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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/15/2020 - COUNCIL CONSIDERATION OF WHETHER TO AUTHORIZE, BY Agenda Item 17 Item # 17 Page 1 AGENDA ITEM SUMMARY September 15, 2020 City Council STAFF Richard Anderson, Sr. Manager, Building Devt. and Review Paul Sizemore, Interim Director, Comm. Devt. & Neighborhood Serv. Claire Havelda, Legal SUBJECT Council Consideration of Whether to Authorize, by Motion, Remote Hearings for Appeals to be Heard by the Building Review Board. EXECUTIVE SUMMARY The purpose of this item is to consider two exceptions to Ordinance No. 079, 2020, adopted by Council on June 16, 2020, to allow various zoning, development, and historic preservation items to proceed to public hearings using remote technology. A suggested motion is provided on page 3 of this Agenda Item Summary. Ordinance No. 079, 2020, authorizes Council, the Planning and Zoning Board (P&Z), the Landmark Preservation Commission (LPC) and the Building Review Board (BRB) to hear quasi-judicial items but specifically excludes from that authorization decisions related to zoning/rezoning, appeals, and additions of permitted use (APUs). The Ordinance does, however, allow Council, by motion adopted by at least five Councilmembers, to authorize exceptions to that exclusion. To authorize remote hearings for the listed items, Council must find that such hearings are pressing and require prompt action and that virtual technology will provide for sufficient public participation and input. Staff is requesting Council consider allowing the following items to proceed: 1. Appeal of a decision to deny a license to Chris Ufer of Space Solutions, LLC. 2. Appeal of a decision of the Building Official to deny a request to waive the exam requirements for a license to Clark Vernon of Summit Builders, LLC. STAFF RECOMMENDATION Staff recommends that Council authorize appeal hearings using remote technology for all appeals to the BRB arising from City Code Section 2-119(4). Alternatively, staff recommends Council authorize the two specific appeals listed above be heard using remote technology. BACKGROUND / DISCUSSION There are two appeals for the BRB that are currently awaiting public hearings with the BRB. While meetings have been authorized to occur remotely in general for each of these decision-making bodies, certain types of quasi-judicial items are still required to be heard at in-person meetings. A quasi-judicial hearing is considered a “remote meeting” if one or more Councilmembers, board or commission member participates virtually. Due to the COVID-19 public health emergency, it could be many months before all Councilmembers and board and commission members are able to attend meetings in person. Ordinance No. 079, 2020, authorizes certain types of remote meetings for quasi-judicial items but specifically excludes decisions related to zoning/rezoning, appeals, and additions of permitted use (APUs). There are Agenda Item 17 Item # 17 Page 2 numerous projects that are now “stalled” in their respective processes as they await a final decision. The Ordinance allows Council to consider, on a case-by-case basis, exceptions to those specific exclusions. EXCEPTIONS FOR REMOTE HEARINGS Section 8 of Ordinance No. 079, 2020 allows Council to consider exceptions on a case-by-case basis, as follows: Section 8. The Council may, by the affirmative vote of five members on a motion, authorize additional types of meetings, hearings or proceedings, or individual matters otherwise not allowed hereunder, to proceed using remote technology, provided the Council determines that the authorized action is pressing and requires prompt action and that the remote technology available for the proceeding will provide sufficient public participation and input called for by the type of meeting, hearing or proceeding or the individual matter, as applicable, in light of the specific circumstances. In considering whether hearing these items is pressing and requires prompt action, Council may wish to consider the following issues: • The applicants have the right to appeal these decisions to the BRB. • Approving this request will honor the requirements in the City of Fort Collins Municipal Code Chapter 5, Article II, Section 5-27 Amendments and Deletions to Code, (15) Section 113, Board of Appeals. (15) Section 113, Board of Appeals, is hereby deleted in its entirety and the following is hereby added in lieu thereof: SECTION 113 BOARD OF APPEALS 113.1 General. The Building Review Board (hereafter "Board") established in Section 2-117 of the City Code is hereby empowered in accordance with the procedures set forth in this Section and as authorized under Section 2-119 of the City Code to hear and decide appeals of orders, decisions, or determinations made by the building official relative to the application and interpretation of this code; to determine the suitability of alternative materials or alternative methods of construction; and to grant permit extensions and reinstatements as prescribed by Section 105.5. The building official shall serve as the Secretary of the Board. The Board shall adopt rules of procedure for conducting its business and shall render all decisions and findings in writing. 113.2 Applications/Hearings. When a building permit applicant or a holder of a building permit desires relief from any decision of the building official related to the enforcement of this code, except as is otherwise limited in Section 113.4, such building permit applicant, building permit holder, or representative thereof may appeal the decision of the building official to the Board, stating that such decision by the building official was based on an erroneous interpretation of the building regulations or that an alternative design, alternative materials and/or the alternative methods of construction proposed by the appellant are equivalent to those prescribed by this code, considering structural strength, effectiveness, fire resistance, durability, safety and any other pertinent factors. The Board shall hear and decide all appeals made to it and shall have the authority to rule in favor of the appellant when the Board determines that the interpretation of the building regulations of the City by the building official was erroneous, or when the Board determines an alternative design, alternative materials and/or the alternative methods proposed by the appellant are equivalent to those prescribed by this code, considering structural strength, effectiveness, fire resistance, durability, safety and any other pertinent factors. The Board shall require that sufficient evidence be submitted to substantiate any claims made regarding the proposed alternative design, alternative materials, and/or alternative methods of construction. A quorum of 4 members shall be necessary for any meeting of the Board. Agenda Item 17 Item # 17 Page 3 In addition, Council may wish to consider the following issues: Staff believes that remote technology would provide a sufficient opportunity for public participation for the listed items. The Zoom technology platform currently used by the P&Z, LPC, BRB and Council accommodates multiple options for participation, including both online and phone participation. In addition, written comments will continue to be accepted by staff in advance of all hearings. By the end of July, P&Z and LPC will have each completed three virtual work sessions and three virtual hearings, which have allowed for sufficient testing of the technology. Subsection 4.D of Ordinance No. 079, 2020, also requires that: Any person or applicant seeking a quasi-judicial decision from . . . a City board or commission . . . under the City Code or the City’s Land Use Code, shall be notified in writing or by email of the intention to conduct a Quasi-Judicial Hearing using Remote technology. Such person or applicant shall be entitled to request that the Quasi-Judicial Hearing be delayed until such time as the Hearing can be conducted in person. Any person or applicant proceeding with and participating in a Quasi-Judicial Hearing using Remote technology shall be deemed to have consent to such method of providing the Quasi-Judicial Hearing. Before any items are scheduled for a hearing using remote technology, staff will notify all applicants and appellants, if applicable, of the intent to conduct the hearing remotely. If an applicant or appellant requests that the item be delayed until the time of an in-person hearing, then staff will work to accommodate those requests within any applicable timeframes established in the Land Use Code. Hybrid meetings may also be considered, which would allow for an in-person hearing if board, commission or Councilmembers are willing and able to convene in-person and hear in-person presentation by the applicant and/or appellant (with social distancing and limited numbers in the room at one time) and an option for remote participation by the public. A hybrid option could allow applicants, appellants, parties of interest, and members of the public to attend in-person if they are not comfortable with a fully remote hearing, while allowing others to attend remotely if desired. This would require participating board, commission, or Councilmembers to be physically present in Council Chambers in order to participate in the hearing. ITEM DESCRIPTIONS Item #1 is an appeal to the BRB of the Chief Building Officials’ denial of a request related to the General Contractor License for Chris Ufer of Space Solutions, LLC. The denial is based on the applicant’s failure to meet the requirements of City Code Chapter 5, Article V Contractor Licensing. The applicant has affirmed a desire to appeal this decision using remote technology. Item #2 is an appeal to the BRB of the Chief Building Officials’ denial of a request related to waving the testing requirement in City Code Chapter 5, Article V Contractor Licensing and per the emergency order enacted by Council which allow us to utilize testing under the 2009 family of Codes. The applicant has affirmed a desire to appeal this decision using remote technology. PROPOSED MOTION The following motion is provided to approve all listed items. If Council does not wish to permit an item to move forward using remote technology, that item should be removed from the list set forth below when making the motion. “I move that City Council find that the following quasi-judicial matters are pressing and require prompt action and that virtual technology will provide due process to hear them through sufficient public participation and input, and based upon such findings authorize Quasi-Judicial Hearings using Remote Technology by the Building Review Board and City Council, as applicable, to proceed for the following items not otherwise permitted under Ordinance No. 079, 2020: Agenda Item 17 Item # 17 Page 4 1. Appeal of a decision to deny a license to Chris Ufer of Space Solutions, LLC. 2. Appeal of a decision of the Building Official to deny a request to waive the exam requirements for a license to Clark Vernon of Summit Builders LLC.” ATTACHMENTS 1. Space Solutions, LLC, Chris Ufer (PDF) 2. Summit Builders, Clark Vernon (PDF) 9:00 a.m.Thursday, September 24, 2020 Richard C. Anderson, Chief Building Official ATTACHMENT 1 ATTACHMENT 2