Loading...
HomeMy WebLinkAboutMinutes - Read Before Packet - 08/27/2024 - Memorandum from Delynn Coldiron re: Leadership Planning Team Meeting Minutes – August 26, 2024 City Clerk 300 Laporte Avenue .O. Box 580 Fort Collins, CO 80522 MEMORANDUM DATE: August 26, 2024 TO: Mayor and Councilmembers FROM: Delynn Coldiron, City Clerk RE: Leadership Planning Team (LPT) Meeting Mayor Pro Tem Emily Francis, Councilmember Tricia Canonico, City Manager Kelly DiMartino, Deputy City Attorney Jenny Lopez Filkins, Assistant City Manager Rupa Venkatesh and City Clerk Delynn Coldiron met on Monday, August 26, 2024. The following summarizes the discussions that began at 8:00 a.m. August 27 Work Session • Quasi-Judicial Appeals Process – A question was asked about whether there was anything that could be sent to Council that provided information about the current appeals process. Staff will send all Councilmembers the current Appeal Guidelines document. September 3 Regular Meeting • The executive session related to an update on police liability litigation may not occur. If that is not needed, the only item on discussion is an executive session related to Collective Bargaining. • A Resolution excusing Mayor Arndt’s absence from the September 3 regular meeting will be added to the Consent calendar. Six-Month Calendar • September 17: o Question on whether the Poudre Fire Authority Intergovernmental Agreement item should be moved to a discussion item. Staff will follow up. • October 1: o College and Trilby Multifamily Community appeal (tentatively scheduled). The Notice of Appeal indicates a failure to properly interpret and apply relevant provisions of the City Code, Land Use Code and Charter. Specifically, the appellants’ concerns are around the Larimer County Urban Access Street Standards and the Transportation Master Plan. This item may move to October 15th. Leadership Planning Team Meeting August 26, 2024 Page 2 of 3 • October 15: o Sanctuary on the Green appeal was tentatively scheduled for this date. This may move to October 1st but would likely need to include a remote option to ensure all can participate. • November 4: o An item should be added for consideration of the Northern Colorado Regional Airport Budget. o Budget first reading – It was noted that this was a moved meeting (to Monday, November 4) since Tuesday is election day. The importance of letting the public know was mentioned. City Manager DiMartino noted that staff would do a lot of outreach related to this. The Mayor’s script will also be updated in October to ensure this gets mentioned. City Clerk Delynn Coldiron • Appeals: o A Notice of Appeal was emailed to the Clerk’s office last Thursday related to a Land Use Review Commission variance decision. The email was received on the deadline, but the Notice was not signed and did not include the required application fee. Although the appellant noted that these items would be overnighted to the City, nothing was received by the Clerk’s office on Friday. This appeal is not expected to move forward. o Appeals are expected to come in related to a recent Historic Preservation Commission decision and on the Homeless Shelter proposal pending the Planning and Zoning Commission hearing this week. The direction given today related to scheduling was that only one appeal should be scheduled per regular meeting unless there are no other discussion items scheduled. In that case, two appeals could be scheduled. Fifth Tuesdays will not be considered. Assistant City Manager Rupa Venkatesh • Nothing to report. Deputy City Attorney Lopez Filkins • Nothing to report. City Manager Kelly DiMartino • Noted that the Commission for the Northern Colorado Regional Airport saw its first budget presentation and had a lot of questions. A short-term sub-committee of the Commission was established to take a deeper dive into the budget. The first meeting of the sub-committee was held last Friday. • Noted she is receiving weekly updates from the trash collecting team. A tiered response system has been set up and customer response will be based on the type of feedback or complaint being received. A question was asked about the City phone number that has been placed on all trash bins Leadership Planning Team Meeting August 26, 2024 Page 3 of 3 and whether the City would be initially fielding these calls, essentially setting up a type of hotline. Staff was asked to follow up on this item. o Environmental Services staff did confirm that the phone number on the carts is City-owned but it automatically is forwarded to Republic i.e. when someone calls that number, they are connected directly to Republic. The City owns the number so that if we change haulers in the future, the number for the program doesn’t change. Councilmember Tricia Canonico • Attended the Tour de Fat event on Saturday and provided a shout out to all involved. • Noted she had received a number of complaints about Republic and connected them directly with Kimberlee Palmer of Republic. All shared that their experience dealing with Kim had been good. • Attended the Community Leaders breakfast event that CSU hosted last week to kick off its academic year. Mayor Pro Tem Emily Francis • Attended the Community Welcome event on Wednesday and provided a shout out to all involved. She noted that there was a lot of representation from the Police which she appreciated. She also noted that CSU has stated this is its largest enrollment year ever and that the number of first generation, people of color and women students was huge! She asked that CSU send related information to the City once all of the numbers have been finalized. • Attended the Tour de Fat event and provided a shout out to all involved. She also wanted to acknowledge the neighbors along Mountain Avenue who have embraced this event and have really turned this into a fun community celebration. • Attended the ribbon cutting for the downtown alleys and noted the great partnerships involved. • Asked about the First Friday in August event for Linden Street. Staff noted that things were pretty quiet. Mayor Pro Tem Francis encouraged staff to reach out to Denver to ask more about Larimer Street in the RiNo District to discuss its program and stated it is generally packed on the weekends. Meeting adjourned at 8:56 a.m. Appeal Guidelines Contents Appealable Decisions 1 Eligibility to File an Appeal 1 Filing Fee 2 How and When Appeals are Filed 2 Grounds for Appeal 2 Council Initiated Appeals 3 Appeal Hearing Scheduling 3 Site Inspections 4 Appeal Hearing “Record” 4 New Evidence 5 No Ex-parte Contacts 6 Agenda Material Available 6 Hearing Procedures 7 Multiple Appeals filed on the Same Decision 7 Presentation Materials for Appeal Hearing 8 Order for Presentations 8 Possible Council Action 9 Findings Resolution 9 Hearing Records 9 Further Information 10 Appendix A and B April 2020 Page 1 These Guidelines are intended as guidance only and do not constitute legal advice. Parties-in- interest should reference the City Code appeal provisions to understand all the details of the appeals process and seek their own legal advice as needed. The Code Provisions are provided as Appendix A to these Guidelines. Appealable Decisions An appeal asks City Council to change a final decision of a board, commission or other decision maker. An appeal is filed to ask the Fort Collins City Council to change or modify a final decision made by a board, commission or other decision maker. Final decisions made by any of the following City boards, commissions or other decision makers may be appealable: $ Building Review Board $ Fire Board of Appeals $ Landmark Preservation Commission $ Planning and Zoning Board (except for decisions made under C.R.S '22-32-124 and C.R.S '31-23-209 regarding reviews by the City of public buildings and school facilities) $ A Adecision maker@ under the provisions of Section 2.2.12 of the Land Use Code (except as specified in Land Use Code Divisions 2.3 through 2.11, 2.16, 2.18, and 2.19) $ Water Board $ Zoning Board of Appeals Any other decisions that are expressly appealable to City Council according to City Code and the Land Use Code may also be allowed. 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 Appeal Procedure 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 taken during said period of time. Eligibility to File an Appeal Any party-in- interest may file an appeal. Parties-in-interest have the right to file an appeal. A party-in-interest is a person who, or organization which, has standing to appeal the final decision of a board, commission or other decision maker. Such standing to appeal is limited to the following: $ The applicant. $ Anyone who own or occupies the property which was the subject of the decision made by the board, commission or other decision maker. $ Anyone who received the mailed notice of, or spoke at, the hearing of the board, commission or other decision maker. $ Anyone who 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 that is being appealed. $ A City Councilmember. Page 2 Filing Fee A filing fee of $100 is due when the appeal is filed. A filing fee of $100 is collected when the appeal notice is filed with the City Clerk (except for appeals filed by Councilmembers). Make checks payable to: City of Fort Collins. It is acceptable to pay the appeal fee with more than one check. Your check will be your receipt. Please do not pay with cash. How and When Appeals Are Filed The deadline to file an appeal is 14 calendar days after the final decision of the board, commission or other decision maker. Notice of Appeal form can be found at Fcgov.com/appeals A written Notice of Appeal must be filed with the City Clerk within 14 calendar days after the decision of the board, commission or other decision maker. The Notice of Appeal must be on a form provided by the City Clerk (Appendix B) and must be signed by all persons joining the appeal. The Notice of Appeal filed with the City Clerk must state and provide (as applicable): $ The action of the board, commission or other decision maker which is the subject of the appeal. $ The date of such action. $ Name, address, telephone number, email address and relationship of each appellant to the subject of the action which is the subject of the appeal. $ Grounds for the appeal including specific Aallegations of error@ outlined below, and a summary of the facts contained in the record on appeal supporting the allegations. $ In the case of an appeal alleging a fair hearing issue, all new evidence the appellant wishes to submit at the hearing on the appeal in support of this allegation must be submitted to the City Clerk within 7 days after the deadline for filing a Notice of Appeal and must be clearly marked as “new evidence”. $ If there is more than one person filing an appeal, the name, address, telephone number and email address of one individual designated as a representative of all appellants. $ Any other information required by the City Clerk. No information other than that specified above shall be included in or attached to the Notice of Appeal. Once a Notice of Appeal is filed with the City Clerk, the notice, any attached information and any new evidence subsequently received will be posted on the City’s website at fcgov.com/appeals and will available for public inspection in the City Clerk’s Office. Page 3 Grounds for Appeal Specific grounds must be stated for an appeal to be heard. Permissible grounds for appeal are limited to allegations that the board, commission or other decision maker committed one or more of the following errors: $ Relevant Code or Charter provisions were not properly interpreted and applied. $ The board, commission or other decision maker failed to hold a fair hearing in that it: - exceeded its authority or jurisdiction. - ignored its previously established rules of procedure. - considered substantially false or grossly misleading evidence. - improperly failed to receive all relevant evidence offered by the appellant - was biased against the appellant by reason of a conflict of interest or other close business, personal or social relationship. Council-Initiated Appeals Appeals filed by a Councilmember must give a general description of the issues to be considered. Appeals filed by City Councilmembers are not required to state specific grounds for appeal but must include a statement of each specific question to be considered on appeal. Council-initiated appeals must be filed with the City Clerk within the same time frame as other appeals (14 days). No appeal fee is charged. When an appeal is filed by a Councilmember, the director of the affected City service area must identify the specific Code provisions pertaining to the specific questions raised by the appeal and provide that information to the City Clerk to include in the hearing notice mailed to parties-in-interest. Councilmembers who file an appeal can participate in deciding the appeal. Appeal Hearing Scheduling The City Clerk schedules the Council hearing and mails a notice at least 21 calendar days prior to the hearing. Multiple appeals of the same decision The City Clerk schedules a hearing before the Council no sooner than 28 calendar days after the deadline for filing the Notice of Appeal, but no later than 77 calendar days after such deadline. The City Clerk must mail written notice of the date, time, and place of the Council hearing to the appellant(s) and all parties-in-interest at least 21 calendar days before the hearing. The hearing notice includes a copy of the Notice of Appeal (excluding attachments). All information regarding the appeal, including attachments to the Notice of Appeal and any new evidence, will be posted on the City’s website and available for public inspection in the City Clerk’s Office. All appeals regarding the same decision may be consolidated and scheduled together to be heard in a single hearing. Council may Page 4 may be combined into one hearing. determine if the appeals should be heard separately as part of its procedural review at the beginning of the appeal hearing. If scheduling difficulties arise or notice defects occur, the City Manager can request that Council approve an extension of the time for hearing appeal. Site Inspections Councilmembers may inspect the site of an overall development plan, project development plan or other proposal that is the subject of an appeal. 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, to gain a better understanding of the physical characteristics of the site and the surrounding area. Any Councilmember who wishes to schedule a site inspection with City staff present, may, no later than 14 days after the filing of the Notice of Appeal, request that the City Manager schedule an inspection. The City Manager will schedule the inspection for a date and time when he or she believes that the majority of Councilmembers wishing to inspect the site will be able to attend. No less than 7 days prior to the date of the site inspection, the City Clerk will mail notice of the inspection to the appellant and to all parties-in-interest to whom notice of the appeal hearing was sent by the City Clerk under Section 2-52 of the City Code. The appellant and all other parties-in-interest are entitled to attend such scheduled inspection, along with any members of City staff whose presence is requested by the City Manager. Any Councilmembers conducting a site inspection, 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. Appeal Hearing ARecord@ Council=s hearing is based on Athe record@, the grounds for appeal, and relevant provisions of the Code and Charter. Appeal hearings are based on the record of what happened at the hearing held by the board, commission or other decision maker, the grounds for appeal stated in the Notice of Appeal, and any relevant provisions of the Code and Charter. A verbatim transcript of the proceeding of the board, commission or other decision maker is prepared at the expense of the City. Council also receives a video recording of the proceedings of the board, commission or other decision maker if the proceedings were videotaped. If a verbatim transcript of the proceedings does not exist and cannot be produced, the decision that is the subject of the appeal will be re-heard before the decision maker after notice is provided as required by City Code or the Land Use Code and the appeal will be terminated. Council receives all exhibits received or viewed by the board, commission or other decision maker concerning the matter appealed. Page 5 A copy of the hearing notice on the decision appealed, along with a list of those to whom the notice was mailed will be provided as part of the record. At the hearing, Council may consider only: $ the same facts and information presented at the particular hearing of the board, commission or other decision maker which is the subject of the appeal. $ relevant provisions of the City Code, Land Use Code and Charter and any other applicable legal authorities. $ the grounds for appeal cited in the Notice of Appeal. • City staff report and presentation prepared for the appeal $ Arguments made by parties-in-interest at the hearing on the appeal. Any issues raised during the presentation of arguments made by parties-in-interest that were not raised in the Notice of Appeal will not be considered by City Council in deciding the appeal. $ new evidence admitted for or at the appeal hearing. New Evidence There are limits on presentation of new evidence. Any new evidence submitted by the deadline will be posted at Fcgov.com/appeals ❖ New evidence offered by a person or group filing a Notice of Appeal is only allowed if it relates to an allegation in the appeal that a board, commission or decision maker did not conduct a fair hearing because: • a board, commission or other decision maker considered substantially false or grossly misleading evidence relevant to its findings • A decision maker improperly failed to receive all relevant evidence offered by the appellant; or • the 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. New evidence submitted by an appellant must be submitted to the City Clerk within 7 calendar days after the deadline for filing a Notice of Appeal. It must be clearly marked as new evidence. ❖ New evidence may be submitted by a party-in-interest opposed to the appeal in response to and regarding appeal allegations that: • a board, commission or other decision maker considered substantially false or grossly misleading evidence relevant to its findings • A decision maker improperly failed to receive all relevant evidence offered by the appellant or • the 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. Page 6 New evidence from parties-in-interest opposed to the appeal must be submitted to the City Clerk within 21 calendar days after the deadline for filing the related Notice of Appeal. During the hearing for the appeal, new evidence may only be presented when offered by: - City staff or parties-in-interest in response to Council questions. - Councilmembers after inspecting the site of the project development plan or other proposal that is the subject of an appeal to report observations made or conversations had during a site inspection that Councilmember believe may be relevant to their determination of the appeal. Modifying, highlighting, underlining, italicizing or otherwise emphasizing certain portions of writings or graphics presented to the original decision maker will not be considered presenting new evidence as long as the modified graphic presented to City Council at the appeal hearing is accompanied by a reference to the original material in the record of the decision being appealed. City Council will determine whether to admit for consideration each item of new evidence offered by any party. Parties-in-interest may interrupt the appeal hearing proceedings and object to the introduction of any evidence that they believe is improper. The failure of a party-in-interest to make an objection constitutes a waiver of the objection by that party-in-interest for the purpose of any court appeal of the Council=s decision. No Ex-parte Contacts No contact with Councilmembers regarding the merits of the appeal is allowed. In order to maintain the impartiality of the Council, Councilmembers must avoid communication with parties-in-interest and members of the public regarding the merits of the appeal prior to the hearing on the appeal. Agenda Material Available Agenda material is available several days prior to the appeal hearing. The material Council receives prior to the hearing on an appeal is available online on the Thursday prior to the Council hearing at www.fcgov.com/agendas. Page 7 Hearing Procedures Presentations follow a specific order, and time limits are set. Hearings on appeals follow certain procedures. Presentations are made to the Council in a specific order. Time limits are set by the Mayor. Factors to be considered in determining the length of time for the presentation of argument on the merits of the appeal, include, but are not limited to: • the complexity of the issues raised in the Notice of Appeal, • the length of the record on appeal, • the potential impact that the determination of the appeal may have on the community-at-large, and • the number of parties-in-interest who wish to address the Council with regard to the merits of the appeal. Prior to hearing the presentation of argument, the Mayor may, at his or her discretion, establish a separate time period for the Council to consider and determine, by majority vote, any procedural issues related to the hearing of the appeal. Procedural issues can include (but are not limited to) • the possible introduction or exclusion of certain evidence, • the length of time to be allowed by the Mayor for the presentation of argument on the merits of the appeal, and • any concerns or objections related to the record on appeal. Presentations are most effective when arguments are brief and to the point. Arguments should focus on the record. Speakers should clearly state what they would like Council to do. Parties-in-interest are not permitted to cross-examine one another or City staff. Councilmembers or the City Attorney may ask questions to elicit or clarify information. The Mayor may choose to modify the hearing procedures unless the majority of Council objects. Multiple Appeals filed on the Same Decision If 2 or more appeals regarding the same decision are filed, they may be consolidated and scheduled together to be heard in a single hearing. Council may determine if the appeals should be heard separately as part of its procedural review at the beginning of the appeal hearing. Page 8 Presentation Materials for Appeal Hearing Materials must be provided to the City Clerk before NOON, the day of the Appeal Hearing. (except for non- evening hearings) If providing hard copy of a presentation, 20 copies must be provided. All parties-in-interest who have presentation materials to be shown at the Appeal Hearing must provide those materials to the City Clerk in the manner specified by the City Clerk no later than NOON on the day of the meeting or 4:00 p.m., the business day prior to the meeting if the meeting begins earlier than 6:00 p.m. These materials must be in a form readily usable on the City’s display technology. Parties-in-interest have the responsibility to ensure information in the presentation materials are appropriate for public disclosure. The City retains the right to refuse to post any presentation materials, or portions of materials, if they contain information that cannot be displayed pursuant to any applicable law or regulation, including copyrighted materials. Presentations will be available on the City’s website at fcgov.com/appeals and upon request from the City Clerk’s office. Order for Presentations The order of proceedings for the appeal hearing is set by the City Code as follows: $ Staff makes a presentation explaining the nature of the appeal and the decision being appealed. $ Councilmembers comment on observations made or conversation had during an inspection of to the site. $ Consideration of any procedural issues identified. $ Appellants and any parties-in-interest present arguments in support of the appeal. $ Any parties-in-interest present arguments in opposition to the appeal. $ Opportunity for appellants and parties-in-interest to rebut arguments of the opposing side. $ Opportunity for opponents to rebut arguments raised by the supporters of the appeal. $ Councilmembers may ask questions of City staff and parties- in-interest. $ Council motion, discussion, and vote. The appeal hearing is considered to be a quasi-judicial proceeding. Page 9 Possible Council Action Council may: uphold, overturn, modify, or remand. After the hearing concludes, Council makes a motion, discusses the appeal, and votes. Council may vote to: $ uphold the decision of the board, commission or other decision maker. $ overturn the decision of the board, commission or other decision maker. $ modify the decision of the board, commission or other decision maker. $ remand (send back) the matter to the board, commission or other decision maker for rehearing if it finds that the board, commission or other decision maker failed to hold a fair hearing, or if it believes that the board, commission or other decision maker should receive and consider additional information with regard to any issue raised on appeal. Any remand will include direction from the City Council to the board, commission or other decision maker as to the issues to be considered at the re-hearing. If City Council determines that on remand the board, commission or decision make will be unable to provide a fair hearing or will not be able to rehear the matter because a quorum will not be available, City Council can remand the matter for rehearing to a qualified, alternative decision maker determined by City Council. Findings Resolution Council adopts findings resolution at the next regular meeting. No later than its next regular meeting, Council must adopt a resolution making findings of fact in support of its decision, in order to provide a clear record for any subsequent judicial review. This is not intended as an opportunity for further argument regarding the matter that was appealed. The date of passage of the findings resolution is the date of final action of the Council. If Council decides to amend the Findings Resolution after it is adopted, written notice must be mailed to the appellant, applicant and any other party-in-interest who appeared at the related appeal hearing at least 14 days prior to consideration of any amendments. Anyone who received written notice will have an opportunity to comment at the time any amendments are considered. Hearing Records Copies of Council records are available at the City Clerk=s Office. Minutes of Council meetings and background records for Council hearings are kept in the City Clerk=s Office and online at www.fcgov.com/agendas. Copies of Council records may be obtained for a charge of 25 cents per page. Videos of Council meetings are available online at www.fcgov.com/video and from the FCTV Office for a fee. Phone: (970) 221-6510. Page 10 Further Information Contact the City Clerk=s Office at 221-6515 for more information. The applicable City Code sections are appended to these Guidelines and should be consulted. Contact the City Clerk=s Office at City Hall West, 300 LaPorte Avenue, (970) 221-6515, for information about the appeal process. Interested parties may wish to seek private legal counsel to obtain legal advice concerning an appeal. Page 11 APPENDIX A CITY CODE PROVISIONS RELATING TO APPEALS Page 12 Division 3 - Appeals Procedure[2] Footnotes: --- (2) --- Editor's note— Ord. No. 020, 2020 , § 2, adopted February 4, 2020, repealed Division 3, §§ 2-46—2-55, and reenacted a new Division 3 to read as set out herein. Former Division 3 pertained to similar subject matter and derived from Ord. No. 124, 1987, § 1—3, adopted Sept. 1, 1987; Ord. No. 174, 1988, § 1—3, adopted Dec. 20, 1988; Ord. No. 111, 1989, § 1, 4, adopted Aug. 1, 1989; Ord. No. 23, 1990, § 1, 2, 4—8, adopted April 3, 1990; Ord. No. 139, 1990, adopted Jan. 15, 1991; Ord. No. 67, 1993, § 1—3, adopted July 20, 1993; Ord. No. 59, 1994, § 1, 3—5, adopted April 19, 1994; Ord. No. 5, 1995, adopted Feb. 7, 1995; Ord. No. 88, 1995, § 1—5, adopted Aug. 1, 1995; Ord. No. 117, 1996, § 3, adopted Sept. 17, 1996; Ord. No. 151, 1996, adopted Dec. 17, 1996; Ord. No. 53, 1997, § 1, 2, adopted March 18, 1997; Ord. No. 28, 1998, § 2, adopted March 17, 1998; Ord. No. 234, 1998, § 1, 4, 5, adopted Jan. 5, 1999; Ord. No. 088, 2006, §§ 1—4, adopted June 6, 2006; Ord. No. 089, 2006, adopted June 6, 2006; Ord. No. 090, 2006, adopted June 6, 2006; Ord. No. 003, 2008, § 1—3, adopted Feb. 5, 2008; Ord. No. 131, 2011, § 1, 2, 5—7, adopted Feb. 21, 2012; Ord. No. 066, 2014 , adopted May 20, 2014. Cross reference— Appeals from the Liquor Licensing Authority, § 3-36; appeals from the Building Review Board may be heard by the City Council, § 5-312; appeals from the decision of the City regarding alarm permits to the City Council, § 15-36; appeals from the determinations of the Building Review Board regarding alarm permits to the City Council, § 15-41(b); disapproval of pawnbroker's license may be appealed to the City Council, § 15-265(c); applicant for license regarding places of entertainment may appeal the decision to the City Council, § 15-298; appeals from the denial of the secondhand dealer's license to the City Council, § 15-318(d); appeals for denial of a license for a mobile home park may be appealed to the City Council, § 18-5(d). 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 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. Page 13 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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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 Page 14 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. (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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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 appellant 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 the City's website, and such information shall be available for public inspection in the Office of the City Clerk. (Ord. No. 020, 2020 , § 2, 2-4-20) Page 15 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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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 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 may 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 Page 16 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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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 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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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 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, whether to separate any consolidated appeals of the same decision by different appellants, 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. (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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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 (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. (Ord. No. 020, 2020 , § 2, 2-4-20) 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: (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. (Ord. No. 020, 2020 , § 2, 2-4-20) Secs. 2-57—2-70. - Reserved. APPENDIX B APPEAL FORM Form updated 4/22/2020 NOTICE OF APPEAL Action Being Appealed: Date of Action: Decision Maker: Name: Phone #: Address: Email: For each allegation marked below, attach a separate summary of the facts contained in the record which support the allegation of no more than two pages, Times New Roman 12-point font. Please restate allegation at top of first page of each summary. GROUNDS FOR APPEAL The Decision Maker committed one (1) or more of the following errors (check all that apply): Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code, and Charter. List relevant Code and/or Charter provision(s) here, by specific Section and subsection/ subparagraph: 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. [New evidence not allowed] (b) The Board, Commission or other Decision Maker substantially ignored its previously established rules of procedure. [New evidence not allowed] (c) The Board, Commission or other Decision Maker considered evidence relevant to its findings which was substantially false or grossly misleading. [New evidence allowed] (d) The Board, Commission or other Decision Maker improperly failed to receive all relevant evidence offered by the appellant. [New evidence allowed] (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. [New evidence allowed] NEW EVIDENCE All new evidence the appellant wishes Council to consider at the hearing on the appeal must be submitted to the City Clerk within seven (7) calendar days after the deadline for filing a Notice of Appeal and must be clearly marked as new evidence. No new evidence will be received at the hearing in support of these allegations unless it is submitted to the City Clerk by the deadline (7 days after the deadline to file appeal) or offered in response to questions posed by Councilmembers at the hearing. FOR CITY CLERK’S USE ONLY: DATE FILED: Form updated 4/22/2020 APPELLANTS ATTACH ADDITIONAL SIGNATURE SHEETS AS NECESSARY Parties-in-interest have the right to file an appeal. A party-in-interest is a person who, or organization which, has standing to appeal the final decision of a board, commission or other decision maker. Such standing to appeal is limited to the following: $The applicant. $Anyone who owns or occupies the property which was the subject of the decision made by the board, commission or other decision maker. $Anyone who received the mailed notice of, or spoke at, the hearing of the board, commission or other decision maker. $Anyone who 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 that is being appealed. •A City Councilmember.