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HomeMy WebLinkAbout1997-031-03/04/1997-MAKING FINDINGS OF FACT AND CONCLUSIONS REGARDING THE APPEAL OF A DECISION OF THE PLANNING AND ZONIN r. • • i RESOLUTION 97-31 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING FINDINGS OF FACT AND CONCLUSIONS REGARDING THE APPEAL OF A DECISION OF THE PLANNING AND ZONING BOARD RELATING TO THE PROVINCETOWNE AMENDED OVERALL DEVELOPMENT PLAN APPEAL WHEREAS, on August 26, 1996,the Planning and Zoning Board ("the Board") approved the Amended Provincetowne Overall Development Plan(the "Amended ODP"); and WHEREAS, as permitted by Section 2-48 of the City Code, the Board's August 26, 1996 decision approving the Amended ODP was appealed to the City Council by three appellants known as CDL Partnership, the Brittany Knolls Homeowners, and the Neighbors at Eagle Tree; and WHEREAS, on October 22, 1996, the City Council heard such appeals and on November 12, 1996,adopted Resolution 96-137 remanding the Amended ODP to the Board for a full rehearing on the Amended ODP; and WHEREAS, on December 16, 1996, the Board held the remanded hearing to consider the Amended ODP and at such hearing approved, for a second time, the Amended ODP and found that it complied with the City's Comprehensive Plan; and WHEREAS, on December 27, 1996,a Notice of Appeal of the Board's December 16, 1996 decision was filed with the City Clerk by Appellant CDL Partnership,which Appellant subsequently filed an Amended Notice of Appeal on February 6, 1997; and WHEREAS,on December 30, 1996,a Notice of Appeal of the Board's December 16, 1996 decision was filed with the City Clerk by the property owners of the Eagle Tree Subdivision, the property owners of the Brittany Knolls Subdivision, and other surrounding area residents ("the Appellants of Eagle Tree"),which Appellants subsequently filed an Amended Notice of Appeal on January 28, 1997; and WHEREAS,these said Amended Notices of Appeal of the Appellants CDL Partnership and Eagle Tree shall hereinafter be referred to jointly as "the Amended Notices of Appeal"; and WHEREAS,the Appellant CDL Partnership and the Appellants Eagle Tree shall hereinafter be referred to jointly as"the Appellants"; and WHEREAS, on February 25, 1997,the City Council, after notice given in accordance with Chapter 2, Article II, Division 3 of the City Code, conducted a hearing to consider the Amended Notices of Appeal, reviewed the record on appeal, and heard presentations from City staff, the Appellants, and other parties-in-interest; and WHEREAS,at the conclusion of said hearing,the City Council determined that the decision of the Board approving the Amended ODP should be upheld; and WHEREAS, Section 2-56(e)of the City Code provides that no later than the date of its next regular meeting after the hearing of an appeal, the City Council shall adopt, by resolution, findings of fact in support of its decision on the appeal. NOW, THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS,that pursuant to Code Section 29-56(e)the Council hereby makes the following findings of fact and conclusions: Section 1. That the grounds for appeal as stated in the Amended Notices of Appeal conform to the requirements of Section 2-48 of the City Code. Section 2. That the Board did not fail to conduct a fair hearing based on any of the Appellants' allegations in the Amended Notices of Appeal and, with regard to such allegations, the Council hereby makes the following findings. A. The Appellants allege in the Amended Notices of Appeal that the Board showed bias, favoritism or had a conflict of interest in making its December 16, 1996 decision approving the Amended ODP. There is no evidence in the record of the Board's hearing and there was no evidence presented at the Council's appeal hearing to support these allegations. B. The Appellants allege in the Amended Notices of Appeal that the notices given of the Board's December 16, 1996 hearing were inadequate. The record reflects, however, that the notice requirements of Section 29-526F.(3)(b) of the city's Land Development Guidance System were substantially complied with by the City prior to the Board's December 16, 1996 hearing and that such notices satisfied the constitutional requirements of procedural due process. C. The Appellants allege in the Amended Notices of Appeal that the Appellants were given an inadequate opportunity for surrebuttal at the Board's December 16, 1996 hearing. These allegations are not supported by the record. The record reflects that the Board followed its usual order of presentation which included, initially a staff presentation,then the applicant's presentation,and then presentations by citizens both for and against the Amended ODP. After the citizen presentations, the next order of presentation in Board hearings is usually for the applicant to present rebuttal evidence to the previous citizen presentations. However, at this hearing,the applicant offered no evidence or testimony in rebuttal to the citizens presentations. 2 Therefore,there was no need for the Board to give the Appellants the opportunity to provide surrebuttal evidence to the rebuttal evidence of the applicant, since the applicant presented no rebuttal evidence. D. The Appellants allege in the Amended Notices of Appeal that the Board failed to conduct a timely hearing on December 16, 1996, with respect to the Amended ODP because the Board considered two other agenda items prior to the consideration of the Amended ODP. The Appellants contend that as a result the hearing started late and was conducted at a late hour of the evening. However,the record reflects that the Board chairperson followed the customary procedures of the Board in considering the two other agenda items prior to considering the Amended ODP and in doing so did not deprive the Appellants of a fair hearing or of an adequate opportunity to address the Board concerning the Appellants' opposition to the Amended ODP. E. The Appellants allege in the Amended Notices of Appeal that during the hearing a Boardmember temporarily left the hearing room for a short period of time without a recess being called and that another Boardmember left the hearing that evening due to illness. As a result, the Appellants contended that they received an unfair hearing before the Board. Based on the record,there is no evidence that the short and temporary absence of one of the Boardmembers and the absence of the ill Boardmember denied the Appellants a reasonable opportunity to be heard at the hearing. Such absences did not significantly affect the hearing or deprive the Appellants of a fair hearing. Such absences did not significantly affect the hearing or deprive the Appellants of a fair hearing. Also, a quorum of the Board was maintained at all times during the hearing. Section 3. That the Board's decision at the December 16, 1996, hearing approving the Amended ODP is supported by the policies of the City's Comprehensive Plan. On balance, the Amended ODP satisfies the City's Comprehensive Plan,including,without limitation,the applicable policies of the City's Goals and Objectives dated August 19, 1977,and the City's Land Use Policies Plan dated August 14, 1979, both of which constitute elements of the City's Comprehensive Plan. Such policies include, without limitation, the following policies of the City's Land Use Policies Plan: Policy Numbers 3.a., 22, 64, 65, 66, 67, 74, 75, 76, 79, 91, 92, 95, and 97. Section 4. That the Council further finds that, in so interpreting the applicable policies of the City's Comprehensive Plan,that the Board properly interpreted these provisions and properly applied them with respect to the Amended ODP. Section 5. That for the foregoing reasons, the Board's December 16, 1996 decision approving the Amended ODP is hereby upheld and the Amended ODP is hereby approved. 3 Passed and adopted at a regular meeting of the Council of the 'ty of Fort Collins held this 4th day of March, A.D. 1997. Mayor ATTEST: City Clerk 4