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HomeMy WebLinkAbout131 - 02/21/2012 - AMENDING THE APPEALS PROCEDURE CONTAINED IN CHAPTER 2, ARTICLE II, DIVISION 3 OF THE CITY CODE RELAT ORDINANCE NO. 131, 2011 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE APPEALS PROCEDURE CONTAINED IN CHAPTER 2, ARTICLE II, DIVISION 3 OF THE CODE OF THE CITY OF FORT COLLINS RELATING TO PROCEDURES FOR HEARING APPEALS TO THE CITY COUNCIL WHEREAS, Chapter 2, Article II, Division 3 of the City Code establishes a procedure whereby the final decisions of boards, commissions and other decision makers can be appealed to the City Council (the "Appeals Procedure"); and WHEREAS, City staff has identified a number of issues related to the appeal process that warrant Council consideration, some of which were considered and discussed by the City Council in a work session held on June 14, 2011; and WHEREAS,the issues discussed by the City Council at the work session and the additional issues that have been identified by City staff include the following: • the period of time within which the hearing on an appeal must be scheduled; • the fact that parties-in-interest to an appeal do not have an opportunity to respond in writing to the allegations contained in the notice of appeal that is filed by appellants; • the process for scheduling site inspections; • the role of the public in appeal hearings; and • whether Councilmembers who file an appeal should be able to participate in hearing the appeal; and WHEREAS, the City Council has determined that these issues should be addressed by amendments to the Appeals Procedure. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 2-48(c)of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-48. Appeal of final decision permitted; effect of appeal; grounds for appeal. (c) Appeals filed by members of the City Council need not include specific grounds for appeal, but shall include a general description of the issues to be considered on appeal.Upon the filing of any such appeal,the director of the affected City service area shall identify the specific Code provisions that may pertain to the issues raised by such appeal and shall provide such information to the City Clerk prior to the date that the notice of hearing on the appeal is to be mailed by the City Clerk to parties-in-interest under§2-54. Said information shall then be mailed to the parties-in-interest together with the notice of hearing. Councilmembers who file an appeal may participate in hearing such an appeal in the same manner as they participate in hearing appeals filed by other parties-in-interest. Section 2. That Section 2-49 of the Code of Fort Collins is hereby amended to read as follows: Sec. 2-49. Filing of notice of appeal; No other written materials. (a) An appeal shall be taken by filing a notice of appeal of the final decision of a board,commission or other decision maker to which this Division applies with the City Clerk within fourteen(14)calendar days after the action which is the subject of the appeal. Such notice of appeal shall be on a form provided by the City Clerk,shall be signed by all appellants and shall include the following: (1) The action of the board, commission or other decision maker which is the subject of the appeal; (2) The date of such action; (3) The name, address, telephone number and relationship of each appellant to the subject of the action of the board, commission or other decision maker; (4) 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 under Subsection 2-48(2)c that a board, commission or other decision maker considered evidence relevant to its findings that was substantially false or grossly misleading, any new evidence the appellant wishes to submit at the hearing on the appeal in support of this allegation; and (6) In the case of an appeal filed by more than one (1) appellant, the name, address and telephone number of one (1) such appellant who shall be authorized to receive, on behalf of all appellants, any notice required to be mailed by the City to the appellants under the provisions of§ 2-50; and -2- (7) any other information required by the City Clerk. (b) No information other than that specified in subsection (a) of this Section shall be included in or attached to the notice of appeal, nor shall any additional written materials be submitted to or received by the City prior to or during the hearing on an appeal. Section 4. That Section 2-54 of the Code of the City of Fort Collins is hereby amended to read as follows : Sec . 2 -54. Scheduling of the hearing. 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 more than seventy-five (75) calendar days after the date of filing of the notice of appeal . Written notice of the date, time and place of the hearing shall be mailed by the City Clerk to the appellant and all other parties-in-interest no less than ten ( 10) calendar days prior to the date of said hearing. Said notice shall also include a copy of the notice of appeal or amended notice of appeal, as applicable, and shall inform the parties-in-interest of the period of time within which additional issues may be identified under § 2-56 . Section 5 . That Section 2-55 of the Code of the City of Fort Collins is amended to read as follows : Sec. 2-55. Site inspection/no ex parte contacts. (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, as well as the issues on appeal. If a Councilmember wishes to schedule a site inspection with City staff present, he or she shall, no later than ten ( 10) days after the filing of the notice of appeal, request that the City Manager schedule such inspection. Upon receipt of such a request, the City Manager shall forthwith schedule the inspection for a date and time when he or she believes that a majority of the Councilmembers wishing to inspect the site will be able to attend. The City Clerk shall, no less than five (5) days prior to the date of the 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 Subsection 2-54(a) of this Article . The appellant and all other parties-in-interest shall be entitled to attend such scheduled inspection, along with any members of City staff whose presence is requested by the City Manager. (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 -3 - (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. (d) In order to afford all parties-in-interest a fair opportunity to respond to the information upon which the City Council is to base its decision on appeal,and in order to preserve the impartiality of Councilmembers hearing the appeal, all Councilmembers who intend to participate in hearing the appeal shall, to the extent reasonably possible,avoid communications with parties-in-interest and members of the general public regarding the merits of the appeal prior to the hearing on the appeal. Section 6. That Section 2-56(a)of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-56. Procedure at the hearing. (a) At the hearing on the appeal by the City Council,the presentation of argument on the merits of the appeal shall be made in the following order, subject to such limitations in time and scope as may be imposed at the discretion of the Mayor: (1) Explanation of the nature of the appeal and presentation by City staff, (2) Comments by Councilmembers who have inspected the site pursuant to Subsection 2-55(a); (3) Presentation of argument by the appellant and any party-in-interest and/or other member of the public in support of the appeal; (4) Presentation of argument by any party-in-interest and/or other member of the public who is an opponent of the appeal; (5) Rebuttal presentation by the appellant and any party-in-interest in support of the appeal; -4- (6) Rebuttal presentation by any party-in-interest and/or other member of the public who is an opponent of the appeal; (7) Councilmember questions of City staff and parties-in-interest; and (8) Motion, discussion and vote by City Council. (b) Factors to be considered in determining the period of time for the presentation of argument on the merits of an appeal shall include, but not be limited to, the complexity of the issues raised in the notice of appeal, the length of the record on appeal, the potential impact that the determination of the appeal may have on the community at large, and the number of parties-in-interest who wish to address the Council with regard to the merits of the appeal. (c) Prior to hearing the presentation of argument on the merits of the appeal,the Mayor may,in his or her discretion,establish a separate period of time during which the Council may first consider and determine,by majority vote,any procedural issues related to the hearing of the appeal, including, but not limited to, the possible introduction or exclusion of certain evidence,the period of time to be allowed by the Mayor for presentation of argument on the merits of the appeal,and any concerns or objections related to the record on appeal. (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,the Mayor,in his or her discretion,may modify the procedure contained in Subsection(a)above so as to expedite the hearing of such appeals. Section 7. That Section 2-57(a) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 2-57. New evidence; scope of review; alternative actions available to the City Council; date of final action. (a) The City Council shall consider an appeal based upon the record on appeal,the relevant provisions of the Code and Charter, the grounds for appeal cited in the notice of appeal, and the arguments made by parties-in-interest at the hearing on 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. -5- (b) New evidence shall not be considered on appeal except under the following circumstances: (1) When offered in support of or in opposition to an allegation under Subparagraph 2-48(2)c that a board, commission or other decision maker considered evidence relevant to its findings which was substantially false or grossly misleading; (2) When offered by City staff or parties-in-interest in response to questions presented by Councilmembers under Subsection 2-56(a)or (d); (3) When offered by Councilmembers after inspecting the site of the project development plan or other proposal that is the subject of an appeal pursuant to the provisions of Subsection 2-55. (c) New evidence offered under subsection.(b)(1)above shall be limited to any new evidence that is either described in the notice of appeal or offered in response to questions presented by Councilmembers. (d) Any party-in-interest who believes that new evidence has been improperly introduced into the appeal hearing may, at any time during the hearing, object to the Council's consideration of such evidence.The Mayor shall rule on such objection, after consultation with the City Attorney if necessary, and the evidence shall either be received and considered by the Council or disregarded by the Council in accordance with the ruling of the Mayor; provided, however, that the Mayor's ruling on this or any other procedural issue raised during the course of the hearing may be overridden by a majority of the Council. (e) In considering an allegation that a board, commission or other decision maker failed to properly interpret and apply the relevant provisions of the Code or Charter asserted under Paragraph 2-48(1),the City Council shall determine how such provisions should, in the City Council's judgment, be applied to the evidence contained in the record on appeal. (f) At the conclusion of such hearing, the City Council shall uphold, overturn or modify the decision of the board, commission or other decision maker; provided, however, that: (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, -6- (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. (g) No later than the date of its next regular meeting, the City Council shall adopt, by resolution, findings of fact in support of its decision. The date of passage of such resolution shall be the date of final action of the City Council for the purpose of any subsequent judicial review of the decision of the City Council. Introduced, considered favorably on first reading, and ordered published this 4th day of October, A.D. 2011, and to be presented for final passage on the 21st day of February, A.D. 2012. r 0"00`0 4ayor ATTEST: A�Chief Deputy City Cler Passed and adopted on final reading on the 21st day of February, A.D. 2012. OF°FORT CO ayor ATTEST: '••<< ' 2 0 City Clerk C0 m.• O -7-