HomeMy WebLinkAbout1989-213-12/05/1989-MAKING FINDINGS OF FACT REGARDING MULTIPLE APPEALS OF THE FINANCIAL OFFICERS DECISION AS TO THE REAL RESOLUTION 89-213
OF THE COUNCIL OF THE CITY OF FORT COLLINS
MAKING FINDINGS OF FACT REGARDING MULTIPLE
APPEALS OF THE FINANCIAL OFFICER'S DECISION AS TO
THE REALLOCATION OF ASSESSMENTS IN THE
PROVINCETOWNE-PORTNER SID NO. 81 AND
THE SOUTH LEMAY SID NO. 86
WHEREAS, on October 17, 1989, the Financial Officer of the City,
pursuant to the authority contained in Section 22-99 of the City Code and
after notice and hearing, ordered the reallocation of assessments in the
Provincetowne-Portner SID No. 81 and the South Lemay SID No. 86 (the
"Districts") ; and
WHEREAS, on October 31, 1989, the decision of the Financial Officer
was appealed to the City Council through the filing of three (3) notices of
appeal (the "appeals") , which were filed on behalf of Lake Shore Estates
("Lake Shore") , the Dueck Properties ("Dueck") , and Alma Murr ("Mrs.
Murr") , collectively referred to below as the "parties in interest" ;and
WHEREAS, on November 21, 1989, the City Council , after notice and
hearing in accordance with Chapter 2, Article 2, Division 3 of the City
Code, considered said appeals; and
WHEREAS, after full consideration of the record on appeal and after
hearing argument thereon, the Council decided the appeals, subject to its
adoption of a resolution containing findings of fact consistent with its
decision.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO,
HEREBY MAKES THE FOLLOWING FINDINGS OF FACTS AND DETERMINATIONS WITH REGARD
TO THE APPEALS:
1. Sufficiency of Grounds.
As to each of the appeals, the written grounds for appeal conform
to the requirements of Section 2-48 of the Code.
2. Findings as to the Appeal of Lake Shore.
a. Notice. The City's notice of the reallocation hearing for
the Districts was not misleading. It properly advised the parties in
interest that a reallocation hearing would be held pursuant to the
provisions of City Code. The notice was consistent with the requirements
of the Code. Any defect which may have existed in the form of the notice
or in the timeliness of its publication or mailing in no way prejudiced the
parties in interest. The notice of hearing adequately apprised the parties
in interest of the date, time, place and purpose of the hearing.
b. Jurisdiction. The Financial Officer was not in any way
deprived of jurisdiction to conduct the reallocation hearing. The
reallocation of assessments by the Financial Officer is permitted under the
City Code whenever any division of property subject to assessment occurs
and a timely agreement as to reallocation has not been submitted by the
affected property owners. The Financial Officer was not deprived of
jurisdiction to conduct the hearing or to reallocate the assessments by the
provisions of the agreements referred to in the Lake Shore notice of appeal
as the "SIDS 81 and 86 Master Agreements, " (the "Master Agreements") or any
events pertaining thereto, because the very purpose of the hearing was to
determine which of the various reallocation proposals, if any, should be
applied to the subject properties.
C. Procedures. The procedures prior to and during the hearings
on September 21, 1989, and on October 2, 1989, were correct and
fundamentally fair. The time frames within which the parties in interest
were required to submit proposals, objections and other materials to the
Financial Officer were consistent with the Code and neither favored nor
prejudiced any of the parties in interest. Extending the hearing to
October 2 for the receipt of additional evidence and argument was for the
purpose of accommodating the reasonable request of two of the parties in
interest, as well as the need for additional time to conclude the hearing.
Such procedure was consistent with the requirements of the Code and ensured
that all parties in interest had ample opportunity to submit evidence and
to be heard with regard to their own proposals and the proposals of the
other parties in interest.
d. Discretion . The Financial Officer exercised sound
discretion in determining the method by which assessments would be
reallocated for the Districts. First, the square-footage or area method of
reallocation is not only consistent with the Master Agreements and the
earlier findings of the City Council in the assessing ordinances for the
Districts, but is also a reasonable method for equitably distributing the
cost of the District improvements, especially in view of the nature of the
improvements. The arterial streets, collector streets and other
infrastructure funded through the formation of the Districts are of overall
benefit to the properties within the Districts. Secondly, the City's
forbearance from exercising any rights it may have against Dueck as a
personal obligor under the Master Agreements in no way extinguishes the
assessments, the assessment lien, or the City's recourse against the Lake
Shore property, nor does it affect the reasonableness of the Financial
Officer's determination as to the appropriate method of reallocation.
Finally, the Financial Officer did not abuse his discretion by determining
that the "sellable land" upon which the reallocated assessments should be
placed was all property within district boundaries that had not been
dedicated to the City for public improvements. This determination is
consistent with Section 22-99(f) of the City Code.
e. Acreage Computations. The amount of acreage owned by Lake
Shore should be computed according to the stipulation offered by all
parties in interest at the hearing on appeal .
3. Findings as to the Appeal of Dueck.
The Financial Officer neither abused his discretion nor failed to
properly interpret and apply the relevant provisions of the City Code and
Charter in determining that the amount of assessments represented by the
principal amount of the Street Oversizing Fund Revenue Note (the "Note")
should be deducted from the total amount of assessments which were to be
reallocated among the property owners within the Districts. In making this
determination, the Financial Officer did not fail to conduct a fair hearing
on the reallocation.
The documents pertaining to the districts evidence an intent to
reimburse Dueck for its payment of those assessments which are attributable
to street oversizing costs. Because it is Dueck which will be reimbursed
under the terms of the Note, it is the Dueck property which should be
assessed for the street oversizing costs.
4. Findings as to the Appeal of Mrs. Murr.
The property owned by Mrs. Murr is not eligible for the
reallocation of assessments under Section 22-99 of the Code because Mrs.
Murr's property has not been "subdivided" within the meaning of the Code
since the date of assessment. Thus, in reaching his decision as to the
Murr property, the Financial Officer did not fail to properly interpret the
provisions of the City Code pertaining to reallocation, nor did he abuse
his discretion or fail to conduct a fair hearing. Nonetheless, the
property owned by Mrs. Murr appears from the record on appeal to be
affected by the reallocation of assessments between Lake Shore and Dueck
and, in particular, by the reallocation of the assessments for street
oversizing costs. Mrs. Murr should receive a credit for any street
oversizing costs that had previously been levied against her property and
the amount of the assessment against the Murr property should be reduced
accordingly.
5. Conclusions and Final Decision.
For the foregoing reasons, the Council hereby determines as
follows:
a. The decision of the Financial Officer is upheld with regard
to the reallocation of assessments between the Lake Shore and Dueck
properties using an area or square-footage method of allocation and the
Lake Shore appeal is denied, except as to the acreage calculations which
are to be modified according to the stipulation of the parties, as shown in
Subsection (c) below.
b. The decision of the Financial Officer is also upheld with
regard to the assessment of street oversizing costs against the Dueck
property, subject to the modification as to acreage in Subparagraph (c)
below, and the Dueck appeal is denied.
C. The amount of the reallocated assessments against the Lake
Shore and Dueck properties is hereby modified to reflect the stipulated
amount of acreage owned by the respective parties, as follows:
Acreage SID #81 SID #86 Total
Property Owner Owned Assessment Assessment Assessment
Lake Shore Estates 333.71 $1, 149,018.96 $683,035.91 $1,832,054.87
Dueck Companies 64.34 221,539.30 358,890.78 580,430.08
d. The Murr appeal is denied as to the grounds stated in the
appeal , but the relief requested by Mrs. Murr is granted for the reasons
stated in Paragraph 4 above. The decision of the Financial Officer
regarding the amount of assessment to remain levied against the Murr
property in SID #86 is modified so as to remove that portion of the
assessment which is attributable to street oversizing costs, as follows:
Property Owner Acreage Owned Assessment
Murr 20 $40,935.90
Passed and adopted at a regular meeting of the Council of the City of
Fort Collins held this 5th day of December, A.D. 1989.
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ATTEST:
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City Clerk