HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/20/2020 - RESOLUTION 2020-097 AUTHORIZING REMOTE QUASI-JUDIC Agenda Item 12
Item # 12 Page 1
AGENDA ITEM SUMMARY October 20, 2020
City Council
STAFF
Richard Anderson, Sr. Manager, Building Devt. and Review
Claire Havelda, Legal
SUBJECT
Resolution 2020-097 Authorizing Remote Quasi-Judicial Hearings for Certain Appeals Pursuant to City Code
Section 2-119(4), to the Building Review Board Pursuant to Ordinance No. 079, 2020.
EXECUTIVE SUMMARY
The purpose of this item is to consider an exception to Ordinance No. 079, 2020 to allow one of the following
items to proceed using remote technology:
1. All “appeals” to the Building Review Board (BRB) arising from City Code Section 2-119(4); or in the
alternative, if Council prefers to address pending requests for such “appeals” on a case-by-case
basis.
2. Appeal of a decision of the Building Official to deny a request to waive the exam requirements for a license
to Matt Tschetter of Luxury Homes of N. CO by motion (the “Pending Appeal Request”).
Ordinance No. 079, 2020 adopted by Council on June 16, 2020, authorizes Council, Planning & Zoning Board
(P&Z), the Landmark Preservation Commission (LPC) and the Building Review Board (BRB) to hear quasi-
judicial items but specifically excludes appeals from that authorization. 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 RECOMMENDATION
Staff recommends adoption of the Resolution to permit all “appeals” to the BRB arising from City Code Section
2-119(4) to be heard using remote technology for the reasons set forth below. To do this, the following motion
would be appropriate:
“I move that Council adopt Resolution No. 097, 2020 including the First Alternate Set of Whereas
Clauses and the First Alternate Section 2.”
Alternatively, staff recommends Council adopt the Resolution permitting only the Pending Appeal Request
(listed as (2) above) be heard using remote technology. To do this, the following motion would be appropriate:
“I move that Council adopt Resolution No. 097, 2020 including the Second Alternate Set of Whereas
Clauses and the Second Alternate Section 2.”
Agenda Item 12
Item # 12 Page 2
BACKGROUND / DISCUSSION
While BRB meetings have been authorized to occur remotely in general, the Pending Appeal Request and all
other “appeals” to the BRB arising from City Code Section 2-119(4) are currently prohibited under Ordinance
No. 079 from being heard remotely. Due to the COVID-19 public health emergency, it could be many months
before all Council, board, and commission members are once again comfortable attending meetings in-person.
Ordinance No. 079, 2020 authorizes certain types of remote meetings for quasi-judicial items but specifically
excludes decisions related to appeals, (among other specified decisions). The Ordinance does allow Council
to consider, on a case-by-case basis, exceptions to those specific exclusions. The Ordinance also allows
appeals to the Zoning Board of Appeals (“ZBA”) to take place without the need for additional motions to
Council as these “appeals” are akin to variances to Code requirements that only the ZBA has jurisdiction to
approve.
Like appeals to the ZBA, “appeals” to the BRB pursuant to Section 2-119(4) are permitted so that the BRB may
allow variances to the Code requirements in specific cases. In these specific cases, when the BRB grants a
variance a “peculiar or exceptional hardship” upon the person regulated must be found, or the applicant must
“demonstrate to the satisfaction of the Board” that they “possess other qualifications not specifically listed in
Chapter 15, Article V.” While termed an “appeal” what the applicant is requesting in these situations is beyond
of the Building Official’s authority to permit; only the BRB can permit these “variances” from the Code
requirements. Section 2-119(4) “appeals” seeking a variance from the BRB are pressing and require prompt
attention. They often involve the livelihood of the contractors seeking licensure within the City.
Although Section 2-119(4) uses the term “appeal”, such requests are actually serve as a variance, analogous
to those allowed by the ZBA. (see City Code Section 2-119(4), attached to this AIS.) Therefore, Staff requests
that Council adopt the Resolution to permit all “appeals” to the BRB arising from City Code Section 2-119(4) be
heard using remote technology as an alternative to continued application of Ordinance No. 079, 2020’s
requirements for case-by-case consideration of requested exceptions.
Decisions of the BRB under City Code Section 2-119(4) may be appealed to the Council. Any such traditional
“appeals” of a BRB decision to Council would still need to be authorized by Council motion pursuant to the
requirements of Ordinance No. 079, 2020.
Should Council decline to allow these BRB “appeals” to proceed without special Council action each time, then
staff asks that Council adopt the Resolution permitting the Pending Appeal Request to be heard by the BRB
using remote technology.
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 applicant has 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, Sec 5-27 Amendments and Deletions to code, (15) Section 113, Board of Appeals.
Agenda Item 12
Item # 12 Page 3
(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 procedure s 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 e quivalent 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 r egarding 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.
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 Planning & Zoning Board, Landmark
Preservation Commission, 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 September, the BRB has conducted four Remote Meetings and
multiple previously approved appeals using Remote Technology. Thus, sufficient successful testing of the
Remote Technology has occurred.
• 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.
Agenda Item 12
Item # 12 Page 4
• Appeals to seek a variance from the BRB are by their nature, pressing and require prompt attention. They
often involve the livelihood of the contractors seeking licensure within the City. Delaying consideration
before the BRB for even a month to get Council approval can result in financial hardships to the applicant.
However, should an applicant not wish to participate in a remote hearing, this will be honored.
PENDING APPEAL REQUEST DESCRIPTION
The Pending Appeal Request is an appeal to the BRB requesting a variance (waiver) of the testing required in
the City of Fort Collins Municipal Code Chapter 5, Article V Contractor Licensing (as modified by Emergency
Rule or Regulation No. 2020-13 enacted by Council which allows use of testing under the 2009 family of
Codes during the COVID-19 emergency). It has been pending for approximately a month.
ATTACHMENTS
1. Appeal Form - Matt Tschetter (PDF)
2. City Code Section 2-119(4) (PDF)
3. Powerpoint Presentation (PDF)
Note: $50 fee paid on 9/8/20 per Shar Manno.
Email address: mjtschetter@hotmail.com
Thursday, October 29, 2020 9:00 a.m.
Richard C. Anderson, Chief Building Official
ATTACHMENT 1
Division 7 - Building Review Board
Sec. 2-119. - Functions.
The [Building Review] Board shall have the following functions:
(1) To determine the suitability of alternate materials or alternate methods of construction, provide
for reasonable interpretations of the provisions of the City building code, City mechanical code,
City plumbing code, City electrical code and City fire code, and hear all appeals made to it
related to such codes;
(2) To hear all requests for variances from the requirements of Article 5, Title 9, C.R.S., which
establishes standards and specifications governing the accessibility of buildings and facilities
within the City to the physically handicapped;
(3) To hear all matters related to the suspension or revocation of any supervisor certificate or
license or registration of any plumber or electrician as provided in the Code;
(4) To, upon appeal in specific cases, grant variances from the terms of Chapter 15, Article V,
where the peculiar or exceptional practical difficulties to or exceptional or undue hardship upon
the person regulated, or when the applicant can demonstrate to the satisfaction of the Board
that the applicant possesses other qualifications not specifically listed in Chapter 15, Article V,
such as specialized training, education or additional experience, which the Board has
determined qualifies the applicant to perform in a competent manner any construction
authorized under the license or certificate sought, provided that such relief may be granted
without substantial detriment to the public good and without substantially impairing the intent
and purposes of said Article;
(5) To serve as the Board of Appeals as required under § 111 of the International Property
Maintenance Code as adopted by the City and "Housing Standards" contained in Chapter 5,
Article VI, Division 2 of the Code; and
(6) To advise the City Council on policy matters pertaining to the construction of buildings and the
licensing of contractors and the certification of supervisors for all aspects of the construction of
buildings, and to perform such other duties and functions and have such other powers as may
be provided by ordinance of the City Council.
(Ord. No. 93, 1987, § 3, 7-7-87; Ord. No. 49, 1991, § 1, 5-7-91; Ord. No. 108, 1992, § 1, 11-3-
92; Ord. No. 133, 1997, § 2, 8-19-97; Ord. No. 121, 2008, 10-21-08; Ord. No. 014, 2009, 02-17-
09)
ATTACHMENT 2
1Authorization of Remote Hearings for Appeal Matters Rich Anderson, Chief Building Official ATTACHMENT 3
Consideration of Exception to Remote Hearings OrdinanceAuthorize by Resolutionall Section 2-119(4) appeals to the BRB be heard using Remote Technology. ORAuthorize by Motiona remote hearings before the BRB for the following Item:2Appeal of a decision of the Building Official to deny a request to waivethe exam requirements for a license to Matt Tschetter of Luxury Homesof N. CO.
Remote Hearing AuthorityAuthority for the Building Review Board to hear appeals remotely comes from Ordinance 79.3
Ordinance No. 079, 2020(adopted June 16) Ordinance 79 authorizes use of remote technologies for:City Council and board and commission meetings for both pressing androutine items;Neighborhood meetings under the Land Use Code; andQuasi-judicial hearings, excluding:oappealsof decisions of all types,oinitial zoning and rezoning decisions, andoadditions of permitted use applications (APUs).4
Exception for ZBA “Appeals”Ordinance 79 specifically allows an exceptionfor all Zoning Board of Appeal “appeals,” which may be heard using Remote Technology.While termed “appeals,” these ZBA matters function as approvals of variancesto the Code that the Community Development & Neighborhood Services Director does not have the authority to grant; only the ZBA does.5
Ordinance No. 079, 2020(adopted June 16) Ordinance No. 079, Section 8 Summary:The Council may authorize additional types of hearings or proceedings to proceed using Remote Technology, provided the Council determines that the action is:a) pressingand requires prompt action; andb)the Remote Technology will provide sufficient public participation and input.6
Potential ConsiderationsCouncil may wish to consider the following:• Desire to provide applicants with a timely and predictable decision-makingprocess.• Contractors are awaiting a decision by the BRB to start constructionprojects. Delaying this hearing will result in delays to these projects.• BRB Meetings are public meetings. During the Public Comment portion ofthese meetings, there are seldom persons present wishing to makecomments on these appeals. Most of the comments are heard at theappeal hearing portion of the meeting.7
Staff Recommendation• Staff believes that Remote Technology would provide a sufficient opportunity for public participation for all of the listed items. • Applicants and/or appellants may request that an item be delayed until the time of an in-person hearing.• Hybrid option may be considered as an alternative to remote hearings• Would require board, commission or Council members to be physically present in Council Chambers to participate in the hearing8
Staff Recommendation• Option 1:Staff recommends that Council authorize by Resolutionappeal hearings using remote technology for all appeals to the BRB arising from City Code Section 2-119(4). • Like appeals brought before the ZBA, appeals to the BRB pursuant to Section 2-119(4) are permitted so that the BRB may allow variances to the Code requirements in specific cases.• While termed an “appeal” what the applicant is requesting in these situations is beyond of the Building Official’s authority to permit; only the BRB can permit these “variances.”• These “variances” requests often involve the livelihood of the contractors seeking licensure within the City and are pressing and require prompt attention.9
PROPOSED OPTIONSThe following Options are provided:•Option 1: Staff recommends that Council authorize appeal hearings using remote technology for all appeals to the BRB arising from City Code Section 2-119(4) by Resolution. •Option 2: Staff recommends approval of the request to authorize remote hearings for the listed item by Motion.10
Proposed ResolutionPROPOSED RESOLUTION ATTACHED TO APPROVE ALL SECTION 2-119(4) “APPEALS”11
Specific Upcoming AppealsItem TypeDecision MakerStatus1. Appeal of a decision of the Building Official to deny a request to waive the exam requirements for a license to Matt Tschetter of Luxury Homes of N. CO. Appeal of Chief Building Official DecisionBuilding Review Board*Awaiting BRB hearing12* possible appeal to City Council
Proposed MotionPROPOSED 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, 2020:1. Appeal of a decision of the Building Official to deny a request to waive theexam requirements for a license to Matt Tschetter of Luxury Homes of N. CO.13
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RESOLUTION 2020-097
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING REMOTE QUASI-JUDICIAL HEARINGS FOR CERTAIN APPEALS
PURSUANT TO CITY CODE SECTION 2-119(4), TO THE BUILDING REVIEW BOARD
PURSUANT TO ORDINANCE NO. 079, 2020
WHEREAS, in response to the public health emergency resulting from the spread of the
Novel Coronavirus 2019 (“COVID-19”), the City Manager proclaimed a local emergency on
March 13, 2020, and City Council extended such proclamation with its adoption of Resolution
2020-030; and
WHEREAS, to protect Councilmembers, appointed board and commission members,
members of the public, and City staff from COVID-19 while allowing City Council and board
and commission meetings to be conducted, City Council authorized remote participation in
meetings using remote technology by adopting Emergency Ordinance No. 054, 2020, which was
superseded by Ordinance No. 061, 2020, which in turn was superseded by Ordinance No. 079,
2020, adopted on second reading on June 16, 2020; and
WHEREAS, Section 4.B. of Ordinance No. 079, 2020, prohibits certain quasi-judicial
hearings from occurring unless, as stated in Section 8, Council adopts a motion by the
affirmative vote of five members that authorizes an otherwise prohibited quasi-judicial hearing to
occur after finding that (1) the quasi-judicial hearing item is pressing and requires prompt action;
and (2) that the remote technology enabling remote participation will provide sufficient public
participation and input; and
WHEREAS, the prohibited quasi-judicial hearings listed in Section 4.B. of Ordinance
No. 079, 2020 include appeals of any decision as such appeals may be authorized under the City
of Fort Collins Municipal Code and Land Use Code, except that variances considered by the
Zoning Board of Appeals (“ZBA”) are not prohibited "appeals" subject to this provision.
WHEREAS, 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.”
and;
WHEREAS, currently, an appeal of a decision of the Building Official to deny a request
to waive the exam requirements for a contractor’s license to Matt Tschetter of Luxury Homes of
N. CO (the “Pending Appeal Request”) is pending; and
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[SELECT ALTERNATE SET OF WHEREAS CLAUSES – Use First Alternate Set to Permit
BRB to Hear All “Appeals” Remotely; Use Second Alternate Set to Permit BRB to Hear Only
the Pending Appeal Request Remotely]
[First Alternate Set – ALL “Appeals”]
WHEREAS, like variances heard by the ZBA, “appeals” to the Building Review Board
(“BRB”) pursuant to Code Section 2-119(4) are permitted so that the BRB may allow variances
to the Code requirements in specific cases; and
WHEREAS, in these specific cases, the BRB may grant a variance if a “peculiar or
exceptional hardship” upon the person regulated is found, or the applicant can “demonstrate to
the satisfaction of the Board” that they “possess other qualifications not specifically listed in
Chapter 15, Article V,”; and
WHEREAS, while termed an “appeal”, what the applicant is requesting in these
situations is termed a “variance” that is beyond of the Building Official’s authority to permit;
only the BRB can permit these “variances,” from the Code requirements; and
WHEREAS, City Council finds that “appeals” to the BRB arising from City Code
Section 2-119(4), including the Pending Appeal Request, require prompt action because they
impact the licensure and continued livelihood of licensed contractors regulated by the City and
remote technology will permit sufficient public participation to provide due process under the
United States and Colorado constitutions; and
WHEREAS, City Council has, after due consideration, determined that all “appeals” to
the BRB arising from City Code Section 2-119(4), including the Pending Appeal Request,
should be heard using remote technology; and
[Second Alternate Set – Pending Appeal Request ONLY]
WHEREAS, the City Council finds that the Pending Appeal Request is pressing and
requires prompt action because it impacts the licensure and continued livelihood of a contractor
regulated by the City and remote technology will permit sufficient public participation to provide
due process under the United States and Colorado constitutions; and
WHEREAS, City Council has, after due consideration, determined that the Pending
Appeal Request should be heard using remote technology; and
WHEREAS, allowing the BRB to hear the Section 2-119(4) appeals specified above
using remote technology is in the best interests of the residents of Fort Collins, Colorado.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
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Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
[SELECT ALTERNATE SECTIONS – Use First Alternate Section 2 to Permit BRB to Hear
ALL “Appeals” Remotely; Use Second Alternate to Permit BRB to Hear ONLY the Pending
Appeal Request Remotely]
[First Alternate Section 2 - ALL “Appeals”]
Section 2. That all “appeals” to the BRB pursuant to Section 2-119(4) that otherwise
meet the procedural due process requirements of Ordinance No. 079, 2020 are hereby authorized
to be heard by the BRB using remote technology provided that such hearings shall meet the
requirements of Ordinance No. 079, 2020.
[Second Alternate Section 2 – Pending Appeal Request ONLY]
Section 2. That the Pending Appeal Request is hereby authorized to be heard by the BRB
using remote technology, provided that such hearing shall meet the requirements of Ordinance
No. 079, 2020.
Section 3. That this Resolution is approved for adoption by the affirmative vote of at
least five Councilmembers as required by, and in satisfaction of, Section 8 of Ordinance No. 079,
2020.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
20th day of October, A.D. 2020.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk