HomeMy WebLinkAboutTHE GROVE AT FORT COLLINS - PDP - 16-10B - CORRESPONDENCE - (106)We respectfully urge City Council to immediately direct staff to cease the practice of preparing
Agenda Item Summaries and presentations that go beyond "explaining the nature" of an appeal of
Planning and Zoning Board decisions and actually present arguments for or against positions of
either party. Commentary and argument by City Staff does not comply with Municipal Code and
appeal guidelines published by the City of Fort Collins and do not meet basic principles of fairness
and City staff neutrality during quasi-judicial appeal hearings.
Name Signature Address
REGARDING THE CITY ATTORNEY'S ASSERTION THAT CURRENT PRACTICE IS
PERMISSIBLE
On July 5, 2011, the City Attorney, Steve Roy, commented that he believed the current practice of City
staff was permissible, and noted that parties -in -interest could respond to the City's AIS and presentation
in their own arguments.
Please note that the process currently used by City Council calls for the following presentations:
• Presentation by City staff (no time limit)
• Presentation of argument by Appellant (20 minutes)
• Presentation of argument by parties -in -interest in opposition to the appeal (20 minutes)
• Rebuttal by Appellant (10 minutes)
• Rebuttal by parties -in -interest in opposition to the appeal (10 minutes)
Any partisan presentation by City staff increases the time and influence of one party in the appeal
over the other.
In addition, the schedule does not allow the party that City staff opposes in its AIS and presentation
comparable or adequate time to prepare a response, as noted in the procedures outlined in the Appeal
Guidelines from the City Clerk:
"The written materials must be submitted to the City Clerk by any party -in -interest no later than 12: 00
noon on the Wednesday immediately preceding the date of the hearing. "
and
"The material Council receives prior to the hearing on an appeal is available online on the Thursday
prior to the Council hearing on the appeal at www_feeov.com/a erg tdas and at the City Clerk's Office at
City Hall West, 300 LaPorte Avenue. "
Note: There is insufficient time (3 working days) between the presentation of the staffs AIS and the
hearing to for the Appellant and/or parties -in -interest who oppose the appeal to prepare responses to the
Staff AIS. Staff has 30 to 60 days between filing of the Notice of Appeal and the publication of the
Council material on the Thursday before the hearing to prepare the AIS.
Because any written responses by an Appellant or parties -in -interest who oppose the appeal must be
submitted on the Wednesday prior to the hearing, and the AIS is not released until the Thursday prior to
the hearing, the Appellant and parties -in -interest who are opposed to the appeal cannot respond in writing
to the AIS prior to the appeal hearing. This further reinforces the argument that the AIS and/or the
City's presentation should not be making arguments or including new information that was not
presented at the P&Z Hearing: it does not allow for adequate preparation or response time to the
City's newly -restated position.
DOCUMENTATION REGARDING APPEAL PROCEDURE
FROM FORT COLLINS MUNICIPAL CODE:
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 nature of the appeal and presentation by City staff;
(2) Comments by Councilmembers who have visited the site pursuant to Subsection 2-55(a);
(3) Presentation of argument by the appellant and any party -in -interest in support of the appeal;
(4) Presentation of argument by any party -in -interest who is an opponent of the appeal;
(5) Rebuttal presentation by the appellant and any party -in -interest in support of the appeal;
(6) Rebuttal presentation by any party -in -interest who is an opponent of the appeal;
(7) Councilmember questions of City staff and parties -in -interest; and
(8) Motion, discussion and vote by the City Council.
«Note: the Municipal Code does not say that City staff should make a "presentation of argument'. >>
FROM FORT COLLINS APPEAL GUIDELINES
"Appeal hearings are based on the record of what happened at the hearing held by the board,
commission or other decision maker, the grounds for appeal stated in the notice of appeal, and any
relevant provisions of the Code and Charter."
"The order of proceedings for the appeal hearing is set by the City Code as follows:
• Staff makes a presentation explaining the nature of the appeal.
• Councilmembers comment on observations made or conversation had during a visit to the site.
• Appellant and any party -in -interest present arguments in support of the appeal.
• Any parties -in -interest present arguments in opposition to the appeal.
• Opportunity for supporters to reply to arguments of the opposing side.
• Opportunity for opponents to reply to arguments raised by the reply of the supporters.
• Councilmembers may ask questions of City staff and parties -in -interest.
• Council motion, discussion, and vote.
The appeal hearing is considered to be a quasi-judicial proceeding."
FROM A RECENT EMAIL (JULY 2011) FROM KAREN CUMBO TO AN APPLICANT:
"Please be advised that pending appeals... are quasi-judicial actions. These are cases to be heard by
Council as if they are judges, that is, decisions should be based strictly on the evidence presented at the
hearing. "
and
"...it is important that all parties are treated the same in this appeal process. "
To: Mayor Wietkunat
Councilmember Horak
Councilmember Kottwitz
Councilmember Manvel
CC: City Attorney Roy
Date: July 18, 2011
Councilmember Ohlson
Councilmember Poppaw
Councilmember Troxell
Re: Request to Ensure Fairness in City Council Appeals
This request comes from citizens who are concerned about the lack of Staff neutrality in its
handling of appeals of Planning and Zoning decisions before City Council (signatures attached.) Of
particular concern is the customary practice of City staff preparing an Agenda Item Summary (AIS) and
presentation for City Council that takes the side of either the Appellant or the opponents of the appeal. It
appears that the current practice is for City staff to make arguments for or against the decisions of
the P & Z Board and to add information to the record in its AIS and presentation at Council
appeals. At the July 5, 2011 Council Meeting, a citizen addressed City Council on this topic, and
included the following sentiments:
Even though the official record in the development review process is closed at the time of a
Planning and Zoning decision, City staff continues to work on arguments between the notice of
appeal and the appeal hearing — something that should be the responsibility ONLY of the Appellant
and parties -in -interest who are opponents of the appeal. In a number of recent appeals, staff has
stepped forward to rebut the arguments of one of the groups of parties -in -interest — sometimes
successfully, sometimes not. When City staff takes sides, an appeal to Council becomes a two -
against -one exercise.
If an appeal is an `appeal of the record', staff should not be preparing yet another set of arguments
and new information that takes either side. The record should be closed. Only the Appellant and
opposing parties -in -interest should make arguments at the appeal hearing, as codified in oui
Municipal Code. Staff s work is done; their analysis, position, and response to citizen comments
during the P&Z hearing are included in the P&Z record, and provided to Council for the appeal.
On July 5, Council was urged to advise Staff to discontinue the practice of preparing Agenda Item
Summaries and presentations that takes a position in favor of or against the Appeal. We continue to
urge Council to change this practice for two reasons:
First, it does not appear to be in compliance with our Municipal Code, the Appeal Guidelines
from the City Clerk, nor with City staffs statements that "decisions should be based strictly on
the evidence presented at the hearing", and that Council appeals are to be based "on the record"
• Second, this practice is inherently unfair to one of the parties and is not appropriate in a quasi-
judicial hearing of appeal which is required by law to be based on review of the record.
The attached excerpts from the Fort Collins Municipal Code, the Appeal Guidelines from the City Clerk
and from a recent email from Karen Cumbo document that the current practice of staff preparing an AIS
and presentation that explain, add information to, or further document City staff s position may not be in
compliance with the Municipal Code, and certainly does not lead to a fair appeal before City Council.
Page 3 of 3
Please let me know if you can help with signatures, or if you just want to sign. It should help us end up with
fair hearing, which we will not have without standing up for it.
Sarah
407-8437
PS - a few of you have already seen this; please forgive any second messages. Thanks!
PPS - We believe it will be VERY important to have a lot of people at the appeal hearing - currently
scheduled for 6 pm on August 16. PLEASE PLAN TO ATTEND, and LET NEIGHBORS KNOW TOO. Having
people in the seats will be VERY IMPORTANT to a successful appeal. Council is influenced by numbers,
as well as strong arguments.
CONFIDENTIALITY NOTICE:
This a -mail transmission and any accompanying documents contain information belonging to the sender which may be confidential and or privileged.
This information is intended only for the use of the recipient named above and any other person who has been specifically authorized herein to receive
it, and the referenced legal privileges are not waived by virtue of the information having been sent by e-mail. If you are not the intended recipient, you
are hereby notified that any use, disclosure, distribution, copying, or action taken in reliance upon the contents of the information contained in this e-mail
is strictly prohibited. If you have received this e-mail in error, or if any problems occur with the transmission, please immediately notify the sender.
Thank you.
7/20/2011
Page 2 of 3
<kaiascheel@hotmail.com>, "Shigemura" <shawnshigemura@hotmail.com>, "Smith"
<basmith@lamar.colostate.edu>, "Stern" <hollystemfc@yahoo.com>, "Still" <llits@comcast.net>,
"Stirn" <cs@stimlaw.com>, "Thomas" <thomasre@lamar.colostate.edu>, "Trampe"
<argpcl@earthlink.net>, "Trout" <tjtrout@comcast.net>, "Walls" <mrparedesl@comcast.net>,
"Williams" <ewmsdoc@msn.com>, "Winne" <aswinne@msn.com>, "Yatabe/Mueller"
<rlmuel l er@gmail. com>
Date: Monday, July 18, 2011, 1:56 PM
FYI
Larry Trampe
From: Sarah Burnett [mailto:sarahmburnett@hotmail.com]
Sent: Monday, July 18, 2011 7:03 AM
To: Sarah Burnett
Cc: Carol Matthew Fix; Elaine Minor; Bob Bacon; Marsha and Larry Trampe; Jen Sajbel; Barb Albert; Barbara
Smith; Colleen Hoffman; Dick Thomas; Peggy Loonan; Nora Jones; joe@fundingpartners.org;
bponcelow@comcast.net; jfeiman@ecentral.com; sponcelow@comcast.net; garyozzello@comcast.net;
potterjrp@comcast.net; epeyronnin@gmail.com; potterjane@comcast.net; krowan@thegroupinc.com;
terry_podmore@yahoo.com; kevin@kevinbarrier.com; armstickle@gmail.com; heather.I.stickler@intel.com
Subject: FW: Letter for signatures (if you are inclined to get some)
Friends,
I spoke at Public Comment at City Council on July 5 to point out that City staff should not be preparing additional
arguments for Planning & Zoning appeals, because under our Municipal Code, the record is closed at the time of
the P&Z hearing. (Prior staff practice and a comment by Steve Olt in the Coloradoan make it pretty clear that staff
will be preparing "rebuttals" of the points in our appeal.) Steve Roy (City Attorney) said he thought it was
'permissible' for staff to do this, but also said it would be reasonable for Council to advise staff not to take a
position, but simply be available to answer questions at the appeal hearing. Council did not discuss Mr Roy's
comment, and moved on to other matters on the agenda.
I've written a follow-up letter to urge Council to advise staff to cease preparing arguments, and would like
to get as many signatures as possible - from friends, neighbors, coworkers - the more the better. If you'd
like to print a copy, and have a few people sign, that would be great. I would need signatures to by
tomorrow afternoon around 5 so that someone could follow up at tomorrow night's council meeting. If
you'd just like to sign, I will be home this evening and you could drop by to sign, or I could run the sheet
over to you. The rationale of the attached letter, in a nutshell, is that staff should not be taking sides in an appeal.
It then becomes a two against one appeal that is not fair. It also does not appear to comply with our Municipal
Code. See the letter for more detail.
7/20/2011
Pagel of 3
Steve Olt
From: Karen Cumbo
Sent: Tuesday, July 19, 2011 11:31 AM
To: Mark Jackson; Steve Olt
Subject: staff role in appeals
Attachments: appeal process.pdf
61
Karen Cumbo
Director,
Planning Development and Transportation
City of Fort Collins
970-221-6287
From: Tess Heffernan
Sent: Tuesday, July 19, 2011 9:53 AM
To: Diane Jones; Darin Atteberry; Karen Cumbo
Subject: FW: Letter for signatures (if you are inclined to get some)
Thought you would be interested in this letter, which is being circulated in my neighborhood (NW of the Grove
site).
From: Tess Heffernan [mailto:tess@facilitates.us]
Sent: Monday, July 18, 2011 4:27 PM
To: Tess Heffernan
Subject: FW: Letter for signatures (if you are inclined to get some)
--- On Mon, 7/18/11, Larry Trampe <argpcl@earthlink.net> wrote:
From: Larry Trampe <argpc I @earthlink.net>
Subject: FW: Letter for signatures (if you are inclined to get some)
To: "Auld" <auld@cahs.colostate.edu>, "Ault" <saultl913@hotmail.com>, "Bonnie Helgeson"
<bonnieh@larinet.net>, "Burnham/Cargill" <counsal@cox.net>, "Cooper" <leecooper5@comcast.net>,
"Crews" <dcrews2@lamar.colostate.edu>, "De Groote/Ochsner" <marydegroote@gmail.com>,
"Doman" <jilldoman@comcast.net>, "Dunn" <coleendunn@comcast.net>, "Ferkiss"
<sbfboyz@comcast.net>, "Frasier" <marshall.frasier@colostate.edu>, "Gail Dethloff'
<gmdethloff@yahoo.com>, "Gorelik" <deleg38@aol.com>, "Heffernan" <tess@facilitates.us>, "Hine"
<suehine@lamar.colostate.edu>, "Hoffman" <cohoff@comcast.net>, "Huang/Woolhiser"
<lisa.woolhiser@colostate.edu>, "Hunt" <arh4@comcast.net>, "Jones" <norajones@yahoo.com>,
"Kaman" <TysonKaman@hotmail.com>, "Kenney" <kdkenney@comcast.net>, "LaCroix/Stratman"
<cchickybaby@gmail.com>, "Lamborn" <alambom@provost.colostate.edu>, "Martinez"
<spirithawk@comcast.net>, "Morlan" <tommyref!ro@yahoo.com>, "Murphy/Eriksen"
<mcmurphy33@comcast.net>, "Noel" <tkgnoel@gmail.com>, "Price/Malpezzi"
<rick@experienceplus.com>, "Savidge/Seibert" <jsavidge@cnr.colostate.edu>, "Scheel"
7/20/2011