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HomeMy WebLinkAbout2012-064-07/24/2012-MAKING FINDINGS OF FACT REGARDING TWO APPEALS OF THE JUNE 5, 2012, ADMINISTRATIVE HEARING OFFICER AP RESOLUTION 2012-064 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING FINDINGS OF FACT REGARDING TWO APPEALS OF THE JUNE 5, 2012, ADMINISTRATIVE HEARING OFFICER APPROVAL OF THE ASPEN HEIGHTS PROJECT DEVELOPMENT PLAN (PDP # 110018) WHEREAS,on June 5,2012,the City's Administrative Hearing Officer,Richard V. Lopez, .issued a written decision (the "Decision") approving the Aspen Heights Project Development Plan (PDP # 110018) (the "PDP") after an administrative hearing conducted on May 21, 2012 (the "Hearing"); and WHEREAS, on June 19, 2012, Eric Sutherland ("Sutherland") filed a Notice of Appeal of said Decision in the Office of the City Clerk and Tom Lawton and Lori Nitzel ("Lawton-Nitzel") together filed a Notice of Appeal of said Decision in the Office of the City Clerk, each alleging that the Hearing Officer failed to conduct a fair hearing and that the Hearing Officer improperly interpreted and applied relevant portions of the Land Use Code in approving the PDP; and WHEREAS,on July 10,2012,Sutherland and Lawton-Nitzel each filed an Amended Notice of Appeal regarding the Decision (respectively, the "Sutherland Appeal' and the "Lawton-Nitzel Appeal"); and WHEREAS,the Sutherland Appeal contains, among other allegations,the allegation under subparagraph 2-48(b)(2)of the City Code that the failure to record the Hearing resulted in a failure to follow previously established rules of procedure and therefore constitutes a failure to conduct a fair hearing (the "Recording Allegation"); and WHEREAS, after notice given in accordance with Chapter 2, Article II, Division 3, of the City Code, the City Council has considered said allegation on appeal, reviewed the aspects of the record related to the Recording Allegation, heard related presentations by parties in interest to the appeal, and, discussed the Recording Allegation and its relationship to the remaining issues raised in the Sutherland Appeal and the Lawton-Nitzel Appeal; and WHEREAS, under City Code Section 2-57(f), the City Council must remand a matter for rehearing if it finds that the appellant was denied a fair hearing; and WHEREAS, based on the foregoing, the City Council has determined that the failure to record the Hearing did result in a failure to follow previously established procedures and in this instance has resulted in a failure to conduct a fair hearing,as more specifically described below;and WHEREAS,City Code Section 2-56(e)provides that no later than the date of its next regular meeting after the hearing on an appeal,the City Council shall adopt, by resolution, findings of fact in support of its decisions on the appeal. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that, pursuant to Section 2-56(e) of the City Code, the City Council hereby makes the following findings of fact and conclusions: I. That the Recording Allegation,as stated in the Sutherland Notice of Appeal, conforms to the requirements of Section 2-48 of the City Code; 2. That,for the foregoing reasons,the Hearing Officer did not follow previously established rules of procedure, and as a result, impaired the ability of the parties-in- interest to seek Council review of the Decision,and therefore failed to conduct a fair hearing; 3. That, in light of the foregoing, the June 5, 2012, decision of the Hearing Officer approving the PDP is hereby overturned and remanded for a new hearing and decision. 4. That, in light of the foregoing, all remaining allegations of the Sutherland Appeal, and the Lawton-Nitzel Appeal are now moot, and, accordingly,the Council will take no further action on them. 5. That, because no action will be taken, on the Lawton-Nitzel Appeal, the appeal fee paid in connection with the Lawton-Nitzel Appeal shall be refunded in full. Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 24th day of July A.D. 2012. FORT CO SEAL 14yor ATTEST: 0. ^ O co; OR City Clerk