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to rescind its decisions and set the matter for a new hearing at this point. This problem is
significantly exacerbated where repeated contacts by the appellants outside of the hearing
would appear to be the basis for an action to rescind. In addition, the applicant will certainly
argue that the hearing on the appeal must be conducted within the required 60-day timeframe
set out in the Code in order for it to be within the Council's jurisdiction, which, combined
with other procedural irregularities associated with these particular hearings could lead a
court to consider the Council's action to be contrary to the City Code or the applicant's right
of due process, or, in this context, to be arbitrary and capricious.
In view of these points, we recommend that the Council continue to avoid reviewing and considering
additional communications and information provided by parties -in -interest or the general public outside
of the hearing regarding these appeals.
Please keep in mind that short of an action to rescind the prior decisions, the Council's action tonight
will be to determine whether the resolutions that have been prepared and provided as agenda items #32
and #33 accurately and adequately describe the decisions that the Council made at the close of the
hearings on the appeals last Tuesday. Consequently, testimony regarding the substance of the appeals,
and about whether or not the Council properly decided the appeals, are not germaine to the items on the
agenda for this evening.
Please let us know if there are questions related to this matter that it would be helpful to provide further
legal input on before this evening's meeting.
—C
Carrie Mineart Daggett
Deputy City Attorney
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
(o) 9701416-2463
(c) 970/219-6426
(f) 970/221-6327
cdaggett@afcgov.com
CONFIDENTIALITY NOTICE: This email and any attachments contain confidential attorney -client
information intended for city use only. Disclosure of the contents of this email to unauthorized persons is
prohibited. Do not forward this email or any attachments to persons outside the city organization or to officers or
employees of the City whose duties are unrelated to the subject matter of this email.
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Steve Olt
From: Gerry Horak
Sent: Tuesday, September 06, 2011 3:07 PM
To: Carrie Daggett; CCSL Legal
Cc: Darin Atteberry; Karen Cumbo; Steve Olt; Paul Eckman; Ted Shepard; Steve Roy
Subject: RE: DND Agenda Items 32 and 33 - Resolutions for The Grove Appeal
Sensitivity: Confidential
Carrie and Paul
Thanks
Gerry
From: Carrie Daggett
Sent: Tuesday, September 06, 2011 2:51 PM
To: CCSL Legal
Cc: Darin Atteberry; Karen Combo; Steve Olt; Paul Eckman; Ted Shepard; Steve Roy
Subject: DND Agenda Items 32 and 33 - Resolutions for The Grove Appeal
CONFIDENTIAL ATTY-CLIENT COMMUNICATION
This email is in response to questions that have come up in the last day as a result of incoming emails
and correspondence from parties interested in the Council's action on the appeal of the Planning and
Zoning Board approvals related to The Grove.
As a reminder, the hearings on the matters on appeal were brought to a close on the 23rd, and the
Council's decisions on each, to be documented by adoption of proposed resolutions on this evening's
agenda, have been made. As a result, barring a rescission and conduct of new hearings (discussed in the
attached September 1st memo from Paul Eckman and Steve Roy regarding this matter), no new evidence
should enter into the Council's decisions regarding the appeals.
To summarize the key points in the attached memo:
This office believes that the Council's interpretation of the Land Use Code in relation to the
E-zone requirements for primary employment uses is reasonable and defensible. We believe
we would have the stronger argument in defending this interpretation than would a plaintiff
challenging the Council's interpretation and application of this requirement. This office also
considers the Council's interpretation of the Land Use Code with respect to other areas of
challenge by the appellants to be reasonable and defensible.
2. There are risks associated with taking the unusual step of reopening consideration of the
appeals by rescission of the decisions made on August 23rd. In particular, the applicant's
right to procedural due process and a decision based on evidence in the record to which the
applicant has not had an opportunity to respond would be a major concern were the Council
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