HomeMy WebLinkAboutTHE GROVE AT FORT COLLINS - PDP - 16-10B - LEGAL DOCS - LEGAL DOCUMENTS (6)Page 3 of 3
and, in particular, how much time they think they need next Tuesday in order to make their presentations
regarding the merits of the appeal; and
(c) establish the time limits for the presentations.
Public notice should be given tomorrow of this possible action item for Thursday. I'll work with Wanda
to prepare that notice, as well as a notice to the parties -in -interest.
Please let me know if you have questions or concerns.
Deciding whether However, I think it's important that we discuss how best to sort out the procedural issues and
objections that have been voiced by the parties and deal with them in a way that is fair to all parties -in -interest.
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Because the City Code limits the kind of written materials that can be submitted to the Council prior to an appeal
hearing, and because I advised Wanda earlier today not to forward to Council a document that one of the
opponents to the appeal submitted to her office, I've not attached Lucia's letter to this email. Here are the Code
provisions that govern the materials that should be forwarded to Council prior to hearing an appeal:
2-54(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. (Emphasis added).
2-57(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.
Lucia's letter doesn't fall within the exception to new evidence described above. Arguably, I could
present it to you because it addresses only procedural issues and Council has been privy to emails from
opponents to the appeal dealing with procedural issues. However, in an abundance of caution, I thought I
should instead just summarize her concerns in this email.
As noted above, I think Council should deal with the procedural objections that have been made by both
sides in this appeal, and do so before getting to the merits of the allegations raised in the notice of appeal.
In particular, I think the arguments about the sufficiency of the time frames for presentations should be
dealt with ASAP so that the parties will know how to prepare their remarks for the hearing. Toward that
end, I recommend the following steps be taken:
1. The parties -in -interest should be notified tomorrow that, under Other Business Thursday night, the
Mayor will establish a process for dealing with any procedural objections the parties may have and will,
after hearing from the parties -in -interest Thursday night, establish the periods of time that will be allowed
for presentations by the parties -in -interest next Tuesday.
2. During the executive session Thursday night, after the first two items have been discussed, I will
comment briefly on the legal issues related to this appeal and see if there are any Council questions as to
how to address those issues.
3. When the Council returns to the open meeting Thursday night, the Mayor should:
(a) announce that both sides to the appeal have expressed concerns about procedural issues related to
the appeal hearing and, while the Council will not be making any decisions about those issues Thursday
night, all parties -in -interest should be immediately informed of any procedural issues any of them intend
to raise at the hearing; a separate period of ten minutes per side will then be allowed at the beginning of
the hearing on Tuesday for the parties to address the Council about those issues, and for the Mayor to
respond with rulings, before the Council hears argument about the merits of the appeal.
(b) give the two sides to the appeal five minutes apiece to briefly explain their procedural concerns
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Steve Olt
From: Steve Roy
Sent: Tuesday, August 09, 2011 7:42 PM
To: CCSL Legal
Cc: Karen Cumbo; Steve Olt; Paul Eckman; Carrie Daggett
Subject: Procedural issues related to The Grove appeal/special meeting Thursday night dnd
Importance: High
Sensitivity: Confidential
Bottom line:
The purpose of this email is to request that you add a third subject to Thursday night's special meeting dealing with
procedural issues related to The Grove appeal.
I received today a ten -page letter from Lucia Liley outlining four concerns about the process related to the appeal,
all of which amount to an allegation of denial of procedural due process. In my view, some of the concerns Lucia
has expressed have enough merit that we need to consider how best to respond, both now (in terms of the process
for hearing this appeal) and later (in the form of possible Code amendments). In the public portion of the meeting
Thursday night, I recommend that: (1) the appellants and the applicant be given an opportunity to speak to the
sufficiency of the time frames that are being allowed for their presentations next Tuesday night, as well as any
other procedural concerns; and (b) the Mayor then establish the time frames and set aside a separate period of
time for resolving the procedural issues Tuesday night before addressing the substantive issues raised by the
appeal.
Discussion:
On call of the Mayor, the Council will be holding a special meeting at 5:45 this Thursday, the purpose of which will
be to discuss in executive session legal issues related to two topics: the WAPA/PRPA transmission lines and the
possibility of federal enforcement action against the City related to MMBs. I suggest that a third topic be added to
the meeting —both for the executive session and for subsequent Council action under Other Business, namely,
procedural issues related to the upcoming appeal of The Grove ODP and PDP.
The issues that Lucia has raised in her letter are paraphrased as follows:
1. The applicant has had no opportunity to submit a written response to the notice of appeal and, in an
appeal as complex as this one, limiting the applicant to an oral presentation denies the applicant of a fair
opportunity to be heard with regard to the allegations contained in the notice of appeal. Although the time limits for
this appeal have been extended by the Mayor to 30 minutes for the initial presentation, rather than 20, that's still
insufficient time. In the case of the PDP appeal, that time frame amounts to one minute per allegation of error.
2. The record on appeal includes 81 documents totaling 915 pages that were submitted to the Planning
and Zoning Board the night of the hearing, well after the deadline established by City staff. Those documents
should not be considered by the Council because neither the Board nor the applicant had sufficient time to review
and consider them.
3. The Council has allowed ex parte contacts by opponents of The Grove to occur on several occasions
under the Citizen Participation segment of several different Council meetings.
4. In response to concerns expressed by opponents of The Grove, City staff has modified the approach it
is taking to the agenda item summaries for the appeal. This works to the betriment of the applicant because
Council will no longer have the benefit of staffs point -by -point analysis of the allegations in the notices of appeal.
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