HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/21/2020 - FIRST READING OF ORDINANCE NO. 020, 2020, REPEALINAgenda Item 20
Item # 20 Page 1
AGENDA ITEM SUMMARY January 21, 2020
City Council
STAFF
Delynn Coldiron, City Clerk
Carrie Daggett, City Attorney
SUBJECT
First Reading of Ordinance No. 020, 2020, Repealing and Reenacting Chapter 2, Article II, Division 3 of the
Code of the City of Fort Collins Relating to Procedures for Appeals to the City Council.
EXECUTIVE SUMMARY
The purpose of this item is to propose changes to the City Council appeals procedure contained in City Code
in order to clarify aspects of the appeals procedure and to improve the appeals process.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
City Council has considered several appeals over the past few years. Staff has identified provisions requiring
added clarification, as well as opportunities to improve processes without raising substantive policy issues.
The proposed changes are a result of this, as well as public outreach that has been done as part of this effort.
Council may wish to discuss other, more substantive, policy changes to the appeal provisions; these
amendments are not intended for that purpose.
The following highlights some of the more substantive items, as well as things that may be of interest to
Council:
I. Section 2-48. – Appeal of final decision permitted; effect of appeal; grounds for appeal.
• A proposed change to Section 2-48(c) requires that appeals filed by City Councilmembers include specific
questions to be considered on appeal. This replaces the current requirement for a general description of
the issue and is intended to better identify the particular issues being raised.
II. Section 2-49. – Filing of notice of appeal; new evidence.
• A proposed change to Section 2-49(b)(5) requires that the appellant submit new evidence, where allowed,
no later than seven calendar days after the deadline for filing the notice of appeal.
III. Section 2-52. – Scheduling of the hearing/no ex parte contacts.
• Proposed changes to 2-52(a) add:
Agenda Item 20
Item # 20 Page 2
o A hearing timeframe of no fewer than 28 days and no later than 77 days after the deadline for filing
the notice of appeals;
o A provision for the City Clerk to determine the hearing date and determine whether unavoidable
conflicts exist;
o An increase in the amount of written notice of an appeal hearing to be sent to the appellant and
parties-in-interest (from 10 calendar days to 21 calendar days);
• A proposed change to 2-52(b) adds a provision that would consolidate multiple appeals of the same
decision into one hearing (unless Council decides otherwise). Currently the Code allows the Mayor to
consolidate multiple appeals of the same decision into one hearing and we are not aware of a time when
consolidation did not occur.
The Planning & Zoning Board did not agree with this item and recommended that provisions related to this
be removed.
• A proposed change to 2-52(c) adds a provision for the City Manager to request that Council extend the
time for hearing an appeal beyond the specified 77-day period.
IV. Section 2-55. – Written materials; new evidence.
1. Changes to Subsection (a) clarify what evidence and information the Council may consider in making its
decision, including new evidence.
2. Changes to Subsection (b) update the description of new evidence Council may consider in making its
decision.
3. Changes to Subsection (b)(2) requires a party-in interest opposed to the appeal to submit new evidence
within 21 calendar days after the deadline for filing the related notice of appeal.
4. Adds a new Subsection (d) setting the deadline for parties-in-interest to submit presentation materials for
the appeal and requiring that at least twenty hard copies be made available if hard copies are to be
provided, along with the digital presentation.
The following graphic shows timelines related to appeals (Attachment 1 is a larger version):
Agenda Item 20
Item # 20 Page 3
Timelines generated a lot of discussion during the public outreach and at the Planning and Zoning Board
hearing. There was support from many for giving appellant’s additional time to file new evidence. The
Planning and Zoning Board recommendation included a provision to extend the deadline for new evidence for
the appellant by 7 days (from 21 days after the final decision to 28 days after the final decision). In the interest
of fairness for both parties, staff did not change the proposed amendments to include this. As it stands, the
appellant has 21 days from the date of decision to file new evidence. After that date, parties opposing the
appeal are given 14 days to review and provide response to the new evidence submitted. Adding an additional
week to the appellant deadline would require the same add to the opposing party deadline to ensure fairness.
Pushing the overall timeline an additional 14 days would extend the overall timeline leading up to a potential
appeal hearing and aggravate already challenging scheduling issues.
V. Section 2-56. – Council decision on appeal.
• This is being proposed as a new Section related to Council decisions on appeal.
o Subsection (d) adds a procedure for Council to amend adopted resolutions in order to clarify or correct
the language or to modify a decision to resolve a legal dispute or comply with applicable law.
In order to make a change to an adopted resolution, the proposed change requires notice to be sent to
the appellant, applicant, and persons who appeared at the appeal hearing and such persons may
comment on the proposed change at the time Council considers it.
Attachment 2 provides more detail on all changes being recommended.
CITY FINANCIAL IMPACTS
None.
BOARD AND COMMISSION RECOMMENDATION
Staff presented to the Planning and Zoning Board on February 21, 2019 and was instructed to collect public
feedback on the proposed changes and then bring the item back to the Board for consideration. Staff did as
requested and presented the proposed changes, together with the results of the public outreach, to the Board
on November 21, 2019. At that hearing, the Board recommended that City Council approve the proposed
appeal code amendments with the following modifications:
• Change the deadline for a site visit request from 10 days to 14 days;
• Change the deadline for the appellant to submit new evidence from 21 days after the final decision to 28
days after the final decision with the intent that this pushes the entire timeline out 7 days; and
• Remove the changes included in Paragraph 2-52(b) pertaining to default consolidation of appeals.
An excerpt from the February 21, 2019 meeting is attached (Attachment 3), as well as a transcript of the
November 21, 2019 meeting. (Attachment 4)
PUBLIC OUTREACH
Staff conducted four public outreach sessions. The first session invited applicants who had been involved in
the appeals process in the last three years. The second invited appellants who had been involved in the
appeals process in the last three years. The remaining two sessions were open to the general public.
Summary notes from all meetings are attached (Attachments 5-8).
Agenda Item 20
Item # 20 Page 4
ATTACHMENTS
1. Appeal Process Timelines (PDF)
2. Proposed Changes to the City Council Appeals Procedure (PDF)
3. Planning and Zoning Board minutes, February 19, 2019 (PDF)
4. Planning and Zoning Board Verbatim Transcript, November 21, 2019 (PDF)
5. Public Outreach-Focus Group, June 5, 2019 (PDF)
6. Public Outreach-Focus Group, June 6, 2019 (PDF)
7. Public Outreach, June 12, 2019 (PDF)
8. Public Outreach, July 22, 2019 (PDF)
9. Powerpoint presentation (PDF)
Timelines Associated with Appeal Hearings
Appeal
Deadline 14
Days from
Final
Decision
Site Visit 14
Days from
Date Notice
Received
New
Evidence
(Appellant)
21 Days
from Final
Decision
New
Evidence
(Opposing)
35 Days
from Final
Decision
Notice of
Hearing
21 Days
before
Hearing
Hearing
Scheduled in
49 Days or
Less
Last Date to
Schedule
Hearing
77 Days
after Appeal
Deadline
ATTACHMENT 1
Proposed Changes to the City Council Appeals Procedure
The proposed changes to the City Council appeals procedure include:
I. Section 2-46. – Definitions.
In addition to the minor clean-up of wording in certain definitions a number of changes are proposed as
follows:
1. Appellant: The term appellant is being clarified to include multiple parties-in-interest instead of a
single party-in-interest. Past appeals have included multiple parties-in-interest and this change is to
match the actual practice and intent of the appeals process.
2. Evidence: The term audio was added to ensure all types of testimony and evidence are captured.
3. New Evidence: To assist in discerning new evidence from evidence already contained in the record
of the decision being appealed, a requirement for identifying the location of new evidence has been
added to this term.
4. Party-in-Interest: The term party-in-interest includes persons connected in multiple ways to the
decision being appealed. Based on direction received earlier from the Planning & Zoning Board, as
well as feedback from public engagement, this will include parties with an ownership or possessory
interest in the property at issue.
II. Section 2-47. – Certain appeals to be taken to city council.
Language has been added to clarify that any final decision expressly appealable to the City Council under
other provisions of City Code, including the Land Use Code, shall be decided by the City Council in the
manner set forth in this Division.
III. Section 2-48. – Appeal of final decision permitted; effect of appeal; grounds for appeal.
The proposed change to Section 2-48(c) requires that appeals filed by City Councilmembers include specific
questions to be considered on appeal. This replaces the current requirement for a general description of the
issue and is intended to better identify the particular issues being raised.
IV. Section 2-49. – Filing of notice of appeal; new evidence.
In addition to clean-up language to make the text more easily understood, a number of changes are proposed
as follows:
1. Changes to Subsection (b) clarifying that the notice of appeal shall be signed by all persons joining
the appeal.
2. Changes to Subsection (b)(5) requiring that new evidence not contained in the record of the decision
being appealed, and associated with an allegation that a fair hearing was not conducted, be:
a. submitted by the appellant within 7 calendar days after the deadline for filing the notice of
appeal; and
b. clearly marked as new evidence.
ATTACHMENT 2
Proposed Changes to the City Council Appeals Procedure
January 21, 2019
Page 2
3. Changes to Subsection (b)(6) requiring contact information for the person authorized to receive, on
behalf of all persons joining an appeal, any notice required to be mailed by the City.
4. Changes to Subsection (c) clarifying the additional information an appellant may submit for Council
consideration.
5. New Subsection (d) stating how information related to an appeal will be accessible (through the
website and for public inspection at the City Clerk’s office).
V. Section 2-50. – Fee for filing of appeal.
The title language has been changed to reflect that the required $100 is a filing fee as opposed to the cost of
the appeal.
VI. Section 2-51. – Record on appeal.
Clarifies what information is included in the record that Council may rely upon in making its decision. Changes
are proposed as follows:
1. Changes to the first paragraph referencing new evidence.
2. Changes to Section (3) removing an outdated reference to videotape and replacing this term with
video recording.
3. New Section (4) requiring submittal of a copy of notice of the hearing on the decision appealed, along
with a list of those to whom such notice was mailed.
VII. Section 2-52. – Scheduling of the hearing/no ex parte contacts.
Proposed changes to this Section are as follows:
1. Changes to Subsection (a) clarifying items related to scheduling an appeal hearing as follows:
a. An appeal hearing will be scheduled no fewer than 28 calendar days (new) and no more than
77 (was 75 days) calendar days after the deadline for filing the notice of appeal.
b. The City Clerk will determine a possible hearing date(s) and determine if unavoidable
conflicts exist (new).
c. Written notice will be sent to the appellant and parties-in-interest not less than 21 calendar
days prior to the date of the appeal hearing (was 11 days).
2. New Subsection (b) consolidating multiple appeals of the same decision unless Council decides
otherwise. This codifies the current Council practice of consolidating multiple appeals.
3. New Subsection (c) providing a mechanism for the City Manager to request that Council extend the
time for hearing an appeal beyond the specified 77-day period.
4. New Subsection (d) moving the prohibition on ex parte contacts to this Section from Section 2-53.
Proposed Changes to the City Council Appeals Procedure
January 21, 2019
Page 3
VIII. Section 2-53. – Site inspection.
The proposed change to this section is to remove Subsection (d).
The change is intended to clarify that the sole purpose of a site inspection is to provide Councilmembers with
a better understanding of the physical characteristics of the property at issue and the surrounding area. The
current language being deleted states that another purpose of a site visit is to allow Councilmembers to gain a
better understanding of the issues on appeal. This change is being proposed because gaining an
understanding of the issues on appeal is best addressed at the appeal hearing itself when all participating
Councilmembers and parties-in-interest are present to hear the information and can respond or discuss as
allowed.
The prohibition on ex parte contacts has been moved to Section 2-52.
IX. Section 2-54. – Procedure at the hearing.
The proposed changes are as follows:
1. Changes to Subsection (a)(1) clarifying the staff presentation.
2. Changes to Subsection (c) clarifying how procedural issues are addressed.
3. Changes to Subsection (e) clarifying that the Mayor may modify procedures when multiple appeals
have been consolidated to expedite the appeal hearing.
X. Section 2-55. – Written materials; new evidence.
The proposed changes are as follows:
1. Changes to Subsection (a) clarifying what evidence and information the Council may consider in
making its decision, including new evidence.
2. Changes to Subsection (b) specifying what new evidence Council may consider in making its
decision.
3. Changes to Subsection (b)(1) requiring the appellant to submit new evidence according to Section 2-
49(b)(5); within 7 calendar days after the deadline for filing a notice of appeal and clearly marked as
new evidence.
4. Changes to Subsection (b)(2) requiring a party-in interest opposed to the appeal to submit new
evidence within 21 calendar days after the deadline for filing the related notice of appeal.
5. Changes to Subsection (b)(4) authorizing Councilmembers to add new evidence based on their
inspection of development plans or other proposals that are subject to the appeal.
6. New Subsection (c) specifying that City staff will prepare the record which includes the staff agenda
item summary and presentation. This Subsection also specifies that Council will determine whether
each item of new evidence shall be admitted for Council consideration.
Proposed Changes to the City Council Appeals Procedure
January 21, 2019
Page 4
7. New Subsection (d) setting the deadline for parties-in-interest to submit presentation materials for the
appeal and requiring that at least twenty hard copies be made available if hard copies are to be
provided, along with the digital presentation.
8. Original Subsections (e), (f), and (g) have been moved to Section 2-56.
XI. Section 2-56. – Council decision on appeal.
This is being proposed as a new Section related to Council decisions on appeal.
Original Subsections (e), (f), and (g) are proposed to move to this Section from Section 2-55 as Subsections
(a), (b) and (c). Subsection (d) adds a procedure for Council to amend adopted resolutions in order to clarify
or correct the language or to modify a decision to resolve a legal dispute or comply with applicable law.
In order to make a change to an adopted resolution, the proposed change requires notice to be sent to the
appellant, applicant, and persons who appeared at the appeal hearing and such persons may comment on
the proposed change at the time Council considers it.
Excerpt from the Planning & Zoning Board Minutes
February 19, 2019
Appeal Code Changes:
Staff and Applicant Presentations
City Clerk, Coldiron, gave a brief verbal visual overview of this item.
Public Input (3 minutes per person)
Eric Sutherland, 3520 Golden Current Blvd., spoke of the process flow and how the deliberative bodies
put a focus on the conflicts of the terms of the provisions of the land use code. He feels it is difficult for
those entering for the first time. He urges the Board to review the grand plan a bit more.
Paul Patterson, 2936 Eindborough Dr., would like a continuance to get more citizen comment.
Rick Hoffman, 1804 Wallenberg Dr., is concerned with changes tipping the scale favoring developers at
the expense of the neighborhoods and citizens. He is concerned with combining appeals. He feels the
real effort should be short stopping appeals to the City Council to being with and doing it at the P&Z
level.
Kathryn Dubiel, 2936 Eindborough Dr., feels that the radical changes look deleterious to her rights as a
citizen. The P&Z Board should weigh in before going to City Council. She does not feel that the practice
of combining appeals needs to be codified. Due process right should be observed if you are an appellant.
Staff Response
City Clerk Coldiron responded that they have been working on the change over the past 8 months. City
Clerk Coldiron appreciates the comment regarding improvements on our part does not mean
improvements for the residents. City Clerk Coldiron mentioned the April elections and asked that the
Board push this further past the election time period to facilitate proper outreach.
Board Questions / Deliberation
Member Whitley asked City Clerk Coldiron to pull the timeline and wanted confirmation on the number
of days, 20 or 28. City Clerk Coldiron responded 28.
Member Hobbs asked if there was further opportunity after the initial filing date. City Clerk Coldiron
deferred to Attorney Yatabe for clarification. Attorney Yatabe clarified that the new evidence
requirement states that it must be submitted at the time of notice of appeal and that there are
exceptions.
Member Hogestad asked City Clerk Coldiron if Council had the opportunity to consolidate appeals even
if they are not similar. City Clerk Coldiron responded that if they were very different, we would work
ATTACHMENT 3
with the City Attorney’s office, but would present as separate items. Member Hogestad wanted to know
if the City Attorney’s office would recommend not consolidating or if it was at their discretion. Attorney
Yatabe gave an overview of current state and clarified wording.
Member Rollins wanted to know if there was public outreach conducted prior to this hearing. City Clerk
Coldiron responded no.
Member Hansen explained that there should be discussion on.
Member Hansen commented that the general mood is that this should be continued, and that
discussion should be had regarding why and what goal or strategies should be implemented. Member
Hobbs sought clarification as to whether the Board should discuss the code changes before making a
motion to continue or not. Member Hansen would like a feel from the Board if the general notion is to
continue to help him decide how to proceed.
Member Whitley would like to continue this item as he would like to hear public comment.
Member Rollins feels it would be useful for City staff if the Board has comments on certain sections, to
hear those comments now.
Chair Hansen commented that if the general sense is that this item will be continued, he would like to
give specific comments as to what is in the proposed code as they see it now and what we have heard
from public comment. Leading up to a motion to continue if there is enough information to provide
suggestions as part of an approval to move forward or to deny and have a more in-depth deliberation
and discussion.
Member Hogestad feels that this should be continued as his concern is that there has not been enough
public outreach and input. He wanted to know what kind of outreach and how it would be
implemented. City Clerk Coldiron responded that it would be neighborhood meetings through
notification.
Member Whitley asked about the outreach schedule. City Clerk Coldiron responded that they could get
to neighborhood meetings the latter part of April.
Member Hobbs is in favor of continuance. His concerns lie in the areas of definitions excluding lease
holders from the process and the fact that we would require all new evidence to be submitted at 14
days. For simple appeals this may be possible, for others it may not allow a person or group to put the
evidence together in that timeframe. He would like staff to explore expanding.
Member Rollins wanted to know if it would be difficult to search back a few years on anyone that has
pursued an appeal and that you also notify them in the instance they are not in the neighborhood. She is
also interested in input from individuals regarding consolidation of appeals. She appreciates all the work
put in so far by staff.
Chair Hansen does not feel encouraging more public input at P&Z hearings is the place for it. He feels
that using neighborhood meetings for public input has not worked as hoped. He would like the process
to be less bumpy, and that it would be beneficial for those that have appealed their projects also be
contacted and involved when an appeal comes forward. Adjustments to the period for new evidence
should be made to avoid an unnecessary information dump. 14 days is too short, but longer than that is
a long time for an applicant to wait, maybe there is an interim step.
Member Hobbs made a motion that the Fort Collins Planning and Zoning Board to recommend to City
Council regarding the appeals code amendments that were presented here tonight to a future date to
be worked out by staff. Member Whitley seconded. Vote: 5:0.
HEARING OF THE PLANNING AND ZONING BOARD
CITY OF FORT COLLINS
Held November 21, 2019
City Council Chambers
300 West Laporte
Fort Collins, Colorado
In the Matter of:
City Council Appeals Code Amendments
Meeting Time: 6:00 PM, November 21, 2019
Board Members Present: Staff Members Present:
Jeff Hansen, Chair Tom Leeson
Jeffrey Schneider, Vice Chair Delynn Coldiron
Per Hogestad Carrie Daggett
David Katz Brad Yatabe
William Whitley Tom Leeson
Michael Hobbs Kacee Scheidenhelm
Michelle Haefele
1
ATTACHMENT 4
2
1 CHAIR JEFF HANSEN: The first item on the discussion agenda is the City Council Appeals
2 Code Amendments. Have we received any new information since our worksession?
3 MS. KACEE SCHEIDENHELM: Yes, we have. We received a letter from Paul Patterson which
4 includes two suggestions regarding these Code changes.
5 CHAIR HANSEN: Okay, does any Boardmember have anything to disclose such as ex parte
6 communications or conflicts of interest? Okay, can we have a brief introduction…and since we don't
7 have an applicant, you are the applicant. You can give us the introduction and dive right into your
8 presentation.
9 CITY CLERK DELYNN COLDIRON: Excellent; thanks Chair Hansen and Boardmembers. We
10 appreciate the opportunity to come talk to you tonight about our Appeal Code changes. My name is
11 Delynn Coldiron; I am the City Clerk for the City of Fort Collins and I'm here with our City Attorney
12 Carrie Daggett. So we’re here to present these changes to you tonight and look forward to your feedback.
13 So really, we set out on this project really just to clarify aspects of the appeals procedure and to
14 improve the appeals process to some degree, but most of this is a lot of cleanup from comments that we
15 were receiving and just from processes that we have walked through noting some changes that needed to
16 be made. So, that's kind of the impetus…it was staff-initiated in this case.
17 So we'll just kind of walk you through some of the changes to each of the sections that we are
18 talking about. First, under section 2-46, this is the definition section, we have just these four changes that
19 we are trying to make. For appellant, we're simply clarifying that this now includes multiple parties-in-
20 interest, and so that's the change. For evidence, we've simply added a reference to audio to bring us more
21 up to speed on other types of evidence that we might receive. Under new evidence…this is really just a
22 modified way to handle revised evidence that already exists in the record. So, if somebody is highlighting
23 something or doing something to something that already exists in the record, they simply have to identify
24 where that is in the record versus providing the old record and the new record. So it just is an easier way
25 to handle that evidence. And then, parties-in-interest…this is one of the changes that we made based on
26 our public outreach that we did. So, this is being clarified…initially we were just going to change it to
27 parties who had an ownership interest, but based on the feedback, people thought it was very important to
28 also have tenants or those with a possessory interest also involved in that. So, that has been added so it's
29 actually more notice that's going to people at this point than what was done previously.
30 So, in sections 2-47 and 2-48…2-47 really clarifies that any decision that's made under a variety
31 of City Codes that are appealable to City Council will be done according to Chapter 2. So, that's a little
32 ambiguous in the Code right now, so we'd just like anything that's appealable to Council to come under
33 this chapter. And then under section 2-48, it just clarifies a little bit more when Councilmembers give us
34 an appeal, it asks for a little bit more information. So the statements before were somewhat general, so
35 this is just a way to get more clarification so that all parties can prepare a little bit better.
36 Under the filing of the notice, section 2-49, it's requesting signatures from all people joining the
37 appeal, it's giving additional deadlines and asking for new evidence to be clearly marked, it gives us a
38 provision to have one contact person for all the people that are joining the appeal just to help with
39 notification and that, it clarifies the information that can be submitted, so the types of new evidence that
40 can be submitted, and generally it's related to anything…if people feel like a fair hearing was not…it's
41 very specific in the type of information that can be added, and so it clarifies that. And then it clarifies
3
1 how the information will be accessible. So the City Clerk's Office is going to make some changes and we
2 will be making this information available on the website now as we receive it and then we'll always have
3 a record available in our office as well, so just pretty much adding that web component.
4 Alright, under sections 2-50 and 2-51…2-50, we’re simply changing the title. We want it to
5 reflect that this is a filing fee versus a cost of the appeal…that wasn't accurate…so it's really just a filing
6 fee. And then under section 2-51, it clarifies what we be in the record of the appeal, so this will now
7 include new evidence. It changes an outdated reference to a video tape and to a video recording, and then
8 it also now will include the notice of hearing that was sent out and the individuals to whom that was sent
9 out…so that wasn't previously included in the information that people got.
10 Under section 2-52, this adjusts the scheduling and notice provisions. It adds that a hearing
11 would not be scheduled prior to 28 days…so we don't have that in there right now, so no less than 28
12 days. We're also asking for a change on the other end that it would be no more than 77 days…that exists
13 as 75. We're trying to move it to multiples of seven just to try not to have dates end up on a weekend, so
14 that's the reason for that. Hearings with…this will change a little bit…it changes a little bit
15 when…because we're allowing some new evidence to be submitted…when the hearings would actually
16 be scheduled. So, there won't be a hearing scheduled prior to 28 days; it's probably going to be more than
17 35 days to meet the new notice deadlines which we're suggesting move out to 21 days. Right now, that is
18 11 days so people are only getting notice 11 days prior to a hearing…we're suggesting that that move out
19 to 21 days. So it's more likely that no hearing, even with new evidence, would be done before 35 days,
20 and that ones with evidence probably will push out to 49 days to accommodate the new deadlines.
21 This also allows a provision for the City Manager to request an extension of time past that 77
22 days. It's not always likely that somebody is going to need that, but right now if somebody wasn't able to
23 meet that deadline, the appeal would simply die…there's no provision for it to be extended and then it
24 would not be heard. So this just provides another option that if they're really was an emergency or
25 something beyond somebody's control, that we would have a provision for the City Manager to be able to
26 extend that deadline for people. And then, under section D, we just simply moved the ex parte
27 communications information into this section.
28 For section 2-53 and 2-54, we're clarifying that the intent of the site visit is really to just go out
29 and see the physical features of the site that's out there. There was information in there about gaining a
30 better understanding of the appeal itself, but we feel that that's better done as part of the hearing because
31 people are here to present testimony and people can ask questions. So we're just taking that language out
32 of there. And then under section 2-54 we're simply clarifying the procedures that are being done at the
33 hearing. So, we're clarifying that staff will give a presentation, it clarifies how the procedural issues
34 would be addressed, and then it does enable the Mayor to modify procedures when there's multiple
35 appeals that have been consolidated into one. And I think I didn't reference that before, but that is one of
36 the changes that we're making…when we have multiple appeals that come in on the same decision, that
37 they would be consolidated into one appeal. But Council always has the option not to do that should they
38 desire not to hear them that way. We did that because that is the current practice that's occurred for a
39 couple years, or maybe even more than that.
40 Okay, under section 2-55 we're talking about new evidence here, and it's clarifying the
41 information that Council can consider. It specifies what that new information will look like, specifies that
42 City staff will be the ones that prepare the record and what will be in that record, and then sets the
43 submittal deadlines for presentation materials, which we'll talk about in just a little bit…right now
4
1 actually. So this is the timeline…14 days after the final decision is when the notice of appeal is sue, and
2 that has not changed with this. Anybody who wants a site visit has to request that within 10 days after
3 that decision; that has also not changed…that's something that's done. New evidence from the appellant
4 will have to be to us within 7 days after that, so 21 days after the final decision. New evidence from the
5 party-in-interest opposed to the appeal then has 14 days after that so that they're able to respond to any
6 new evidence that was submitted. And again, this is not new evidence of the appeal overall, this is new
7 evidence related to whether or not there was a fair hearing. So, it's not new evidence for the overall
8 appeal. And so, the party opposed to the appeal would not have had a chance to see that information, and
9 so that is why we're suggesting that there be a couple weeks for them to be able to see what that
10 information is and be able to provide a response.
11 Again, the notice of hearing deadline we're saying should be a minimum of 21 days, so that's 11
12 days right now…we're pushing that out to 21. The dates of hearing again, 49 days if there's new evidence
13 would be likely. Those could change a little bit if we receive the notice of appeal earlier than the 14 days,
14 so that could push things up a little bit. But that would be primarily the reason why it would move up.
15 And so, without new evidence, we're suggesting that that's probably going to be about 35 days. The last
16 day again a hearing can be scheduled is 77 days after the appeal is filed, and then presentation materials
17 are due by noon on the date of an appeal, or 4 PM the business day prior if for some reason the Council
18 meeting had been moved up from their regular 6 PM time.
19 Alright, we've added a new section 2-56 and this is related to Council decisions on the appeal.
20 We moved some subsections from another area into this section. It includes a provision allowing a
21 remand back to a different board if there was an issue of fair hearing. We think this most likely might
22 occur with an administrative hearing that came before Council, and they would have a chance to look at
23 that and then potentially remand it back to this Board, for instance, to have it reheard.
24 It also adds a procedure for Council to amend adopted resolutions. And this would be in a case
25 where they might want to clarify or correct something that they put in a resolution, or if they wanted to
26 modify a decision to resolve a legal complaint. Those would be the times when they might want to do
27 that. And before they could do that, we would require notice to go out to all of the people that had been
28 involved in the appeal at least 14 days prior to that, and then everybody that attended would have a
29 chance…that was a party-in-interest…they would have a chance to speak to the new modifications that
30 were being suggested.
31 So we came to you earlier and you asked us to go out and do some public outreach, which we did.
32 We sent out a couple…we wanted to have a couple specific meetings with those that had been involved in
33 appeals from both sides, so the appellant and the people that were opposed to the appeals. So we went
34 back three years and we did specific invitations to all the people that had been involved in that one way or
35 the other. For the applicants that were involved, we had one attendee come. For the appellants involved
36 in the appeal process, we had three attendees come. And then we wanted to do a couple public meetings.
37 So the first public meeting was advertised on the website and in the development review newsletter, and
38 so we had just three attendees that came to that meeting. And so we decided we should do another public
39 meeting based on that, and we did full advertising, so we did a press release, we did website, we did the
40 development review newsletter, we did social media, and then we had about eight attendees at that.
41 So, some of the outreach we received…we did what we could. So specifically with the parties-in-
42 interest and who would be included in the appeals, there was feedback that came in on some of the
43 processes like, could we standardize some of the processes around appeals and have applications so that
5
1 we could determine whether or not appeal was valid or not…so there was some of that kind of thing. So
2 that wouldn't necessarily be a code, that would probably be more of a process. And then there were a lot
3 of comments about needing to revise codes, for instance, the Land Use Code, or another code, to keep an
4 appeal even from coming, and so those were processes that the Board can certainly encourage Council to
5 direct staff to do extra work on, but was not part of the Appeal Code changes that we were making. So,
6 that's beyond the scope of this project, but we did have comments that way.
7 So, our next steps are going to City Council for first reading on January 7th, second reading is on
8 January 21st as it's scheduled now. And so tonight, we welcome your feedback and hope to get a
9 recommendation from you to City Council on the Appeals Code.
10 CHAIR HANSEN: Thank you for that presentation. Does anyone on the Board have any
11 clarifying questions about that presentation?
12 BOARDMEMBER WILLIAM WHITLEY: Yes, under site visit request, the time was listed as 10
13 days…if we're standardizing on multiples of 7, that should be 14.
14 CITY CLERK COLDIRON: Yes, thank you. I agree with you there.
15 BOARDMEMBER WHITLEY: Thank you. Do we need to amend that then, or is that just
16 assumed to be correct?
17 CITY CLERK COLDIRON: I think we can make that change and it will be changed before we
18 present it to City Council on first reading.
19 BOARDMEMBER WHITLEY: Thank you.
20 CHAIR HANSEN: Okay; any other questions? Clarifying questions rather than discussion.
21 BOARDMEMBER PER HOGESTAD: The consolidation of multiple appeals…was that a
22 request from City Council while you were working on the updates to the appeal process?
23 CITY CLERK COLDIRON: Do you want to address that Carrie?
24 CITY ATTORNEY CARRIE DAGGETT: Since what we were undertaking when we started
25 working on these changes was really looking at the current code, trying to find places where it didn't quite
26 match to the way the process either needed to work or was best working in practice, a lot of the things that
27 are changed in this draft are changes that we identified as things that would be beneficial. That
28 consolidation of appeals is one that I think we suggested be made because it really actually has pretty
29 much always been the practice. And you can imagine when Council gets multiple appeals, sometimes
30 about the same issues, but all about the same approval, that there's so much overlap in the information
31 that typically it makes sense for them to try to manage the issues together rather than having completely
32 separated appeal hearings. So that's why we took that approach in this recommendation. If there are
33 appeals that come in where it really doesn't work that way, where the issues are so different that there
34 might be a benefit in separating the appeals, this clearly allows for that to happen. But typically, that has
35 not been the situation when we've had multiple appeals.
6
1 BOARDMEMBER HOGESTAD: So how would an appellant know that? That it will be
2 consolidated, or it won't be consolidated.
3 CITY ATTORNEY DAGGETT: The way it would work would be…it would be consolidated
4 unless, at the time of the hearing, during the initial portion of the hearing when the procedural issues are
5 being discussed, there was an action taken at that point to separate it. We would have to be looking at
6 whether there might be ways in advance of that that the Mayor could influence how the hearing was set
7 up for presentation in advance of that. But, the natural way for it to happen would be then at the
8 beginning of the hearing when the procedural issues are being discussed, which right now is the way the
9 question of consolidation is addressed. We have not had a time when multiple appeals have been
10 suggested to be consolidated or even just have been present and when they haven't been consolidated.
11 BOARDMEMBER HOGESTAD: Could you repeat just that one little portion?
12 CITY ATTORNEY DAGGETT: What I just said?
13 BOARDMEMBER HOGESTAD: Not the whole thing, just the very last sentence.
14 CITY ATTORNEY DAGGETT: We have…any time we've had multiple appeals, those have
15 come forward and have been presented and structured as a consolidated appeal hearing. So, that really
16 has been the standard practice, and this would essentially document in the Code that that would be the
17 standard practice, and that to do something different would essentially require a decision be made to
18 change that.
19 BOARDMEMBER HOGESTAD: Okay.
20 CITY ATTORNEY DAGGETT: Sorry, that was different…
21 CHAIR HANSEN: I think David had a question?
22 BOARDMEMBER DAVID KATZ: Regarding 2-46…definitions…party-in-interest. In the case
23 where the current owner is the applicant, would a party or an organization with a contractual interest be
24 considered possessory? The example you use is always a tenant, but would, for example, a developer
25 with a piece of land under contract…?
26 CITY ATTORNEY DAGGETT: There would be some question about who the applicant is, and I
27 believe in our process we frequently have applications where we have someone who is not actually the
28 owner of the property, and I think sometimes we have multiple parties who are on the applications. And
29 so, the intention is that the applicant, whoever that would encompass, would naturally be a party-in-
30 interest, and then that might overlap completely with who the owners are and who would have a
31 possessory interest, but it might be different. So this is intended to just capture anyone who would
32 happen to fall in any of those categories.
33 BOARDMEMBER KATZ: Okay; I could just possibly see a situation where maybe the owner
34 would back down, and maybe a developer in this example would want to continue the appeals process.
35 And while they aren't technically the applicant, and they don't technically have an ownership, they sort of
36 have a possessory interest.
7
1 CITY ATTORNEY DAGGETT: Not to kind of go down a rabbit hole on it, but we probably
2 would have other issues if we had an application and the owner was withdrawing consent, because we do
3 have some requirements in our Land Use Code that really require the owner to be consenting to recording
4 of plats and other kinds of documents. So, it's pretty hard for an applicant to move forward if the owner is
5 not part of and cooperating with the application. And in fact, I think we have some provisions that really
6 state that there are certain steps of the process that can't be completed without the cooperation of the
7 owner. So this probably really applies more to a time when there just might be…say it's a multi-family
8 building that's being redeveloped and there might be current tenants or others who might have an interest
9 in the property.
10 BOARDMEMBER KATZ: Okay, thank you for the clarification.
11 CHAIR HANSEN: Michelle, you had a question?
12 BOARDMEMBER MICHELLE HAEFELE: So I have a couple…I just want to
13 clarify…following up with Per's question. If you…it seems unlikely, but if you were to receive two
14 different appeals essentially on the same project, or the same issue, would each…would those two
15 appellants be then brought together in order to work together or anything like that? I mean, it
16 just…that's…or would they just show up the same night and have to split the appeals.
17 CITY ATTORNEY DAGGETT: The way the appeal hearing is structured to take place would be
18 intended to ensure that each appellant has an opportunity to argue their issues and, at the beginning of the
19 hearing, there is a portion of the hearing that is designed to allow for working through any procedural
20 issues, and frequently one of the issues that is worked through is, you know, who are the different
21 segments of interested parties-in-interest and how much time should they get, and how do we make sure
22 that all of the different interested parties have a fair opportunity to present their arguments. So typically
23 where we have multiple appeals, there will be an opportunity for each of the appellants to make sure that
24 they're presenting their argument.
25 BOARDMEMBER HAEFELE: Okay, and then I have another…so, can you give some examples
26 of something that someone could bring as evidence that there was a failure to conduct a fair hearing?
27 What would be a 'for instance?'
28 CITY ATTORNEY DAGGETT: Well, we have three basic categories that we are recognizing as
29 grounds for introducing new evidence. One of them is that the…I'll say the board in this case it would be
30 a board…considered evidence relevant to its findings that was substantially false or grossly misleading.
31 So, for example, in that case, if a party-in-interest is making that argument, they might actually have some
32 sort of external information that they want to offer that really is going to go to the question of, did the
33 board consider something that was just blatantly incorrect. And sometimes when something is presented
34 at the board hearing, people may not have had an opportunity at that point to address the issue of the
35 falseness and misleadingness of this evidence that theoretically then is the issue on appeal. So, that's one
36 example.
37 The other two grounds for which new evidence are allowed are, number one, when the decision
38 maker improperly failed to receive all relevant evidence. So, in that case, you would be talking about
39 evidence that someone had attempted to offer that wasn't admitted into evidence. So it wouldn't be in
40 evidence, and so in order to be addressing that on appeal, it would need to be in front of the Council. So,
8
1 that's another example of something where it's not going to be in the board's record because it wasn't
2 taken in.
3 And then the third one is the allegation that the decision maker was biased. So, that's another
4 example where there may be external evidence that may need to be brought in in order to make that
5 argument. Those are actually the very limited types of issues for which people can, on appeal, introduce
6 new evidence. And otherwise, the decision on appeal is intended to be a review of what was in front of
7 the board that made the decision, or hearing officer, based on that record applying the standards that
8 needed to be applied. So, that's why typically new evidence is not appropriate. In these particular cases
9 though, it's pretty hard to make those arguments without being able to bring some new evidence in.
10 CHAIR HANSEN: Okay, does that summarize your questions Michelle?
11 BOARDMEMBER HAEFELE: I think so…I have a couple other questions and I don't know if
12 they fall into discussion questions.
13 CHAIR HANSEN: We can wait and discuss them later I think.
14 BOARDMEMBER HAEFELE: Well, I don't know if they're clarifying or not.
15 CHAIR HANSEN: I guess maybe just for clarification, clarifying questions should be, is this
16 number correct…Bill's example…should this be 10 versus 14 instead of I've got a question about this,
17 that, and the other. That's part of the discussion…so it's more of a clarification of, I didn't understand the
18 presentation, or the number you said, it doesn't match what the presentation showed. Just so we're all on
19 the same page. Yeah, if we're starting to discuss possibly changing what's proposed, or anything like that,
20 we'll save that for later.
21 No more clarifying questions from the Board? Okay, I'm going to open it up for citizen
22 participation, or citizen input on this item. How many people in the audience would like to speak on this?
23 I see one. Okay, you'll have three minutes to speak. Again, sign in and then state your name before you
24 start speaking and go whenever you are ready.
25 MR. ERIC SUTHERLAND: Eric Sutherland of Fort Collins again. I do think a few words of
26 thanks are due to the City Clerk for the excellent job of public outreach that was done, far more than what
27 was necessary, far more than what would be deemed sufficient in collecting public input on this topic.
28 However, as you have heard me say before, as I've appeared before this commission in two different
29 occasions, general public comment, the scope of what was considered here was not sufficient because
30 there are deficiencies in this entire development review process…I can't believe I'm the only one that sees
31 them…they disadvantage the public members of neighborhoods as well as developers…that really should
32 be addressed and hopefully corrected. And those are not available in the revisions that you're considering
33 this evening.
34 So, I'm here this evening to ask that the commission not recommend these changes, that we go
35 and scope out the entire process to make sure, for example, that…can you bring a new argument to an
36 appeal? We know you can't bring…no new evidence…but new arguments can show up for the first time
37 on appeals. That shouldn't be happening, you know. And really to eliminate that process…you've heard
38 me say it before, we really need to sharpen the focus of the discussion that this board hears when making
39 its determination in quasi-judicial capacity looking at the facts versus the law…measuring them against
9
1 the law. And that is really what we should be focusing on, and the whole process really should be scoped
2 to have that happen. It's kind of unfortunate…we don't get cracks at changing things like this very often,
3 and when the whole thing is initiated out of the gate with a scope that's defined, in this particular case, by
4 the office of the City Attorney, no one else, we are missing the opportunity to make the entire system
5 work better.
6 So, I'd ask for a vote that indicates that the board, commission, is much more interested in seeing
7 that a holistic approach be taken to this development review process so that we get better planning
8 outcomes, so that people can participate in a more meaningful way for the benefit of their neighborhoods,
9 everything, as our city grows and matures…that's what I'm asking for. So, thanks a lot, appreciate it.
10 CHAIR HANSEN: Thank you Eric. Is there anyone else in the audience who would like to
11 address the board on this topic? Okay, seeing none, I'm going to close the citizen participation.
12 MR. TOM LEESON: Mr. Chair, I want to reference the letter that you received from Paul
13 Patterson. I know that you all have a copy of it, and it is in the record, but for the benefit of Ms. Daggett
14 and Ms. Coldiron who have not received that letter…and I apologize…I just want to paraphrase. Mr.
15 Patterson had two points, one was that the deadline for new evidence…the deadline is currently 21 days
16 after the decision…he's proposing instead that the appellant deadline be set a number of business days
17 before the appeal hearing, say about five. That's primarily because in many cases people who are
18 appealing a decision are not very familiar with the Land Use Code and it takes a fair amount of time to
19 kind of dig into it and understand the different provisions and the implications, and to provide them more
20 time to provide that would be beneficial.
21 His second point was that the scheduled staff presentation be deleted from the appeal process.
22 His feeling is that is sort of unfair and kind of stacks the deck against the appellants. He says, to put it
23 simply, the staff report and unlimited presentation time at the beginning of the hearing is inherently unfair
24 to the appellants who seek Council's fresh consideration of the record. I have forwarded that to both of
25 you so you have a copy of that.
26 CHAIR HANSEN: Thank you Tom. Does anyone on the staff have any responses to the
27 comments you heard, either in the letter or from Mr. Sutherland?
28 CITY ATTORNEY DAGGETT: I would like to just really briefly respond to Mr. Patterson's two
29 suggestions. Starting with the second one, which I would say is probably more of a substantive change
30 than the type of change we had been aiming to make in this set of revisions that we're bringing forward.
31 That probably is more of a policy question I would say, for Council, to evaluate whether they would want
32 a staff presentation for the appeals. I do know that that staff overview, at least from my observation,
33 seems to be a helpful way for the Council to have a good, sort of, starting point understanding of what's in
34 front of Council. So, I…not to prejudge it…I think it would be a question for Council, whether that is a
35 useful part of the hearing. And so I kind of leave that, I think, for Council's determination. We can
36 certainly delete that very easily from that part of the Code if the decision is made by Council that they
37 would rather not have that step.
38 On the question of the deadline for submission of new evidence, the challenge with working back
39 from the scheduling of the hearing is it is really hard to manage the sequence of events if you're working
40 backwards from a date that may not even be scheduled for a while as the process is proceeding. Because
41 the right to submit evidence is so limited, and because presumably when the appellant is filing their
10
1 appeal, they have some idea of what it is that's prompting them to file the appeal. They will have had 14
2 days, and this change gives them then an additional seven days, to make sure that they have whatever
3 evidence they might need to get in the record to support their appeal. However, it's very important that
4 the process be fair for both sides, and so that additional time that this new version of the process now
5 clearly gives to the other side, is also a really important part of the overall process, and that's a piece of
6 the process that I think it would be very difficult to ensure we were able to provide if we were working
7 back from the hearing date. So, I think the logic that we've used to set this up actually accomplishes
8 pretty well that fair and reasonable opportunity to bring forward what probably is going to be a fairly
9 narrow, fairly limited kind of universe of potential new evidence.
10 CHAIR HANSEN: Okay, thank you. Any other comments from the staff?
11 CITY CLERK COLDIRON: I would just say, with regard to what Mr. Sutherland had to
12 say…that was similar to comments that we had received as part of the public outreach, and I think those
13 are the things that you can recommend that Council direct staff to take a look at whether it’s a
14 development review process…we heard that about the floodplain variance process…so there were a
15 couple areas that we heard that in, and I think that can be done separate from the code changes that we're
16 bringing to you now. So, I think that work still can be done.
17 CHAIR HANSEN: Thank you. And I was going to comment on that similarly, that as a Board,
18 we're always looking for ways to improve the process. The effort to basically start from scratch would be
19 enormous, and we have to maintain a working system while that would happen. I guess the approach
20 we've been having is that…have some very broad discussions and then pick pieces and parts to implement
21 kind of incrementally. But the Board is very aware that there are improvements to be had in the process
22 and we're always working to find ways to implement those. And if you have some specific details, we'd
23 be glad to hear them. Do you have a question, comment?
24 Yeah, we can phase this into more questions with staff, but also a little deliberation amongst the
25 Board if we want to…I have a feeling it's not going to be a smooth transition between the two, so feel free
26 to bring up some arguments.
27 VICE CHAIR JEFFREY SCHNEIDER: So a question in regard to the 21 day deadline. Was
28 there a reason for the 21, or would it be okay to go to 28? I mean, I understand the appellants…Mr.
29 Patterson's concern about timing of bringing new evidence in and everything else. I understand the
30 rationale that, if you're going to file an appeal, you probably have a good idea of what your appealing
31 based on, but was there a conversation why 21 versus 28? To keep things moving, or…because we have
32 up to the 77 days to hear it…so I'm just wondering the rush for the 21.
33 CITY ATTORNEY DAGGETT: We actually spent a lot of time, I'll say, testing different
34 combinations of timeframes for this thinking that there is likely interest in the parties having as much time
35 as they can have to submit new evidence. One challenge with that is the longer we make the timeframe
36 for the appellant, the more time we probably, to be fair, need to give the other side. And so the longer
37 those windows get, the farther out we're pushing the timeframe for actually having the hearing. And since
38 sometimes these appeals actually are already adding a fair amount of time to the process for completing
39 an approval, we were trying to keep it to what hopefully would be a sufficient amount of time, but would
40 still allow the hearing to take place in a reasonable period of time too.
11
1 VICE CHAIR SCHNEIDER: Was there any conversation about the ability for an appellant to
2 extend that time for new evidence, or vice versa, the rebuttal of new evidence extending the timeframe
3 longer? So if the applicant of the project that's being appealed, if they said, hey, I need more than 14
4 days, can I get another three days? Is there anything in…I didn't see anything in the code that would
5 allow requests for extensions to those time deadlines.
6 CHAIR HANSEN: Before you answer that…I had some questions along the same line…but can
7 we get the graphic of that timeline up while we talk about this? Go ahead.
8 CITY ATTORNEY DAGGET: So if I understand the question correctly, it's about the, what I'll
9 call opponents to the appeal, who have 14 days to respond to what evidence the appellants…
10 VICE CHAIR SCHNEIDER: I guess either party…so if I filed an appeal and then I have an
11 additional 14 days to get my new evidence submitted…if something happened for whatever reason and I
12 said, hey look, I can't make this deadline, can I get three more days to submit my evidence? I don't see
13 the ability for someone to be able to get a time extension. And vice versa, if someone wanted to, on the
14 response to the new evidence, same thing…if someone got sick, or had some issue and they needed more
15 that…you know if they need a couple…I'm not asking for weeks, I'm just saying…I'm thinking of days at
16 this point, but I don't see the ability for someone to request an extension to that at this point. Is that
17 something that was talked about?
18 CITY ATTORNEY DAGGETT: I think, first of all, I should say you are reading the draft
19 language correctly. We really haven't provided for extensions of the timeframes.
20 VICE CHAIR SCHNEIDER: Except for the City Manager?
21 CITY ATTORNEY DAGGETT: And the City Manager is asking the Council to approve an
22 extension. So, the City Manager isn't unilaterally making an extension; he's asking Council to approve an
23 extension. There are obviously pros and cons to asking for extensions, and one of the things that I think
24 we've been sensitive to is that these are expected to be issues that came up at the time of a hearing, so
25 there shouldn't be a lot of, sort of new information being generated, because the issues are really issues
26 about what happened 14 days ago at the time the appeal must be filed, and 21 days ago at the time the
27 evidence related to that must be filed. And I think that we've tried to avoid creating a lot of opportunities
28 for a lot of slippage in the schedule because, I think in practice, frequently the slippage ends up being
29 used, and we end up with kind of a distended period. So, I think it's obviously something that could be
30 added and we would have to figure out how to ripple that through the process, because we would still
31 want to make sure we were providing adequate notice to all the parties-in-interest and giving both sides
32 kind of an equivalent period of time. So, that would be something that we could look at doing. We
33 haven't proposed that, but it's clearly something that could be considered. And if the Board is…believes
34 that that would be a beneficial type of change, then in your recommendation to the Council, you could
35 suggest that. And then that's something that we could be working on and kind of have tee'd up if Council
36 chose to go that route when it takes the ordinance up.
37 CHAIR HANSEN: Any other questions on that topic? Go ahead Michelle.
38 BOARDMEMBER HAEFELE: So when I look at the three narrowly defined reasons for which
39 an appellant could submit new information, it doesn't seem like the…for lack of a better term, applicant. I
12
1 guess another question is, has there ever been an appeal brought by a would-be developer who's project
2 was denied? Has that ever happened?
3 UNIDENTIFIED INDIVIDUAL: It's pretty rare.
4 BOARDMEMBER HAEFELE: It'll shorten the hearing if I don't have to say 'opponent to the
5 appeal.'
6 CITY ATTORNEY DAGGETT: Actually, I'm sorry to say that I'm pretty sure there's data that
7 was pulled together not too long ago about what appeals have been filed and which side, shall we say,
8 filed the appeal. I don't happen to have the information in mind, but I'm sure that that information has
9 been provided, I think, to Council sometime in the last maybe six months, or four months, or something
10 like that. So it's probably information we could provide to you but don't have at hand tonight.
11 BOARDMEMBER HAEFELE: That's not as relevant…I'm just trying to shorten the words.
12 CITY ATTORNEY DAGGETT: I can say I do believe there have been some times when
13 applicants have appealed denials of their applications.
14 BOARDMEMBER HAEFELE: But most of the times, it's an applicant and an appellant. And in
15 the case of, at least two of the three conditions under which new evidence could be submitted, there really
16 is no reason for the applicant, opponent to the appeal, to have new information that the hearing body was
17 biased. The appellant is the one who has that information and it's not even necessarily appropriate for the
18 developer to come back and say, but wait, no, I don't think it was biased. So, if the indictment is towards
19 the hearing body, and the applicant…or the appellant is bringing the new information, there is no reason
20 for two weeks of time for the opponents to the appeal to…because that's not going to be anybody from
21 out in the public coming in, it's going to be the other side.
22 And the hearing body failing to receive all relevant information also…I mean that, in the ones
23 that I've seen, has been oh, you didn't get all the letters that were submitted, or whatever it is. And again,
24 the applicant isn't going to be the appropriate respondent to those two claims. So, perhaps the grossly
25 misleading or false information would be something that would require a response from the applicant, the
26 opposition to the appeal. So it doesn't seem like they should get two weeks to come up with some
27 responses to the two of those in any case.
28 CHAIR HANSEN: When I look at this timeline, the person filing an appeal, from the date of the
29 hearing, they have 21 days to gather all the information they want. At any point in that process, they
30 make a decision to file the appeal or not, but they've been…they have 21 days to gather all the
31 information. They have to make the go- or no-go decision at the 14-day mark. This timeline is only
32 giving the other party 14 days to file any arguments that counter what the basis of the appeal is. To me, it
33 seems like it's fair. I mean, if you're making the argument to be even more fair, it would be 21 days and
34 21 days. But, that being said, I'm fine with that portion of the timeline.
35 BOARDMEMBER HAEFELE: I guess the parties…people who are appealing…have such a
36 steep learning curve. I mean, in reality it's citizens and it's a developer who's very savvy about the codes,
37 and it just seem like…like I said, if the appeal is based on a biased haring body, then the response to that
38 is not going to come from the would-be developer. They're not going to be the one gathering information
13
1 to defend the P and Z on their bias or lack of bias. So that some of those types of new evidence about a
2 fair hearing are not appropriately responded to by the opponent to the appeal.
3 CITY ATTORNEY DAGGETT: Is that a question?
4 BOARDMEMBER HAEFELE: Maybe, sorry.
5 CHAIR HANSEN: It sounds kind of like an argument. We're in the discussion stage here. If in
6 the case you described, the basis of the appeal is not anything that the applicant can necessarily reply to,
7 then this 14-day period between the submittal of new evidence and the deadline for a response would just
8 pass without any response or counter-argument from the applicant. It doesn't mean they have to submit a
9 response to the evidence…that's their window of opportunity to do it.
10 BOARDMEMBER WHITLEY: Would it help, and could we even suggest that anyone could
11 request City Council give an extension other than just the City Manager? I mean, would that address
12 these issues?
13 VICE CHAIR SCHNEIDER: I guess the question would be is who are you thinking would
14 provide that extension timeframe? Would it be the director or…?
15 BOARDMEMBER WHITLEY: I think it was suggested the City Manager requested of City
16 Council.
17 VICE CHAIR SCHNEIDER: For the delay of hearing. But do we really want this to go to
18 Council to extend for a couple days or whatever, that's needed, or is that more of a director type of
19 decision based on the reasoning…
20 CHAIR HANSEN: One of the many driving factors for these changes is to make the whole
21 process more predictable for both sides of the appeal. And we start inserting opportunities to extend it in
22 this step, and in this step, and in that step, it really starts taking the predictability out of the whole process.
23 BOARDMEMBER HAEFELE: I don't think extensions are necessary.
24 BOARDMEMBER WHITLEY: I think extensions are problematic for the overall timeline and
25 fairness to both parties myself. The point that I would like to make about the deadline on new evidence is
26 that I think that counting the initial 14 days up to the appeal deadline for me is not as valid as you've
27 stated, Jeff. I think that we need to look at this as a two-way street. Sometimes it's citizens that are the
28 appellants, sometimes it's a developer that's the appellant. And to me, I think that I've always been
29 concern about the seven day deadline after the 14, and I feel that way because I think it takes people
30 usually, or often, a situation is that it's a group of citizens that are part of a neighborhood or part of a
31 general feel, and they need to get organized. They need to decide who's going to do what. And when it is
32 a citizen's group as an appellant, to me, they don't have the opportunity to leave the hearing and the next
33 day they're in their office and they have 40 hours to work on it. These are citizens that have jobs, and
34 their opportunity to work up their case is evenings and weekends. And so I think, in my view, we need to
35 level the playing field a little bit at the risk of extending that playing field. So, I mean I would be in favor
36 of having 14 days after the appeal deadline for new evidence, and then 14 days, as is in there, for the other
37 side to make their case.
14
1 BOARDMEMBER HAEFELE: I think that would be more fair too.
2 CHAIR HANSEN: I think it might be more clean to leave the appeal deadline at 14 days after the
3 decision, leave the new evidence deadline at 28 days after the decision rather than, you know, 14 and 14.
4 But…you get the same thing, but it…I think it's cleaner.
5 BOARDMEMBER WHITLEY: Yeah, that's the way it's stated here. It's…and I don't think it's
6 stated that way in the language.
7 CHAIR HANSEN: Because if we said 14 and then 14…if they decided the day after the hearing
8 to file the appeal, then they ultimately will only have 14, or 15, days to gather all their information.
9 BOARDMEMBER WHITLEY: Right, it needs to be after the appeal deadline because, especially
10 if multiple appeals are going to get consolidated, they need to kind of know what else is going to be as
11 part of the hearing; I don’t think that anything is really settled until that 14th day.
12 CHAIR HANSEN: More comments, more questions?
13 BOARDMEMBER HAEFELE: When someone files an appeal, they're submitting certain
14 paperwork and then there's a response from the City Clerk's Office saying 'your appeal has been
15 accepted?' Do you take in the appeal and it's in, or do you actually determine whether it has merit?
16 CITY CLERK COLDIRON: No, we just take in the information, let people know that we
17 received it, and then start the process of scheduling the appeal and sending out the notice. But we make
18 no determination on whether it has merit.
19 VICE CHAIR SCHNEIDER: So, follow up question to that as well is, if we have multiple
20 appellants and they get consolidated…do their fees gets consolidated? Or, if there's three appellants, is
21 there a $300 filing fee? So $100 per each, but we're consolidating down to one?
22 CITY CLERK COLDIRON: Yes.
23 VICE CHAIR SCHNEIDER: Does that mean we also consolidate their…typically we allow
24 time…a specific amount of time for the appellant, and I guess I would have some questions or concerns
25 about how much…if we're getting 30 minutes for three appellants, can I get response done in ten minutes,
26 when I've paid my $100 fee, I've done my due diligence, why don't I get my 30 minutes to speak if we're
27 consolidating arguments into one? I understand consolidating into one evening…
28 CITY ATTORNEY DAGGETT: So, to explain how that works…each appellant still has their
29 opportunity, and I mean each appellant who has filed an appeal. So, we have had appeals where there
30 was, maybe 46 people who signed on to the appeal. So that's one appeal. But, we have had times when
31 we've had maybe three different appeals filed and each of those appeals has, in it's own way, stated
32 rounds for appeal. Sometimes there's a lot of overlap; sometimes they describe the issues differently even
33 though they're talking about the same issue, but clearly there's a lot of relationship frequently to the issues
34 that they're raising. Those three appeals, I'll say, in this hypothetical example that I'm using, would each
35 have their own opportunity to present their argument. But, the sort of bigger structure of the appeal
36 would be consolidated. So, the hearing would begin, there would be a discussion about the site visit, if
37 Councilmembers visited the site, there would be a staff presentation, kind of combining to give that
15
1 overview of the whole situation, and then there would be discussion of procedural issues at which point
2 there probably would be discussion about how these different appeals are going to be kind of managed
3 together, and then typically the time is balanced out in a way that allows each side to have an equal
4 chance to speak about each of the appeals. So, in the end, it doesn't mean that people don't get their
5 chance to talk about their appeal, it just means that we don't go completely all the way through from step
6 one to the final step three times. And it allows the Council then, at the end, to come to a decision that
7 hopefully addresses the issues of all three of the appeals in this scenario in kind of a coherent way so that
8 they're able to really articulate which of the issues they're perhaps finding there might have been problems
9 with. And coming out and the end of that with kind of a package outcome that we can then put into one
10 resolution so that that is now stating the outcome of that whole hearing, even though in the resolution we
11 would need to be addressing, you know, here were the issues in this appeal, here were the issues in the
12 second appeal, here's the issues in the third appeal, and here's what the Council decided. So, that's kind of
13 a rough, generic overview of how it would normally work.
14 BOARDMEMBER HOGESTAD: I have a question. Kind of a follow-up on what Jeff was
15 asking. So, in my personal experience, it used to be that the average time that an appellant would get
16 would be about ten minutes. And that could change because of the Council agenda, or…when that
17 occurred. But, when it's consolidated, often the time is cut in half. So that ten minutes that's typically
18 allotted to an appellant now is allotted to two appellants, maybe even three appellants, so you end up with
19 five minutes or less. While you were looking at this, did you think about maybe setting real times for
20 these appeals for both the party-in-interest and the appellant?
21 CITY ATTORNEY DAGGETT: There's been discussion over time about whether to try to set
22 standard times for that. Typically, each side gets 20 minutes to make a main presentation and then each
23 side gets ten minutes for rebuttal. That's not always what's offered. Sometime there are lots of issues and
24 it's a very complicated matter, and the time is increase. Sometimes it's a fairly simple appeal and there's
25 not a lot, kind of, on the table to be discussed. And those cases typically the timeframes would be shorter.
26 And so because it does kind of depend on the circumstances and how many issues there are to be
27 addressed, it hasn't really been very desirable, at least in the conversations that I've had with
28 Councilmembers, with those involved in the process, setting standard or strict timeframes isn't really
29 viewed as desirable because of that need to kind of customize.
30 BOARDMEMBER HOGESTAD: It would seem to me that not knowing how much time you
31 would receive as an appellant…and you prepare information for this, and ten that's cut in half. That's into
32 somebody else's presentation…you have no idea what they're presenting. And I'm speaking from
33 personal experience that that's what happens. Quite often Councilmembers are confused jumping from
34 one member to another back and forth. To me, this whole idea of consolidating this really is about due
35 process, and the lack of due process. So, setting a clear time for each appellant makes a lot of sense to
36 me, and I don't think there is as much redundancy in what people are presenting. I know that in my case,
37 that was not what happened there. The information was so different that Council was confused and asked
38 me questions that should have been answered by the other appellant back and forth, and we lost valuable
39 time in that shuffling around trying to figure out who's answering what questions. So, truly, I think this is
40 about due process.
41 CITY ATTORNEY DAGGETT: Just to follow up…we have made a few changes that I think do
42 help with predictability. One is in the agenda item summary for the appeal, we have started conferring in
43 advance with the Mayor who, while he doesn't have absolute authority because the rest of Council can
44 override his decision, is the presiding officer and typically sets the timeframes. So, we've been trying to
16
1 put expected timeframes in the agenda item summary so that at least people have a sense for…several
2 days in advance what is expected to be the timeframe subject to discussion at the hearing and potential
3 adjustment.
4 BOARDMEMBER HOGESTAD: You're not suggesting that the appellant knows that several
5 days in advance?
6 CITY ATTORNEY DAGGETT: All parties know it in advance…
7 BOARDMEMBER HOGESTAD: That they have so many minutes of presentation time?
8 CITY ATTORNEY DAGGETT: Yes, because the agenda item summary is published the
9 Thursday before the meeting, and that's available to everyone in the public.
10 BOARDMEMBER HOGESTAD: That must be some new thing, because certainly it was not that
11 way a few years ago.
12 CITY ATTORNEY DAGGETT: Yeah, we've only been doing that maybe since sometime this
13 summer, so it's not something that has been done for a long time, but I do think it's a practice that I think
14 is helping a little bit with the concerns that I know people have experienced about not being able to
15 predict their time.
16 The other thing that I think can be helpful is that we have these submission requirements now for
17 the materials that need to be provided, including both the evidence materials in this proposal and also
18 under the current code already, the presentation materials which we need to have in advance so that they
19 can be loaded on the computer and everything can be set to go for the meeting. Once the Clerk has that
20 information, it is public information, and anyone who's interested in seeing it is free to obtain that
21 information. So, that's not intended to try to give people a sneak preview of other people's material, but it
22 does create an opportunity for people to have a little bit more of a sense of what's going to be presented at
23 the hearing. So, I just wanted to note those couple of things because they are things that have changed not
24 that long ago, and those hopefully do make it a little bit easier for the parties to know what's coming.
25 BOARDMEMBER HOGESTAD: Couldn't that have been more concrete in the document that
26 we're reviewing now…included in that so that there was some assurance that these were happening?
27 CITY ATTORNEY DAGGETT: The actual submission of the documents is in…it's actually in
28 the code already.
29 BOARDMEMBER HOGESTAD: Idea of coordination and allowing people to…other appellants
30 to see this information?
31 CITY ATTORNEY DAGGETT: I can't remember if we've…we'll have to look because we can
32 look at making sure that that's clear in her…that that information, once it's been submitted, is available.
33 That is the intent, is that the Clerk has the information, it's public record, and while the Clerk may not be
34 able to actively push that information out to people just because typically those last few hours a Council
35 meeting are not a time when the Clerk has a lot of opportunity to be doing a lot of getting in touch with
36 whoever might be interested. People can have access to the information, and it's something that we can
17
1 also look at addressing in the Clerk's appeal guidelines that are available to members of the public who
2 are interested in the appeal process.
3 BOARDMEMBER HOGESTAD: Do you think that's realistic that appellants would coordinate
4 with each other before a hearing? Would I coordinate with someone across town that has a completely
5 different take and idea about how the appeal works?
6 CITY ATTORNEY DAGGETT: I don't have a prediction or opinion about that.
7 BOARDMEMBER HOGESTAD: Do you think that this jeopardizes the idea of fairness in the
8 hearing? Due process?
9 CITY ATTORNEY DAGGETT: No; actually what we've been trying to do is design a process
10 that assures due process for both sides, and that assurance that the parties are going to have an equal
11 chance to submit evidence, an equal chance to see the information that's been submitted, and an equal
12 chance to speak at the hearing, are pretty fundamental aspects of what we're trying to put together here.
13 BOARDMEMBER HOGESTAD: If that information is consolidated, or the appeals are
14 consolidated, then the party-in-interest has twice as long as two appellants then.
15 CITY ATTORNEY DAGGET: That's because they're responding to two appeals.
16 VICE CHAIR SCHNEIDER: Can I ask a follow up question? If someone submits evidence, do
17 all parties-in-interest get notified that new evidence has been submitted to the Clerk? So they know to go
18 look for that evidence.
19 CITY CLERK COLDIRON: So I think that's one of the things that we might be able to do
20 with…it's the reason that we're having a contact person assigned to the appeals, so that we would have
21 one person that we could reach out to as that information comes in. And I think by changing our process
22 and making available on the website will help certainly make the information more available to people.
23 And hopefully, we'll be able to provide some kind of subscription service to that website, so as things get
24 added, it might notify people who are subscribed…that would be my hope. I haven't worked with IT to
25 make sure that that can happen yet, but that would be another way for people across the community,
26 whether you're a party-in-interest or not, to be able to be subscribed to that and receiving this information
27 because some people are just interested, whether they're a party or not, in seeing that kind of information.
28 CITY ATTORNEY DAGGETT: And one thing I can add to that is, as described in this draft
29 revision, the evidence that the Clerk has received becomes a part of the agenda packet that the Council
30 receives with a cover sheet noting that it's new evidence subject to the Council's determination as to
31 whether it's admissible. But, because it's part of the packet, it then becomes available really to anyone
32 who is interested in seeing what's there for the appeal.
33 VICE CHAIR SCHNEIDER: I appreciate that; it's just more of a, how can we inform parties of
34 this project or part of this that, hey, something was submitted so if you are interested, go find it, or here's
35 a link…do something…because I wouldn't know if someone responded to a question or concern unless I
36 was everyday calling the Clerk's Office, and they're going to get tired of people calling the Clerk's Office
37 everyday and saying, is there any new evidence, is there anything else, is there anything else? So, just
18
1 from a technology standpoint, if there's a way we can look at trying to add that in I think would be
2 beneficial to all.
3 CHAIR HANSEN: Do you have a question or comment Michelle?
4 BOARDMEMBER HAEFELE: I was just going to say…towards what Jeff was saying…some
5 sort of way to facilitate a little bit of cooperation among appellants with similar appeals. It would seem
6 reasonable to assume that they're all kind of moving in that same direction, and so facilitating
7 coordination would help with the timing issue possibly, maybe. Informing an appellant that there's been
8 an appeal, and perhaps maybe they could join the other appeal even, save the hundred dollars.
9 CHAIR HANSEN: I was just saying that…if there are multiple appeals that are candidates to be
10 consolidated, it was probably this group of people talking, and then this group of people talking, and they
11 both decide to file an appeal, and after the fact, they're like, oh, we're making the same argument here.
12 Having…well they can support each other…making them aware of each other as soon as possible I
13 guess…if you're the first one in, I don't see that, but if you're the second one filing, it would be really easy
14 to say, hey, you're the second one filing and your argument sounds very similar.
15 BOARDMEMBER HAEFELE: And go back an inform the first one…a second appeal has come
16 in, and this is the party, and here's what they've submitted.
17 CHAIR HANSEN: Is that something that's just a matter of procedure, or something that would
18 need to be codified in this amendment we're looking at? I think it's a process think that doesn't get
19 embedded in the code language.
20 CITY ATTORNEY DAGGETT: Just to comment on that, I do think it would be pretty difficult
21 for the Clerk in the sense that the universe of potential appellants sometimes can be thousands of people,
22 so it's a little bit unwieldy to kind of figure out how we would be communicating out with those people in
23 that way. However, I think the process that's being introduced, and that is described in this code
24 language, where the information is going to be posted on the website promptly, would…if we can make
25 sure people know kind of where they would be wanting to look just to be aware of what's going on, I
26 think practically speaking, that might be the best way to give people as good of a chance as we can to
27 know what might be happening. Because the list of potential appellants can be so long that it
28 really…even the process of getting the notice of the hearing sent out can cost thousands of dollars and be
29 the kind of thing that we wouldn't be able to do repeatedly just to let people know during that 14-day
30 window that something's been filed. I don't think practically we'd be able to reach out to people on that
31 timeframe.
32 VICE CHAIR SCHNEIDER: But you're also asking for one contact, so there could be 300 people
33 for an appeal, but you're asking for one contact. So I guess I don't think, with the technology we
34 have…because every time you upload something, it's not…I think IT could figure that out…at least the
35 parties that are part of the appeal process. I don't think it needs to be sent out to every citizen, but at least
36 the people that are in the process and going through the process.
37 CITY ATTORNEY DAGGETT: That's true once the appeals have been filed, and I may have
38 misunderstood what you were suggesting.
19
1 BOARDMEMBER MICHAEL HOBBS: Carrie, I think that's all we're asking for is that, if an
2 appeal is filed, and a contact person has been established, and a second appeal comes in with a contact
3 person that's been established, let the second contact person know that there's another appeal…you have
4 two people to contact in that situation. I think that's all we're asking for isn't it?
5 CHAIR HANSEN: Yeah, that's all I was suggesting, yeah.
6 CITY CLERK COLDIRON: And as you've described it, yes, we could do that…that would not
7 be a problem.
8 CHAIR HANSEN: Okay, any other discussion about this item? Okay, Michelle?
9 BOARDMEMBER HAEFELE: Yes, I have some questions. So, after an appeal is filed, what is
10 the role of staff? Does staff continue to interact and work with the party in opposition to the appeal?
11 Maybe that's a question for…
12 CITY CLERK COLDIRON: The Clerk's Office does not…we just take the information in and we
13 start preparing the timeline…we work with both parties in the sense of trying to get the hearing
14 scheduled, trying to figure out the timelines, and making sure that we get the information submitted. So,
15 that's where we work with people on that. But, we don't…other than that, we don't reach out and do a lot
16 of work with each party unless they just have questions about the process, and we're trying to help them
17 understand the process.
18 BOARDMEMBER HAEFELE: So, what about Planning staff? You know, there's a planer
19 assigned to the project…does that planner then continue to work with the applicant once an appeal is
20 filed?
21 MR. LEESON: No; in most cases, once a project has been through the P and Z hearing and there
22 is an appeal filed, that process moves over to the City Clerk's Office and City Planning staff is really not
23 involved at that point other than drafting that staff presentation that we discussed…which provides and
24 overview of primarily what occurred at the P and Z hearing or the administrative hearing.
25 BOARDMEMBER HOBBS: But that staff overview…can I do a follow up? That staff overview
26 is just to inform and lay the basis of what happened at the hearing and the nature of the appeal?
27 MR. LEESON: That's correct.
28 BOARDMEMBER HOBBS: It's not a review of the project at all?
29 MR. LEESON: That's correct, yes.
30 CHAIR HANSEN: Any other points of discussion?
31 BOARDMEMBER HOGESTAD: Well, I still have concern about consolidating these appeals
32 and the lack of time to make a clear and meaningful presentation. For me or any other appellant to be
33 grouped with someone else that you have no idea what that appeal is all about and how valid it is…it
34 really compromises my position in an appeal. This idea of consolidating, even though City Council has
35 been doing it for quite a while, really does not make any sense, and I don't think that it is a fair process.
20
1 CHAIR HANSEN: So, Per, are you proposing that every single appeal would have its own
2 hearing…?
3 BOARDMEMBER HOGESTAD: Whoever that person is that filed it should have the ability to
4 make that appeal to City Council, not the whole list of 30 people that have signed on to that, but the
5 primary person, or if they hire an attorney, that attorney should do that. Instead of not knowing who the
6 heck is going to be presenting also…that person could pull my position down to a point where it's truly
7 unfair, and also the time.
8 CHAIR HANSEN: I guess maybe to simplify the question is, if there was a project and there's
9 three people that appealed the project, are you asking there be three hearings so each person can have
10 their process be heard?
11 BOARDMEMBER HOGESTAD: That's what I'm saying…is that it can be the same hearing, but
12 individual appeals given exactly the same…well, and it should be an established amount of time. This
13 idea of going in and City Council feels overwhelmed on that evening and I get five minutes, and at other
14 times they feel very generous and give me 15 minutes…that doesn't make sense. It is not proper that they
15 do that. So, it's both of those things, but it all can happen in one hearing.
16 VICE CHAIR SCHNEIDER: Does that process need to be codified though, is my question.
17 CITY ATTORNEY DAGGETT: In Council's defense, the timeframes that are given to the
18 speakers are really driven by the number of issues to be argued in the appeal and the complexity of the
19 case. It's not related to how many other items might be on the agenda that night. In fact, Council, I think,
20 has tended more and more to try to make sure that the agenda leaves plenty of room for the appeal, and
21 has even had some evenings where the meeting was really devoted to the appeal. So, the other items tend
22 not to be the motivation for the timing for the speakers. And I'm sorry, I don't mean to be argumentative,
23 but I just wanted, in Council's defense, to make sure that was clear.
24 VICE CHAIR SCHNEIDER: So, that's a process question, and does that need to be codified? I
25 just don't want to sit and spend hours on a process thing that doesn't…and cannot be codified. I guess I
26 just want to make sure that it doesn't need to be in the code language.
27 CITY ATTORNEY DAGGETT: And, to be clear, the process thing that we're talking about is…?
28 VICE CHAIR SCHNEIDER: The time allotment for…
29 CITY ATTORNEY DAGGETT: The time element…
30 VICE CHAIR SCHNEIDER: …for the appellants to do their presentation. If I'm hearing you
31 correctly?
32 BOARDMEMBER HOGESTAD: Well, it's time and also the ability to present an appeal without
33 the encumbrance of somebody else.
34 VICE CHAIR SCHNEIDER: But you're talking about at the hearing?
35 BOARDMEMBER HOGESTAD: At the hearing, yeah.
21
1 VICE CHAIR SCHNEIDER: What we're talking about is the process to get you to the hearing.
2 We're trying to change the code language and update and clean up the process to get to the point of the
3 hearing. What you're talking about is…
4 BOARDMEMBER HOGESTAD: Well, that's not what I'm worried about…I'm worried about the
5 inclusion of that consolidating appeals.
6 VICE CHAIR SCHNEIDER: Correct, but that's a hearing process issue, not getting to the
7 hearing. And so I just want to make sure we're focusing on getting to the hearing instead of what's
8 happening at the hearing.
9 BOARDMEMBER HOGESTAD: I'm focusing on the hearing.
10 VICE CHAIR SCHNEIDER: And that's a completely separate issue, which I think has merit,
11 don't get me wrong, but I just want to make sure we don't lose track of what we're trying to accomplish…
12 BOARDMEMBER HOGESTAD: As long as that provision is in this code section now that
13 allows for the consolidation, then I will not support that.
14 VICE CHAIR SCHNEIDER: But there's nothing in this code that talks about the hearing process.
15 This is getting to the hearing.
16 CHAIR HANSEN: I think there is a little bit in there, isn't there?
17 CITY ATTORNEY DAGGETT: Actually, section 2-54 lays out the procedure at the hearing. It
18 lays out the procedure as though there's only one appeal, and that is the reason why we've added language
19 to make clear that the Mayor can adjust the process where there might be a consolidation of multiple
20 appeals, because there would need to be multiple events…some of these things that would only happen
21 once if it was a single appeal would happen multiple times if there were multiple appeals, where you
22 might have multiple appellants each given an opportunity to speak. So, that's the reason for the Mayor's
23 authority to make this change.
24 VICE CHAIR SCHNEIDER: But that's a hearing process that I don't know needs to be codified
25 since there's the ability to modify time…if we have to sit here and debate the codification of how much
26 time each appellant gets and everything else.
27 CITY ATTORNEY DAGGETT: And I would say I'm not sure and can't speak for the Council,
28 but I do know that when changes to the appeals code have been discussed in the past, I think there was a
29 desire on Council's part to have the flexibility to be able to design the hearing so that it would make sense
30 for that particular appeal.
31 CHAIR HANSEN: Per and Bill, if there's discussion, it needs to be something the whole Board
32 can hear. I want to clarify what you're asking about the argument having consolidated appeals. It sounds
33 like your concern is that if one party has a well though-out and valid basis of appeal, and the second
34 appellant presenting at the same time, or doing the same process, is way off in left field, you think that
35 second appeal is degrading the validity of the first one. Is that your concern?
22
1 BOARDMEMBER HOGESTAD: It certainly could. And that consolidation is in this document
2 that we're talking about…it's 2-52…listed in there. So, as long as that's in there, the idea of consolidating
3 appeals, for me, it is a lack of due process when you start joining these together even though they may
4 sort of appear to be the same, they really aren't the same...how they're presented becomes, like your
5 example, a big issue. It reduces my effectiveness in presenting my case.
6 CHAIR HANSEN: So that decision happens at the hearing, is that correct?
7 CITY ATTORNEY DAGGET: Currently, it happens at the hearing kind of going in…there's sort
8 of an expectation that the appeals will be consolidated and that's kind of the way it's approached in terms
9 of the materials that are provided, and kind of what Council is prepared for. Right now, there isn't a
10 formal decision in advance of the hearing about consolidation, and so technically, that really is happening
11 at the hearing. What the change would do is say it's going to be consolidated unless it's changed at the
12 hearing so that it would essentially default to the consolidation. It would be known that that would be the
13 default. The parties would have an opportunity to argue why that would disadvantage them, or to ask the
14 Council to split apart one or more of the appeals for reasons that could be discussed at the time of the
15 hearing, and then we would at that time adjust the way the hearing would proceed to reflect whatever
16 Council's decision would be.
17 VICE CHAIR SCHNEIDER: And to…I don't know if that's being clear…I've been part of some
18 appeals so I've seen this happen before, but usually what happens in this procedural…establishing the
19 procedure section…that's what happens first…there's like a one minute by each appellant, each separate
20 application I say…not if there's 40 people attached to one appeal, but there's like a one or two minute just
21 basis of what the argument for the appeal is, you know, what's your argument, what's your argument,
22 what's your argument, and then the decision is made whether these two should be consolidated into one
23 and this one is unique enough. And during that time period, somebody could request specifically to have
24 theirs heard separately, right?
25 CITY ATTORNEY DAGGETT: That's correct. And the way it works right now, actually, with
26 Council, is unless someone raises the issue to say they don't want to be consolidated…in practice, it has
27 been consolidated. Not to say that there's not an option to do it the other way; Council could easily
28 choose to do it the other way. But, it the way it has been working is, it's set up to go consolidated and
29 unless one argues to separate them, it's approached as a consolidated hearing. I have been covering the
30 Council's appeal hearings for five or six years and have not had a time when we did have anyone even ask
31 to…there might have been one time when there was a request…but the multiple appeals have always been
32 consolidated during that time. It doesn't mean that they can't be separated though.
33 BOARDMEMBER HOGESTAD: Can I ask how often that happens? That an appellant asks that
34 they be separated, and they truly are separated?
35 CITY ATTORNEY DAGGETT: I have a vague, but kind of uncertain memory, that there might
36 have been a time that someone requested that they be separated. It hasn't actually been a common topic
37 of debate, and typically there hasn't been a lot of discussion about it. Typically the hearing has been
38 consolidated, and it proceeds in that way, and there hasn't been really much of an objection expressed.
39 VICE CHAIR SCHNEIDER: I have a question while we're on this…I was hoping to jump in
40 before we moved on. When an appeal is filed, is there any sort of packet of information about…or
23
1 guidelines of how…something handed over to the appellant saying, this is what you can expect, this
2 is…you know, give them a timeline…do they receive anything that tells them about the process?
3 CITY CLERK COLDIRON: So, generally, that happens when they're calling us to find out how
4 to fill out an appeal. We have appeal guidelines that we present to them. So, to get it there…certainly we
5 could put together some more information to give more information about how it would proceed at the
6 hearing. But generally, now, it's all in the appeal guidelines that we assume they have or that we direct
7 them to when they're looking to file an appeal. They're on the website as well.
8 VICE CHAIR SCHNEIDER: To address Per's concern, I'm wondering if in those guidelines, if it
9 can describe the process of what's going to happen in the hearing that there's a potential for these to be
10 consolidated into one item, and if they don't want that to occur, they have to make the argument at that
11 point in time…
12 CITY CLERK COLDIRON: Yes, we can make those modifications, sure.
13 CHAIR HANSEN: And that's not in what we're looking at here, that's part of the information
14 that's online when somebody is looking to file an appeal.
15 BOARDMEMBER HAEFELE: So, is there really any need to add this into the codified language
16 if it's been the practice and that an appellant can request not to be consolidated, does it really need to be in
17 there? Could that paragraph B be changed to say, all appeals will be heard on the same evening, Council
18 may in it's discretion by majority vote at the time of the scheduled hearing, consolidate. So, start from the
19 presumption of separate and let the Council consolidate, and then you're just codifying the current
20 practice based on what they have in front of them. And that might let some unique arguments stand
21 alone…and I would suggest, if you're going to insist that then they be consolidated, that the respondent to
22 the appeal respond once instead of three times, or twice, or however many appeals.
23 BOARDMEMBER HOBBS: I like what you're saying and I agree with it. I think that, to me, I
24 have a degree of concern about the default being a consolidated hearing. And, I think that at the very
25 least, the appellants ought to have the ability to disaggregate the appeals. If they want to have a separate
26 appeal, they should be able to have a separate appeal. So, I would think that that paragraph, if it had a
27 sentence in it something like, with the agreement of all the appellants, the appeals be consolidated.
28 VICE CHAIR SCHNEIDER: I do like Michelle's verbiage of, assume separate and let Council
29 combine if desired…Council's decision to combine. It makes it clean and easy, then there's no question
30 about who and how many and everything else…I like that recommendation.
31 CITY ATTORNEY DAGGETT: And just to respond to that, what we probably would do if the
32 change that's proposed was not going forward, is we would probably revert to the current language. I
33 would offer that if Council were going to have to have three or four separate hearings, they might not do
34 it all in one night. So, we would definitely want to avoid trying to force any kind of requirement like that.
35 VICE CHAIR SCHNEIDER: I mean, what I'm hearing, I think the intent is to still hear
36 everything in one evening. It's just gives the option to Council to consolidate or not consolidate, or the
37 appellants to argue their point for the reason why they deserve 20 minutes and they deserve 20 minutes,
38 instead of the appellants deserve 20 minutes. I don't think we're trying to ask for multiple hearings.
24
1 BOARDMEMBER HAEFELE: Or if they are explicitly consolidated, then everybody making an
2 appeal gets the full benefit of…the full steps of the process…they get to make their presentation and, you
3 know…I mean it's find to schedule them on the same night, it's fine to have some logical order when
4 arguments align a little bit. But I agree that you do get some nutty things, and if you have a well-
5 researched appeal, you don't want it to be tanked by getting lumped with one that wasn't well researched.
6 And I don't see any reason to codify consolidation if in fact it's already working to some extent that
7 Council can if they wish. I don't know how to do it…I forgot my piece of paper with the motion, but I
8 would suggest that we either strike that paragraph B or change it.
9 BOARDMEMBER HOGESTAD: I still have a concern that, arbitrarily, Council can choose to
10 put all of these together, arbitrarily…don't have to have a reason. I mean, in my appeal, there was never
11 anything offered that, well we're running long, or this look as though it's going to be long, none of that. It
12 was a decision made by the Council.
13 CITY ATTORNEY DAGGETT: Can I just make clear…if the Council doesn't consolidate the
14 appeals, the Council will have to go through the entire hearing process start to finish and create a full
15 hearing record for each appeal, meaning they'll have to have a staff presentation, I will go over the
16 process for the appeal, they will talk about the site visit, from start to finish each time because each of
17 those hearings will have to have a complete record, and we will probably do a resolution for each
18 then…although we could figure out if that were necessary. But I think the challenge, and I think the
19 reason the consolidation has been kind of the almost universally used approach, is that that repetition of
20 having to do a full hearing over and over and over again, when there might be overlapping issues…there
21 will be different issues, but even appeals themselves frequently have multiple different issues. So I think
22 that, just for practical reasons, that's the way it's worked.
23 BOARDMEMBER HOGESTAD: That's kind of disappointing…the appellant, that's their one
24 shot to present to City Council. And if their ability to make this presentation, make their case, is so
25 diminished by having less time, having another appellant that is kind of pulling things off course if you
26 will. I don't think it's fair. And again, I go back to the idea of due process. If anything diminishes my
27 ability to make that presentation, I've lost due process, it's that simple. I know it's difficult for City
28 Council to hear all of these, but I don't think that typically there are multiple…you know, there might be
29 two in one hearing, but we're not talking ten and fifteen or whatever. I think it's something that Council
30 should do; it's the right thing to do, and it ensures due process.
31 BOARDMEMBER HOBBS: Well, you don't have to convince her, you need to convince us. So,
32 I think maybe you have, so would you like to make a motion that includes that notion?
33 BOARDMEMBER HOGESTAD: Maybe with a little bit of help here I could do that. Our task
34 here is to…
35 CHAIR HANSEN: I want to make sure…any other points that people would like to discuss
36 before we start working on a motion?
37 BOARDMEMBER DAVID KATZ: Yeah, I've been quieter than I normally am. I think
38 everyone's goal is the same: we want to give the public the opportunity to be heard, and it either comes in
39 consolidated or it comes in segregated. It's a chicken or the egg. The way the City Clerk's Office and
40 Carrie and her office have come in…they're trying to make it more efficient. And as long as it comes in
41 consolidated, but the public has an opportunity to say, hey, wait a minute, I do want to be heard
25
1 separately, and then it goes to Council…we have to trust our City Council; that's why they're elected, to
2 say, okay, this citizen has a point, let's hear their argument separately. Rather than coming in,
3 desegregated and then having them consolidated at the hearing. Our goals are all the same, it's a chicken
4 or the egg. Per, Michelle, I agree a hundred percent, but it's a procedural thing, and they have to have that
5 opportunity and a fair shot to be heard separately. I agree with that one hundred percent…which I believe
6 addresses your concern. But the way it's presented and the way it's been changed, in Carrie and her
7 office's opinion, it makes it smoother, easier, and faster. That's my point.
8 CHAIR HANSEN: And, to add on to what David was saying, Per was making the argument that
9 having consolidated appeals being heard as one item could diminish the validity of one. There's also the
10 opportunity for two separate appeals to strengthen each other. And I think that if we did something that
11 ensured that every single one was different, we'd lose that opportunity as well. I think having them come
12 in…assume that they're going to be consolidated unless there's an argument. It doesn't even need to be a
13 very strong argument, but some argument that they be heard separate.
14 BOARDMEMBER KATZ: If it's valid, I just have to trust Council to say, oh, you're right, this is
15 a great argument, you have that opportunity. And I think they will…I think they've shown that.
16 BOARDMEMBER WHITLEY: So kind of to Michelle's point though, if you remove
17 consolidation as the default, it seems to be a lot more fair. Council may consolidate if people have similar
18 points, and that makes a lot of sense because I don't want 20 hearings on one project.
19 BOARDMEMBER KATZ: Nobody does.
20 BOARDMEMBER HAEFELE: So, what I'd envision is, the process would be Carrie gives the
21 introduction, this is what the appeals process is, this is the brief overview of what happened at the P and Z
22 hearing, and then appellant one makes a case, and then…
23 VICE CHAIR SCHNEIDER: A very brief, like, you know, one minute…argument is going to be
24 based on this, this, and this. Appellant two goes, my arguments is going to be based on this, this, and this.
25 They don't need…you know, early in the process, you need to make a decision on whether they're similar
26 or not.
27 BOARDMEMBER HAEFELE: I think it would be more logical to let that flow that way. And
28 then, if there is logical consolidation, then they're still going to give each…each appellant is going to give
29 their appeal. I just don't see it as fair if you say, well you guys are basically saying the same thing so you
30 get only one chunk.
31 CITY ATTORNEY DAGGETT: And just to confirm, that is how it works. Each appellant does
32 have an opportunity to present that appellant's case. The places where the consolidation really…and I
33 don't mean to gloss over the concerns that have been raised…but from the mechanics of the hearing, the
34 place where the consolidation really makes a big difference is, you have one hearing with one record and
35 you don't have to create multiple hearings start to finish…each are kind of self-contained. So, some of
36 the pieces that are common to each of the appeals can just be given once, meaning like the staff report and
37 some of those kinds of things that would have to be given each time if there were multiple separate
38 hearings.
26
1 VICE CHAIR SCHNEIDER: Because you have to vote on each appeal…each appellant has to
2 have its own resolution, so that appellant has the ability to challenge, if they choose to challenge, the
3 decision even though the other two may not want to challenge.
4 CITY ATTORNEY DAGGETT: That's correct.
5 VICE CHAIR SCHNEIDER: So everyone still has their due process; they still have the ability to
6 challenge the decision that was made. The consolidation is just the actual hearing portion of it itself.
7 BOARDMEMBER HAEFELE: I would suggest that it might be…I mean, if you're going to
8 consolidate the appellants, the applicant doesn't get to give a full-blown…you know, they get an
9 appropriate response to the comments made, but that should be consolidated a little bit too, since there are
10 shell pieces if you will. There's the development project and then there are these points of opposition, and
11 they should be able to respond to the opposition separately, but not a full-blown presentation every time,
12 because, again, it's one of the pieces common to the process.
13 CHAIR HANSEN: I think that's one argument for consolidating them. If they were truly separate
14 processes, you know, the appellant gets 20 minutes for initial arguments, the applicant gets 20 minutes for
15 initial arguments, ten minutes rebuttal, ten minutes rebuttal, the applicant has a total of 30 minutes now,
16 the applicant has 30, we go on to appeal number two, that one gets 30, and now the applicant is up to 60
17 minutes speaking. Do you see the argument I'm making? That consolidating them actually does, I think,
18 make it more fair if the arguments are similar enough.
19 BOARDMEMBER HOBBS: But, even when there's consolidation, as Carrie just said…
20 CHAIR HANSEN: If there's consolidation, it'd be 30 for this one, 30 for this one…and then a 30
21 minutes total presentation rebuttal is what I'm understanding the process would be.
22 CITY ATTORNEY DAGGETT: We do actually give the appellant…and I'm going to say
23 appellant, because it works the same regardless of whether it's the applicant who's the appellant or the
24 opposers to the project who are the appellants…we do try to equalize the time because, if you can
25 imagine having three appeals, each of which raises it's own issues, it would be unfair to the other side to
26 not have an equivalent amount of time to respond to each of those appeals. So, I think in practice
27 sometimes, it does allow for some consolidation because however much people like to have an
28 opportunity to speak, I think typically people presenting do try to be efficient with their time too. They
29 know that the Council appreciates that and that, in some ways, people's message is more forceful if they
30 say it in a smaller amount of time. So, we are bound though to try to make sure that both sides are getting
31 an equal opportunity. So, it doesn't necessarily mean that the total amount of presentation from one side
32 is going to be reduced because of the consolidation.
33 BOARDMEMBER HAEFELE: So the efficiency is just in the introductory…you're only giving
34 the introductory once, but Council is still going to have to make multiple motions for each appeal and
35 each side is giving, you know…the respondent is…let's do that, that's easier, appellant and
36 respondent…the respondent is given the time to respond to each of the cases. And so, it makes sense
37 consolidating the hearing with…I'm calling it the shell. It's the introductory material, the motions by
38 Council at the end…instead of having to go through the whole process multiple times it makes sense, as
39 long as nobody's presentation then is reduced or in any way diminished. I mean I think that that's the
40 danger…I can't imagine scheduling hearings like this on multiple nights, and if they followed one after
27
1 the other, all on the same night. You know, it still matters who you follow. If you go after the really bad
2 presentation then you win, but if you go before…or after the really good one, you lose.
3 BOARDMEMBER HOGESTAD: So are you saying that there would be a single resolution for
4 multiple appeals? No; okay, I misunderstood that.
5 VICE CHAIR SCHNEIDER: Because each appellant still has the ability to challenge and take it
6 further if they choose to. So that's why there needs to be three resolutions.
7 BOARDMEMBER HOGESTAD: Well the goal out of the appeal would be a resolution by
8 Council to either uphold the appeal or to deny the appeal.
9 VICE CHAIR SCHNEIDER: But each appellant has to have a resolution for each appellant, so
10 that appellant has the ability to challenge further if they so desired. You can't have one resolution for the
11 whole thing, it has to be per appellant.
12 CITY ATTORNEY DAGGETT: Actually, just to clarify, we do consolidate into one resolution,
13 but we have learned to be very careful in the wording of the resolution so that we're describing the
14 multiple appeals and describing the Council's decision in a way that allows you to kind of associate the
15 decision with whichever appeal it was that might have led to a change, or a condition, or an overturning,
16 or whatever might have happened. So, I'm trying to think of a good example of one where we've
17 consolidated. We have typically prepared one resolution though, and just tried to craft it so that it's
18 addressing all of the appeals that were heard together.
19 VICE CHAIR SCHNEIDER: And when you craft that, it might say, appeal one is denied, appeal
20 two denied, appeal three is upheld…and then they vote on it as one item. Is that what you're saying?
21 BOARDMEMBER HOGESTAD: I think typically it is worded so that the Smith appeal is
22 denied, and then the Jones appeal is denied, and so on.
23 CHAIR HANSEN: Any other points of discussion? Anyone want to take a stab at a motion?
24 BOARDMEMBER HOGESTAD: Well, I guess…is the question about changing this particular
25 document, or just simply not recommending it to City Council?
26 ASSISTANT CITY ATTORNEY BRAD YATABE: You're being asked to make a
27 recommendation on what is being proposed to you and the changes in the staff report. So to the extent
28 you want to make a recommendation that City Council approve those, you can make that
29 recommendation. If it's the opposite, you can vote in that manner to recommend that they deny it. In
30 either case, I think you can, if you agree as a Board, to make a…to further some additional comments
31 along with your recommendation, I think that's fine. I will say that this is not a change to the Land Use
32 Code; this comes to you in some ways as a courtesy, I suppose. They're asking for your review of this.
33 Typically speaking, this is not a matter that is mandatory to come before you. I will say that this is
34 scheduled to come before Council, at this point, on January 7th. So, to the extent you make a motion that
35 you can all agree upon, that would go to Council. But that does also provide the opportunity for the final
36 minutes to be completed and you guys can review those, and those could certainly be forwarded to
37 Council. As a legislative matter, Council could certainly review the video of this hearing as well. So, I
38 think…I say that just in terms of allaying your fears that your individual comments…although they may
28
1 not be adopted as a whole by the Board, Council certainly has a chance to see those in the minutes, see
2 the video, and staff is certainly taking notes as to your concerns.
3 BOARDMEMBER HOBBS: Brad, these comments you refer to, are they not the same as a
4 condition of our…like a condition of approval?
5 ASSISTANT CITY ATTORNEY YATABE: You could state it in that manner if you want. I
6 mean, I think at this point, you are making a recommendation of some kind, and you can attach any
7 comments that you like. I mean, you could say, we recommend approval conditioned upon XYZ change
8 being made, as an example.
9 BOARDMEMBER HOBBS: Thank you.
10 CHAIR HANSEN: Okay, so I guess I'm looking for a motion to either not recommend these
11 changes to City Council, or to recommend these changes to City Council, or to recommend these changes
12 with some modifications. The first and the second one, I think, are pretty clear…the last one could get
13 complicated. Anyone want to take a stab at a…?
14 VICE CHAIR SCHNEIDER: I guess, can we just ask, what modifications might we want to
15 change, so we can have a quick discussion on potential modifications instead of trying to go through
16 motions and drafting motions, and re-drafting, and seconding, and everything else. What I'm hearing is
17 the concern is truly about the consolidation factor.
18 BOARDMEMBER HOGESTAD: So can that be just stricken from the document altogether?
19 VICE CHAIR SCHNEIDER: So your motion would basically say, make the changes
20 minus…with the condition that the consolidation piece stay as is for example? I'm not trying to put words
21 in your mouth, I'm just trying to see how we could wordsmith on the fly instead of through motions.
22 BOARDMEMBER HOGESTAD: Now Council has been doing that outside of any sort of
23 document, but I think that this Board needs to make that distinction, that we are recommending it only if
24 that consolidation portion is removed from the document.
25 VICE CHAIR SCHNEIDER: Well there's a lot of great things that have happened in here. The
26 consolidation is a concern that some have, but not enough of a concern to say no to everything, so I just
27 want to make sure…
28 BOARDMEMBER HOGESTAD: No, I agree.
29 BOARDMEMBER HOBBS: We could phrase it that we recommend that they strike section 2-52,
30 paragraph B, which was what Michelle was suggesting, I think.
31 BOARDMEMBER KATZ: Which, as Carrie indicated…back to the old language, which I don't
32 know by heart.
33 BOARDMEMBER HAEFELE: Well, I just messed around and reworded that paragraph B, and I
34 don't know how to make the motion to do that. And then we also…there were some questions about the
35 timeline.
29
1 BOARDMEMBER HOBBS: Yes, that's the other thing we need to circle back to. It sounded like
2 there was a fair amount of agreement up here for the new evidence from appellant deadline being 28 days
3 after the final decision, and that's going to move the rest of this timeline forward seven more days.
4 VICE CHAIR SCHNEIDER: Well, and the site visit moving to 14 days too, prior, so it's divisible
5 by seven.
6 BOARDMEMBER HOGESTAD: So, we're extending that 14 days, is that right?
7 CHAIR HANSEN: Whoever makes the motion, if that's what you want to…
8 VICE CHAIR SCHNEIDER: I guess I'm just looking for some consideration before a motion is
9 drafted. Does everyone feel the 28 days is more appropriate for…the additional seven days?
10 BOARDMEMBER KATZ: I actually disagree because, if it takes them 14 days to file, they're
11 gaining new evidence then, and going through the development process, there's always delays and delays,
12 and this just extends the process longer, and we're trying to make things more efficient here. If you give
13 someone 21 days, they'll get their evidence in 21 days. If you give them 28, it's going to take them 28. If
14 you give them 35, it's going to take them 35. It's like a goldfish in the fishbowl; they're going to take up
15 as much time as possible. Cut the deadline down, get it done.
16 BOARDMEMBER HAEFELE: So, as someone who's been more involved on the other side of
17 this, when…and I can't take credit for this analogy, my husband came up with it. There was an appeal
18 right before there was a big, wet snowmelt year…an applicant, a developer, comes into this process and
19 it's like they are going on a raft trip with a guide. They've got somebody in the boat with them who
20 knows the river and can tell them when to paddle on the left side, when to paddle on the right side, when
21 to pick their paddles up. And the person that's coming in to do an appeal, they're given a paddle, and a
22 deflated raft, and a bicycle pump, and said, there's the river. And that's…I mean, the process is so heavily
23 skewed against an appellant who doesn't know the Land Use Code. A lot of these appellants learn the
24 Land Use Code on the fly, and so, anytime…and you go to the neighborhood meeting and you don't know
25 that you need to learn the Land Use Code, you don't even know that you need to know the Land Use Code
26 at the time of a P and Z hearing. You find it out…if you're lucky, you figure it out before the
27 appeal…that process. And so I think, the more time for an appellant, the better.
28 CHAIR HANSEN: I agree with both Michelle and David.
29 BOARDMEMBER KATZ: I think Michelle is making assumptions.
30 CHAIR HANSEN: There need to be…I think Michelle's argument would argue for even more
31 than 28 days, David's argument is saying, don't let it drag out so long. So, I think 28 days after the initial
32 decision is a good compromise between those two positions.
33 BOARDMEMBER KATZ: And remember, the appellant can be the applicant too, so they could
34 be the very experienced raft with a guide too. So, she's coming from a position of experience, she's also
35 making assumptions that the appellant doesn't know what they're doing. The appellant could be very
36 sophisticated as well.
30
1 BOARDMEMBER HAEFELE: But, you know, if the appellant is a developer, or the person with
2 the project, then they can file…there's nothing preventing that appellant from filing earlier. It just seems
3 like there needs to be something to…I mean I would even suggest later on as we contemplate other
4 changes to this process, that there be a City planner who can work with neighborhoods through the
5 process, right from the beginning, and saying, you know, almost like a conceptual review for the
6 neighborhood to say, you know, this is what's going on. I mean, people…I didn't know about conceptual
7 review until stuff started happening in our neighborhood, or that I could attend those as a citizen. So, you
8 just go into that process with no information, you know. Then to be further burdened with a deadline
9 that, you know, I think an extra seven days would be kind and help make, you know, make the process
10 more accessible to citizens.
11 BOARDMEMBER WHITLEY: The entire process is never going to be entirely fair due to the
12 differences in everyone's position. I think another seven days is not a bad compromise.
13 VICE CHAIR SCHNEIDER: I guess, was there any other items of concern that we can talk
14 through prior to trying to draft a motion?
15 CHAIR HANSEN: That's my recollection…the two main points were consolidating appeals, and
16 then the date of the site visit, and then the date of the new evidence deadline.
17 BOARDMEMBER HAEFELE: I do tend to agree with the letter-writer that a staff
18 presentation…I wouldn't suggest eliminating it altogether, but you definitely…I don't think…it should be
19 really very narrow in scope. It should say, here's what the appeal process is, maybe, you know, not even a
20 re-run of the particular development process, or project…because that's in the record, and again, Council
21 can review the hearing video, they can see…there's a verbatim transcript, correct? So they have access to
22 what happened in the appeal…I mean, in the hearing. I don't think that it's fair for staff to then represent
23 the project to Council, and I would suggest that…I don't know if that's something that gets into this code
24 level, or if that's a procedure thing, but it would certainly be better if it didn't appear that staff was still
25 shepherding this proposed project through the process because that does sort of elevate its stature to the
26 lowly neighbor who gets viewed as a NIMBY. And I agree with the letter-writer about the staff
27 presentation.
28 CHAIR HANSEN: I don't think that's addressed anywhere in the code language we're looking at.
29 It's certainly a process concern…similarly, you know, when we have presentations here, we ask for a very
30 brief introduction to a project, and then the applicant's presentation, and then a more in-depth analysis of
31 the project. Quite often, we see planners, you know, they get in there and they're excited about what
32 they're talking about, and we get an analysis before it's really due. And that's a matter of staff talking
33 about their procedures, I think. We can voice the concern; I don't think it's anything we can add in a
34 motion, but…
35 BOARDMEMBER HOBBS: Here's what it says in the document…it says, under procedure at the
36 hearing, presentation by City staff explaining the nature of the appeal or appeals, and the decision being
37 appealed. And so, I think that's pretty restrictive myself. I mean, Michelle, is that verbiage not cover
38 your concerns?
39 BOARDMEMBER HAEFELE: I think it probably does; I guess I just don't like when there's that,
40 sort of, the representation of the proposed project…seems to skew things.
31
1 CHAIR HANSEN: And I think that's outside of what we're looking at and more of discussion
2 with staff as they're preparing for the hearing item.
3 BOARDMEMBER HOGESTAD: I guess I do agree with Michelle. I think it's an unfair
4 advantage going into the appeal to have the City staff represent a project a certain way. I don't know if
5 that is something that we could take out of their or not. I would certainly support that; that does not need
6 to be in there. City Council gets all of this information prior; they know what that project is, they know
7 what it looks like, they know basically what…well, they know what the appeal is going to be without
8 actually hearing it…the nature of the appeal.
9 CHAIR HANSEN: I think the language…the proposed language in there is very restrictive on
10 what can be said, and the concerns that you and Michelle are expressing are more an enforcement of those
11 procedures.
12 BOARDMEMBER HOGESTAD: So how would that be enforced?
13 VICE CHAIR SCHNEIDER: Talk to your City Councilmember and tell them that you want a
14 change…it's just outside the purview, I think, of what we're trying to do here. I don't disagree with the
15 comments, but I think it's just going beyond what's in our documentation.
16 CHAIR HANSEN: Okay, any other items that should be considered in a motion? I don't think
17 there were any. Somebody want to take a stab at a motion?
18 BOARDMEMBER HAEFELE: I forgot to bring my sample motion.
19 BOARDMEMBER HOBBS: I'll give it a shot.
20 CHAIR HANSEN: Okay, Michael?
21 BOARDMEMBER HOBBS: So, Chairman Hansen, I would move that the Fort Collins Planning
22 and Zoning Board recommend approval to City Council…that City Council approve the changes to the
23 appeals…the appeals code amendments as presented tonight, and as in the staff report, with specific
24 conditions of our approval being that the timeline for new evidence…excuse me, timeline for the site visit
25 request deadline be moved to…14 days, and that new evidence from the appellant deadline be moved to
26 28 days from 21, and also that the wording…that paragraph 2-52 B, pertaining to de facto, or default is
27 the term I'm looking for, default consolidation of appeals be removed from the changes that we're
28 recommending. And that…this recommendation is based upon the agenda materials, the information and
29 materials presented during the worksession and this hearing, and the Board discussion on this item, with
30 the following findings: that the recommendation complies with all applicable Land Use Code
31 requirements as stated in the staff report prepared for this hearing, with the exceptions that we've
32 mentioned, and as contained in the agenda materials.
33 CHAIR HANSEN: Okay, there's a motion, is there a second?
34 BOARDMEMBER HOGESTAD: I'll second it.
35 BOARDMEMBER KATZ: Quick clarification…was the intent of the motion to move the entire
36 appeal timeline seven days, because that was stated, or are all the other deadlines staying as is?
32
1 BOARDMEMBER HAEFELE: Just the…changing the site visit deadline to have a 14-
2 day…multiples of seven, so 14.
3 BOARDMEMBER WHITLEY: That's a correction.
4 BOARDMEMBER HAEFELE: That's just really a correction, right. And then, new evidence
5 from the appellant is 28 days after the final decision.
6 BOARDMEMBER HOBBS: Yes, but…and I think you're right, David. My intention, at least,
7 was that that moves everything else forward, that that's not eating into the next deadline time.
8 VICE CHAIR SCHNEIDER: Instead of just giving them seven days to respond.
9 BOARDMEMBER HOBBS: Yes, they should have the same number of days to
10 respond…everything else should move forward seven days.
11 VICE CHAIR SCHNEIDER: So, a friendly amendment would be then…leave the 14, the 21, and
12 then go to the…it'd be what, 42? Because then the 21 wouldn't change, the 35, the 77…none of those
13 other ones would change, so it'd be the 28 and then 42.
14 BOARDMEMBER HOBBS: That's right; I accept that amendment.
15 CHAIR HANSEN: Does the second accept that?
16 BOARDMEMBER HOGESTAD: Yes.
17 BOARDMEMBER HOBBS: Okay, thank you.
18 ASSISTANT CITY ATTORNEY YATABE: And can I just clarify as to the finding of
19 compliance with the Land Use Code, I think you would just strike that. This is part of the City Code and
20 it doesn't really have to do with compliance with the Land Use Code.
21 BOARDMEMBER HOBBS: Okay, I was reading the boiler plate…sorry.
22 CHAIR HANSEN: So we have an amended motion and a second. Is there any discussion on
23 these items? Jeff?
24 VICE CHAIR SCHNEIDER: I'm assuming you want final comments, or discussion?
25 CHAIR HANSEN: There's a motion on the table; it's open for debate. You can try to persuade
26 your fellow Boardmembers one way or the other.
27 VICE CHAIR SCHNEIDER: I don't have anything to debate, but I do appreciate all the time and
28 energy and effort that's been put into this, and I do believe the changes that are being made are improving
29 the process, and so I just appreciate that. I think what we've done tonight is a good cleanup as well, and a
30 good suggestion to move forward to Council.
31 BOARDMEMBER HOGESTAD: And I do appreciate that this did come to our Board.
33
1 BOARDMEMBER HAEFELE: I was just going to second that comment, that I'm glad that this
2 was put to public input instead of just slid into the changes…I think it was improved because of that
3 public input.
4 BOARDMEMBER WHITLEY: I'm going to agree with Michelle. I think this is an
5 improvement. Could it be better? Probably, but not easily.
6 BOARDMEMBER HOBBS: Yes, this set of changes came originally in front of our Board on
7 February 19th, and since then Delynn and Carrie have spent a lot of time. And I really appreciate the
8 amount of public interaction that you've gotten. You even got a pat on the back from Eric Sutherland, and
9 I've never seen that before, so you must have done a good job, so thank you.
10 BOARDMEMBER KATZ: Thank you…like the public, or Eric, said, wiping this clean and
11 starting from scratch is not feasible, so none of these are ever going to be perfect, but thank you so much
12 for your work and definitely making it better, one hundred percent, for sure, better.
13 CHAIR HANSEN: I've seen the appeals process used from, you know, both sides, and have never
14 heard anybody on any side say that it was a good process or a fair process, and these changes are great
15 strides forward into improving it for everybody involved. And I really appreciate the discussion we had
16 here tonight; it was, I think, very helpful. Can I have roll call please?
17 MS. SCHEIDENHELM: Hobbs?
18 BOARDMEMBER HOBBS: Yes.
19 MS. SCHEIDENHELM: Schneider?
20 VICE CHAIR SCHNEIDER: Yes.
21 MS. SCHEIDENHELM: Whitley?
22 BOARDMEMBER WHITLEY: Yes.
23 MS. SCHEIDENHELM: Haefele?
24 BOARDMEMBER HAEFELE: Yes.
25 MS. SCHEIDENHELM: Hogestad?
26 BOARDMEMBER HOGESTAD: Yes.
27 MS. SCHEIDENHELM: Katz?
28 BOARDMEMBER KATZ: I actually agree with everything but the timeline change, so I'm a no.
29 MS. SCHEIDENHELM: And Hansen?
30 CHAIR HANSEN: Yes. Okay, the recommendation to pass these recommendations…the motion
31 to pass these recommendations to City Council passes.
Public Outreach – Municipal Code Changes Regarding the Appeals Process
Applicant Focus Group – June 5, 2019
(Invitation sent to all applicants who had been involved in an appeal in the last three years)
City Staff Delynn Coldiron, City Clerk
Present: Sylvia Tatman-Burruss, Development Review Liaison
Participants: One Attendee
Meeting
Specifics: Wednesday, June 5th, 1:00 P.M. 281 North College Ave.
Discussion:
Council Appeals:
• Is there a reason why Councilmembers do not have to pay for an appeal?
o Councilmembers theoretically are raising issues from a policy standpoint (they are
asking questions, not arguing anything). Their appeals are intended to foster additional
discussion and Council review of issues of concern.
Definitions:
• Does it really make sense to have renters included as party-in-interest?
o Currently, only property owners receive notification of Development Review projects. If
the Municipal Code is updated to include renters in notification, we anticipate a change
to match what is happening in Development Review. Members of the Planning and
Zoning Board asked that notifications related to development review projects be sent to
renters as well as owners. Members of the board expressed a desire for this change
because they believe that because nearly 50% of Fort Collins residents are renters, they
may also have an interest in how a project will affect them. Sending notification letters
to renters is currently being piloted by the Development Review team and has not yet
been codified.
General:
• What was the catalyst for the change of the appeals process?
o Changes were initiated by staff to clarify procedures based on questions that have been
received by those involved in the appeals process, as well as staff. Some of the changes
also document current practices that are occurring. Concerns about due dates for
materials and not having enough time to pull things together has been expressed to
staff on multiple occasions.
• Will the criteria for filing an appeal remain the same?
o Yes. The criteria for an appeal is not proposed to change.
ATTACHMENT 5
Public Outreach – Proposed Appeal Code Changes
June 5, 2019
Page 2
New Evidence:
• In what way does it change materials that can be submitted to Council?
o It establishes deadlines for and clarifies the information that can be submitted as new
evidence. New evidence will only be allowed if there is a fair hearing issue as described
in Section 2-49:
1. information considered was false or grossly misleading; or
2. the hearing body failed to receive all relevant information; or
3. the hearing body was biased.
• If there are slides at the end of a presentation that are not shown at the hearing, do those need
to be included in the appeals documents or only those that have been shown in the hearing?
o Only the slides that have been shown at the hearing or neighborhood meeting. The
additional slides only need to be included if they were presented and were part of the
formal record.
• Wouldn’t there be new evidence in each hearing?
o Not necessarily. But new evidence can come up at the time of the hearing which, now,
both sides must take time at the meeting to review and Council asks whether there are
any objections to the new information provided. The proposed changes try to eliminate
this by setting deadlines for new evidence submittal and clarifying the type of
information that would be allowed.
Notice:
• Why was the 10 days moved to three weeks?
o To enable the parties opposing the appeal to have sufficient time to prepare.
o The applicant should have materials ready; they should be the same as was used at the
hearing. It seems unfair to give them time to additional time to rebut what is in the
appeal if the same opportunity is not given to the appellants.
Remanding to Another Board:
• When would a decision be remanded and to which decision-making body would the decision be
remanded to?
o This is most likely to occur with a Type 1 Administrative Hearing. If the decision were
remanded, it would likely be remanded to a board such as the Planning and Zoning
Board.
Timelines:
• The issue of a longer appeals process is troublesome and can potentially be a high cost burden
for the developer. That developer may then attempt to pass on the cost to the prospective
future property owner, therefore increasing the price of the property. With the current appeals
criteria, neighbors can simply use the process to be obstructionist and they do not have to
present other evidence at the time of the appeal. Therefore, there seems to be a bias towards
the appellant and not the applicant.
Public Outreach – Proposed Appeal Code Changes
June 5, 2019
Page 3
• Can the City Clerk’s office offer only one date to the appellant for the appeal to speed up the
scheduling process?
o The Clerk’s office can try; however, we generally try to work with everyone involved to
find a time that is agreeable. Working around schedules can be challenging.
Public Outreach – Municipal Code Changes Regarding the Appeals Process
Appellant Focus Group – June 6, 2019
(Invitation sent to all appellants who had been involved in appeals in the last three years)
City Staff Delynn Coldiron, City Clerk
Present: Sylvia Tatman-Burruss, Development Review Liaison
Participants: Three Attendees
Meeting
Specifics: Wednesday, June 6th, 6:00 P.M. 281 North College Ave.
Discussion:
Definitions:
• Clarify that a party-in-interest can be opposed or in support of an appeal.
Ex Parte Communications:
• Is ex parte communication something that is an appealable issue?
o If someone believes that a decision-maker was biased or had received information
outside of the public hearing process, that can be offered as a reason for applying for an
appeal.
• During a City Council appeal site visit, the City didn’t outline clearly what was ex parte
communication during that visit. The Assistant City Attorney did not allow the appellant to enter
the conversation, but the developer was allowed to joke with the attorney. Maybe an
unaffiliated third party can run the meeting to keep there from being bias in the process.
o Perhaps the site visits could be facilitated by the Development Review Liaison (she
explained the role of the Development Review Liaison).
General Comments:
• Decision-maker should only be offering a decision in writing and not during a public hearing.
o Because people who appeal projects may not want to read a written decision and would
rather see deliberation and decision-making occur in a public setting, it is better to have
a decision rendered at a hearing. One could then have both a written and verbal
decisions available.
• The larger issue here is that the City does not follow its codes and procedures. Another issue is
that citizens enter into the appeals process without an understanding of the process, which
creates a lot of confusion. People don’t know that they need to refer to the Land Use Code
rather than referring to subjective information.
o Valid concerns, however, not part of this particular code change or update.
• In the past, the Planning and Zoning board has reached decisions too quickly. The neighborhood
meeting is an important part of the process, but those meetings have been skewed to benefit
the developer rather than the community. The key sticking point on The Union (on Elizabeth)
was density and height. Ultimately, no compromise was reached to allay community concerns.
The decision was therefore not made fairly by the Planning and Zoning Board.
ATTACHMENT 6
Public Outreach – Proposed Appeal Code Changes
June 6, 2019
Page 2
• Development Review staff and the developer seem to be too friendly.
• Someone can sit through a hearing and know something isn’t meeting the Land Use Code, but it
only comes out during an appeal. The City should clarify for someone whether there are grounds
for appeal and, if not, should coach someone not to pursue it.
• There are no standards that appellants have to meet; they can file anything. Think the process
is biased towards the appellant. Can standards be created?
• The City’s website should be updated to make it easier to understand how to make comments
regarding development review projects.
o The Development Review website is currently being updated to provide greater clarity
to customers, including how they can be involved in the Development Review process.
Notice:
• It is a problem that only property owners receive notification of a development proposal and
not renters. This keeps renters from knowing that a project may be coming into their
neighborhood.
o The proposed changes attempt to match the current requirement in the Land Use Code.
Planning and Development is considering changing this policy to include renters in the
notification list. If this gets done, staff would move forward with a recommended
change to this policy to ensure consistency.
Timelines:
• Why is 77 days the number of days? Is there a reason why both sides don’t get the chance to
extend that date?
o Review of deadlines dates was done. The change in the number of days is meant to
allow for greater equity among parties in the appeal. There is a chance to extend these
in extenuating circumstances. The goal of the 77 days is to ensure an appeal is not
delayed indefinitely. The move from 75 to 77 days is in keeping with staff’s efforts to
ensure deadlines do not fall on weekends (moving to multiples of 7). Similar things
were done for the election code deadlines.
• Reinforce that there could be new evidence submitted that is either in opposition or support of
the appeal, not just in opposition to the appeal. Deadlines need to take this into account.
• A pre-appeal meeting would be nice to make sure that all evidence has been accounted for.
Public Outreach – Municipal Code Changes Regarding the Appeals Process
General Community Meeting – June 12, 2019
(Advertised in weekly Development Review Newsletter, posted on City’s Facebook page, posted on the
Development Review and City Clerk Website Pages)
City Staff Delynn Coldiron, City Clerk
Present: Sylvia Tatman-Burruss, Development Review Liaison
Participants: Three Attendees
Meeting
Specifics: Wednesday, June 12th, 6:00 P.M. 281 North College Ave.
Discussion:
Combined Appeals:
• If there are appeals that are different, are they heard together? If heard together, that could
either strengthen or diminish each point.
o This is the current practice. Each appellant would have the opportunity to present their
evidence to Council. Mayor decides how much time the appellants would get; the time
would need to be shared.
• In cases where there are multiple appellants, they should be given more time than the applicant
for more fairness.
• Equal time should be given to applicants as well as each appellant to allow them to respond to
testimony and questions.
• In cases where appeals are combined, appellants have not been a coordinated group until the
appeal is heard. The applicant, however, does have time to coordinate among teams and
already have their presentations together. This could cause some issues.
Council Appeals:
• Does Council have to stick to the same appeals timeframe?
o Yes
• If a Councilmember appeals a project, is that Councilmember still allowed to make decisions on
that appeal?
o Yes
General:
• Why were these code changes initiated?
o Changes were initiated by staff to clarify procedures based on questions that have been
received by those involved in the appeals process, as well as staff. Some of the changes
also document current practices that are occurring. Concerns about due dates for
materials and not having enough time to pull things together has been expressed to
staff on multiple occasions.
ATTACHMENT 7
Public Outreach – Proposed Appeal Code Changes
June 12, 2019
Page 2
• If someone wants to bring in an expert witness, would you need to have them known at the
time of appeal and the time of evidence submission?
o Will need to share time given at Council and is a good idea to warn Council that an
appellant is planning to call on a witness.
• Do not have City staff give a presentation on the project during the appeals process. Staff has
already given the presentation to a decision-making body and it is in the record already.
Councilmembers could watch the video of the presentation. Staff has already made a
recommendation on the project to either support or deny. They shouldn’t be given a second
chance to present.
• Who decides what a frivolous appeal is? Could the Ethics Review Board hear the project and
decide if there will be grounds for appeal?
o That is for Council to decide under current provisions; they are the hearing body.
• Perhaps some criteria can be developed to help ensure appeals are not frivolous and a waste of
everyone’s time.
New Evidence:
• In making the proposed changes related to new evidence, are you looking to forestall technical
glitches or other problems?
o Staff is simply trying to get new evidence to Council and all parties involved ahead of the
appeal hearing.
• New evidence can only be submitted at the deadline?
o Yes and is only allowed, under these provisions, if there is a fair hearing issue as
described in Section 2-49:
1. information considered was false or grossly misleading; or
2. the hearing body failed to receive all relevant information; or
3. the hearing body was biased.
• If a deadline changes the structure of an appeal, staff will be able to build counterarguments
into the presentation with time for Council to see that evidence. The presentation would then
cover those new items in the appeal. This seems unfair to others who have already had to
submit their information.
Notification:
• How would I know that an appeal has been filed?
o Currently, the general public would know if they are reviewing Council agendas as they
are posted. The City Clerk’s Office is considering adding a section on the Clerk’s
webpage that would provide this information as soon as an appeal request is submitted.
Staff is also considering a kind of subscription for notification of appeals similar to what
is available for Council agendas. Another idea is to add this information, at least for
Public Outreach – Proposed Appeal Code Changes
June 12, 2019
Page 3
appeals related to development projects, to the weekly Development Review
newsletter.
Remanding to Another Board:
• Q: What would prevent the Council from remanding the decision to a board that isn’t quasi-
judicial?
o Anticipate that Council would send to a board that was somehow related to the type of
project being appealed; most likely would be quasi-judicial for development projects.
For example, there may be an instance where the Landmark Preservation Commission
or Zoning Board of Appeals might be able to take a look at a decision made by the
Planning and Zoning Board. The most likely instance is if a Type 1 hearing officer makes
a decision and Council decides to remand the decision to the Planning and Zoning
Board. This gives Council additional flexibility to do this.
Site Visit:
• Does the site visit allow questions to be asked of staff from Councilmembers? If so, this seems
unfair because during the site visit, appellants are instructed not to talk to Councilmembers.
o This is a question for the City Attorney’s office. One option may be to have the site visits
facilitated by a third party, such as another City staff member from Neighborhood
Services.
• Appellants need to receive clarification on procedures prior to the site visit so they can come
prepared.
Timelines:
• The changes to the timeline lengthens the process a lot?
o Likely lengthens the hearing date from 28 days to 35 days as the earliest time a hearing
could be held since proposing a notice be sent 21 days prior to hearing [currently 10
days prior]. Hearing date could move out to 42 days or more if new evidence is allowed.
[An exception to this would be if an appeal was filed earlier than the 14-day deadline.]
• Consider proposing a back-loading whereby the hearing date is established, then the deadlines
are established. Can take weeks to come up with evidence. Can take a long time for community
members to learn the codes and procedures for projects.
• Make sure there isn’t dead time when the appeal is filed and that there is enough time to
submit the appeal.
• To get an extension on an appeal, would you go to the Clerk’s Office or contact Darin Atteberry,
City Manager, directly?
o The Clerk’s Office will need to come up with a process for this, but someone would likely
be requesting an extension through the Clerk’s Office.
Public Outreach – Municipal Code Changes Regarding the Appeals Process
General Community Meeting – July 22, 2019
(Advertised in weekly Development Review Newsletter, posted on City’s Facebook page, posted on the
Development Review and City Clerk Website Pages, Press Release, Nextdoor Post)
City Staff Delynn Coldiron, City Clerk
Present: Sylvia Tatman-Burruss, Development Review Liaison
Participants: Eight Attendees
Meeting
Specifics: Monday, July 22nd, 6:00 P.M., Colorado River Room, 222 Laporte Avenue.
Discussion:
Definitions:
• Not clear why anyone should be excluded from the appeal process. No one should be excluded
from being a party-in-interest. Everyone should be able to appeal decisions.
• Question about why a member of the Planning and Zoning Board was not allowed to speak at an
appeal hearing? This should be addressed in the municipal code.
o The board member was part of the decision-making body that made the decision that
was appealed. Comments made by the board member as part of the hearing to the
Planning & Zoning board are part of the record that has gone to Council.
• Question about whether individuals can add their names to existing appeals.
Ex Parte Communication:
• Having this “gag order” is an issue; the Mayor should not keep people from offering public
comment on land use issues because they might be appealed.
General:
• Concern that citizens are not notified of an appeal but are still interested in participating in the
process. Is important for others who are interested in the process to be notified in order for
them to be able to participate.
• Question about why these changes being brought forward at this time?
o Changes were initiated by staff to clarify procedures based on questions that have been
received by those involved in the appeals process, as well as staff. Some of the changes
also document current practices that are occurring. Concerns about due dates for
materials and not having enough time to pull things together has been expressed to
staff on multiple occasions.
ATTACHMENT 8
Public Outreach – Proposed Appeal Code Changes
July 22, 2019
Page 2
o Think there should be more clarity about the objectives of these changes. Be clear
about the purpose or objective to allow the public to see whether these are successful.
There also needs to be clearer definitions on things like what is considered ex parte
communication.
• Question about how these meetings were publicized.
o This meeting was specifically advertised in as many media avenues as possible, including
through a formal press release, the Development Review newsletter, on the Nextdoor
platform, on the City’s Facebook page, and on City webpages frequented by various City
customers.
• The City Council cannot modify resolutions with a resolution. They are not complying with the
City’s charter. They must enact any change with an ordinance. The problem statements for
these changes have not been clearly defined. The lack of information for the public doesn’t just
start with the appeals process. The planning and development review process should also
change. Need better planning outcomes, then would have many less appeals. Code changes
need to be made there.
o Need to clarify the Land Use Code and have a more collaborative process.
• Appeals process related to the Sunshine House was not proper. The issue was not in the Land
Use Code, it was really about a policy from a different department. The Water Board decision
was not part of publicly available information. The daycare floodplain variance was not
publicized, and, therefore, not appealable by the deadline.
o During the Bucking Horse Childcare Center appeal, there was controversy over the
comments not having been submitted in a timely manner. Is this a written procedure or
is this codified in the Land Use Code?
There is nothing codified in the Land Use Code related to this. The closest thing
comes under Section 2.2.7(B)(1) which talks about a person appearing at the
public hearing and submitting evidence. It is routine practice that community
input received prior to a hearing be included in the information that is provided
to the hearing body.
• Planning and Zoning Board work sessions should be scheduled at night like hearings to allow
more people to attend.
• Question about whether there is any training on appeals for Councilmembers before appeals
occur.
o The City Attorney provides guidance and training on this.
Hearing Procedure:
• Question about the change related to explanation of the appeal.
o This clarifies that City staff will provide the explanation.
Public Outreach – Proposed Appeal Code Changes
July 22, 2019
Page 3
New Evidence:
• Question about the fair hearing guidelines for new evidence.
o Only allowed under these provisions if there is a fair hearing issue as described in
Section 2-49:
1. information considered was false or grossly misleading; or
2. the hearing body failed to receive all relevant information; or
3. the hearing body was biased.
• Question about how City Council determines what evidence can be submitted?
o Decided based on information provided and any objections received at time of hearing.
Notice:
• The process should be made more transparent. One way to accomplish this is to allow people
outside of the 1,000-foot notification area to be notified in the development review process.
• Use the radius of notification on development review projects for other board decisions that
relate to development review projects.
• Public notice should be given to all parties in interest, including everyone within the original
notification area for the development review application.
Timelines:
• Can take a long time to understand the ramifications of decisions, therefore deadlines should be
extended to fill this knowledge gap.
• The timeline for new evidence – 1 week after deadline to file an appeal, this is limiting evidence
for the appellant. It may take the appellant much more time to assemble new evidence.
• Developer should only get one week to put in more evidence, not two.
January 2020
Appeal Code Changes
Delynn Coldiron, City Clerk; Carrie Daggett, Legal
ATTACHMENT 9
SUMMARY
Changes are meant to:
• Clarify aspects of the appeals procedure
• Improve the appeals process
2
Change Highlights - 2-48(c)
Change recommended under Section 2-48(c) – Appeal of final
decision permits; effect of appeal; grounds for appeal:
• Requires submission of specific questions in
Councilmember-initiated appeals.
• Replaces current requirement for a general description
of an issue.
3
Change Highlights – 2-49
Change recommended under Section 2-49 – Filing of notice of
appeal; new evidence:
• Subsection (b)(5) – requires appellant to submit new
evidence no later than 7 days after the deadline for filing an
appeal.
4
Change Highlights – 2-52
Changes recommended under Section 2-52 – Scheduling of the
hearing/no ex-parte contacts:
• Subsection (a) - adjusts scheduling and notice provisions to
provide parties-in-interest more advance notice.
• New Subsection (b) – defaults to the standard practice of
consolidating multiple appeals of the same decision.
• New Subsection (c) – allows City Manager to request an
extension of time to hear an appeal.
5
Change Highlights – 2-55
Changes recommended under Section 2-55 – Written materials; new
evidence:
• Subsection (a) – clarifies the information Council can consider.
• Subsection (b) – updates the description of new evidence that can be
considered.
• Subsection (b)(2) – requires a party-in-interest opposed to the appeal
to submit new evidence within 21 calendar days.
• Subsection (d) – sets the submittal deadline for presentation materials.
6
Appeal Timeline
7
Appeal
Deadline 14
Days from
Final
Decision
Site Visit 14
Days from
Date Notice
Received
New
Evidence
(Appellant)
21 Days
from Final
Decision
New
Evidence
(Opposing)
35 Days
from Final
Decision
Notice of
Hearing
21 Days
before
Hearing
Hearing
Scheduled
in 49 Days
or Less
Last Date to
Schedule
Hearing
77 Days
after appeal
deadline
New Section – 2-56
New Section 2-56 – Council decision on appeal:
• Subsection (b) - includes a provision allowing remand to a
different decision maker if fair hearing issue found, as
circumstances warrant.
• Subsection (d) – adds a procedure for Council to amend
adopted Resolutions.
• Subsection (d) – also allows Council to modify a decision to
resolve a legal dispute or comply with applicable law.
8
Planning & Zoning Board
• February 21, 2019
• Requested public outreach
• November 21, 2019
• Recommended approval with amendments.
9
Public Outreach
• June 5, 2019 – Applicants involved in the Appeal Process
• One attendee
• June 6, 2019 – Appellants involved in the Appeal Process.
• Three attendees
• June 12, 2019 – General Public
• Three attendees
• July 22, 2019 – General Public
• Eight Attendees
10
-1-
ORDINANCE NO. 020, 2020
OF THE COUNCIL OF THE CITY OF FORT COLLINS
REPEALING AND REENACTING CHAPTER 2, ARTICLE II, DIVISION 3 OF THE CODE
OF THE CITY OF FORT COLLINS RELATING TO PROCEDURES FOR APPEALS TO
THE CITY COUNCIL
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 as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Chapter 2, Article II, Division 3 of the Code of the City of Fort
Collins is hereby repealed and reenacted 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 one or more parties-in-interest appealing 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 that submitted the application to the board,
commission or other decision maker whose decision has been appealed.
Evidence shall mean any information, whether in verbal, audio, written, graphic, or other form,
presented at the hearing to support or refute a particular proposition or conclusion. Evidence
-2-
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 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 that was the
subject of final decision by a board, commission or other decision maker, that 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 a reference to the
location of the original material in the record of the decision being appealed.
Party-in-interest shall mean a person who or organization that 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 an ownership or possessory interest in the real or personal
property that 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 that provided written comments to the
appropriate City staff for delivery to the board, commission or other decision maker prior
to or at the hearing on the matter which is to be appealed;
(5) Any person who or organization that 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.
An appeal of any final decision expressly appealable to City Council under other provisions of
this Code, including the Land Use Code, shall be decided by the City Council in the manner set
forth in this Division.
-3-
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.
(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;
d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant; or
e. The board, commission or other decision maker was biased 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.
(c) Appeals filed by members of the City Council need not include specific grounds for
appeal, but shall include a statement of each specific question to be considered on appeal.
(1) 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 specific questions
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 § 2-52 of this Division.
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(2) Said information shall then be mailed to the parties-in-interest together with the
notice of hearing.
(3) 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; new evidence.
(a) An appeal shall be commenced 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 that is the subject of the appeal.
(b) Such notice of appeal shall be on a form provided by the City Clerk, shall be signed by
all persons joining the appeal and shall include the following:
(1) The action of the board, commission or other decision maker that 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 a fair hearing issue under § 2-48(b)(2)c, d or e,
above all new evidence related to such allegations that the appellant wishes for Council to
consider at the hearing on the appeal must be submitted to the City Clerk within seven (7)
days calendar days after the deadline for filing a notice of appeal and must be clearly
marked as new evidence;
(6) In the case of an appeal filed by more than one (1) person, the name, address and
telephone number of one (1) such person who shall be authorized to receive, on behalf of
all persons joining the appeal, any notice required to be mailed by the City to the
appellants under the provisions of § 2-52 of this Division; and
(7) Any other information required by the City Clerk.
(c) No materials other than that specified in Subsection (b) above shall be included in or
attached to the notice of appeal or submitted by the appellant, except for presentation materials
as allowed in §2-55(d).
(d) The City Clerk will promptly post the notice of appeal and any attached information, and
any new evidence subsequently received pursuant to Subsections (b)(5) above or 2-55(b)(2), on
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the City’s website, and such information shall be available for public inspection in the Office of
the City Clerk.
Sec. 2-50. - Fee for filing 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.), to be paid to the City Clerk at the time of the filing of the
notice of appeal.
Sec. 2-51. - 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 together with such additional evidence as may be admitted
by the Council for consideration as provided in this Article. 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.
(3) If available, a video recording of such proceedings before the board, commission
or other decision maker. The cost of reproducing any such video recording 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.
(4) A copy of notice of the hearing on the decision appealed, along with a list of those
to whom such notice was mailed.
Sec. 2-52. - Scheduling of the hearing/no ex parte contacts.
(a) 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 fewer than twenty-eight (28) days and no more
than seventy seven (77) calendar days after the deadline for filing of the notice of appeal. Prior to
scheduling the hearing, the Clerk shall provide the appellant and applicant with a possible
hearing date, or dates, to determine if unavoidable conflicts that make attendance impossible at
such date, or dates, exist. The City Clerk shall mail written notice of the date, time and place of
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the hearing to the appellant and all other parties-in-interest no less than twenty-one (21) calendar
days prior to the date of said hearing. Said notice shall also include a copy of the notice of appeal
(excluding attachments, which shall be available as provided in § 2-49(c)).
(b) All appeals regarding the same decision shall be consolidated and scheduled together to
be heard in a single hearing. Council may in its discretion by majority vote at the time of the
scheduled hearing separate the hearing process for individual appeals.
(c) At any time prior to the expiration of the time for Council to hear an appeal under
Subsection (a), the City Manager may in the event of scheduling difficulties or notice defects
request that Council approve by motion or resolution the extension of the time for hearing an
appeal for a specified period.
(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. 2-53. - Site inspection.
(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.
(1) If a Councilmember wishes to schedule a site inspection with City staff present,
he or she shall, no later than fourteen (14) days after the filing of the notice of appeal,
request that the City Manager schedule such inspection.
(2) 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.
(3) The City Clerk shall, no less than seven (7) 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 § 2-52 above.
(4) 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
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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 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.
Sec. 2-54. - 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) Presentation by City staff explaining the nature of the appeal or appeals and the
decision being appealed;
(2) Comments by Councilmembers who have inspected the site pursuant to
Subsection 2-53(a) above;
(3) Consideration of any procedural issues identified under Subsection (c) below;
(4) Presentation of argument by the appellant and any party-in-interest in support of
the appeal;
(5) Presentation of argument by any party-in-interest who is an opponent of the
appeal;
(6) Rebuttal presentation by the appellant and any party-in-interest in support of the
appeal;
(7) Rebuttal presentation by any party-in-interest who is an opponent of the appeal;
(8) Councilmember questions of City staff and parties-in-interest; and
(9) Motion, discussion and vote by the 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
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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 the Mayor may determine, subject to override by the Council 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 for presentation of
argument and rebuttal on the merits of the appeal and any concerns or objections related to the
record on appeal. The City Council may, by majority vote, separate one or more appeals of the
same decision by different appellants that have been consolidated in accordance with § 2-52(b).
(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 that have been consolidated in accordance with § 2-52(b), 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. 2-55. - Written materials; new evidence.
(a) The City Council shall consider an appeal based upon the record on appeal, including any
new evidence admitted for or at the appeal hearing, the relevant provisions of the Code and
Charter and any other applicable legal authorities, the grounds for appeal cited in the notice of
appeal, the arguments made by parties-in-interest at the hearing on the appeal, and the City staff
report and presentation prepared for 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) No new evidence shall be presented to the City Council before or during an appeal
hearing, and no new evidence shall be considered on appeal, except as follows:
(1) When offered by an appellant and submitted pursuant to § 2-49(b)(5);
(2) When offered by a party-in-interest opposed to the appeal in response to and
regarding appeal allegations under § 2-48(b)(2)c, d, or e, provided that any such new
evidence must be submitted to the City Clerk within twenty-one (21) calendar days after
the deadline for filing the related notice of appeal and the City Clerk shall not provide
any new evidence to Council submitted by any person after the time for submittal has
expired;
(3) When offered by City staff or parties-in-interest in response to questions
presented by Councilmembers under Subsection 2-54(a) or (d) above; or
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(4) 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 § 2-53 of this Article.
(c) City staff shall prepare for Council consideration the record as described in § 2-51,
together with a staff agenda item summary and presentation materials, which shall become part
of the record of the appeal hearing. Staff shall also provide to the Council the notice of appeal
and all attachments to it, and new evidence provided to the City Clerk in accordance with
subsection (b)(2), above. The Council will determine whether to admit for consideration each
item of new evidence offered by any party, and those materials admitted for consideration shall
become part of the record of the appeal hearing.
(d) Any party-in-interest shall submit to the City Clerk a copy of all materials, including
digital presentations, to be presented to the Council at the appeal hearing no later than noon on
the day of the appeal hearing, or 4:00 p.m. the business day prior to the appeal hearing if the
Council meeting at which the hearing will be conducted is scheduled to begin earlier than 6:00
p.m., and such materials shall thereafter be made reasonably available by the City Clerk to any
persons upon on request. In light of the limitations on admission of new evidence, admission of
any such materials for consideration shall be subject to Council determination at the appeal
hearing. Any party-in-interest may provide a true and accurate hard copy of any such
presentation for Council reference, so long as no fewer than twenty (20) such copies are provided
to the City Clerk along with the digital presentation.
(e) 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, the Mayor shall
rule on 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.
Sec. 2-56. - Council decision on appeal.
(a) 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) of this Article, the City Council shall determine how such provisions
should, in the City Council's judgment, be applied to the evidence contained in the record of the
appeal hearing.
(b) At the conclusion of such hearing, the City Council shall uphold, overturn or modify the
decision of the board, commission or other decision maker, and may impose such conditions as
the Council determines appropriate to further the purposes of or compliance with the standards
governing the decision; 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) of this Article. Notwithstanding any
language to the contrary in City Code, if City Council determines that on remand the
board, commission, or decision maker will be unable to provide a fair rehearing or will be
unable to provide a rehearing because a quorum will not be available, City Council shall
remand the matter for rehearing to a qualified, alternative decision maker determined by
City Council. Additionally, City Council may remand the matter for rehearing to a
qualified, alternative decision maker if the public confidence in the decision on remand
would be better served than remand to the original board, commission, decision maker.
(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.
(c) 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.
(d) Subsequent to the adoption of the resolution required under Subsection (c), above, the
Council may amend said resolution at any time in order to clarify or correct it, or to modify the
decision in order to resolve a related legal dispute or to bring the decision into compliance with
federal, state or local law, including the Charter and Code of the City of Fort Collins.
(1) At least fourteen (14) days prior to consideration of any such amendments,
written notice that the Council will consider such amendments must be mailed to the last
known address of the appellant, the applicant, and any other party-in-interest who
appeared at the related appeal hearing.
(2) Persons entitled to notice of the consideration of amendments shall have an
opportunity to comment at the time of such consideration.
Introduced, considered favorably on first reading, and ordered published this 21st day of January,
A.D. 2020, and to be presented for final passage on the 4th day of February, A.D. 2020.
__________________________________
Mayor
ATTEST:
_____________________________
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City Clerk
Passed and adopted on final reading on this 4th day of February, A.D. 2020.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk