HomeMy WebLinkAboutDISCOUNT TIRE AT FOSSIL CREEK - PDP/FDP - 26-02 - CORRESPONDENCE - PUBLIC NOTICECity ! irney
City of Fort Collins
MEMORANDUM
DATE: July 25, 2003
TO: Wanda Krajicek, City Clerk �/
FROM: W. Paul Eckman, Deputy City Attorney/
RE: Notice of Appeal - Discount Tire Company
The purpose of this memorandum is to report to you any obvious defects in form or substance in the
Notice of Appeal above -referenced as I am required to do pursuant to Section 2-50 of the City Code.
In examining the Notice of Appeal, I have found a couple of issues that I think the appellant should
clarify by the filing of an Amended Notice of Appeal. First, the Notice of Appeal is required,
pursuant to Section 2-49(1) of the Code, to identify the "action of the decision maker which is the
subject of the appeal." Although the Notice of Appeal identifies the date of the action, it does not
specifically name the planning item number which technically ought to be mentioned in the Notice
of Appeal. The Notice of Appeal does indicate that a copy of the decision is attached, although the
Notice of Appeal that was delivered to me did not have an attachment. If an attachment was
delivered to your office, then the action is adequately identified and need not be clarified in an
Amended Notice of Appeal.
The other reason for the filing of an Amended Notice of Appeal is to clarify the grounds for appeal.
Section 2-48(4) requires all appellants to include the grounds for appeal, including specific
allegations of error and a summary of the facts contained in the record on appeal which support those
allegations. The grounds for appeal are found in Section 2-48(b) of the Code, and include the failure
of the decision maker to properly interpret and apply the Code and also the failure of the decision
maker to conduct a fair hearing for various reasons.
From the allegation in the Notice of Appeal, it appears that the appellant is alleging that the decision
maker failed to conduct a fair hearing in that he considered evidence relevant to his findings which
was substantially false and grossly misleading because, as the appellant states, "a witness erroneously
stated the hours of operation of the store to be constructed on the property." If this is the basis for
the appeal, then I think the appellant should clarify that its ground for appeal is that the decision
maker failed to conduct a fair hearing on the basis of substantially false and grossly misleading
evidence. As you know, pursuant to Section 2-56(d)(1), if the Council finds that the decision maker
failed to conduct a fair hearing, then it must remand the matter to the hearing officer for a rehearing.
In short, I think the appellant should, in an Amended Notice of Appeal, specify the ground or
grounds for the appeal as those are stated in Section 2-48(b) of the Code.
WPE:cpn
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