Loading...
HomeMy WebLinkAboutMAX FLATS PDP - APPEAL TO CITY COUNCIL - PDP120034 - LEGAL DOCS - LEGAL DOCUMENTSMayor and City Councilmembers May 16, 2013 Page 3 SAMPLE MOTIONS: ort ColUns If the Council determines that the Board did not fail to conduct a fair hearing, I would recommend a motion as follows: I move to uphold the decision of the Board for the reason that it did not fail to conduct a fair hearing either by considering evidence relevant to its findings which was substantially false or grossly misleading. OR I move to remand the decision of the Board for the reason that the Board failed to conduct a fair hearing in that it: [here the Councilmember should specifically indicate the evidence which was relevant to its findings which was substantially false or grossly misleading.] WPE/pec cc: Darin Attebeny, City Manager Mayor and City Councilmembers May 16, 2013 Page 2 F 6 Collins pages of argument and information regarding traffic that should be examined by the Council because it is in those pages that the allegations are made regarding substantially false information. Councilmembers should feel free to inquire of the Appellant as to the arguments that he is presenting in those pages. RECORD ONAPPEAL: City Code Section 2-53 provides that the appeal shall be "on the record," which record includes a verbatim transcript of the hearing, the video of the proceedings before the Board, and all exhibits received or viewed by the Board. City Code Section 2-57 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. Section 2-57(a) provides that "issues raised during the presentation of argument but not raised in the Notice of Appeal shall not be considered by, the City Council in deciding the appeal." This provision limits the issues to be explored by the Council to those that were raised 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 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 of or 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 an allegation that the Board considered evidence relevant to its findings which was substantially false or grossly misleading. 2. The second exception relates to evidence offered by the City staff or a party - in -interest in response to questions presented by Councilmembers. New evidence may only be considered by the Council if it is offered either: 1) in support of or in rebuttal to the allegation that the Board considered false or misleading evidence; or 2) if it is offered in response to the questions presented by Councilmembers. City of F6rt Collins CONFIDENTIAL MEMORANDUM TO: Mayor and City Councilmembers FROM: W. Paul Eckman, Deputy City AttomeA THRU: Steve Roy, City Attomey/ DATE: May 16, 2013 City Attonney's Office 300 Laporte Avenue PO Box 580 Fort Collins. CO 80522 970.221.6520 970.221.6327 fcgov, corn RE: Appeal of March 21, 2013 Decision of the Planning and Zoning Board Approving the Carriage House Apartments Project Development Plan #PDP 120035 This is an appeal of an approval by the Planning and Zoning Board (the "Board") of a project development plan located at 1305 and 1319 South Shields Street known as the Carriage House Apartments. This appeal was brought by an adjacent property owner and he alleges that the Board failed to conduct a fair hearing because it considered evidence which was substantially false or grossly misleading. Since the Notice of Appeal does not allege that the Board failed to properly interpret and apply the Land Use Code, the only question before the Council is whether the Board failed to conduct a fair hearing. If the Council finds that the Board failed to conduct a fair hearing it must, under the Code, remand the matter to the Board for reconsideration. If the Council finds that the Board did not fail to conduct a fair hearing, it should uphold the decision of the Board. ANALYSIS. On March 21, 2013, the Board held a hearing pertaining to the Carriage House Apartments Project Development Plan located at 1305 and 1319 South Shields Street and approved the plan. At that hearing, Mr. Joel Rovnak attended and spoke to the Board. Mr. Rovnak is the Appellant and is a legitimate party -in -interest authorized to file a Notice of Appeal. The appeal is limited to the question of whether the Board failed to conduct a fair hearing by considering evidence relevant to its findings which was substantially false or grossly misleading. Therefore, the Council's scope of review is limited to the fair hearing question. If the Council determines that the Board failed to conduct a fair hearing, it must remand the matter to the Board for reconsideration as required by Section 2-57(f)(1) of the City Code. The Notice of Appeal indicates that there were substantially false or grossly misleading information included in the traffic report presented to the Board. The Appellant includes two