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HomeMy WebLinkAboutTHE GROVE AT FORT COLLINS - PDP - 16-10B - LEGAL DOCS - LEGAL DOCUMENTS (7)e M Mayor and City Councilmembers August 11, 2011 Page 9 City of Pori Collins To overturn the decision of the Board on the grounds that the PDP lacks a supporting ODP the following motion would be appropriate: I move to overturn the decision of the Planning and Zoning Board approving The Grove at Fort Collins PDP No. 16-IOB on the grounds that in light of the Council's decision on the ODP for the Project the PDP lacks an approved ODP and therefore fails to meet the requirements of the Land Use Code. To overturn the decision of the Board on the Grounds that it failed to properly interpret and apply the Land Use Code regarding the he approval of The Grove at Fort Collins PDP No 16-1 OB the following motion would be appropriate: I move to overturn the decision of the Planning and Zoning Board approving The Grove at Fort Collins PDP No. 16-I0B. I believe that the Board failed to properly interpret and apply the following provisions of the Land Use Code: [Here the motion maker should indicate the Land Use Code sections that were not properly interpreted, and how they were misinterpreted.] In the case of either the ODP or the PDP, the Council is at liberty to remand the matter to the Board for rehearing if the Council determines that a rehearing is necessary in order for the Board to receive and consider additional information with regard to any issue raised in either of these two appeals. WPE/pec cc: Darin Atteberry, City Manager - Steve Olt, City Planner Karen Cumbo, Interim PDT Director Ted Shepard, Community Development and Neighborhood Services Director, by delegation Mayor and City Councilmembers August 11, 2011 Page 8 City of F6rt Collins considered by the Council only if it is offered in response to the questions presented by Councilmembers. As suggested above, if there are issues related to exhibits that were presented to the Board in one hearing but not incorporated or presented again in the other hearing, the Council will need to inquire about the information if it wants to consider it as part of both appeals. For example, Council should expect that the Applicant may object that the "Residents Report" was not part of the record for both appeals. Again, if that occurs, the best way for Council to get it into the record for both appeals is to inquire about the report and, if the Council determines the reportto be useful, move to include it in the record. SAMPLE MOTIONS L THE ODP: Since this appeal deals first with the ODP, which is foundational, I would advise Council to take a vote on the ODP first. To uphold the decision of the Board on the grounds that it properly interpreted and applied the Land Use Code regardingthe he approval of the amended CSURF Overall Development Plan No. MJA 110001 the following motion would be appropriate: I move to uphold the decision of the Planning and Zoning Board approving the amended CSURF Overall Development Plan No. MJA 110001 because the Board properly interpreted and applied the provisions of the Land Use Code. To overturn the decision of the Board on the grounds that it failed to properly interpret and apply the Land Use Code regarding the approval of the amended CSURF Overall Development Plan No. MJA 110001, the following motion would be appropriate: I move"to-overtum-the decision ofihe Planning and Zoning Board approving the' amended CSURF Overall Development Plan No. MJA 110001. 1 believe that the Board failed to properly interpret and apply the following provisions of the Land Use Code: [Here the motion maker should indicate the Land Use Code sections that were not properly interpreted, and how they were misinterpreted.] II. THE PDP.- To uphold the decision of the Board on the grounds -that it properly interpreted and applied the Land Use Code regarding the approval of the approval of The Grove at Fort Collins PDP No. 16-1 OB, the following motion would be appropriate: I move to uphold the decision of the Planning and Zoning Board approving The Grove at Fort Collins PDP No. 16-IOB because the Board properly interpreted and applied the provisions of the Land Use Code. Mayor and City Councilmembers City of August 11, 2011 Fort Collins Page 7 1. If it determines that the Board did properly interpret and apply the Land Use Code, then it should uphold the decision of the Board regarding the ODP, and move on to the PDP appeal using the same hearing procedure. 2. If the Council determines that the Board did not properly interpret and apply the Land Use Code regarding the ODP, then the Council should either overturn the decision of the Board or modify the decision; provided, however, that the Council may remand the matter to the Board for rehearing if the Council determines that a rehearing is necessary in order for the Board to receive and consider additional information with regard to any issue raised on appeal. a. If the Council does remand the matter for such reconsideration, the Council shall include direction to the Board as to the issues to be considered at the rehearing. b. If the Council remands the ODP to the Board for considering additional information, then the Council should continue the hearing of The Grove PDP appeal until the Board has had an opportunity to make a new decision regarding the ODP. 3. If the Council overturns the ODP, then the Council should move on to The Grove PDP appeal and also overturn the PDP on the ground that it lacks a supporting ODP. RECORD ONAPPEAL: Code Section 2-53 provides that the appeal shall be "on the record," which record includes the findings and decision of the Board, as well as all exhibits received or viewed by the Board, any videotape that was made of the proceeding, and the verbatim transcript of the Board's proceedings. Section 2-56 of the Code provides that the Council shall consider an appeal based upon the record on appeal as well as the relevant provisions of the Code and Charter, and also the grounds for appeal cited in the notice of appeal. Further, Section 2-56 authorizes the Council to consider the appeal based upon any additional issues identified by a' member of the Council prior to the hearing if the Councilmember has identified those issues in writing and filed them with the City Clerk no later than ten calendar days prior to the date of the hearing. Councilmembers have not raised any additional issues in this appeal. While Code Section 2-56(b) generally provides that new evidence shall not be considered in any appeal, there are two exceptions to this prohibition. The first exception relates to evidence offered in support or of in opposition to an allegation that the Board considered evidence relevant to its findings which was substantially false or grossly misleading. In this appeal, there is no allegation that the Board considered evidence relevant to its findings which was substantially false or grossly misleading. The second exception relates to evidence offered by the City staff or a party -in -interest in response to questions presented by Councilmembers. Therefore, new evidence can be Mayor and City Councilmembers August 11, 2011 Page 6 City of F&I Collins f. Whether the time frames established by the Mayor allow adequate time for the parties -in - interest to argue their positions. Comment: I recommend that the parties -in -interest each be given ten minutes or so at the outset of the hearing to address procedural issues, and that the Mayor consider increasing the length of time for substantive presentations to 45 minutes. If that increases the time needed to consider both appeals to such an extent that only the ODP appeal can reasonably be heard next Tuesday night, it would be acceptable from a legal standpoint to continue the balance of the hearing to another date. g. Whether the format or content of the staff report is improper. Comment: As stated in my previous correspondence on this subject, I believe that the format of the staff report, especially as modified for this appeal, is acceptable from a legal standpoint. h. Whether staff should be permitted to make a presentation to the Council at the hearing on appeal that goes beyond explaining the nature of the appeal. Comment: The relevant Code language is 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 natuie-of the appeal and'presentation by -City staff.:: This language allows for a staff explanation of the nature of the appeal and a presentation. It also authorizes the Mayor to limit the scope of all presentations. Unless the Mayor decides that the scope of the staff presentation should be limited, it need not be. Beyond those legal issues, I will refer you to Steve Olt's analysis of the various sections of the Land Use Code and his rationale for the proper interpretation of those sections. I also fully expect that both the Appellants and the Applicant will vigorously debate those interpretation issues before the Council. COUNCIL'S STANDARD OF REVIE W.• The Council should determine whether the record shows that the Board properly interpreted and applied the relevant provisions of the Land Use Code in approving the ODP and The Grove PDP. .. .,- N Mayor and City Councilmembers City of August 11, 2011 F�OrtCollins f� Page 5 Sec. 2-54. Schedule of the hearing. (b) Any written materials that any party -in -interest may wish the City Council to consider in deciding the appeal and that fall within the exception to new evidence contained in Paragraph 2-57(b)(1) shall be submitted to the City Clerk no later than 12:00 p.m. on the Wednesday immediately preceding the date upon which the hearing on the appeal is scheduled to be held. Such materials shall then be included by the City Clerk in the agenda materials pertaining to the appeal. See.2-57. New evidence; scope of review; alternative actions available to City Council; date of final action. (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. Under this section, I have recommended that none of the written materials that have been tendered to Planning staff or the City Clerk's Office be forwarded to the Council because none of them fit within the exception to the new evidence rule cited above. d. Theyrobriety of Council receivin*R'commerits from varties-in=interest during the Citizen ' Participation segment of City Council meetings. Comment: I believe the Council is well aware of our office's position and recommendation on this issue. At this point in time, I don't believe it would be practical or helpful to try to "remedy" in any way the numerous comments that have been made to the Council under Citizen Participation by parties -in -interest. I would just let the Applicant respond to those comments during their presentation. e. Whether the Applicant should have been afforded an opportunity to respond in writing to the allegations contained in the notices of appeal. Comment: As explained above, the Code currently does not afford the Applicant this opportunity. Perhaps the Code should be changed in that regard. In the meantime, as noted above, the inability to respond in writing to a complex appeal can likely be cured from a due process standpoint by affording the Applicant additional presentation time at the hearing. Mayor and City Councilmembers City of August 11, 2011 Fort Collins Page 4 a. Whether the record on appeal is complete and has been properly compiled. Comment: I anticipate that there may be questions about whether the record is complete, whether exhibits from the ODP and PDP have been properly separated, and whether certain items that were offered into the record should be disregarded because they were tendered to staff and the Board at the last minute. Here is what the Code says about the record: Sec. 2-53. Record on appeal. , Any appeal to the City Council shall be an appeal on the record of the hearing before the board, commission or other decision maker. The record provided to the City Council shall include the following: (I)All exhibits, including, without limitation, all writings, drawings, maps, charts, graphs, photographs and other tangible items received or viewed by the board, commission or other decision maker at the proceedings... The Council should bear this provision in mind in responding to objections about the record. In dealing with such objections, I would err on the side of including any disputed documents. If it appears from the testimony of a party -in -interest that an item that he or she considers important may not be in the record, I recommend that the Mayor or another 'Councilmember ask that the item be included. I recommend this because one of the exceptions to new evidence under Section 2-57 is "when (such evidence is) offered by City staff or parties -in -interest in response to questions presented by Councilmembers..." b. Whether there are parts of the record that the Council should disregard. Comment: For the purposes of this hearing, I recommend that Council consider all items in the, record.;: However; it.makes-'sense,.that -staff :_parties-iri mterest afid=.the-xBoard-.or-4hearirig4 • ..�, w3F officer have a reasonable period of tiine'toireeView and consider"all exhibits off& ed'into"evidence` at the initial hearing. If the current practice does not ensure that, then I recommend that the practice be changed in the future to ensure that all involved have a fair opportunity to understand all of the evidence submitted to the decision maker and respond to it. C. Whether written materials recently tendered to City staff have been improperly withheld from the Council. Comment: I believe I have pointed out to the Council in the past the Code provision that limits the kind of new. written materials that.can be provided to the Council- prior to the hearing. - Here again is that language: Mayor and City Councilmembers City of August 11, 2011 Fort Collins Page 3 seeing the "Resident Report" a mechanism whereby.the report could be seen "on-line" or at the City Clerk's office. I believe that this mechanism affords sufficient ability for persons to examine the "Resident Report" to meet constitutional due process requirements. Those due process requirements will be discussed in greater detail pertaining to the next legal issue below. 3. Applicant filing of a written response with the Council prior to the Hearing. I have heard from the attorney for the Applicant that there will be a number of allegations contained in the "Resident Report" that the Applicant believes to be misrepresentations and misstatements. I believe that the Applicant also has found what it believes to be misstatements in the Notices of Appeal and perhaps other documents. The Applicant sought to file a written response with the City Council ahead of the appeal to address these misstatements and perhaps other issues. I have informed the Applicant that Chapter 2 of the City Code does not afford an opportunity for such a response to be filed and that all responses of the Applicant to the Notices of Appeal must be made orally before the Council at the hearing. The Applicant believes that it is unfair for the Appellants to be able to present lengthy written documents to the Council as a part of the Notice of. Appeal while the Applicant must wait to present its response to those documents in a limited time period for oral presentation before the Council at the hearing. Yet, the Code does not allow for any such presentation, so I researched the question of whether the Applicant's inability to respond in writing to the Notices of Appeal is a denial of due process. In a nutshell, what I have found in my research is that although administrative and quasi-judicial proceedings need not strictly comply with the rules of procedure and evidence as would be applied in a judicial setting, the principles of fundamental fairness must be observed and the hearing process must be conducted in an atmosphere evidencing fairness in the adjudication of the matters before the Council. This principle has been restated time after time in Colorado case law as well as in national research treatises. Based upon the cases that I have found, and that are cited in the footnote below, I believe that the principles of fundamental fairness enunciated by the Courts would be met by affording the Applicant a sufficient amount of additional time- to make its oral presentation in such a way as to properly address any misrepresentations that it desires to address at the time of the hearing. Although the night will be long, it would be best to conduct a completely fair hearing and afford additional time as needed for the parties to make their statements than to run the risk of a challengeable Rule 106 hearing in court. There are also a number of other procedural issues that have arisen with regard to this appeal. In order to allow the parties -in -interest to use their presentation time to address the more substantive issues, I recommend that the Council address the procedural issues as the first order of business at the hearing, and that the Mayor then rule on them to the extent necessary before turning to the substantive presentations. The issues as I understand them to be are listed below. I have added comments and recommendations after each issue. Those comments and recommendations could change based upon the presentations and arguments of the parties -in -interest. If you wish to discuss any of these issues during tonight's executive session, we can do so. Mayor and City Councilmembers August 11, 2011 Page 2 ANALYSIS: City of t; F6r! Collins These appeals .have to do with whether or not the Board properly interpreted and applied the Land Use Code` and the Larimer County Urban Area Streets Standards with regard to both the ODP and The Grove PDP. The appeal was timely filed and contained no obvious defects in form or substance and, accordingly, there was no need for the Appellants to file an amended notice of appeal for either appeal. Given that the appeals only focus on the interpretation and application of the Land Use Code and related documents and that, with respect to those issues as contained in both appeals, the arguments are rather technical in nature, I believe that the Council should focus upon the analysis of those sections as provided by the staff in its report to the Council. That said, there are a few substantive and legal issues that I need to bring to your attention: Purpose statement is not regulatory. There is one section of the Land Use Code that is cited at various locations in both the ODP appeal and The Grove PDP appeal that I believe deserves some discussion from a legal standpoint. On several occasions, the Appellants, in both appeals, refer to Section 1.2.2 of the Land Use Code as a basis for overturning the decision of the Board. I do not believe that the Council should use this section as a basis for overturning either decision because Section 1.2.2 of the Land Use Code is the "purpose statement" for the entire Land Use Code. This purpose statement was included in the Land Use Code to give support, from a legal perspective, for the Land Use Code being a legitimate regulatory document under the police power afforded to government by the U.S. and Colorado Constitutions. The Land Use Code is a police power regulation and Section 1.2.2 indicates that the purpose of it is to improve and protect the health, safety and welfare of the City by doing various things. For example, one of the things that the Land Use Code' s _charged with doing.'under_ Section-1 2 2(E)'. is "ed avoid them inappropfiate•% �..._.z: development of lands and provide-for,adequate drainage -and reductibn?of'flood'damage.- That- - ' purpose is actually carried out by various provisions of Article 3 of the Land Use Code pertaining to hazards, water hazards, health risks, and so forth; and by Chapter 10 of the City Code. Section 1.2.2 in and of itself is not a regulatory section of the Land Use Code, and it should not be used for the purpose of overturning a decision of the Board. 2. City Clerk mailing under Section 2-54 of the Code. Section 2-54(a) of the Code requires the City Clerk to schedule the hearing and mail written notice of the date of the hearing -to all. parties in. interest no less than ten, calendar days prior to .the, :..,,. hearing. That notice also must include a copy of the Notice of Appeal. The problem with these Notices of Appeal is that they had attached to them a document called "Resident Report" which is extremely lengthy and is contained in a binder. In order to mail this document with the formal Notices of Appeal, the City Clerk would have spent in excess of $11,000 for the mailing in addition to the $2,000 that she spent to do the mailing. After discussion, Wanda and I concluded that it would be best to include information in the mailing that gave people who are interested in Fort Collins City Attorney's Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fcgov.com CONFIDENTL MEMORANDUM CONFIDENTIAL TO: Mayor and City Councilmembers FROM: W. Paul Eckman, Deputy City Attorney THRU: Steve Roy, City Attorney' ' AUG 12 2011 DATE: August 11, 2011 RE: Appeals Procedure for Appeal of CSURF Centre for Advanced Technology, Overall Development Plan No. MJA 110001 and The Grove at Fort Collins, Project Development Plan No. 16-1 OB BOTTOM LINE: In some respects, these appeals are less complicated than the appeal for this project that the Council heard last December, partially because the Appellants do not allege that the Planning and Zoning Board (the `Board") failed to conduct a fair hearing. They are focused entirely upon the question of whether the Board failed to properly and apply relevant provisions of the Land Use Code. Also, there are no modifications of standards for Council to consider in these appeals. As you may recall from last time, the ODP is a foundational step that must be approved before a PDP can be considered, or approved. Therefore, I recommend that you deal with the ODP appeal first. If the Council upholds the Board's decision regarding the ODP, then the Council should consider the appeal of the Board's approval of the PDP with due consideration to the grounds for appeal that are stated in the PDP Notice of Appeal. If, however, the Council overturns the Board's approval of the ODP, then the Council would not need to consider the grounds for appeal stated in the Notice of Appeal pertaining to the PDP. However, since the ODP is foundational to the PDP the Council would still need to take a vote on the PDP in order to overtum the Board's approval of it, but the appeal hearing for the PDP would be rather perfunctory since the PDP approval, of necessity, would need to be overturned for lack of an approved ODP. The complexity in these appeals arises with regard to the technical interpretations and arguments made by the Appellants regarding various provisions of the Land Use Code, the Larimer County Urban Area Streets Standards, the Applicant's submitted Traffic Impact Study, etc.