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HomeMy WebLinkAboutAMENDED CSURF CENTRE FOR ADVANCED TECHNOLOGY - ODP - MJA110001 - CORRESPONDENCE - CORRESPONDENCE-HEARING (9)Mayor and City Councilmembers August 31, 2011 Page 6 FCityof ort Collins did not abuse its discretion. Therefore, if the Council rescinds its decision and denies the Grove application, even though there may be competent evidence in the record to support the Council's decision, I am concerned that the ex parte contact issue could have the potential to poison the decision and result in the court overturning the Council's new decision or remanding it back to the Council for further proceedings. On the other hand, if the Council does rescind its decision, then I believe that the court would most likely uphold the decision that the Council has already made because there is ample competent evidence in the record to support that decision. WPE/pec Mayor and City Councilmembers August 31, 2011 Page 5 City of F6rtColtins `l� of the fact that it is not a "site specific development plan" certain rights have been established by the Council's approval of the plan. (Only final plans are "site specific development plans" which merit vested property rights status under Colorado law). I would imagine that the applicant would try, and likely be able to fashion a plausible claim against the City for a taking, or a property right violation under Section 1983 of the U.S. Code' if the Council were to overturn its approval based upon the concerns which have been raised. For example, a winning taking claim was brought against the City of Monterey, California, in Monterey v. Del Monte Dunes at Monterey, Ltd., where the United States Supreme Court held that the city effected a regulatory taking or otherwise injured the developer's property by "unlawful acts" without paying compensation based upon the fact that the city in a series of repeated rejections denied proposals to develop the property, each time imposing more rigorous demands on the developer. Although the facts of this case are quite different, the "unlawful acts" which might be alleged against the City could most likely pertain to the "ex parte" communications that the appellants apparently have conducted with the City Councilmembers subsequent to the appeal decision. As this office has stated many times, ex parte communications in the quasi judicial setting are not proper. In the context of a quasi judicial setting, the City Council is acting in a similar manner to that of a judge in a judicial matter. If a judge were to conduct ex parte communications with a litigant, such communication would constitute a violation of the judicial code of ethics which would call into question whether the judge should continue to possess a law license. Such disciplinary remedies are, of course, not available against the City Council, but these ex parte contacts may expose the City to liability, even for damages, because of the impropriety of the appellants having contact with Councilmembers. Certainly the City would defend against such a suit, but it would be remiss of me not to advise the Council of the risks that could be involved. More likely than a damage claim would be that either the appellants or the applicant would file suit in the Larimer County District Court under Rule 106 of the Colorado Rules of Civil Procedure which authorizes suit against the City if the City has exceeded its jurisdiction or abused its discretion. The remedies under Rule 106 are that the court could either uphold or overturn the decision of the City Council or remand the matter to the City Council for rehearing. I think it would be plausible for the applicant to allege that the City Council has abused its discretion in entertaining ex parte contacts from the appellants, as has apparently occurred, if the Council rescinded its decision and came to the opposite conclusion. Although the Rule 106 proceeding generally will uphold the decision of the City Council as long as there is any competent evidence in the record to support the Council's decision, that rule assumes that in making its decision, the Council ` As to the viability of a Section 1983 claim, I am not greatly concerned because such a claim must be founded upon a showing that a policy or custom existed, that it was attributable to the municipal defendant, that a constitutional deprivation occurred and that the policy or custom caused the deprivation. I believe that it would be fairly easy for the City to show that there was not policy or custom of the City or the City Council to engage in ex parte contacts. In fact, numerous memoranda from this office have established a policy quite to the contrary, Mayor Pro Tern Ohlson has also read into the record the City's policy regarding ex parte contacts in public City Council meetings as have others. Therefore, I believe that the greater risk would be the possibility of some type of takings claim under some theory founded upon the Monterey case mentioned later in this memo. Mayor and City Councilmembers August 31, 2011 Page 4 3. The "Floodalain Note" Fort Collins There is also an argument made that the floodplain note (which is also referred to as the secondary use note) prohibits the construction of secondary uses in the floodplain. As discussed before, the note was not intended to prohibit the construction of secondary uses in the floodplain, but simply to afford some reasonable development of the property in the "E" Employment portion of the ODP by allowing what would otherwise be considered secondary uses to be constructed in the floodplain without counting against the maximum 25% secondary use limitation. 4. Procedure Moving Forward. In a nutshell, it does not appear to me that the City Council made a mistake when it decided the appeal as it did. I believe that the Council's decision regarding the mix of housing types and the 25% requirement, the FAR note, and the floodplain note (which is also part of the 25% note) are all supportable and defensible. However, if a majority of the Council believes that it has made a mistake in deciding this appeal, I believe that the Council could rescind its decision and start over, either entirely orlimited to certain issues that have been raised. Under Resolution 2004-112 of the Council pertaining to rules of procedure governing the conduct of City Council meetings, the Council may rescind its earlier decision as long as third parties have not taken any action in detrimental reliance upon that decision. Section 2-48 of the City Code (under the appeals provisions) provides that any action taken in reliance upon any decision of a board that is subject to appeal shall be totally at the risk of the person taking such action until all appeal rights related to such decision have been exhausted, and the City shall not be liable for any damages arising from any such action taken during said period of time. I believe that no person could reasonably have taken action in detrimental reliance upon the Council's decision until all appeal rights, including judicial appeal rights, have been exhausted. Therefore, the motion to rescind would be safe and appropriate if the Council believes that it made a mistake. If the Council were to rescind its earlier decision, it would need to set a date for the hearing to be held on the appeal and ample notice of such hearing would need to be provided to all parties -in -interest so that procedural due process is met. The Council would also need to specify the issues to be addressed at the new hearing. The Council should expect that the applicant will complain that any such new hearing would fall outside of the 60-day appeal requirement which the applicant believes to be jurisdictional. I believe that this objection could be overcome as long as ample notice and a full hearing were held so as to provide adequate procedural due process. 5. Risks. Beyond the fact that the decision which was made by the City Council is defensible and reasonable, and, at least to me appears to have been the correct one under the issues that have been raised, there is another caveat that should be brought to the attention of the Council if the Council is inclined to rescind its decision and start over. Even though the Grove development has not yet become manifested as a vested property right by reason Mayor and City Councilmembers August 31, 2011 Page 3 Fort Collins both the ODP requirement must be applied ODP-wide and not to individual project development plans, and then the "E" Employment district twenty-five percent rule requirement must also be applied on each individual project development plan, specifically in defiance of Section 2.3.2(H)(7). Such a bifurcated application of the mix of uses requirement would seem to result in an execution of law which would be infeasible and would not be reasonable and just. Finally, there has been mention made about the "secondary use ODP note". That ODP note states that the land use breakdown for land in the "E" Employment district within the ODP shall be 75% primary and 25% secondary with the result that no more than 24.1 acres can be devoted to secondary land uses. The note goes on to say that within the area located in the 100 year Spring Creek floodplain, any land uses proposed shall not be considered "secondary" land uses for the purpose of the 25% limitation. As I understand it from my conversations with Steve Olt, this note was intended to allow for some reasonable development of the "E" Employment sector of this ODP by carving out an exception for land uses that are proposed within the floodplain. Steve Olt explained to me that since primary land uses are not permitted in the floodplain, this exception to the 25% secondary land use rule was established to afford some reasonable use of the property. It seems to me that based upon the earlier discussion regarding how Section 2.3.2(H)(7) controls over the 25% requirement contained in Section 4.27(D), that the secondary use ODP note is irrelevant since the secondary use limitations are met under any circumstance. 2. The "FAR (Floor Area Ratio) Note" An issue was raised regarding the "FAR Note". The Far Note provides that: Maximum floor area ratio (building square footage divided by land area square footage) for all parcels not to exceed .37. The zone districts in which this ODP is located contain no FAR requirement in the Land Use Code. The only FAR requirement that can possibly be applied to this ODP is the FAR requirement contained in Note 5 which establishes a ratio not to exceed .37. That note also contains a definition of FAR which is to be applied to the .37 limitation. The definition is "building square footage divided by land area square footage". This definition is different than the definition that is contained in the Land Use Code for those zone districts which have established FAR requirements. The definition of the Land Use Code can not reasonably be applied to the note because- the Land Use Code does not impose FAR requirements on this ODP. The only reasonable definition to apply to the note is the definition contained within the note itself. I am advised by Steve Olt that this ODP complies with the FAR requirement contained in Note 5 as long as the definition which comes in tandem with the note is used for the calculation. Accordingly, there is no FAR issue with respect to the ODP. Mayor and City Councilmembers August 31, 2011 Page 2 Fort Collins following permitted uses shall be considered secondary uses in this zone district [the "E" Employment District] and together shall occupy no more than twenty- five (25) percent of the total gross area of the development plan .... (d) residential uses (except mixed -use dwellings when the residential units are stacked above the primary use which occupies the ground floor). In its regulation of an Overall Development Plan (ODP), the Land Use Code also provides in Section 2.3.2(H)(7) that: Any standards relating to housing density and mix of uses will be applied over the entire overall development plan, not on each individual project development plan review. (Emphasis added) The appellants argue that there is a conflict between Section 2.3.2(H)(7) which pertains to the standards for the review of ODPs and the zone district standard for the "E" Employment district contained in Section 4.27(D)(2) which deals with the mix of secondary uses with other uses in the "E" district. They then argue that Section 1.7.2 which deals with conflicts in the Land Use Code guides the reader to the conclusion that Section 4.27 trumps Section 2.3.2. I disagree. Section 1.7.2 of the Land Use Code provides essentially that if there is a conflict the more specific section controls. If the more specific section cannot be ascertained, then the more stringent requirement controls. If there were a conflict, which there is not, I believe that Section 2.3.2 is the more specific section. It states that if there are any standards in the Land Use Code relating to housing density and mix of uses, those standards will be applied over the entire ODP, and will not be applied on each individual PDP. The word "not" in that sentence is operative. I believe that Section 4.27 is a standard relating to mix of uses and it does pertain to the review of project development plans in the "E" Employment district. However, Section 2.3.2 controls Section 4.27 as it relates to "overall development plans". Section 2.3.2 specifically says that those mix of use standards will be applied over the entire ODP and not to individual project development plans. I see no conflict. The question then becomes whether the standard contained in Section 4.27(D)(2) can be applied over the entire ODP and comply with the Land Use Code. Staff has performed the analysis and has concluded that the ODP complies. After looking at staff s calculations, it appears to me that they were done correctly. It is also a general principle of Colorado law that laws are to be liberally construed in order that the true intent and meaning of the legislative body may be fully carried out. (Section 24-212, CRS.) Furthermore, Section 2-4-201, CRS provides that in enacting a law, the entire law is intended to be effective, a just and reasonable result is intended, a result feasible of execution is intended and the public interest in favored over any private interest. In this case, it is hard to imagine how a result would be feasible of execution if City of Fort Collins CONFIDENTIAL MEMORANDUM TO: Mayor and City Councilmembers FROM: W. Paul Eckman, Deputy City Attomeo THRU: Steve Roy, City Attomey�� DATE: August 31, 2011 City Attorneys Office 300 Laporte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6520 970.221.6327 fc®ovxom RE: Reasonableness and Defensibility of the City Council's Decision in the "Grove Appeal" Pertaining to: (1) the Mix of Housing Uses and the Twenty -Five Percent Requirement; (2) The "FAR Note'; and (3) The "Floodplain Note". BOTTOMLINE. The decision that the City Council made in the "Grove Appeal" is reasonable and defensible under the terms of the Land Use Code and Colorado law, and can be supported in the event that the appellants should seek a judicial review of the Council's decision. If the City Council comes to the conclusion that it has made a mistake in its decision, it could rescind the decision and schedule a rehearing. However, in doing so, the likelihood is increased that the applicant might bring legal action against the City either for a taking claim or requesting the district court in a "Rule 106" hearing to overturn the City Council's new decision or by requesting the court to remand the matter to the City Council yet again for a third decision. ANALYSIS: 1. The 25% Requirement. The Appellants, after the hearing, have communicated through the City Manager regarding some of the decisions that the City Council made, and principle among those decisions was the decision that the "Me Grove" complied with the regulations contained in the Land Use Code pertaining to mix of housing uses, more specifically set forth in Section 4.27(D)(2) which provides that: All secondary uses shall be integrated both in function and appearance into a larger employment district development plan that emphasis primary uses .... the