 - ITEMS RELATING TO THE AMENDMENT OF THE APPEALS PRO ITEM NUMBER: 32 A-C
AGENDA ITEM SUMMARY DATE: June 6, 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 of the Ordinances on Second Reading.
EXECUTIVE SUMMARY
A. Second 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. Second Reading of Ordinance No. 089,2006,Amending Chapter 2,Article II,Division 3 of
the City Code with Regard to the Grounds upon which Appeals to the City Council are
Decided.
C. Second 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.
adopted on First Reading on May 16 2006 makes various
Ordinance No. 088 2006,unanimouslyg y >
P
amendments to the appeals process that are perceived to be non-controversial.
Ordinance No. 089, 2006, pertains to the basis for Council's decision on appeal and retains 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. This Ordinance was
adopted on First Reading on May 16, 2006 with a vote of 5-2 (Nays: Manvel, Roy).
Ordinance No.090,2006,pertains to appeals filed by Councilmembers. It retains Councilmembers'
ability to file an appeal but states that Councilmembers who do so should not participate in deciding
the appeal, although they may participate in the appeal hearing in the same manner as other
appellants. This Ordinance was adopted on First Reading,with amendments,on May 16,2006 with
a vote of 5-2 (Nays: Ohlson, Roy).
ITEM NUMBER: 31 A-C
AGENDA ITEM SUMMARY DATE: May 16, 2006
FORT COLLINS CITY COUNCIL STAFF: Steve Roy
Greg Byrne
SUBJECT ri C) PY,
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 Ordieceodeting
in (popueals
s Amendments to Chapter 2,
Article 11 Division 3 o to th Process.
B. First Reading of Ordinance No. 089, 2006, Amending Chapter 2, Article II, 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.
and 2 pertains to the basis for Council's decision on
Ordinance No. 089, 2006, (Options 1 )p 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 alloCnotlic
nc' d to the appeal even if they were
not raised by the appellant in appeOrdinance No.090,2006,(Op14� rt ' py
d 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.
but states that a Councilmember
Option#3 again retains Councilmembers ability to file an appeale
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 op o ned pending the outcome of a
civil action in the local Distri Co whic th C i ected to address the question of
whether members of the gener ublic h e st in to contes ity 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 ed n
• P Y
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 appea it be uP
rd appeal,the relevant provisions
of the Code and Charter, the and f app c no ce of appeal and any additional
issues identified by a member the Ci Cou 1t se calendar days prior to the date of
thehearing. Staff believes this vis' n du i sco 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,A endin apte rt a ision 3 of the Code of the City
of Fort Collins Pertaining to of A e y Me ers 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. Staffis recomme o oRyint '
n of this proposed amendment
pending the outcome of a la suit i e Lt Court where the Court is
considering the City's motion dismiss ased ck of standing. Staff believes
the Court's ruling may alleviate dd ige 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 staff s 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 in verbal,
written, graphic or otherwi-se form, 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---562-57(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 party 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 the 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 new Section 2-57(d)(2) of the Code of the City of Fort Collins is hereby
amended so as to read in its entirety as follows :
Sec. 2-57 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 , on May 16 , 2006, the Council approved on first reading Ordinance No . 088 ,
2006, which would add a new Section 2-55 to the Code and renumber all subsequent sections in
Chapter 2 , Article II, Division 3 accordingly; and
WHEREAS , one of the recommended changes had to do with the grounds upon which
Council decides appeals under Section 2---562-57(a) of the Code; and
WHEREAS , after considering alternative ways in which the above-referenced Code section
might be amended, Council has determined that the language in the Code should be amended to
eliminate the ability of Councilmembers to identify, prior to the appeal hearing, additional issues
not raised in the notice of appeal and to clarify that issues not raised in the notice of appeal should
not be considered by the Council in deciding the appeal .
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Section 2-57(a) of the Code of the City of Fort Collins is hereby amended to read
as follows :
(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. Issues not raised in the notice of appeal shall not be considered
by the City Council in deciding 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
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 the Code should be clarified to
expressly state that Councilmembers filing an appeal should not participate in deciding the appeal,
although they may participate in the appeal hearing in the same manner as other appellants .
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 aboard, commission or other decision maker that is subj ect 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 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 deciding the appeal. Such Councilmembers
may, however, participate in the appeal hearing in the same manner as other
appellants, notwithstanding the provisions of Section 2-568 (c)(2) .
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