HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 06/14/2011 - SYSTEM FOR APPEALING LAND USE AND OTHER BOARD ANDDATE: June 14, 2011
STAFF: Steve Roy
Karen Cumbo
Pre-taped staff presentation: none
WORK SESSION ITEM
FORT COLLINS CITY COUNCIL
SUBJECT FOR DISCUSSION
System for Appealing Land Use and Other Board and Commission Decisions to the City Council.
EXECUTIVE SUMMARY
Questions have recently been raised by members of the public about the Council’s process for
hearing appeals in quasi-judicial matters such as land use decisions. The purpose of this work
session item is to determine whether that appeal system should be changed. There are two basic
kinds of appeal systems used by Colorado municipalities. Under the first kind of system, Council’s
decision is based solely on the record of the proceedings before the original decision maker. Under
the second kind of system, participants may present new evidence that was not presented to the
original decision maker. The systems also differ in other respects, for example, some limit the
parties who may file appeals or participate in appeal hearings, some specify the grounds upon which
an appeal may be filed, some allow the City Manager or the City Council to appeal a decision, etc.
Staff is seeking Council direction as to whether and how Council wishes to change the appeal
process that the City currently uses.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
1. Should the current system for appealing land use and other quasi-judicial decisions to the
City Council be changed?
2. If so, which parts of the system are problematic?
BACKGROUND / DISCUSSION
For the last 25 years or so, Fort Collins has had a system for appealing land use and other quasi-
judicial decisions1 to the City Council that is much like the system used by the courts. Under this
system, the following rules apply:
• The appeal is based on the record of the proceedings before the board or commission or
hearing officer (“decision maker”) that made the initial decision. Therefore, the introduction
of new evidence at the hearing is prohibited unless it is offered:
1
Chapter 2, Article II, Division 3 of the City Code establishes a procedure for appealing to the City Council “final
decisions” of the following: the Building Review Board; the Fire Board of Appeals; the Landmark Preservation
Commission; the Planning and Zoning Board; a “decision maker” under the provisions of Section 2.2.12 of the Land Use
Code; the Water Board; and the Zoning Board of Appeals.
June 14, 2011 Page 2
(1) to support or refute an allegation that the decision maker considered evidence
relevant to its findings that was substantially false or grossly misleading;
(2) by staff or parties-in-interest in response to questions presented by Councilmembers;
or
(3) by Councilmembers to explain any observations they made during an inspection of
the property that is the subject of the appeal.
• Except for appeals filed by Councilmembers, the grounds for the appeal must fit into either
of two general categories—that the decision maker failed to conduct a fair hearing; or that
the decision maker failed to properly interpret and apply the relevant provisions of the Code
or Charter.
• Participation in the appeal process is limited to “parties-in-interest” who are directly affected
by the decision. These include the applicant; any person who has a legal interest in the
property that is the subject of the appeal; any person to whom the City sent notice of the
hearing before the decision maker; any person who sent written comments to the decision
maker prior to the decision being made; any person who appeared at the hearing; and the
Council itself, as represented by the request of a single Councilmember.
• “Ex parte” communications (communications with the Council or individual
Councilmembers prior to the hearing without notice to other parties) are to be avoided.
• During the appeal hearing, the Mayor establishes certain time limits for presentations, and
the parties-in-interest are given an opportunity to rebut one another’s comments.
• At the conclusion of the appeal hearing, the Council has several options available to it. It
may uphold, overturn or modify the decision, or it may remand the matter to the decision
maker for consideration of any additional information about an issue raised on appeal. If the
Council finds that the decision maker failed to conduct a fair hearing, then the Council must
remand the matter for a new hearing.
• The hearing process is concluded by Council’s adoption of a resolution formalizing its
decision. The date of passage of the resolution is to be no later than the next regular meeting
following the appeal hearing.
Recently, some citizens who have participated in the appeal process have expressed frustration about
the legalistic nature of the process and, in particular, their inability to communicate with their
Councilmembers about the appeal prior to the hearing via email, letters, phone calls or comments
under the citizen participation segment of the Council meetings.
The constitutional principle of procedural due process requires that quasi-judicial proceedings such
as appeal hearings be fundamentally fair to the parties whose rights will be directly affected by the
outcome of the proceedings. The courts have held that the process used must include:
June 14, 2011 Page 3
• notice to affected parties;
• an opportunity to be heard at a hearing;
• a decision based solely on evidence at the hearing and the relevant criteria established by
existing law;
• an impartial decision maker.
Both the Land Use Code and the City Code discourage attempts to communicate with decision
makers in quasi-judicial proceedings. (See Section 2.1.2(I) of the Land Use Code.) The reason for
this is twofold. First, the Code states that new evidence should not be considered on appeal and off-
the-record communications with the Council generally include “new evidence” that wasn’t in the
record before the Board; and secondly the communications may compromise the Council’s
impartiality by introducing considerations other than those listed as criteria with the Land Use
Code.
Some of the other municipalities in Colorado use a de novo hearing process for the appeal of quasi-
judicial decisions to the City Council. A de novo hearing is simply a new hearing that is conducted
as if the original hearing had not taken place. Attached are copies of appeal systems used by four
other municipalities (Loveland, Telluride, Thornton, and Westminster), together with a matrix that
illustrates some of the differences between those systems and the Fort Collins system.
In staff’s view, the pros and cons of returning to a de novo hearing for land use decisions are as
follows:
Pros:
1. Letters sent to the Council by parties-in-interest prior to the hearing would be permissible,
even if they contained new information, as long as they were made part of the record at the
hearing.
2. The hearing process would be simpler and less legalistic.
Cons:
1. The hearings before the Council would likely be considerably longer.
2. The hearings before the City Council may become more numerous if the hearing before the
original decision maker is viewed as just a “stop along the way” to the “real” hearing before
the Council.
STAFF RECOMMENDATION
Staff believes that either the existing system, a modified version of that system, or a de novo system
would be acceptable from a management perspective and would be legally defensible if properly
implemented. The choice between the two kinds of systems depends primarily upon the role that
Council wishes to play in the decision making process.
June 14, 2011 Page 4
ATTACHMENTS
1. Comparison of Appeals Systems Used by Four Colorado Municipalities
2. Fort Collins, Loveland, Thornton, Telluride and Westminster models
3. Powerpoint presentation
Fort Collins Loveland Telluride Thornton Westminster
Type of Hearing On Record De Novo On Record De Novo De Novo
Who can appeal
Applicant, owner of
subject property,
persons on mailing list,
persons who
communicated in writing
or at the hearing with
board, council
Appellant, persons on
mailing list, planning
director, person who
communicated in writing
or at hearing with board,
council
Applicant, owner or
lessee of property within
150 feet of subject
property, town
manager, any person
who has "standing" to
litigate, council
Any interested person,
applicant, any affected
party, council
Applicant, persons on
mailing list, persons
who communicated in
writing or at the hearing
with board, city
manager, council
Number of
Councilmembers to
Appeal
One Two Two One Four
Planning & Zoning
Board members as
appellants
No Yes No No (Silent)
Who may participate
in appeal hearing
Applicant, appellants,
staff, opposing /
supporting parties in
interest
Appellant, appellants,
staff, opposing /
supporting parties in
interest, public
(Silent)
Presumably all who can
appeal, staff
(Silent)
Presumably all who can
appeal, staff, public
(Silent)
Presumably all who can
appeal, staff, public
Councilmember
Fort Collins Loveland Telluride Thornton Westminster
Description of
harm/damages
required in notice of
appeal
No No Yes No No
Record on appeal All tangible evidence,
transcript, video tape
All tangible evidence,
summary minutes or
video tape
All tangible evidence,
minutes None (Silent)
Council options at
Hearing
Uphold, overturn,
modify, remand
Uphold, reverse,
modify, remand
Affirm, reverse, remand,
apply conditions
Uphold, overturn,
amend, remand (Silent)
Super majority
required to overturn
decision
No No Yes No No
Appellant pays for
transcript/record
No (but a $100 fee is
charged)
No (but an appeal fees
is charged) Yes (Silent) (Silent)
Comparison of Appeals Systems Used by Four Colorado Municipalities
2
1
1
SYSTEM FOR APPEALING LAND USE
DECISIONS TO THE CITY COUNCIL
June 14, 2011
Steve Roy, City Attorney
2
Question Presented
Should the Council’s system for hearing
appeals of quasi-judicial matters be
changed and, if so, how?
ATTACHMENT 2
2
3
Quasi-judicial proceeding
“Quasi-judicial proceeding” is one in
which the rights of a particular party are
determined by receiving facts at a hearing
and applying existing law to the facts to
reach a decision.
4
Legal requirements for quasi-judicial
proceedings:
• Notice to affected parties
• Hearing at which parties can be heard.
• Decision based solely on evidence at
hearing and relevant criteria.
• Impartial decision maker
3
5
Council acts as “judge” rather than
lawmaker.
6
Current system specifies:
• Parties who can appeal;
• Grounds for appeal;
• Parties who can participate in appeal
hearing;
• Evidence that may be considered (only
evidence that was offered to original
decision maker)
4
7
Ex parte contacts are discouraged
Ex parte contact is one made outside
of the hearing and without notice to
other parties.
8
Some other cities use de novo appeal
system
• Entirely new hearing
• New evidence permissible
• Written letters permissible: become part of
the record.
5
9
De novo hearing
• Pros:
– less legalistic;
– letters to Council permissible and
made part of the record.
• Cons:
– hearings will be longer and possibly
more numerous.
– may diminish the role of original
decision maker.
10
Direction sought
• Should the current system be changed?
• If so, how?
participation in
hearing if they are
appealing
No (Silent)
Councilmembers with
"predisposition or
conflict" not allowed to
participate
Yes (Silent)
Grounds for appeal Particular grounds
required
Particular grounds
required
Grounds must include
citation of specific
sections of land use
code
No grounds required
Appellants need only
show that they are
"parties in interest"
Comparison of Appeals Systems Used by Four Colorado Municipalities
ATTACHMENT 2
1