HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/04/2011 - FIRST READING OF ORDINANCE NO. 131, 2011, AMENDINGDATE: October 4, 2011
STAFF: Steve Roy
Karen Cumbo
AGENDA ITEM SUMMARY
FORT COLLINS CITY COUNCIL 17
SUBJECT
First Reading of Ordinance No. 131, 2011, Amending the Appeals Procedure Contained in Chapter 2, Article II,
Division 3 of the City Code Relating to the Procedures for Hearing Appeals to the City Council.
EXECUTIVE SUMMARY
This Ordinance makes several changes to the way in which appeals to the City Council are handled. The changes
are in response to concerns and suggestions of persons who have participated in recent land use appeals, and to
direction provided by the City Council at a Council work session. The changes deal with the following topics: the
scheduling of the appeal hearing; the ability of Councilmembers who file an appeal to participate in hearing the appeal;
the ability of opponents of an appeal to present their views in writing in addition to presenting argument at the hearing;
the manner in which site visits are conducted; the submission of written materials to the Council; and expanding the
group of persons who can participate in appeal hearings.
BACKGROUND / DISCUSSION
Chapter 2, Article II, Division 3 of the City Code establishes a procedure whereby the final decisions of certain boards
and commissions and other decision makers can be appealed to the City Council. Most frequently, this appeal process
is used for considering appeals from the decisions of the Planning and Zoning Board or the City’s administrative
hearing officer on applications for approval of land use proposals. Over the recent past, parties on both sides of the
appeal process have expressed concerns about the process and have suggested ways in which it could be improved.
On June 14, 2011, at a City Council work session, the Council considered a number of these issues, including the
possibility of establishing a “de novo” appeal process in place of the existing “on the record” appeal process. Under
a de novo process, the Council would conduct an entirely new hearing on the matter that had been decided by the
initial decision maker rather than limiting the evidence at the appeal hearing to the record that was established at the
hearing before the initial decision maker. At the conclusion of the work session discussion, the Council indicated a
preference for retaining the current appeal process but making several revisions. The proposed revisions to be
included in this Ordinance were the following:
• eliminating the current provision that prevents Councilmembers who file an appeal from participating in
hearing the appeal;
• expanding the period of time within which the hearing on an appeal must be scheduled; and
• expanding the group of persons who are entitled to speak at an appeal hearing to include members of the
general public.
Those changes are included in the proposed Ordinance. In addition, City staff has recommended the following
additional changes:
• creating an opportunity for parties opposed to an appeal to file a statement in opposition to the appeal;
• clarifying the extent to which new evidence may be contained in written materials presented to the Council
prior to the hearing and in presentations made at the hearing;
• clarifying the purpose and procedure for conducting inspections of the site that is the subject of an appeal.
The primary purpose behind allowing opponents of an appeal to file a written statement in opposition to the appeal
is to give the parties on both sides of the appeal early notice of the other party’s position. In that way, the parties can
October 4, 2011 -2- ITEM 17
better prepare and focus their remarks at the appeal hearing. This change should also shorten the time needed at
the appeal hearing for the parties to make their oral presentations, especially in the case of appeals that are complex
in nature.
STAFF RECOMMENDATION
Staff is supportive of all of the proposed changes with the exception of expanding participation in the appeal process
to allow comment at the appeal hearing by members of the general public in addition to parties-in-interest. Staff is
concerned about that proposal for several reasons.
First, the City’s decision whether to approve a land use proposal is made through a “quasi judicial” process in which
the decision maker (both the initial decision maker and the City Council), determine the rights of particular parties who
are directly and immediately affected by the proposal. The decision must be based upon established criteria. Those
who have been involved in the process prior to the Council appeal hearing and who are directly affected by a
development proposal are more likely to focus their remarks on the facts in the record and the relevant criteria rather
than on general policy consideration.
Second, the City Code already defines “parties-in-interest” to include not only the applicant, the interest holder in the
property that is the subject of the application, and those who live close to the site, but also those members of the
general public who sent comments to the initial decision maker or appeared at the hearing before the initial decision
maker. Thus, the general public is already able to participate in the process for reviewing land use applications.
Third, allowing the general public to speak at the appeal hearing would likely make it more difficult for the Council to
hear all persons who wish to speak at the hearing within the limited period of time that is available for presentations
at the hearing.
Finally, this change could be construed as expanding the group of persons who would have legal “standing” to
challenge the Council’s decision in court, in which case, then even nonresidents of the City who have no direct stake
in the approval or denial of the particular application could bring such a challenge. Therefore, if the Council decides
to make this change, staff recommends that additional language be added on Second Reading expressly stating that
the ability of members of the public to speak at the appeal hearing should not be construed as giving those members
of the public the right to challenge the City Council’s decision in court.
ATTACHMENTS
1. Chart of Appeal Timeline
2. Powerpoint presentation
1
Appeal Timeline
Notice of Appeal
Internal Review
Must be filed within 14 calendar days of date of
decision subject to appeal.
Within 5 working days of filing of Notice of Appeal –
City Attorney reviews.
Within 7 working days of filing of Notice of Appeal –
City Attorney’s comments are mailed to Appellant.
Within 14 working days of filing of Notice of Appeal -
Appellant may file an amended appeal.
Site Inspection? Within 10 calendar days of filing of Notice of Appeal,
Council may request a site inspection.
(Clerk provides Appellant inspection notice no less than 5 calendar days prior.)
ATTACHMENT 1
2
Appeal Timeline
Notice of Hearing
Statement in
Opposition
No less than 30 calendar days prior to the hearing
date – Notice of Hearing is mailed to parties-in-
interest.
Hearing Must be held within 120 calendar days of filing of
Notice of Appeal.
Within 10 calendar days after mailing of hearing
notice - any party-in-interest opposed to the
appeal may respond in writing.
1
1
Ordinance No. 131, 2011
Amending the Procedures for Hearing
Appeals to the City Council
Steve Roy, City Attorney
2
Council Appeal Process
• Council hears appeals from the following boards,
commissions and hearing officers that make “quasi-
judicial” decisions:
– Building Review Board
– Fire Board of Appeals
– Landmark Preservation Board
– Planning and Zoning Board
– A “decision maker” under the provisions of Sec. 2.2.12
of the Land Use Code
– Water Board
– Zoning Board of Appeals
ATTACHMENT 2
2
3
Quasi-Judicial Decisions
• Made at a hearing held after notice to affected
parties;
• Where the decision is based on:
– evidence in the record, and
– previously established criteria.
• The decision must be made by an impartial
tribunal.
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• City’s appeal process is based on the
record of the hearing before the initial
decision maker—not an entirely new
hearing.
• Different than a “de novo” hearing.
3
5
Proposed changes
• Councilmembers who file an appeal may
participate in hearing the appeal;
• More time for holding appeal hearing –
increased from 60 days to 120 days after filing
of notice of appeal;
• Parties opposed to appeal may file statement
in opposition;
• Opportunity for written materials to be
submitted immediately prior to hearing
eliminated.
6
Proposed changes (cont’d)
• Clarifies provisions related to new evidence:
– May be included in opposition statement
but only if related to allegation of false or
misleading evidence;
– “Reconfigured” evidence not admissible at
hearing.
• Procedures for site inspections clarified.
• Members of general public allowed to
comment at hearing.
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7
Staff Recommendation
• Approval of all changes except allowing general public
to comment at appeal hearing:
– Not directly affected by proposal;
– Can already participate if appeared at initial hearing
or sent comments to initial decision maker.
– May increase time needed at appeal hearing or take
time away from parties-in-interest.
– Would allow non-community members to challenge
Council decision in court as matter of principle even
if no direct involvement or impact.
8
Appeal Timeline
Notice of Appeal
Internal Review
Must be filed within 14 calendar days of date of
decision subject to appeal.
Within 5 working days of filing of Notice of Appeal –
City Attorney reviews.
Within 7 working days of filing of Notice of Appeal –
City Attorney’s comments are mailed to Appellant.
Within 14 working days of filing of Notice of Appeal -
Appellant may file an amended appeal.
Site Inspection? Within 10 calendar days of filing of Notice of Appeal,
Council may request a site inspection.
(Clerk provides Appellant inspection notice no less than 5 calendar days prior.)
5
9
Appeal Timeline
Notice of Hearing
Statement in
Opposition
No less than 30 calendar days prior to the hearing
date – Notice of Hearing is mailed to parties-in-
interest.
Hearing Must be held within 120 calendar days of filing of
Notice of Appeal.
Within 10 calendar days after mailing of hearing
notice - any party-in-interest opposed to the
appeal may respond in writing.
ORDINANCE NO. 131, 2011
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING THE APPEALS PROCEDURE CONTAINED IN CHAPTER 2,
ARTICLE II, DIVISION 3 OF THE CODE OF THE CITY OF FORT COLLINS
RELATING TO PROCEDURES FOR HEARING APPEALS TO 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 (the “Appeals Procedure”); and
WHEREAS, City staff has identified a number of issues related to the appeal process that
warrant Council consideration, some of which were considered and discussed by the City Council
in a work session held on June 14, 2011; and
WHEREAS, the issues discussed by the City Council at the work session and the additional
issues that have been identified by City staff include the following:
• the period of time within which the hearing on an appeal must be scheduled;
• the fact that parties-in-interest to an appeal do not have an opportunity to respond in
writing to the allegations contained in the notice of appeal that is filed by appellants;
• the process for scheduling site inspections;
• the role of the public in appeal hearings; and
• whether Councilmembers who file an appeal should be able to participate in hearing
the appeal; and
WHEREAS, the City Council has determined that these issues should be addressed by
amendments to the Appeals Procedure.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That Section 2-48(c) 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.
. . .
(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 Paragraph 2-568(c)(2)Councilmembers who file
an appeal may participate in hearing such an appeal in the same manner as they
participate in hearing appeals filed by other parties-in-interest.
Section 2. That Section 2-49 of the Code of Fort Collins is hereby amended to read as
follows:
Sec. 2-49. Filing of notice of appeal.
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;
(4) For all appeals except those filed by members of City Council, 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) For any appeal alleging under Subsection 2-48(2)c that a board,
commission or other decision maker considered evidence relevant to
its findings which was substantially false or grossly misleading, any
new evidence the appellant wishes to submit that tends to prove or
disprove such allegation; and
(65) 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
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to be mailed by the City to the appellants under the provisions of § 2-50.
Section 3. That the Code of the City of Fort Collins is hereby amended by the addition of
a new Section 2-53 which reads in its entirety as follows and all subsequent section are hereby
renumbered accordingly:
Sec. 2-53. Submissions related to appeal.
(a) Any party-in-interest opposed to the appeal who wishes to respond
in writing to the allegations contained in the notice of appeal or amended notice of
appeal, as applicable, may do so by filing a written statement with the City Clerk no
later than ten (10) days after the date of mailing of notice of the appeal hearing
pursuant to Subsection 2-54(a). No new evidence shall be contained within such
response unless such new evidence falls within the exception contained in
Subsection 2-57(b)(1). Any new evidence contained in the response that does not fall
within such exception shall be disregarded by the Council in deciding the appeal,
unless that same information is independently provided to the City Council at the
hearing under the exceptions contained in Subsection 2-57(2) or (3).
(b) Other than the notice of appeal, or amended notice of appeal, as
applicable, and a responsive statement filed by one or more parties-in-interest in
opposition to an appeal pursuant to Subsection (a) of this Section, no written
materials may be submitted by parties-in-interest in advance of the appeal hearing
in connection with an appeal.
(c) Parties-in-interest may provide copies of, or direct the City Council
to, specific evidence in the record of an appeal, but may not reconfigure, revise or
otherwise modify materials from the record for the purpose of presentation at the
hearing on the appeal.
Section 4. That Section 2-54 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 2-54. Scheduling of the hearing.
(a) In the event of an appeal, the City Clerk shall schedule a date for
hearing the appeal no less than thirty (30) nor more than sixty (60)one hundred
twenty (120) calendar days after the date of filing of the notice of appeal. Written
notice of the date, time and place of the hearing shall be mailed by the City Clerk to
the appellant and all other parties-in-interest no less than thirty ten (130) calendar
days prior to the date of said hearing. Said notice shall also include a copy of the
notice of appeal or amended notice of appeal, as applicable, and shall inform the
parties-in-interest of the period of time within which additional issues may be
identified under § 2-56.
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(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 Paragraph 2-57(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 5. That Section 2-55 of the Code of the City of Fort Collins is amended to read
as follows:
Sec. 2-55. Site visitsinspection/no ex parte contacts.
(a) 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 may no
later than ten (10) days prior to the date of the hearing on the appeal request that the
City Manager schedule such inspection.Councilmembers may inspect the site of an
overall development plan, project development plan, or other proposal that is the
subject of an appeal, either alone or with City staff present, for the purpose of
gaining a better understanding of the physical characteristics of the site and the
surrounding area, as well as the issues on appeal. If a Councilmember wishes to
schedule a site inspection with City staff present, he or she shall, no later than ten
(10) days after the filing of the notice of appeal, request that the City Manager
schedule such inspection. Upon receipt of such a request, the City Manager shall
forthwith schedule the inspection for a date and time when he or she believes that
thea majority of the Councilmembers wishing to inspect the site will be able to
attend. The City Clerk shall, no less than five (5) days prior to the date of the hearing
on the appealsite inspection, mail notice of the proposed sitesuch inspection to the
appellant and to all parties-in-interest to whom notice of the appeal hearing was sent
by the City Clerk under Subsection 2-54(a) of this Article. The appellant and all
other parties-in-interest shall be entitled to attend such scheduled inspection, along
with any members of City staff whose presence is requested by the City Manager.
(b) Any Councilmembers conducting a site inspection under thisthe
provisions of Subsection (a) above, either alone or with City staff present, shall, at
the hearing on the appeal, state on the record any observations they made or
conversations they had at the site which they believe may be relevant to their
determination of the appeal. The requirements of this provision shall 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.
(c) Nothing in this Section shall be construed to authorize any
Councilmember or other officer or employee of the City to enter upon any parcel of
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real property that is not open to the public without the permission of the owner of
such property or the permission of such other person or entity as may be lawfully in
possession of the property.
(bd) 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 6. That Section 2-56(a) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 2-56. Procedure at the hearing.
(a) At the hearing on the appeal by the City Council, the presentation of
argument on the merits of the appeal shall be made in the following order, subject
to such limitations in time and scope as may be imposed at the discretion of the
Mayor:
(1) Explanation of the nature of the appeal and presentation by City staff;
(2) Comments by Councilmembers who have visitedinspected the site
pursuant to Subsection 2-55(a);
(3) Presentation of argument by the appellant and any party-in-
interest and/or other member of the public in support of the
appeal;
(4) Presentation of argument by any party-in-interest and/or other
member of the public who is an opponent of the appeal;
(5) Rebuttal presentation by the appellant and any party-in-interest
and/or other member of the public in support of the appeal;
(6) Rebuttal presentation by any party-in-interest and/or other member
of the public who is an opponent of the appeal;
. . .
Section 7. That Section 2-57(a) of the Code of the City of Fort Collins is hereby amended
to read as follows:
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Sec. 2-57. New evidence; scope of review; alternative actions available to
the City Council; date of final action.
(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, together with arguments in favor of and opposing the
appeal submitted or presented in accordance with the terms of this Article. 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 4th day of
October, A.D. 2011, and to be presented for final passage on the 18th day of October, A.D. 2011.
_________________________________
Mayor
ATTEST:
_____________________________
Chief Deputy City Clerk
Passed and adopted on final reading on the 18th day of October, A.D. 2011.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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