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(2) Presentation of argument by the appellant
and any party -in -interest in support of the
appeal;
(3) Presentation of argument by any party -in -in-
terest who is an opponent of the appeal;
(4) Rebuttal presentation by the appellant and
any Party -in -interest in support of the ap-
peal;
(5) Rebuttal presentation by any party -in -inter-
est who is an opponent of the appeal; and
(6) Motion, discussion and vote by the City
Council.
(b) No person making a presentation to the City
Council shall be subject to cross-examination ex-
cept that members of the City Council and the
City Attorney may inquire of such person for the
purpose of eliciting information and for the pur-
pose of clarifying information presented.
(c) In the event of multiple appeals involving
the same decision of a board or commission, the
Mayor, in his or her discretion, may modify the
procedure contained in subparagraph (a) above so
as to expedite the hearing of such appeals.
(Code 1972, § 3A-10; Ord. No. 124, 1987, § 2, 9-1-
87; Ord No. 174, 1988, §§ 2, 3, 12-20-88; Ord. No.
111, 1989, § 4, 8-1-89; Ord. No. 23, 1990, § 7, 4-3-
90; Ord. No. 139, 1990, 1-15-91; Ord. No. 59,
1994, § 4, 4-19-94)
Sec.2-56. New evidence; scope of review;
alternative actions available to
the City Council; date of final ac-
tion.
(a) The City Council shall consider an appeal
based upon the record on appeal, the relevant pro-
visions of the Code and Charter, the grounds for
appeal cited in the notice of appeal and any addi-
tional issues identified by a member of the City
Council prior to the hearing. Any such additional
issues must be identified in writing and filed with
the City Clerk no later than ten (10) calendar days
prior to the date of the hearing.
Supp. No. 36 163
§ 2-70
(b) New evidence shall not be considered on ap-
peal except under the following circumstances:
(1) When offered in support of or in opposition
to an allegation under § 2-48(2)c that a
board or commission considered evidence
relevant to its findings which was substan-
tially false or grossly misleading.
(2) When offered by city staff' or parties -in -
interest in response to questions presented
by CouncHmembers under § 2-55(b).
(c) In considering an allegation that a board or
commission failed to properly interpret and apply
the relevant provisions of the Code or Charter as-
serted under § 248(1), the City Council shall de-
termine how such provisions should, in the Coun-
cil's judgment, be applied to the evidence con-
tained in the record on appeal.
(d) At the conclusion of such hearing, the City
Council shall uphold, overturn or modify the deci-
sion of the board or commission; provided, how-
ever, that:
(1) The City Council shall instead remand the
matter for rehearing if it finds that the ap-
pellant was denied a fair hearing before the
board or commission for any of the reasons
stated in § 248(2).
(2) The City Council may also remand the mat-
ter for rehearing in order for the board or
commission to receive and consider addi-
tional information with regard to any issue
raised on appeal.
(e) No later than the date of its next regular
meeting, the City Council shall adopt, by resolu-
tion, findings of fact in support of its decision. The
date of passage of such resolution shall be the date
of final action of the City Council for the purpose
of any subsequent judicial review of the decision of
the City Council.
(Code 1972, § 3A-11; Ord. No. 124, 1987, § 3, 9-1-
87; Ord. No. 23, 1990, § 8, 4-3-90; Ord. No. 67,
1993, § 3, 7-20-93; Ord. No. 59, 1994, § 5, 4-19-94;
Ord. No. 88, 1995, § 5, 8-1-95)
Sees.2-57-2-70. Reserved.
§ 2-50
FORT COLLINS CODE
See.2-50. Review of notice of appeal by
City Attorney.
Within five (5) working days of the date of the
filing of the notice of appeal, the notice shall be
reviewed by the City Attorney for any obvious de-
fects in form or substance. The City Clerk shall
notify the appellant in writing by certified mail of
any such defect in the notice of appeal, which no-
tice shall be mailed no more than seven (7) work-
ing days from the date of filing of the notice of ap-
peal. The appellant shall have seven (7) calendar
days from the date of mailing of such notice
within which to file an amended notice of appeal
under § 2-51.
(Code 1972, § 3A-5; Ord. No. 111, 1989, § 2, 8-1-
89; Ord. No. 23, 1990, § 3, 4-3-90; Ord. No. 88,
1995, § 3, 8-1-95)
See.2-51. Amended notice of appeal per-
mitted.
An amended notice of appeal may be filed by the
appellant at any time prior to the date for mailing
by the City Clerk of the notice of the appeal to
other parties -in -interest as contained in § 2-54, or
such later date as may be permitted under § 2-50.
Such amended notice of appeal shall contain all of
the information required under § 2-49 for the orig-
inal notice of appeal. Amendments to the notice of
appeal need not be limited to those defects, if any,
which have been identified by the City Attorney.
(Code 1972, § 3A-6; Ord. No. 111, 1989, § 3, 8-1-89;
Ord. No. 59, 1994, § 2, 4-19-94; Ord. No. 88, 1995,
§ 3, 8-1-95)
Sec. 2-52. Cost of appeal.
In all appeals except those filed by members of
the City Council, the appellant shall be charged a
fee of one hundred dollars ($100.) for the cost of
the appeal, to be paid to the City Clerk at the time
of the filing of the notice of appeal.
(Code 1972, § 3A-7; Ord. No. 23, 1990, § 4, 4-3-90)
Sec. 2-53. Record on appeal.
Any appeal to the City Council shall be an ap-
peal on the record of the hearing before the board
or commission. The record provided to the City
Council shall include the following:
Supp. No. 36 162
(1) All exhibits, including, without limitation,
all writings, drawings, maps, charts, graphs,
photographs and other tangible items re-
ceived or viewed by the board or commission
at the proceedings;
(2) A verbatim transcript of such proceedings
before the board or commission. The cost of
the transcript shall be borne by the city.
(3) If available, a videotape recording of such
proceedings before the board or commission.
The cost of reproducing any such videotape
for review by the City Council shall be borne
by the city. Additional copies shall be pro-
vided to any party -in -interest requesting the
same within a reasonable period of time
prior to the date for hearing the appeal, at a
cost not to exceed the actual reproduction
costs incurred by the city.
(Code 1972, § 3A-8; Ord. No. 174, 1988, § 1, 12-
20-88; Ord. No. 23, 1990, §§ 5, 6, 4-3-90; Ord. No.
59, 1994, § 3, 4-19-94; Ord. No. 5, 1995, 2-7-95)
Sec. 2-54. Scheduling of the hearing.
In the event of an appeal, the City Clerk shall
schedule a date for hearing the appeal no less than
thirty (30) nor more than sixty (60) days after the
date of filing of the notice of appeal. The City
Clerk shall provide the appellant and all other
parties -in -interest fourteen (14) days' written no-
tice of the date, time and place of the hearing.
Said notice shall also include a copy of the notice
of appeal and shall inform the parties -in -interest
of the period of time within which the appellant
may file an amended notice of appeal or additional
issues may be identified under §§ 2-50 and 2-56,
respectively.
(Code 1972, § 3A-9; Ord. No. 88, 1995, § 4, 8-1-95)
Sec. 2-55. Procedure at the hearing.
(a) At the hearing on the appeal by the City
Council, the presentation of argument on the mer-
its of the appeal shall be made in the following or-
der, 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;
ADMINISTRATION
(6) Zoning Board of Appeals.
(Code 1972, § 3A-1)
Editor's note —Subsection (4) formerly referred to the Build-
ing Contractor Licensing Board, which is no longer in eas-
tence, being replaced by the Building Review Board pursuant to
Ord. No. 93, 1987. The editor has, therefore, deleted former
subsection (4) and has renumbered subsections (5)—(7) as
(4)—(6).
Cross references —Building Review Board, § 2.117 et seq.;
Landmark preservation Commission, § 2-276 et seq.; planning
and Zoning Board, § 2-351 et seq.; Storm Drainage Board, § 2.
411 et seq.; Zoning Board of Appeals, § 2-441 et seq.; Fire
Board of Appeals, §§ 9-2, 9-5.
See.2-48. Appeal of final decision per-
mitted; effect of appeal; grounds
for appeal.
(a) A party -in -interest may appeal to the City
Council the final decision of any board or commis-
sion to which this appeal procedure applies in the
manner provided in this Division. No action shall
be taken in reliance upon any decision of a board
or commission that is subject to appeal under the
provisions of this Division until all appeal rights
related to such decision have been exhausted.
(b) Except for appeals by members of the City
Council, the permissible grounds for appeal shall
be limited to allegations that the board or com-
mission committed one (1) or more of the follow-
ing errors:
(1) Failure to properly interpret and apply rele-
vant provisions of the Code and Charter.
(2) Failure to conduct a fair hearing in that:
a. The board or commission exceeded its
authority or jurisdiction as contained in
the Code or Charter;
b. The board or commission substantially
ignored its previously established rules
of procedure;
c The board or commission considered ev-
idence relevant to its findings which
was substantially false or grossly mis-
leading; or
d. The board or commission improperly
failed to receive all relevant evidence of-
fered by the appellant.
Appeals filed by members of the City Council need
not include specific grounds for appeal, but shall
Supp. No. 36 161
§ 2-49
include a general description of the issues to be
considered on appeal. Upon the filing of any such
appeal, the director of the affected city service
area shall identify the specific Code provisions
that may pertain to the issues raised by such ap-
peal and shall provide such information to the
City Clerk prior to the date that the notice of
hearing on the appeal is to be mailed by the City
Clerk to parties -in -interest under § 2-54. Said in-
formation shall then be mailed to the parties -in -
interest together with the notice of hearing.
(Code 1972, § 3A-3; Ord. No. 124, 1987, § 1, 9-1-
87; Ord. No. 23, 1990, § 1, 4-3-90; Ord. No. 59,
1994, § 1, 4-19-94; Ord. No. 88, 1995, § 1, 8-1-95)
Sec. 2-49. Filing of notice of appeal.
An appeal shall be taken by filing a notice of ap-
peal of the final decision of a board or commission
to which this Division applies with the City Clerk
within fourteen (14) days after the action which is
the subject of the appeal. Such notice of appeal
shall be signed by all appellants and shall include
the following:
(1) The action of the board or commission which
is the subject of the appeal;
(2) The date of such action;
(3) The name, address, telephone number and
relationship of each appellant to the subject
of the action of the board or commission;
(4) For all appeals except those filed by mem-
bers of City Council, the grounds for the ap-
peal, including specific allegations of error
and a summary of the facts contained in the
record on appeal which support those allega-
tions; and
(5) In the case of an appeal by more than one (1)
appellant, the name, address and telephone
number of one (1) such appellant who shall
be authorized to receive, on behalf of all
appellants, any notice required to be mailed
by the city to the appellants under the provi-
sions of § 2-50.
(Code 1972, § 3A-4; Ord. No. 111, 1989, § 1, 8-1-
89; Ord. No. 23, 1990, § 2, 4-3-90; Ord. No. 67,
1993, § 2, 7-20-93; Ord. No. 88, 1995, § 2, 8-1-95)
§ 2-34
FORT COLLINS CODE
committees for which public notice is required to
be given by the provisions of the Code. The post-
ing shall include, where possible, information
about the availability of agenda materials.
(Ord. No. 91, 1992, § 8, 9-15-92; Ord. No. 111,
1995, § 1, 9-5-95)
Secs. 2-35-2-45. Reserved.
DIVISION 3. APPEALS PROCEDURE'
See- 2-46. Definitions.
The following words, terms and phrases, when
used in this Division, shall have the meanings as-
cribed to them in this Section:
Appellant shall mean a party -in -interest who has
taken an appeal from a board or commission to
the City Council by the filing of a notice of appeal.
Applicant shall mean the person who or orga-
nization which submitted the application to the
board or commission whose decision has been ap-
pealed.
Final decision shall mean the action of a board
or commission by a vote of a majority of its mem-
bers when no further rehearing is available before
such board or commission; provided, however,
that a recommendation to the City Council from a
board or commission shall not be considered as a
final decision of that board or commission_
New evidence shall mean any evidence relating
to the proposal or application which was the sub-
ject of final decision by a board or commission and
which was not presented at the hearing before
such board or commission.
*Cross references —Appeals from the Liquor Licensing Au-
thority, § 3-36; appeals from the Building Review Board may be
heard by the City Council. § 5-312; appeals from the decision of
the city regarding alarm permits to the City Council, § 15-36;
appeals from the determinations of the Building Review Board
regarding alarm permits to the City Council, § 15.41(b); disap-
proval of pawnbroker's license may be appealed to the City
Council, § 15-265(c); applicant for license regarding places of
entertainment may appeal the decision to the City Council, §
15-298; appeals from the denial of the secondhand dealer's li-
cense to the City Council, § 15-318(d); appeals for denial of a li-
cense for a mobile home park may be appealed to the City
Council, § 18-5(d).
Party -in -interest shall mean a person who or or-
ganization which has standing to appeal the final
decision of a board or commission. Such standing
to appeal shall be limited to the following:
(1) The applicant;
(2) Any party holding a proprietary or posses-
sory interest in the real or personal property
which was the subject of the decision of the
board or commission whose action is to be
appealed;
(3) Any person to whom or organization to
which the city mailed notice of the hearing
of the board or commission;
(4) Any person who or organization which sent
written comments to the board or commis-
sion prior to the action which is to be ap-
pealed; .
(5) Any person who appeared before the board
or commission at the hearing on the action
which is to be appealed;
(6) The City Council as represented by the re-
quest of a single member of the City Council.
(Code 1972, § 3A-2; Ord. No. 67, 1993, § 1, 7-20-
93)
Cross reference —Definitions and rules of construction gen.
erally, § 1-2.
Sec.2-47. Certain appeals to be taken to
City Council.
Appeals from the following boards and commis-
sions, permitted under the provisions of this Divi-
sion, shall be taken to the City Council in the
manner as set forth in this Division:
(1) Building Review Board;
(2) Fire Board of Appeals;
(3) Landmark Preservation Commission;
(4) Planning and Zoning Board;
(5) Storm Drainage Board;
Supp. No. 37 160
Mayor and Members of City Council
April 24, 1996
Page 4
APPLICABLE LAW
In addition to the appeals provisions of the Code, a copy of which is attached to this memorandum,
the applicable law for the Council to consider in this appeal consists of the LDGS. Specifically, the
Appellant focused on All Development Criteria A-2.1, A-2.2, A-2.3, A-2.7 and A-2.13.
RECOMMENDATIONAS TO FINDINGS
Since there is an allegation made that the Planning and Zoning Board failed to conduct a fair
hearing, the Council should first determine that question and remand the matter to the Board for
rehearing if the Council determines that a fair hearing was not provided. Also, the Council may
remand the matter to the Board if it determines that it is necessary for the Board to receive and
consider additional information with regard to any issue raised on appeal. If the Council determines
that remand is not necessary under either of those circumstances, then the Council should address
the issue of whether the Board failed to properly interpret and apply the relevant provisions of the
Code and Charter, and either uphold, overturn or modify the decision of the Board. If the Council
finds that the Board did not properly interpret the Code and/or Charter, it would be necessary to
specify the particular Code or Charter provisions that were not properly interpreted and applied.
At the next Council meeting, I will have a resolution summarizing the Council's findings and
decision.
SJR/WPE:med
Attachment (Appeal Provisions of Code)
PC: Greg Byrne, Director of Community Services and Environmental Planning
Bob Blanchard, Current Planning Director
Ted Shepard, Senior City Planner
Mayor and Members of City Council
April 24, 1996
Page 3
(1) Explanation of the nature of the appeal and presentation by City staff,
(2) Presentation of issues by the appellant and presentation of argument by any
party -in -interest in support of the appeal;
(3) Presentation of argument by any party -in -interest who is an opponent of the
appeal; and
(4) Rebuttal presentations by the appellant and any party -in -interest in support
of the appeal;
(5) Rebuttal presentation by any party -in -interest who is an opponent of the
appeal;
(6) Motion, discussion and vote by the City Council.
RECORD ON APPEAL
Section 2-53 provides that the appeal shall be "on the record," which record includes the minutes
of the Board meeting, as well as all exhibits received or viewed by the Board, the video tape of the
proceeding and the verbatim transcript of the proceedings pertaining to the appeal. Sec. 2-56 of the
Code provides that the City 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. Further, that Section has been amended to authorize the City Council to consider
the appeal based upon any additional issues identified by a member of the City Council prior to the
hearing if the City Councilmember has identified those issues in writing and filed them with the City
Clerk no later than ten (10) calendar days prior to the date of the hearing. Councilmembers have
not raised any additional issues.
As noted above, there is an allegation that the Board considered evidence relevant to its findings
which was substantially false or grossly misleading. If the Council determines that the Board did
consider such false/misleading guidance, new evidence is admissible for the purpose of proving the
misleading nature of the evidence considered by the Board. Also, new evidence could be considered
by the Council when offered by City Staff or parties in interest in response to questions presented
by Councilmembers.
Mayor and Members of City Council
April 25, 1996
Page 2
neighborhood meetings, delays in hearing the matter before the P&Z Board because of a lengthy
agenda, name changes that were confusing, issues regarding whether the matter should have been
placed on the Consent Agenda, etc. I cannot see in any of those allegations a reasonable connection
to any of the authorized grounds for finding that the Board failed to conduct a fair hearing as those
grounds are established in Section 2-48(b)(2) of the Code. I do not believe that any of those
allegations would constitute the Board having exceeded its authority or jurisdiction, or having
ignored its established rules of procedure (although this ground would seem to come the closest) or
having considered false or misleading evidence or having failed to receive all evidence offered by
the Appellant. Therefore, I believe that it would be improper for the Council to find that the Board
failed to hold a fair hearing "in general" because of the complaints stated on the last page of the
Notice of Appeal.
The Appellant also alleges that the Board failed to hold a fair hearing by considering substantially
false or grossly misleading evidence. This allegation of error is an authorized allegation pursuant
to Section 2-48(b)(2)(c) of the Code. If the Board considered evidence relevant to its findings which
was substantially false or grossly misleading, then the Board did fail to conduct a fair hearing and
the matter should be remanded to the Board for rehearing. The allegations in the Notice of Appeal
that pertain to the issue of substantially false or grossly misleading evidence are found on the second
and fifth pages and pertain, respectively, to what the Appellant alleges are incorrect traffic numbers
given to the Board in the traffic report and information given to the Board that "elevation" was not
an item that could be considered on the project. The Appellant may introduce new evidence at the
appeal to prove that the traffic reports were substantially false or grossly misleading. With regard
to the issue of elevation, the testimony on that topic is found on pages 29 and 30 of the transcript.
The Appellant argues that that discourse (as represented on pages 29 and 30 of the transcript) was
confusing to the Board and "may not have been completely dispelled in the minds of all of the Board
Members." To the extent that the Appellant can produce relevant evidence to prove the substantially
false or grossly misleading characteristics of Mr. Blanchard's statements, I believe the Appellant is
entitled to do so. If Council believes that Mr. Blanchard's comments were in fact substantially false
or grossly misleading, and that the Board relied upon those statements in approving the development
application, than it should remand the matter for a rehearing.
PROCEDURE FOR RECEIVING EVIDENCE
Section 2-55 of the Code prescribes the following manner in which presentations are to be made,
subject to such limitations in time and scope as may be imposed at the discretion of the Mayor:
City Attorney
CONFIDENTIAL _
MEMORANDUM —
City of Fort Collins
DATE: April 24, 1996
TO: Mayor and City Councilmembers
FROM: W. Paul Eckman, Deputy City Attorney
THRU: Steve Roy, City Attorne4?�-;
RE: Appeals Procedure -- Siena P.U.D.
A Notice of Appeal has been filed by Judy Harrington (the "Appellant") with respect to the March
6, 1996 decision of the Planning and Zoning Board ("the Board") approving the Siena P.U.D.
ISSUES ON APPEAL:
1. Whether the Board failed to properly interpret and apply relevant provisions of the Code.
2. Whether the Board failed to hold a fair hearing.
ANALYSIS:
I. FAILURE TO PROPERLY INTERPRET AND APPLY RELEVANT PROVISIONS
OF THE CODE.
The issues raised by the Appellant with regard to the Board's alleged failure to properly interpret
and apply the relevant provisions of the Code focus on All Development Criteria A-2.1, A-2.2, A-
2.32 A-2.7, and A-2.13. Councilmembers should bring their copies of the Land Development
Guidance System to the Council Meeting so that they can refer to these criteria in particular and to
the Land Development Guidance System in general as issues arise during the appeal. All of the
criteria cited by the Appellant are applicable to the proposed development and all of the criteria
questions must be answered in the affirmative in order for the development to be properly approved.
Mr. Shepard has addressed, in his memorandum to the Council, the staff and board positions
regarding those criteria.
II. FAILURE OF THE BOARD TO HOLD A FAIR HEARING
The other issue that the Appellant has raised is one which presents some legal issues. First, the
Appellant alleges that the Board failed to hold a fair hearing "in general" and in support of that
allegation, the Appellant, on the last page of the Notice of Appeal, complains of the public
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