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HomeMy WebLinkAboutAMENDED CSURF CENTRE FOR ADVANCED TECHNOLOGY - ODP - MJA110001 - CORRESPONDENCE - (21)Mr. Steve Roy August 9, 2011 Page 10 Sincerely, LILEY, ROGERS & MARTLL, LLC LAL/jpk Attachment Pc: Campus Crest at Fort Collins, LLC Mr. Steve Roy August 9, 2011 Page 9 "Denial of due process by a governmental entity in the exercise of quasi-judicial functions may serve as the basis for a determination that the entity abused its discretion. Tepleyv. Public Employees Retirement Ass' n 955 P.2d 573, 578 (Colo.App.1997). While the government's interest "in conserving scarce fiscal and administrative resources is a factor that must be weighed ... [flinancial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard...." Mathews. 424 U.S. at 348. Looking only to the above -referenced objection concerning a written response to the Appeals, it is entirely plausible that a court could conclude that the Applicant was not provided with a meaningful -opportunity to comment; both -in -time and manner; when such -opportunity consisted solely of being provided with, on average, less than one minute to verbally respond to each allegation during the hearings, to say nothing of the other objection points related to meaningful commentary, or those related to fundamental fairness, evenhandedness, or impartiality of the decision -making body. The continual ex-parte comments by Proj ect opponents, coupled with the decision to abruptly end a long-standing City policy — a change which has the effect of procedurally disadvantaging the Applicant — substantially calls into question the evenhandedness and the impartiality of the City Council with respect to the Appeals on the Project. General rationale aside, a balancing of the factors identified above would nonetheless lead to the same conclusion. As to the first factor, the Applicant has indisputably significant interests hinging on the outcome of the Appeals. As to the second factor, the risk of erroneous deprivation of such interests through the procedures used here is significant, and that risk could be substantially minimized, if not eliminated, by the such basic additional safeguards as: (1) placing reasonable limitations on evidence submitted by Project opponents at Planning and Zoning Board hearings; (2) allowing respondents to an appeal to submit a written response to appeal allegations; (3) continuing to apply existing policies to the pending Appeals; and (4) enforcing ex-parte comment restrictions, or at the very least, in the event such comments are made, providing notice of, and opportunity for comment by, the adverse party. As to the third and final factor, the administrative and financial burdens experienced by the City in having to provide such additional procedural safeguards would be seem to be rather diminimis, and in any case, not significant enough to on balance outweigh the value that such additional procedural safeguards would have toward protecting the interests of Applicant which are at stake. CONCLUSION The expectation is that both parties (Applicant and Project opponents) will be treated fairly and equally in the City's development review process. Unfortunately, the reality is quite different in regard to the Project. The fact of the matter is that the Project opponents have consistently portrayed themselves as victims of the system, while at the same time intentionally and repeatedly manipulating the system to their distinct advantage. And the procedures governing such review process have facilitated this result. Mr. Steve Roy August 9, 2011 Page 8 LEGAL ANALYSIS OF DUE PROCESS ISSUES The land use approval process for the Project is quasi-judicial in nature. As a result, such approval processes, and proceedings held in relation thereto, individually and on the whole, must provide due process to the Applicant, which, at a minimum, requires that such processes and proceedings be fundamentally fair, and provide to the Applicant opportunity for meaningful comment before an impartial decision -making tribunal. "When a city takes quasi-judicial action, it must engage in quasi-judicial proceedings that provide affected individuals -with -due -process::.:" E:g:; Native American Rights -Fund -,-Inc; v. City of Boulder, 97 P.3d 283, 288 (Colo.App. 2004). "Although quasi-judicial proceedings "need not strictly comply with the rules of procedure and evidence," E.g., Canyon Area Residents for the Environment v. Board of County Com'rs of Jefferson County, 172 P.3d 905, 908 (Colo.App. 2006), "they cannot be so relaxed that due process of law and fundamental rights are disregarded." E.g., Punec v. City and County of Denver, 475 P.2d 359, 361 (Colo.App.1970). See also Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505, 508 (Colo.App 2002) ("[The] relaxed procedure is not a license to violate fundamental fairness."). Procedural due process requires, at a minimum, "notice and an opportunity to be heard at a meaningful time and in a meaningful manner before an impartial tribunal" (Emphasis added) E.g., Van Sickle v. Boyles, 797 P.2d 1267, 1271 (Colo.1990). This "insures fairness and protection from an arbitrary or mistaken deprivation of property." First Bank v. State Dept. of Regulatory Agencies , 852 P.2d 1345, 1352 (Colo.App.1993). "However, this fundamental requirement of due process is not fixed or rigid." E.g., Whiteside v. Smith, 67 P.3d 1240, 1250 (Colo.2003). The level of process necessary to satisfy the due process clauses of the state and federal constitution will vary depending upon the circumstances. (Emphasis added) E.g„ Id. "In evaluating the inherent fairness of a hearing, [it is necessary to] consider the total effect of the entire procedure on the rights of the individual." Nichols ex rel. Nichols, 70 P.3d at 507. `Rather than a narrow focus on particular factors, the court must examine the totality of the procedures afforded and their effect on the fundamental fairness of the hearing." Id. "Fundamental fairness is the cornerstone of due process." E.g., Scott v. City of Englewood. 672 P.2d 225, 227 (Colo.App.1983) "A determination of what protections are demanded in a particular situation rests on the balancing of three distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute, procedural safeguards; and (3) the government's interest, including the function involved and the physical and administrative burdens that the additional or substitute procedural requirement would entail." EE First Bank, 852 p2d at 1352. (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903 (1976)). Mr. Steve Roy August 9, 2011 Page 7 Board to review and analyze them before the Planning and Zoning Board's decision, despite having received all of the Applicant's documents well in advance of such hearing. A third speaker veered off into a discussion of the West Central Neighborhood Plan — the subarea in which the Project is located — to argue that such plan supports a position that student housing may not be compatible with neighboring properties, an argument the speaker is certainly entitled to make in the hearings on the Appeals, but not an appropriate comment outside of the hearing, with no opportunity for rebuttal from the Applicant. There is now no opportunity to respond during the Citizens Participation portion of a City Council meeting to -the July 19'h comments, as there are no formal meetings scheduled before the -- hearings on the Appeals set for August 16. 4. Elimination of Long -Standing Policy Providing for Staff Response to Appeal Allegations The Applicant objects to the recent decision by the City to end its long-standing policy of having relevant City staff prepare a point -by -point response to appeal allegations and to apply such change to a pending appeal on the Project. We further object to the circumstances under which such decision was made. Despite City Council indicating at the July 5th hearing that it would be maintaining the City's long-standing policy of having City staff prepare written responses to appeal allegations, apparently that policy has now been reversed in response to ex-parte comments made by Project opponents and now the staff will not be permitted to submit a point -by -point analysis of the allegations for the agenda packet. This change is the subject of an ordinance to be presented to City Council in September, yet we have been informed that this revised process will be applied to the pending Appeals, just days prior to the hearings. Had the current process been used, the effect of this long-standing policy would have been to provide some balance to the process in which the City Council, prior to the hearing, will only receive voluminous written materials from Project opponents describing and arguing for the Appeal, but nothing at all in response thereto from the Applicant. Given its long-standing nature and its impact on the procedural rights of an affected party, applying this change in policy to a pending appeal is inappropriate; it changes the process to something different than when Applicant submitted its Project: in short it disturbs the reasonable expectations of the Applicant. More troubling, however, is that City Council's decision to end such policy, and to apply the policy change to the pending appeal on the Project, was based upon ex-parte comments made by Project opponents - parties with interests adverse to Applicant, who stood to benefit directly from elimination of such policy. And despite the fact that it would eliminate a procedural benefit to the Applicant, this decision was made without notice to, or opportunity for comment from, the Applicant. Mr. Steve Roy August 9, 2011 Page 6 occasions where Project opponents made comments to the City Council, and well as one email to certain City Council members that we are aware of (Comments: January 4, February 1, February 15, March 15, April 19, May 3, and May 17, 2011; Email: January 22, 2011; DVDs of Citizen Participation comments and copy of email attached). When we heard about the January 4, 2011 Citizen Participation, which included substantive comments about the Project as well as negative comments about the Applicant, you may remember I called you to see if the City's long-standing policy on communications with decision -makers in a potential quasi-judicial capacity had changed as my client had also wanted to contact the City Council about the Project and its company, but had advised them that all such contact was prohibited. Given all of the comments at the January 4`h meeting — clearly intended to persuade the City Council that this was a bad Project and a bad Applicant before any hearings ever took place — I asked to address the City Council. You in turn asked me not to do so, saying that the Mayor was expected to advise anyone showing up thereafter to speak about the Project or the Applicant that such comments were only to be made at the hearings on the Project. Out of respect for you and the integrity of the process, I acquiesced to that request. I was dismayed to later learn that, although the Mayor Pro Tem did make a statement along the lines you suggested, Project opponents continued to address the City Council during Citizen Participation with comments that were directed at the Project and the Applicant. Although at times these comments were cloaked in terms such as "this certain developer" - a ruse that would fool no independent tribunal — some of the comments were directly about the Project, e.g., the invalidity of the PDP application, drainage swale maintenance and groundwater liability. Surprisingly, with the Appeals pending, Project opponents communicated with Council during Citizen Participation on two more occasions: July 5 and July 19, 2011, both time objecting to City appeal practices, in particular permitting City staff to provide to City Council a written response to the Appeals. After the July 5th meeting, we chose not to respond, as the decision by the City Council was to continue the long-established process of allowing a staff response to the appeals. At the July 19`h City Council meeting, during Citizen Participation, three Project opponents spoke. Two of the three speakers objected to City staff responding to the Appeals on the grounds that "City Code" prohibited such practice, when in fact the City's Municipal Code is silent on the issue and the City has a long-standing and consistently -applied policy to do so. The remaining speaker objected on the grounds that City staff s summary is not made available until after the deadline for submittal of documents: an astonishing complaint given the intentionally delayed submittal of 81 documents (by the appellants' count) at each of the Planning and Zoning Board hearings without any ability of the Applicant, the City staff or the Planning and Zoning Mr. Steve Roy August 9, 2011 Page 5 at which the Project was to be voted upon. The strategy was clearly to make a voluminous record for appeal while at the same time limiting the ability of the Applicant, staff and the Board to address and resolve the issues raised in such documents. This is underscored by an objection at one point by the Board Chair about submitting information that the Board couldn't reasonably review. The City's policy of permitting Project opponents to submit evidence into the record that, due to sheer volume and lack of disclosure prior to the hearing is readily subject to be used as a means to circumvent the established land use process and to deprive the Applicant of any meaningful opportunity to respond to such evidence at the Planning and Zoning Board level. Despite the fact that such evidence cannot possibly be reviewed, let alone considered, by the Planning and Zoning Board, or the Applicant for that matter, such evidence is nonetheless allowed to become part of the record. This is apparently true even if Project opponents fail to such mention certain of the allegations and evidence during the comment period of the hearing. The Project opponents can then allege as grounds for appeal the failure of the Planning and Zoning Board to properly interpret and apply the Land Use Code based on such evidence in the record, despite having caused the inability of the Planning and Zoning Board to consider the same. The end result is to deprive the Planning and Zoning Board of the ability to make an informed decision on the Project at the hearing, and to deprive the Applicant of any meaningful opportunity to respond to such any evidence on the record of such hearing, and in the same stroke limit the ability of the Applicant to respond to such allegations when brought before City Council, as the Applicant -turned -respondent is not provided with any opportunity to submit a written response to the Appeals. Providing process of this type to Project opponents does not seem necessary to protect their due process rights before the Planning and Zoning Board, but it does allows for corruption - to the point of circumvention - of the intended land use approval procedures under the City's Land Use and Municipal Codes, as well as limitation of the procedural due process rights of the Applicant. In considering this objection, please note that we are not objecting to submittal of depictions or brief documents which the Planning and Zoning Board could reasonably understand and review, nor to arguments made by the appellants based on any of the documents submitted at the hearing: only those documents which given their length and/or complexity, could not reasonably have been meaningfully reviewed by the Applicant or the Planning and Zoning Board. 3. Continuing Ex-Parte Comments to City Council The Applicant objects to City Council permitting continued ex-parte contacts by the Project opponents. In the time between the submittal of the ODP and PDP applications and the appeals of the Planning and Zoning Board's approvals of such applications (the "Appeals"), there were seven Mr. Steve Roy August 9, 2011 Page 4 supporters of the Project to speak. The end result is that, no matter what it does, the Applicant simply cannot provide a meaningful response. It has been suggested that the process affords equal opportunities to both sides as the Appeals could be considered as a response to the Applicant's presentation of the Project, an argument that does not hold up under scrutiny. The Applicant presented its Project at the Planning and Zoning Board hearing, at which hearing the Project opponents presented their arguments and evidence against the Project, which could be prepared well in advance as they had access to all of the Project details from the neighborhood meetings and the documents submitted to the -City for inclusion in the Planning -and- Zoning Board -packets: - The Appealsarea new and different level of the process, but in this level only the Project opponents, not the Applicant, have the opportunity to present their position prior to the hearing, while still being afforded the same opportunity for oral argument at the City Council hearing as that given the Applicant. 2. Council Consideration of Certain Evidence Contained in P&Z Hearing Records The Applicant objects to the City Council considering any allegations based upon evidence introduced into the record of the Planning and Zoning Board hearings on the ODP and PDP which, due to sheer volume and deliberate lack of prior disclosure, prevented the Planning and Zoning Board from taking such evidence into account in rendering its decisions, and likewise prevented the Applicant of any ability to consider and respond to the same during such hearings. The Applicant met all deadlines for submitting documents in advance of the Planning and Zoning Board hearing for inclusion in the Planning and Zoning Board agenda packet, affording Project opponents the opportunity to review and analyze them, as well as to prepare arguments and evidence in rebuttal. Upon receiving a copy of the staff report for that hearing, there did not appear to be any documents submitted by Project opponents, although they had been actively involved in every step of the process. When we asked Steve Olt where their materials were, he said his office had communicated a couple of time with them to make sure they were aware of the deadline but that nothing was ever submitted. The Project opponents made a deliberate decision to wait until the very evening of the hearing to submit voluminous documents into the record (based on their statements in'the Appeals, 81 documents totaling 915 pages for each of the two hearings (including the entire appeal record of the Planning and Zoning Board hearing on the earlier ODP plan), plus a notebook entitled "Residents Report" (an additional 160 pages), and finally "numerous (unidentified) documents submitted by individual speakers,". The timing of these eleventh hour submittals deprived the Planning and Zoning Board, the City staff and the Applicant from any meaningful opportunity to review, analyze, consider and address such information at the hearing Mr. Steve Roy August 9, 2011 Page 3 What is so clearly missing in this agenda packet is anything from the Applicant whose Project this is, who must rebut each and every allegation of error in the Appeals. The City Council will have time prior to the hearings on the Appeals to review and analyze the Appeals (and their associated Land Use Code provisions and the Residents Report), as well as the responses from legal staff. With the City Council receiving detailed arguments and analysis only from the Project opponents and City legal staff prior to the hearing on the Appeals - but without argument or analysis from the Applicant to provide a balanced picture - it is inevitable that certain impressions will be formed prior to the hearing on the Appeals. Those impressions will be difficult, if not impossible, to dislodge, particularly based on only limited verbal arguments by the Applicant -about all of allegations, the Residents Report; -applicable Land Use -Code - provisions and an immense Planning and Zoning Board record which spans, we have been told, in excess of two thousand pages. In some cases, the inherent unfairness of allowing only one party to make a written submission may never translate into to a practical disadvantage for the other party, as the degree to which an appellant is advantaged - and by inverse ratio the degree to which the respondent is disadvantaged- depends upon the particular circumstances present in each case. If the appeal is short in length, containing only a few simple allegations of error, then the advantage to appellant is probably small and the unfairness to the respondent is probably negligible. But if the appeal is long, complicated or confusing; if it contains numerous allegations of error; if it includes lengthy documentation regarding arguments and evidence; then the advantage to the appellant can become large, and the unfairness to the respondent fundamental. In such cases, the only way to provide a respondent with opportunity for comment at a meaningful time and a meaningful manner is to permit the respondent to submit a written response, as no other form of response can be easily and reliably tailored in length and complexity to the particulars of an individual appeal. The situation the Applicant is facing at the hearings on the Appeals is illustrative of the problem that such procedures can create. The Applicant's sole opportunity to respond to allegations of error contained in the Appeals will come in the form of a verbal response made during the hearings. And due to the number of allegations, the amount of time within which Applicant will must make all of its arguments regarding each allegation, and provide references to applicable Land Use Code provisions and relevant evidence in the record, is by any estimation impossibly small for such purposes. Even if the Applicant were to forgo any discussion on Project background, and devote all allotted time to addressing individual allegations, the Applicant would still have less than two minutes to discuss each allegation regarding the ODP approval, and less than one minute to discuss each allegation regarding the PDP approval. In actuality, the amount of time that the Applicant will have available to address each allegation will be less yet, as the Applicant simply cannot forgo providing pertinent background information on the Project, as the context it provides is absolutely critical to proper .resolution of the issues raised by the Appeals. Last, but certainly not least, even attempting to very briefly touch on each issue would leave no time for Mr. Steve Roy August 9, 2011 Page 2 voluntarily agreed to hold another neighborhood meeting. The Applicant had serious concerns about the impact of the delay, but made this decision even though the City planning and legal staff had concluded that the requirement had already been satisfied, but did so in order to ensure maximum opportunity for neighborhood input. In connection with such additional neighborhood meeting, Project opponents submitted a list of thirty-two (32) separate questions with a demand that they be answered in writing by the staff, CSURF (owner of the subject property) and the Applicant, as applicable. This was done by the deadline set by City staff, ensuring that this information was available for review and analysis by Project opponents prior to the Planning and Zoning Board hearing on the Appeals. OBJECTIONS ON PROCEDURAL GROUNDS There are four specific objections that I feel compelled to raise on behalf of the Applicant, which I believe may, either individually, or in any case collectively, be responsible for the deprivation of the Applicant's procedural due process rights. Such objections are as follows: Inability of Applicant to Submit Written Responses to Appeals We have been consistently informed by your office that a written response to an appeal is not permitted pursuant to the Municipal Code and, specifically, that the Applicant would not be permitted to respond in writing to the Appeals, and/or the lengthy Residents Report attached to the Appeals, either prior to or at the hearings on the Appeals. The Applicant objects to not being permitted by the City to submit a written response to the allegations made by Project opponents in their appeal, After the Planning and Zoning Board hearings on the ODP and PDP, the Project opponents filed an appeal of each decision, constituting twelve (12) allegations of error by the Planning and Zoning Board in its decision on the ODP and twenty-six (26) allegations of error by the Planning and Zoning Board regarding its decision on the PDP. Attached to each appeal was the 160-page Residents Report, a document not seen by the Applicant until the Planning and Zoning Board hearing and unable to be read, analyzed and responded to at the hearings. The City Council, in its agenda packet for the Appeals, will receive: the Project opponents' ODP appeal with twelve (12) specific allegations of error citing specific Land Use Code sections, plus the 160 page Residents Report, and the Project opponents' PDP appeal with twenty-six (26) specific allegations of error citing specific Land Use Code section, plus the 160- page Resident Report. In addition, there is traditionally a confidential City Attorney memorandum in the City Council agenda packet discussing the legal merits of the Appeals. LILEY, ROGERS & MARTELL, LLC • ATTORNEYS AT LAW August 9, 2011 Mr. Steve Roy City Attorney Via Hand Delivery City of Fort Collins 300 LaPorte Avenue Fort Collins, CO 80521 Re: Amended CSURF Centre for Advanced Technology Overall Development Plan ("ODP") and The Grove at Fort Collins Preliminary Development Plan (`TDP") (together referred to as the "Project") Dear Steve: This letter is written on behalf of Campus Crest of Fort Collins, LLC, the applicant for the above -referenced ODP and PDP (the "Applicant"). As you well know, since the denial of earlier versions of the ODP and PDP and resubmittal of the current versions of such plans, some vocal opponents of the Project have repeatedly appeared before the City Council to make negative comments about the process, the Project and the Applicant. Even though it was difficult not to respond in kind in order to set the record straight, the decision was made to stay above the fray and try to keep the focus where it should be: on the merits of the Project to be presented before the Planning and Zoning Board. However, during and since the Planning and Zoning Board hearing on June 16, a number of things have occurred which, in view of the totality of the circumstances, lead us to the inescapable conclusion that the processes by which the City has considered the Project lack fundamental fairness and evenhandedness. It is for that reason I am finally, and reluctantly, writing this letter to you, to inform you of my opinion that the Applicant's procedural due process rights have been violated, and to formally raise certain objections on behalf of the Applicant regarding matters which I believe have caused such deprivation. Following that discussion, you will find a brief legal analysis of the procedural due process issues which I believe have been created by the facts underlying such objections. In order to provide further context to the objections raised in this letter, please consider that procedurally, the Applicant has gone beyond Land Use Code requirements. When a concern was raised by Project opponents about the neighborhood meeting requirement, the Applicant WCIA A. LILEY ■ JAMES A. MARTELL ■ TODD W. ROGERS ■ JOSHUA C. LILEY THE PETER ANDERSON HOUSE ■ 300 SOUTH HOWES STREET • FORT COLLINS, COLORADO 80521 TELEPHONE: (970) 221-4455 0 FAX: (970) 221-4242