HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/06/2014 - FIRST READING OF ORDINANCE NO. 066, 2014, AMENDINGAgenda Item 9
Item # 9 Page 1
AGENDA ITEM SUMMARY May 6, 2014
City Council
STAFF
Laurie Kadrich, Community Development & Neighborhood Services Mgr
SUBJECT
First Reading of Ordinance No. 066, 2014, Amending Chapter 2, Article II, Division 3 of the City Code
Pertaining to Appeals Procedure.
EXECUTIVE SUMMARY
The purpose of this item is to further clarify and incorporate process improvements relating to the procedure for
the hearing of appeals by City Council. Staff contacted members of the public who expressed concerns about
the current process and provided them with copies of the proposed changes. No suggested changes were
received. Staff also met with the Board of Realtors legislative committee to review the proposed changes.
Comments from the committee were focused more on the ease in which an appeal can be filed rather than the
specific changes proposed in this Ordinance.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
During 2011, an extensive update and public outreach process was conducted regarding the procedures for
hearing appeals to the City Council. During 2012-13, staff and Council processed a number of appeals using
the 2011 amended appeal process. In checking with others affected by the new process, staff is
recommending changes to further clarify portions of the Ordinance and incorporate process improvements.
None of these changes pertain to any section of the appeal process that previously caused concern for the
public during the 2011 update.
Summary of the changes proposed:
Clarify the definition of new evidence. This change would clarify that outlining or underlining certain
portions of writings or graphics presented to the original decision maker does not constitute new
evidence.
Clarify when a person or association is a party-in-interest. This would clarify that a “party-in-interest”
includes any organization that appeared before the original decision maker.
Clarify that “location, character, and extent” reviews conducted by the Planning and Zoning Board are
not appealable to the City Council. There are restrictive time frames on when a final decision needs to
be made on these reviews, usually within 30-60 days after plans have been submitted. Also, the
Board’s recommendation for approval or denial can be overturned by the governing body’s board with
a 2/3rds majority vote. Therefore, even if the Planning and Zoning Board’s determination was
appealed to the Council, the application could still go forward if a decision was not final within the
statutory time frame or by a vote of the applicant’s board.
Agenda Item 9
Item # 9 Page 2
Allow additional grounds for failure to conduct a fair hearing .This change would enable an appellant to
assert that he/she was denied a fair hearing because the decision maker had a bias against the
appellant by reason of a conflict of interest or other close business, personal or social relationship that
interfered with the decision maker’s independence of judgment.
Remove sections of the City Code that require the City Attorney to review notices of appeal for any
obvious defects in form or substance. This review has become problematic from a timing standpoint
because it requires adding time for the review and any re-submittal. Since the City Attorney cannot
provide legal advice to the appellant, and since there are no circumstances under which staff could
deny an appeal, the review is of limited value.
Allow for an administrative remand for rehearing. This change directly relates to an appeal that was
filed in which the City did not have a verbatim transcript of the hearing. There was no mechanism for
anyone to remand the hearing back to the Planning and Zoning Board other than to proceed forward
with an appeal. This recommendation would allow for the automatic re-hearing if a verbatim transcript
of the proceedings does not exist and cannot be produced.
Failure to receive notice. This change would clarify that failing to receive notice does not invalidate the
appeal process. This is consistent with other similar notice requirements and was raised as a concern
during a previous appeal. Making this change would provide clarity to any party-in-interest on this
point.
Allow for new evidence to be submitted under certain conditions by staff members or by any party-in-
interest opposed to the appeal. When a notice of appeal alleges that the decision maker considered
false or misleading evidence or that the decision maker was biased, and the appellant offers new
evidence on that subject, staff and the other parties-in-interest should also be permitted to provide
information to the Council to respond to the appellant’s written material. They are unable to do so
under the current code unless a Councilmember asks for that information. This recommended change
would allow for the Council to have written materials ahead of a hearing from all sides of an appeal on
this kind of issue rather than waiting until the hearing. This change also expands the exception to new
evidence to allow for the submission of new evidence in support of an allegation of bias.
PUBLIC OUTREACH
Staff contacted members of the public who expressed concerns about the current process and provided them
with copies of the proposed changes. No suggested changes were received. Staff also met with the Board of
Realtors legislative committee to review the proposed changes. Comments from the committee were focused
more on the ease in which an appeal can be filed rather than the specific changes proposed in this Ordinance.
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ORDINANCE NO. 066, 2014
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
APPEALS PROCEDURE
WHEREAS, Chapter 2, Article II, Division 3 of the City Code establishes a process
whereby parties directly affected by the quasi-judicial decisions of City boards and commissions
and certain other City decision makers may be appealed to the City Council; and
WHEREAS, the City Council has periodically amended these provisions of the Code;
and
WHEREAS, several procedural issues have arisen during recent appeals that have
prompted City staff to further review the appeal process, and to confer with affected members of
the public about additional amendments that will eliminate ambiguities in certain provisions, add
an additional ground for appeal, clarify the circumstances under which new evidence may be
considered by the City Council during appeal hearings, and make certain other procedural
changes that staff believes will enhance the fairness and efficiency of appeal hearings; and
WHEREAS, the City Council believes that such amendments are in the best interests of
the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS that Chapter 2, Article II, Division 3 of the Code of the City of Fort Collins is
hereby amended to read as follows:
Sec. 2-46. Definitions.
The following words, terms and phrases, when used in this Division, shall have the
meanings ascribed to them in this Section:
Appellant shall mean a party-in-interest who has taken an appeal from a board,
commission or other decision maker to the City Council by the filing of a notice of
appeal.
Applicant shall mean the person who or organization which submitted the application to
the board, commission or other decision maker whose decision has been appealed.
Evidence shall mean any information, whether in verbal, written, graphic or other 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.
Final decision shall mean the action of a board, commission or other decision maker by a
vote of a majority of its members when no further rehearing is available before such
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board, commission or other decision maker; provided, however, that a recommendation
to the City Council from a board, commission or other decision maker shall not be
considered as a final decision of that board, commission or other decision maker.
New evidence shall mean any evidence relating to the proposal or application which was
the subject of final decision by a board, commission or other decision maker and which
was not presented at the hearing before such board, commission or other decision maker.
New evidence does not include modifying, highlighting, underlining, italicizing or
otherwise emphasizing certain portions of writings or graphics presented to the original
decision maker as long as any modified graphic presented to the City Council at the
appeal hearing is accompanied by the original graphic.
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 provided written comments to the
appropriate City staff for delivery to the board, commission or other decision maker prior
to or at the action hearing on the matter which is to be appealed;
(5) Any person who, or organization which, 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.
Sec. 2-47. Certain appeals to be taken to City Council.
Appeals taken from decisions made by any of the following boards, commissions or other
decision makers shall be taken to the City Council in the manner set forth in this
Division:
(1) Building Review Board;
(2) Fire Board of Appeals;
(3) Landmark Preservation Commission;
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(4) Planning and Zoning Board, except for decisions made under C.R.S. §22-32-124
and C.R.S. §31-23-209;
(5) A "decision maker" under the provisions of Section 2.2.12 of the Land Use Code;
(6) Water Board;
(7) Zoning Board of Appeals.
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.
e. The board, commission or other decision maker was biased against
the appellant by reason of a conflict of interest or other close business,
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personal or social relationship that interfered with the decision maker’s
independence of judgment.
(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 § 2-5452. Said information shall then be mailed to the parties-in-interest together
with the notice of hearing. 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.
Sec. 2-49. Filing of notice of appeal; no other written materials.
(a) 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) calendar days after the action which is the subject of the
appeal. Such notice of appeal shall be on a form provided by the City Clerk, 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) In 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;
(5) In the case of an appeal alleging under Paragraph 2-48(b)(2)c. that a
board, commission or other decision maker considered evidence relevant to its
findings that was substantially false or grossly misleading, any new evidence the
appellant wishes to submit at the hearing on the appeal in support of this
allegation; and
(6) In the case of an appeal filed 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 § 2-502; and
(7) Any other information required by the City Clerk.
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(b) No information other than that specified in Subsection (a) above shall be included
in or attached to the notice of appeal, nor shall any additional written materials be
submitted to or received by the City prior to or during the hearing on an appeal.
Sec. 2-50. Review of notice of appeal by City Attorney.
Within five (5) working days of the date of the filing of the notice of appeal, the notice
shall be reviewed by the City Attorney for any obvious defects in form or substance. The
City Clerk shall notify the appellant in writing by certified mail of any such defect in the
notice of appeal, which notice shall be mailed no more than seven (7) working days from
the date of filing of the notice of appeal.
Sec. 2-51. Amended notice of appeal permitted.
An amended notice of appeal may be filed by the appellant within fourteen (14) working
days after the date of filing of the notice of appeal. Such amended notice of appeal shall
contain all of the information required under § 2-49 for the original notice of appeal and,
upon filing with the City Clerk, shall supersede the original notice of appeal.
Amendments to the notice of appeal need not be limited to those defects, if any, which
have been identified by the City Attorney.
Sec. 2-5250. Cost of appeal.
In all appeals except those filed by members of the City Council, 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.
Sec. 2-5351. Record on appeal.
Any appeal to the City Council shall be an appeal on the record of the hearing before the
board, commission or other decision maker. The record provided to the City Council
shall include the following:
(1) All exhibits, including, without limitation, all writings, drawings, maps, charts,
graphs, photographs and other tangible items received or viewed by the board,
commission or other decision maker at the proceedings;
(2) A verbatim transcript of such proceedings before the board, commission or other
decision maker. The cost of the transcript shall be borne by the City. If a verbatim
transcript of the proceedings does not exist and cannot be produced, whether due to an
equipment malfunction or clerical error, or for any other reason, the decision that is the
subject of the appeal will be re-heard before the decision maker after notice as required
by the relevant provisions of this Code or the Land Use Code, whichever is applicable,
and the appeal shall be terminated.
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(3) If available, a videotape recording of such proceedings before the board,
commission or other decision maker. The cost of reproducing any such videotape for
review by the City Council shall be borne by the City. Additional copies shall be
provided to any party-in-interest requesting the same within a reasonable period of time
prior to the date for hearing the appeal, at a cost not to exceed the actual reproduction
costs incurred by the City.
Sec. 2-5452. Scheduling of the hearing.
In the event of an appeal, the City Clerk shall schedule the hearing on the appeal for a
date as early as reasonably practicable but no more than seventy-five (75) 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 ten (10) 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 § 2-56any new evidence permitted under
Subsection 2-55(b)(1) or (2) must be submitted.
Sec. 2-553. Site inspection/no ex parte contacts.
(a) 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 a
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 site inspection, mail
notice of such 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 2-542(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. Failure to mail notice to any party-in-interest shall not affect the scheduling or
validity of any proceeding held or determination made under this Division. Upon receipt
of any notice returned by the U.S. Postal Service marked as undeliverable for any reason,
the City Clerk may exclude the party-in-interest to which such notice had been mailed
from any future mailings related to the appeal that was the subject of the returned notice.
(b) Any Councilmembers conducting a site inspection under the provisions of
Subsection (a) above, either alone or with City staff present, shall, at the hearing on the
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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.
(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 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.
(d) 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.
Sec. 2-564. 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 inspected the site pursuant to
Subsection 2-553(a);
(3) Consideration of any procedural issues identified under Subsection (c) of
this Section;
(34) Presentation of argument by the appellant and any party-in-interest in
support of the appeal;
(45) Presentation of argument by any party-in-interest who is an opponent of
the appeal;
(56) Rebuttal presentation by the appellant and any party-in-interest in support
of the appeal;
(67) Rebuttal presentation by any party-in-interest who is an opponent of the
appeal;
(78) Councilmember questions of City staff and parties-in-interest; and
(89) Motion, discussion and vote by the City Council.
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(b) Factors to be considered in determining the period of time for the presentation of
argument on the merits of an appeal shall include, but not be limited to, the complexity of
the issues raised in the notice of appeal, the length of the record on appeal, the potential
impact that the determination of the appeal may have on the community at large and the
number of parties-in-interest who wish to address the Council with regard to the merits of
the appeal.
(c) Prior to hearing the presentation of argument on the merits of the appeal, the
Mayor may, in his or her discretion, establish a separate period of time during which the
Council may first consider and determine, by majority vote, any procedural issues related
to the hearing of the appeal, including, but not limited to, the possible introduction or
exclusion of certain evidence, the period of time to be allowed by the Mayor for
presentation of argument on the merits of the appeal and any concerns or objections
related to the record on appeal.
(d) No person making a presentation to the City Council shall be subject to cross-
examination except that members of the City Council and the City Attorney may inquire
of such person for the purpose of eliciting information and for the purpose of clarifying
information presented.
(e) In the event of multiple appeals involving the same decision of a board,
commission or other decision maker, the Mayor, in his or her discretion, may modify the
procedure contained in Subsection (a) above so as to expedite the hearing of such
appeals.
Sec. 2-575. Written materials; Nnew 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, the grounds for appeal cited in the notice of
appeal and the arguments made by parties-in-interest at the hearing on the appeal;
provided, however, that issues raised during the presentation of argument but not raised
in the notice of appeal shall not be considered by the City Council in deciding the appeal.
(b) New evidence shall not be considered on appeal except No written materials
related to an appeal, other than the notice of appeal and the record on appeal, shall be
presented to the City Council before or during an appeal hearing and no new evidence
shall be considered on appeal, except that new evidence in oral or written form may be
submitted and considered under the following circumstances:
(1) When offered in support of or in opposition to an allegation under
Subparagraph 2-48(b)(2)c that a board, commission or other decision maker
considered evidence relevant to its findings which was substantially false or
grossly misleading;
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(2) When offered in support of or in opposition to an allegation of bias under
Subparagraph 2-48(b)(2)e;
(23) When offered by City staff or parties-in-interest in response to questions
presented by Councilmembers under Subsection 2-564(a) or (d);
(34) When offered by Councilmembers after inspecting the site of the project
development plan or other proposal that is the subject of an appeal pursuant to the
provisions of § 2-553.
(c) Any Nnew evidence permitted under Subsections (b)(1) or (2) above and
submitted prior to the hearing or offered at the appeal hearing by City staff or parties-in-
interest shall be limited to that whichoffered under Subsection (b)(1) above shall be
limited to any new evidence that is either described in the notice of appeal of or offered
in response to questions presented by Councilmembers is either:
(1) described in the notice of appeal;
(2) submitted to the City Clerk in writing at least seven (7) days prior to the
appeal hearing by any party-in-interest opposed to the appeal; or
(3) provided to the City Council by City staff prior to or during the appeal
hearing.
(d) Any party-in-interest who believes that new evidence has been improperly
introduced into the appeal hearing may, at any time during the hearing, interrupt the
proceedings and object to the Council's consideration of such evidence. If such an
objection is made, Tthe Mayor shall rule on such the objection, after consultation with the
City Attorney if necessary, and the evidence shall either be received and considered by
the Council or disregarded by the Council in accordance with the ruling of the Mayor;
provided, however, that the Mayor's ruling on this or any other procedural issue raised
during the course of the hearing may be overridden by a majority of the Council. The
failure of a party-in-interest to make such an objection shall constitute a waiver of the
same by that party-in-interest for the purpose of any court appeal of the Council’s
decision.
(e) In considering an allegation that a board, commission or other decision maker
failed to properly interpret and apply the relevant provisions of the Code or Charter
asserted under Paragraph 2-48(b)(1), the City Council shall determine how such
provisions should, in the City Council's judgment, be applied to the evidence contained in
the record on appeal.
(f) 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:
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(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(b)(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 rehearing.
(g) No later than the date of its next regular meeting, the City Council shall adopt, by
resolution, findings of fact in support of its decision. The date of passage of such
resolution shall be the date of final action of the City Council for the purpose of any
subsequent judicial review of the decision of the City Council.
Introduced, considered favorably on first reading, and ordered published this 6th day of
May, A.D. 2014, and to be presented for final passage on the 20th day of May, A.D. 2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 20th day of May, A.D. 2014.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk