The URL can be used to link to this page

Home My WebLink AboutCOUNCIL - AGENDA ITEM - 07/24/2012 - RESOLUTION 2012-064 MAKING FINDINGS OF FACT REGARDDATE: July 24, 2012 STAFF: Ted Shepard AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 4 SUBJECT Resolution 2012-064 Making Findings of Fact Regarding Two Appeals of the Hearing Officer’s June 5, 2012 Decision to Approve the Aspen Heights Project Development Plan (PDP #110018). EXECUTIVE SUMMARY In December 2011, Breckenridge Land Acquisition, LLP, submitted a Project Development Plan (PDP # 110018) for a combination of single family detached, two-family and multi-family dwellings in the CCN, Community Commercial North College zone district. As proposed, the project consists of 221 dwellings on 31 acres, located south of Conifer Street, west of Redwood Street and north of Old Town North subdivision. On May 21, 2012, the Hearing Officer conducted a public hearing in consideration of Aspen Heights PDP. On June 5, 2012, after testimony from the applicant, the public and staff, the Hearing Officer issued a written decision approving the PDP, with one condition ensuring proper submittal of a landscape plan for the clubhouse. On June 19, 2012, Mr. Eric Sutherland filed a Notice of Appeal, which was superseded by an Amended Notice of Appeal, filed July 10. On June 19, 2012, Tom Lawton and Lori Nitzel filed a Notice of Appeal, which was superseded by an Amended Notice of Appeal, filed July 10. Both appeals seek redress of the Hearing Officer’s decision. The two appeals allege that the Hearing Officer failed to conduct a fair hearing and that the Hearing Officer failed to properly interpret and apply relevant provisions of the Land Use Code. Among several other claims, the Sutherland appeal as amended alleges that the Hearing Officer failed to follow established procedures because there was no recording made of the administrative hearing from which a verbatim transcript could be produced. Among other claims, the Lawton/Nitzel appeal alleges that the Hearing Officer failed to follow established procedures based on questions raised as to whether signs required to be posted at the site were in place for the entire period specified in the Land Use Code. The appeals have been consolidated, and the threshold question of whether the matter should be remanded for a new hearing has been scheduled for Council consideration pursuant to the Mayor’s authority under City Code Section 2- 56(e). BACKGROUND / DISCUSSION The Aspen Heights PDP # 110018 proposes 221 dwellings on 31 acres results in a density of 7.13 dwelling units per acre. The dwellings, and the number of bedrooms, would be divided in the following manner: 81 Single Family Detached – Extra Occupancy Rental Houses (4–5 bedrooms); 62 Two Family (duplexes) (2-3 bedrooms); 78 Multi-Family (row-houses, 3 – 6 units per building) (2-3 bedrooms). There would be a total of 712 bedrooms each of which would be leased individually. All dwellings would be two-story. There would be 786 off-street parking spaces. The project includes a clubhouse, pool, outdoor sport court and leasing office. Blue Spruce Drive and Lupine Drive are two public streets that would be extended to serve the site. Redwood Street would be extended south to connect with the existing Redwood Street so there would be a complete roadway between existing East Vine Drive and Conifer Street. A segment of the new, realigned Vine Drive would be constructed along the project’s southern property line but will not extend to North College Avenue. Blue Spruce would terminate at New Vine Drive and not connect into Old Town North until the intervening vacant land develops. July 24, 2012 -2- ITEM 4 This project represents a new form of student housing that widely distributes the dwelling units across three housing types versus typical apartment buildings. The PDP complies with the North College Corridor Subarea Plan. The three residential housing types are permitted in the CCN zone district, subject to Administrative Review. The site is served by five public streets: Conifer Street, Redwood Street, Blue Spruce Drive, Lupine Drive and New Vine Drive. All dwellings adjoining these streets face the streets and feature direct connecting walkways. All others face either a connecting walkway or a major walkway spine. All off-street parking spaces are located to the side or rear of the structures. Prairie dogs will be captured live for one week followed by eradication by a humane method. The loss of the habitat will be mitigated. The project is feasible from a traffic engineering standpoint and bicycle and pedestrian facilities are provided. One condition of approval is recommended regarding the inclusion of a landscape plan and architectural elevations for the clubhouse at the time of submittal for Final Plan. ACTION OF THE HEARING OFFICER At the public hearing, the Hearing Officer considered the testimony of the applicant, affected property owners, the public and staff. The Administrative Review process allows the Hearing Officer ten working days to render a written decision. On June 5, 2012, the Hearing Officer provided a decision approving the PDP, with one condition, that a landscape plan be provided for the clubhouse, as recommended by staff. MAY 21, 2012 PUBLIC HEARING – AUDIO MALFUNCTION At the public hearing of May 21, 2012, the audio equipment failed to record the hearing. Therefore, there is no verbatim transcript of the hearing. THE QUESTIONS COUNCIL NEEDS TO ANSWER: 1. Did the Hearing Officer fail to conduct a fair hearing due to the lack of an audio transcript, so that the Council should remand the matter to the hearing officer for a new hearing? 2. If so, does the remand for a new hearing in the Sutherland appeal make the Lawton/Nitzel appeal moot? ALLEGATIONS ON APPEAL On July 10, 2012, Eric Sutherland filed an Amended Notice of Appeal, alleging that the Hearing Officer failed to conduct a fair hearing based on each of the four pemissible “fair hearing” grounds, including the allegation that the Hearing Officer substantially ignored its previously established rules of procedure by failing to record the hearing and provide a verbatim transcript. Further, his appeal alleges that the Hearing Officer failed to properly interpret and apply relevant provisions of the Land Use Code. On July 10, 2012, Tom Lawton and Lori Nitzel filed an Amended Notice of Appeal, alleging that the Hearing Officer failed to conduct a fair hearing by substantially ignoring previously established rules of procedure. This is because the sign posted on the property was not upright for some portion of the required time for posting of a notice sign. Further, their appeal alleges that the Hearing Officer failed to properly interpret and apply the standards relating to prairie dog colonies over 50 acres in size and replacement of the lost resource. NEXT STEPS If the City Council determines that the Hearing Officer failed to conduct a fair hearing due to the lack of audio transcript, staff recommends that Council adopt Resolution 2012-064, which finds that the Hearing Officer failed to follow previously established procedures and remands the matter back to the Hearing Officer for a new hearing. The Resolution also finds that because of the remand, the Lawton/Nitzel appeal is moot and the appeal fee paid in connection with that appeal should be refunded. If the City Council determines that the lack of recording in this instance does not constitute a failure to conduct a fair hearing, staff recommends that the Council adopt a motion that the appeal hearing on the two Amended Notices of Appeal go forward on August 21, 2012. July 24, 2012 -3- ITEM 4 If the matter is remanded, the new hearing will be scheduled for Tuesday, August 7, 2012. The hearing will be held at 6:00 p.m. in Council Chambers, City Hall, 300 LaPorte Avenue, Fort Collins, Colorado. Letters to affected property owners will be mailed 14 days prior to the hearing. ATTACHMENTS 1. City Clerk’s Notice of Appeal Hearing 2. Notice of Appeals - Amended Notice of Appeal - Tom Lawton and Lori Nitzel, July 10, 2012 - Amended Notice of Appeal - Eric Sutherland, July 10, 2012 3. Administrative Hearing Officer’s Decision, June 5, 2012 ATTACHMENT 1 City Clerk’s Public Hearing Notice ATTACHMENT 2 Notice of Appeal - Amended Notice of Appeal - Tom Lawton and Lori Nitzel, filed July 10, 2012 - Amended Notice of Appeal - Eric Sutherland, filed July 10, 2012 ATTACHMENT 3 Administrative Hearing Officer Findings, Conclusions and Decision, June 5, 2012 RESOLUTION 2012-064 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING FINDINGS OF FACT REGARDING TWO APPEALS OF THE JUNE 5, 2012, ADMINISTRATIVE HEARING OFFICER APPROVAL OF THE ASPEN HEIGHTS PROJECT DEVELOPMENT PLAN (PDP # 110018) WHEREAS, on June 5, 2012, the City’s Administrative Hearing Officer, Richard V. Lopez, issued a written decision (the “Decision”) approving the Aspen Heights Project Development Plan (PDP # 110018) (the “PDP”) after an administrative hearing conducted on May 21, 2012 (the “Hearing”); and WHEREAS, on June 19, 2012, Eric Sutherland (“Sutherland”) filed a Notice of Appeal of said Decision in the Office of the City Clerk and Tom Lawton and Lori Nitzel (“Lawton-Nitzel”) together filed a Notice of Appeal of said Decision in the Office of the City Clerk, each alleging that the Hearing Officer failed to conduct a fair hearing and that the Hearing Officer improperly interpreted and applied relevant portions of the Land Use Code in approving the PDP; and WHEREAS, on July 10, 2012, Sutherland and Lawton-Nitzel each filed an Amended Notice of Appeal regarding the Decision (respectively, the “Sutherland Appeal’ and the “Lawton-Nitzel Appeal”); and WHEREAS, the Sutherland Appeal contains, among other allegations, the allegation under subparagraph 2-48(b)(2) of the City Code that the failure to record the Hearing resulted in a failure to follow previously established rules of procedure and therefore constitutes a failure to conduct a fair hearing (the “Recording Allegation”); and WHEREAS, after notice given in accordance with Chapter 2, Article II, Division 3, of the City Code, the City Council has considered said allegation on appeal, reviewed the aspects of the record related to the Recording Allegation, heard related presentations by parties in interest to the appeal, and, discussed the Recording Allegation and its relationship to the remaining issues raised in the Sutherland Appeal and the Lawton-Nitzel Appeal; and WHEREAS, under City Code Section 2-57(f), the City Council must remand a matter for rehearing if it finds that the appellant was denied a fair hearing; and WHEREAS, based on the foregoing, the City Council has determined that the failure to record the Hearing did result in a failure to follow previously established procedures and in this instance has resulted in a failure to conduct a fair hearing, as more specifically described below; and WHEREAS, City Code Section 2-56(e) provides that no later than the date of its next regular meeting after the hearing on an appeal, the City Council shall adopt, by resolution, findings of fact in support of its decisions on the appeal. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that, pursuant to Section 2-56(e) of the City Code, the City Council hereby makes the following findings of fact and conclusions: 1. That the Recording Allegation, as stated in the Sutherland Notice of Appeal, conforms to the requirements of Section 2-48 of the City Code; 2. That, for the foregoing reasons, the Hearing Officer did not follow previously established rules of procedure, and as a result, impaired the ability of the parties-in- interest to seek Council review of the Decision, and therefore failed to conduct a fair hearing; 3. That, in light of the foregoing, the June 5, 2012, decision of the Hearing Officer approving the PDP is hereby overturned and remanded for a new hearing and decision. 4. That, in light of the foregoing, all remaining allegations of the Sutherland Appeal, and the Lawton-Nitzel Appeal are now moot, and, accordingly, the Council will take no further action on them. 5. That, because no action will be taken, on the Lawton-Nitzel Appeal, the appeal fee paid in connection with the Lawton-Nitzel Appeal shall be refunded in full. Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 24th day of July A.D. 2012. Mayor ATTEST: City Clerk