HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/21/2012 - SECOND READING OF ORDINANCE NO. 131, 2011, AMENDINDATE: February 21, 2012
STAFF: Steve Roy, Karen Cumbo,
Ginny Sawyer
AGENDA ITEM SUMMARY
FORT COLLINS CITY COUNCIL 24
SUBJECT
Second 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, which is being presented on Second Reading, has been modified in several respects in response to
comments and concerns expressed during the public outreach process that has been conducted since First Reading.
The changes include: shortening the previously proposed period of time within which the hearing on an appeal must
be held; clarifying the form of notice of appeal; eliminating the provision that would have allowed parties-in-interest to
file a written response to the notice of appeal; and changing to the provisions dealing with the introduction and handling
of new evidence. No changes have been made to two of the amendments that were proposed on First Reading. The
amendments that remain the same are: the amendment that would allow a Councilmember to participate in hearing
an appeal even if he or she had filed the appeal, and amendments related to the site inspection process.
BACKGROUND
When this Ordinance was presented to Council on First Reading, there were two proposed amendments that the
Council modified before voting in favor of the Ordinance. The first Council modification was to the proposed
amendment that would allow parties-in-interest who were opposed to an appeal to file a written response to the notice
of appeal. The Council modified that proposal by expanding the group of persons who could file a written response
to the notice of appeal so as to include any party-in-interest, rather than just those who were opposed to the appeal.
The second change that Council made was to reject a proposed amendment that would have allowed members of the
general public to participate in the hearing on an appeal.
Second Reading of the Ordinance was postponed in order to allow time for additional public outreach. Staff has
conducted three different outreach meetings—two with the general public and one with the Chamber of Commerce--
and additional changes to the proposed Ordinance have been made in response to citizen comments received at these
meetings. Summaries of the comments received at each of those meetings are attached.
Several concerns raised during the meetings have been addressed by additional revisions to the proposed Ordinance.
The concerns expressed and the revisions suggested by staff are as follows:
• That the new period of time that staff had suggested for scheduling the hearing on an appeal was
too long. Under the Code as presently written, an appeal must be heard no less than 30 nor more
than 60 calendar days after the date of filing of the notice of appeal. This time frame has created
problems because the City Clerk is sometimes unable to find a date within 60 days that is
acceptable to the parties-in-interest and that accommodates the other business that is scheduled
for Council’s consideration during that period of time. On First Reading, staff had suggested
expanding the period to 120 days. Because of concerns that this expanded time frame would
cause undue delay in the processing of a development application, staff is now recommending
that the hearing be set as soon as reasonably practicable but no more than 75 days after the date
of filing of the notice of appeal.
• That the form of the notice of appeal should be clarified. In order to ensure that the notice of appeal
contains all the requisite information and does not introduce new information into the appeal process, staff
is recommending that language be added to Section 2-49, pertaining to the filing of the notice of appeal,
clearly stating that no information other than that specified in the revised version of that section may be
included in or attached to the notice of appeal or submitted to or received by the City prior to the hearing
on the appeal. In addition, a standardized form has been prepared for the notice of appeal.
February 21, 2012 -2- ITEM 24
• That it would be a mistake to allow parties-in-interest to file a written response to an appeal. While
a written response could help better frame the issues, the primary concern expressed was that
those responses would likely contain new evidence, which would create a need to either disallow
the responses or have them modified. Another concern was that adding an opportunity for a
written response would lengthen and complicate the process. Staff believes that these concerns
have merit; therefore, staff is no longer recommending that parties-in-interest be allowed to file
a written response.
• That Councilmembers who file an appeal should not participate in hearing the appeal. The
concern here is that if a Councilmember feels strongly enough about a decision made by a board
or commission or hearing officer to appeal the decision, he or she may not be able to be impartial
in deciding the appeal. While staff believes that this concern may have merit, the Council directed
that this change be brought forward, so it is still included in the proposed amendments. From a
strictly legal standpoint, there is a strong presumption under the relevant case law that
administrative decision makers will be impartial. Consequently, it is unlikely that a decision on
appeal would be overturned on the grounds of bias merely because one or more Councilmembers
who participated in the appeal hearing had asked the Council to review the decision by filing an
appeal.
• That the way in which new evidence is handled at appeal hearings is confusing and unpredictable.
The Ordinance addresses this concern in the following ways.
- The opportunity for parties-in-interest to file written materials in advance of the hearing has
been eliminated. At present, Section 2-54(b) states that such materials may be filed in the
office of the City Clerk up until noon on the Wednesday prior to the hearing as long as any
new evidence contained in the materials is limited to that which responds to an allegation that
the original decision maker considered evidence that was substantially false or grossly
misleading. This provision has proven to be confusing to parties-in-interest and has led to
the misconception that written materials other than those permitted under this section can be
presented to the Council prior to the hearing on the appeal.
- Section 2-57(b), which describes the extent to which new evidence may be considered on
appeal, has been amended by the addition of a new subparagraph stating that any new
evidence offered by the appellant at the hearing shall be limited to the new evidence that is
either described in the notice of appeal or offered in response to Council questions.
- A provision has been added to Section 2-57 stating that any party-in-interest may object to
the introduction of new evidence at the hearing, and the objection will be ruled on by the
Mayor, subject to being overridden by the majority of the Council.
• That the changes being recommended to the section relating to site inspections should not allow
for individual site inspections without staff or parties-in-interest being present. The changes to the
provision relating to site inspections are being recommended in response to questions and
concerns that were raised by a citizen during the appeal of the Planning and Zoning Board’s
decisions regarding The Grove ODP and PDP. The revised language would, among other things,
allow Councilmembers to inspect the site of a proposed development plan either alone or in the
company of staff and any parties-in-interest who wish to attend the inspection. Concern was
expressed that, if Councilmembers inspect the site without staff present (other than by simply
driving by the site), their observations might somehow compromise the integrity of the process
and/or lead to misimpressions about the development proposal or its impact upon adjacent
properties. However, staff continues to believe that the proposed changes are appropriate, that
they will allow for more flexibility in the site inspection process, and that this flexibility is necessary
because it is often difficult to find a date and time when all Councilmembers who are interested
in viewing the site can attend as a group.
In combination, staff believes that the proposed amendments will improve the appeals process and are responsive
to the concerns that have been raised during the public outreach. Because a considerable period of time has elapsed
since First Reading, the Ordinance shows in blue the changes that have been made since First Reading as well as
in comparison to the existing language of the Code.
February 21, 2012 -3- ITEM 24
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
BOARD / COMMISSION RECOMMENDATION
The Planning and Zoning Board discussed the proposed changes at its February 10, 2012 work session and will make
a recommendation at its February 16 meeting. This recommendation will provided to Council in the February 21 read
before packet.
PUBLIC OUTREACH
Following First Reading of Ordinance No. 131, 2011, staff hosted a public meeting on November 30, 2011 seeking
feedback on the proposed changes. Based on citizen feedback additional changes were made to the Ordinance. On
January 27, 2012, staff presented proposed changes to the Chamber Legislative Affairs Committee and on February
1, 2012 another public meeting was held. General notes from all meetings are included as attachments.
ATTACHMENTS
1. Copy of First Reading Agenda Item Summary - October 4, 2011
(w/o attachments)
2. New form for Notice of Appeal
3. Public Outreach meeting notes, November 30, 2011
4. Chamber Legislative Affairs Committee meeting notes, January 27, 2012
5. Public Outreach meeting notes, February 1, 2012
6. Powerpoint presentation
COPY
COPY
COPY
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ATTACHMENT 1
DATE: 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.
COPY
COPY
COPY
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October 4, 2011 -2- ITEM 17
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
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
NOTICE OF APPEAL
Action Being Appealed:
Board, Commission, or Other Decision Maker:
Date of Action:
Grounds for Appeal (U all that apply):
The board, commission or other decision maker committed one (1) or more of the
following errors:
G Failure to properly interpret and apply relevant provisions of the City Code,
the Land Use Code and Charter. List Code and/or Charter sections (by
section number only) below:
G Failure to conduct a fair hearing in that:
G The board, commission or other decision maker exceeded its authority
or jurisdiction as contained in the Code or Charter;
G The board, commission or other decision maker substantially ignored
its previously established rules of procedure;
G The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; (see attached description of any new evidence appellant
wishes to submit at the hearing in support of this allegation); or
G The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant.
(For each allegation marked above, please attach a separate summary of the facts contained in the
record which support the allegation. Each summary is limited to two pages, Times New Roman 12
point font. Please restate allegation at top of first page of each summary.)
Appellant Representative (if more than one appellant):
Name, address, and telephone number(s) of individual appellant authorized to receive, on behalf of all appellants, any
notice required to be mailed by the City to the appellants regarding the City Attorney’s review of the notice of appeal
(City Code Section 2-50).
ATTACHMENT 2
Please describe the nature of the relationship of each appellant to the subject of the action of
the Board, Commission or other Decision Maker:
If appellant has alleged that the decision maker considered evidence relevant to its findings
that was substantially false or grossly misleading, describe any new evidence the appellant
intends to submit at the hearing on the appeal in support of this allegation. NO NEW
EVIDENCE WILL BE RECEIVED AT THE HEARING IN SUPPORT OF THIS
ALLEGATION UNLESS IT IS EITHER DESCRIBED BELOW OR OFFERED IN
RESPONSE TO QUESTIONS PRESENTED BY COUNCILMEMBERS AT THE
HEARING.
Appellants:
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Appellants:
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
Phone ______________________________
Date ______________________________
Signature ______________________________
Name ______________________________
Address ______________________________
1
Ordinance 131‐Changes to the Appeals Process
Public Outreach Meeting
Wednesday, November 30 from 6 p.m. to 7 p.m.
14 people in attendance
Comments related to the Ordinance:
Allows Council members who file an appeal to participate in hearing the appeal.
What is the rationale for this?
Seems strange (and concerning) that someone could appeal and then be a decision making on same
appeal.
Allows parties‐in‐interest to file a response or statement.
Is this reactionary and maybe unnecessary?
Responses need legal review and need to be redacted prior to the hearing.
Who would know in a timely manner at a hearing if new information was being presented?
Does this add too many days to the process?
Does this improve any legal standing of the appeal or the findings?
Who determines if a response is from a Party‐in‐Interest?
By inviting all Parties‐in‐Interest into the appeal process does it mislead people to think it will be a “re‐
hearing” as opposed to an “appeal hearing?”
If Parties‐in‐Interest can write a response will that limit the speaking time at the hearing?
Expands the time within which an appeal hearing must be scheduled. (Changes from 60 to 120 days.)
120 days is excessive.
75 to 90 days is more acceptable.
120 days could require a new appraisal or re‐submittal of all financial information.
120 days is punitive and is equivalent to an entire construction season.
The timing of this is bad considering the incredibly difficult financing climate.
What is the standard in other communities?
Clarifies the extent to which new information may be presented to Council prior to and during the hearing.
Concerned about what is considered new or reconfigured. Referred to past case where applicant claimed
they did not have time to review documents.
Define reconfigured.
Clarifies the purpose and procedure for conducting site inspections.
Why is this needed?
General Ord. 131 Comments
Timing isn’t good. Public should have been involved prior to First Reading.
It would be good to have a problem statement (backed up with data) showing what the problem is we’re
trying to fix.
This ordinance may not help the process.
ATTACHMENT 3
2
General Appeal Process Comments
Since we do so few appeals maybe training for Council ahead of time to ensure the process is followed
and runs smoothly.
Need a handout or materials outlining the appeal process and objective.
Have a neighborhood meeting prior to an appeal hearing.
The applicant should always be held to a higher standard than the neighbors (they know the process.)
Need a forum for people to voice non LUC related issues and concerns.
Appeal vs. Re‐hearing. Need to be clear and careful in messaging.
Will there be any change to the exparte rule to allow greater dialogue between residents and neighbors?
Need to create assurance amongst public tat the process is good and fair.
Need process changes to limit the length of hearings. No one should be expected to perform well and
think clearly at a 6‐8 hour meeting late into the night.
Before anything can move forward we must address the failure of the process and must uphold the LUC.
Verbal arguments at hearing should only address specific elements of the LUC. Can Council control this?
Ordinance 131‐Changes to the Appeals Process
Chamber Legislative Meeting
Friday, January 27, 2012
Comments related to the Ordinance:
Allows Council members who file an appeal to participate in hearing the appeal.
Strong concern about this.
Bad public perception.
Is this a change? Was it previously not allowed? What is the history?
Why an exemption for Council to appeal rather than only allowing a Party‐in Interest?
What if it took 3 Councilmembers to appeal?
Allows parties‐in‐interest to file a response or statement.
Support this change.
Expands the time within which an appeal hearing must be scheduled. (Changes from 60 to 120 days.) 75 days
Support this change and are good with timeline.
Clarifies the extent to which new information may be presented to Council prior to and during the hearing.
No discussion on this.
Clarifies the purpose and procedure for conducting site inspections.
Concerned about Council inspecting on their own without opportunity for technical explanations and
background.
Suggested scheduling inspections at time of appeal (future date) that could be included in the notice and
whomever can and wants to attend does so.
General Comments
Try to do outreach on the frontend, not between 1st and 2nd readings.
Can an attorney attend on February 1 to better explain technical aspects of the changes?
Consider having a 3rd party moderator at appeal hearing to run the meeting. This would take pressure off
the Mayor to remember all protocol and manage time and comments.
ATTACHMENT 4
Ordinance 131‐Changes to the Appeals Process
Public Outreach Meeting
Wednesday, February 1, 2012
Comments related to the Ordinance:
Allows Council members who file an appeal to participate in hearing the appeal.
Strong concern about this.
Bad public perception. Feels like a slippery slope.
Is this a change? Was it previously not allowed? What is the history? Why the change?
Suggest that at it take at least 3 or 4 Councilmembers to appeal.
Allows parties‐in‐interest to file a response or statement.
Support this change although also see why those involved would want to respond in writing. If written
appeals were allowed, ideally it would help (shorten, clarify, keep on track) the entire hearing process.
Expands the time within which an appeal hearing must be scheduled. (Changes from 60 to 120 days.) 75 days
Support this change and are good with timeline.
Clarifies the extent to which new information may be presented to Council prior to and during the hearing.
There are still questions and concerns regarding who determines what is new evidence during the
hearing. Anything not addressing what is included in the filed appeal should not be discussed.
Sec. 2‐57 might need another look. With this language would the pro‐Grove neighbors be allowed to
speak as they did at the Grove hearing?
Clarifies the purpose and procedure for conducting site inspections.
Concerned about Council inspecting on their own without opportunity for technical explanations and
background. Want to ensure that even if Councilmembers go alone that property owners would be
notified (particularly if there are residents at the property.)
Who would “police” a solo visit? Now the visits are somewhat regulated and procedural as to method
and discussion.
Why the word “inspection” vs “visit?”
General Comments
Multiple comments regarding procedure and the need and responsibility for Council to keep the appeal
on track (only addressing the merits of the filed appeal) and well run. Appeals should not be a new
hearing. Suggestions included a pre‐meeting with all parties to cover the appeal process and what is and is
not allowed. Equal time for all parties, no extensions.
Is this an over‐reaction to the Grove appeal?
What are the real improvements in this ordinance?
Over all process needs to be clearly laid out ahead of time (brochure in laymen terms available with
appeal paperwork.) Particularly need to address the ex parte issue. People are still not clear what is
allowed, when. Freedom of speech issue was raised.
Feeling that Council does not have a good understanding of what quasi‐judicial means and their role.
ATTACHMENT 5
1
1
Ordinance No. 131, 2011
Amending the Procedures for Hearing
Appeals to the City Council
City Council Meeting
February 21, 2012
Agenda Item 2244
2
Council Appeal Process
Council hears appeals from boards, commissions and
hearing officers that make “quasi‐judicial” decisions.
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.
ATTACHMENT 6
2
3
Background
Council heard Ord. No. 131 in October 2011.
The ordinance proposed numerous changes to
the appeal process.
Council requested public outreach and input on
proposed changes before a second reading.
4
Staff conducted a public meeting in November
2011.
Changes were made based on feedback.
New changes were presented to the Chamber
Legislative Affairs Committee, the P & Z Board,
and at a public meeting.
Background
3
5
Proposed amendments
Councilmembers who file an appeal may participate in
hearing the appeal. (No Change)
More time for holding appeal hearing –increased
from 60 days to 75 days after filing of notice of appeal.
(Changed from original recommendation of 120 days.)
6
Revised ordinance:
‐ Limits the information that may be included in a
notice of appeal and requires the use of City form.
‐ Eliminates previous recommendation that parties‐in‐
interest have opportunity to file written response.
‐ Clarifies provisions related to new evidence by:
‐ Eliminating submission of written materials prior to
hearing on appeal.
– Clarifying process for presenting and objecting to
any new evidence at the hearing.
‐ Clarifies procedures for site inspections. (No change.)
Proposed amendments
4
7
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.
Notice of Hearing No less than 10 calendar days prior to the hearing
date – Notice of Hearing is mailed to parties-in-
interest.
Hearing Must be held within 75 calendar days of filing of Notice
of Appeal.
8
Staff Recommendation
Approval of all changes
Changes made between First and Second Reading are in blue
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; 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) ForIn 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 anyIn the case of an appeal alleging under Subsection 2-48(2)c
that a board, commission or other decision maker considered
evidence relevant to its findings whichthat was substantially false or
grossly misleading, any new evidence the appellant wishes to submit
at the hearing on the appeal that tends to prove or disprove such in
support of this allegation; and
-2-
(65) 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 § 2-50; and
(7) any other information required by the City Clerk.
(b) No information other than that specified in subsection (a) of this Section 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.
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.
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(a) In the event of an appeal, the City Clerk shall schedule a date forthe
hearing on the appeal for a date as early as reasonably practicable but no less than
thirty (30) nor more than sixty (60)one hundred twenty (120) 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 thirty ten (130)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 § 2-56.
(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.
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(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
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;
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(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;
(7) Councilmember questions of City staff and parties-in-interest; and
(8) Motion, discussion and vote by City Council.
(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.
(bd) 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.
(ce) 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.
Section 7. That Section 2-57(a) of the Code of the City of Fort Collins is hereby
amended to read as follows:
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
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cited in the notice of appeal, together with and the arguments in favor of and
opposing the appeal submitted or presented in accordance with the terms of this
Article.made by parties-in-interest at the hearing on the appeal; provided however,
that Iissues 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 under the
following circumstances:
(1) When offered in support of or in opposition to an allegation under
Subparagraph 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;
(2) When offered by City staff or parties-in-interest in response to
questions presented by Councilmembers under Subsection 2-56(a) or
(b);
(3) 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 Subsection 2-55(a).
(c) New evidence offered under subsection (b)(1) above shall be limited
to any new evidence that is either described in the notice of appeal or offered in
response to questions presented by Councilmembers.
(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,
object to the Council’s consideration of such evidence. The Mayor shall rule on such
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.
(ce) 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(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.
(df) 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(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.
(eg) 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 4th day of
October, A.D. 2011, and to be presented for final passage on the 21st day of February, A.D. 2012.
_________________________________
Mayor
ATTEST:
_____________________________
Chief Deputy City Clerk
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Passed and adopted on final reading on the 21st day of February, A.D. 2012.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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Phone ______________________________
Date ______________________________
ATTACH ADDITIONAL SIGNATURE SHEETS AS NECESSARY