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HomeMy WebLinkAboutARAPAHOE FARM TOWNHOMES PUD - FINAL - 55-87K - REPORTS - CITY COUNCIL City Attey • i t _ _ ,T , e : City of Fort Collins l 1 i 1AL CONFIDENTIAL • MEMORANDUM DATE: May 5, 1994 TO: Mayor and City Councilmembers FROM: W. Paul Eckman, Deputy City Attorney A THRU: Steve Roy, City Attorney RE: Appeals Procedure -- Arapahoe Farms Townhomes Final PUD A Notice of Appeal has been filed by Steven Gottschalk, et al., with respect to the March 28, 1994, decision of the Planning and Zoning Board ("the Board") approving the Arapahoe Farms Townhomes Final PUD. AMENDMENTS NOT APPLICABLE On April 19, 1994, the Council passed on second reading Ordinance No. 59, 1994, amending the appeals provisions of the Code. This ordinance went into effect on April 29, 1994, four days after the filing of the Amended Notice of Appeal. Since the appeal was filed prior to the effective date of Ordinance No. 59, 1994, it is my opinion that the appeals should be heard by the Council under the "old" appeal code rather than the appeal code as amended pursuant to Ordinance No. 59, 1994. ISSUES ON APPEAL The allegations of error in this appeal are that the Planning and Zoning Board ("the Board"): a. failed to conduct a fair hearing in that the Board substantially ignored its previously established rules of procedure (Section 2-48[3][b]); b. abused its discretion in making an arbitrary decision without the support of competent evidence in the record (Section 2-48[1]); c. failed to conduct a fair hearing by considering evidence relevant to its findings which was substantially false or grossly misleading (as it relates to issues of compatibility) (Section 2-48[3][c]); d. did not properly interpret and apply relevant laws (Section 2-48[2]); and 300 LaPorte Avenue • P. O. Box 580 • Fort Collins, CO 80522-0580 • (303) 221-6520 • . Mayor and City Councilmembers May 5, 1994 Page 2 e. abused its discretion in that the Board's decision was arbitrary and without the support of competent evidence in the record (Section 2-48[1]). SUFFICIENCY OF GROUNDS Each of these grounds is supported by additional comments contained in the Amended Notice of Appeal, and it is my opinion that the grounds contain sufficient allegations of error to satisfy the requirements of Section 2-48 of the Code for purposes of the City Council's analysis under Section 2-55(a)(1) of the Code. LEGAL ISSUES Regarding the first allegation of error, no legal issues are readily identified, except to note that the complaints about the 1991 proceedings are not relevant to the present proceedings and that if errors existed in the 1991 proceedings, the time has long ago passed during which a legitimate complaint could be made about those proceedings. Regarding the second allegation of error, it is alleged that the Board (at the preliminary plan hearing) assured the neighborhood that "final approval would not be granted to the developer until the disposition of Hilburn Drive was resolved pursuant to the vacating of said property, including the satisfaction of the affected adjoining homeowners." The Board did condition its preliminary approval upon the "status of Hilburn Drive dead-end [being] resolved to the satisfaction of the affected parties." Presumably, the Board was, by using this condition, trying to protect the interests of the neighbors affected by the Hilburn Drive vacation. A condition such as this, if imposed on final approval and objected to by the developer, would be an unlawful delegation of governmental authority to the adjoining homeowners and would be void and unenforceable. Cher- Hills Resort Development Company v. Cherry Hills Village, 790 P.2d 827 (Colo. 1990). Accordingly, at the time of final approval, the Board did not, and legally could not, use the condition to deny the project. Instead, the Board used a new condition to provide that no building permit would be issued until the Hilburn Drive vacation had occurred and, as a part of this new condition, indicated the location of the sidewalk in the absence of some agreement to the contrary by the adjacent property owners. This new condition does not present a legal problem, because it does not require the satisfaction of the adjacent neighbors. Regarding the third allegation of error, it is an allegation that the Board failed to conduct a fair hearing by considering evidence that was false or misleading. Yet, the background argument in support of this allegation does not seem pointed toward any showing of the submission of false or misleading evidence, but rather, seems to point toward an argument that the Board failed to properly interpret and apply the Land Development Guidance System ("LDGS"), especially as it related to architecture. However, since the appellants have elected to allege the submission of false and misleading evidence, the Council should attempt to focus upon whether or not false • • Mayor and City Councilmembers May 5, 1994 Page 3 or misleading evidence was submitted to the Board such that the Board failed to hold a fair hearing. Regarding the fourth allegation of error, the appellants have alleged that the Board failed to properly interpret and apply the Code, which gives the Council the ability to substitute its judgment for that of the Board as to the acceptability of the development proposal. Regarding the fifth allegation of error, the allegation is that the Board acted arbitrarily and without the support of competent evidence in the record. This requires the Council to make a determination as to whether there is any competent evidence in the record to support the decision of the Board. I recommend that this allegation be dealt with immediately after the "fair hearing" question. If the Council finds that there is no competent evidence in the record to support the Board's approval of the development, the Board's decision should be overturned and the development application denied. (If the evidence in the record cannot support approval by the Board, it would be equally insufficient to support approval by the Council.) On the other hand, if the Council finds that there is some competent evidence in the record to support the Board's decision, it is still fee to disagree with that decision, so it should then consider the allegation that the Board failed to properly interpret the LDGS. 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: (1) Explanation of the nature of the appeal and presentation by City staff; (2) Presentation of argument by the appellants and 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 appellants 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; and (6) Motion, discussion and vote by the City Council. • • Mayor and City Councilmembers May 5, 1994 Page 4 RECORD ON APPEAL Section 2-53 provides that the appeal shall be "on the record," which record includes the detailed minutes of the Board meeting, as well as all exhibits received or viewed by the Board and the video tape of the proceeding. New evidence is generally prohibited at these hearings, subject to the exception discussed below. "New evidence" would be any new testimony, documents or exhibits presented for the first time to the Council to establish the existence or non-existence of facts. "Argument," on the other hand, is merely a course of reasoning as to what conclusions should be reached from facts already in the record. In short, new argument is permissible, new facts are not. The only exception to the prohibition against new evidence is that, pursuant to Section 2-56(a), new evidence may be introduced in support of or in opposition to evidence at the original hearing that was allegedly substantially false or grossly misleading. Any such new evidence must be limited to that which directly rebuts or supports the earlier false evidence. In this case, if the appellants identify specific evidence in the record which they believe to be false or misleading, they can introduce new evidence at the hearing on that same point to demonstrate the falsity of the evidence in the record. 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 Land Development Guidance System. RECOMMENDATION AS TO FINDINGS After hearing all of the presentations, the Council should first decide whether the Board failed to conduct a fair hearing. If so, the matter should be remanded to the Board for a rehearing. If not, then the Council should address the other allegations of error and either uphold, overturn or modify the decision of the Board. (See the attached decision tree.) In reaching a decision as to the merits of the appeal, I encourage Councilmembers, either in making or discussing a motion, to state their reasons why they believe the appeal should be sustained or not sustained. Such reasons, whether or not in the form of formal findings, will be important to a reviewing court in determining whether the Council's decision is rational and based upon evidence in the record. At the next Council meeting (unless the matter has been remanded to the Board), I will have a resolution summarizing the Council's findings and decision. SJR/WPE:whm Attachments (Appeal Provisions of Code, Decision Outline) cc: Greg Byrne, Director of Community Services and Environmental Planning Ron Phillips, Interim Director of Planning Ted Shepard, City Planner • • §2-34 FORT COT,T.JNS CODE or City Council committees for which public notice Party-in-interest shall mean a person who or is required to be given by the provisions of the organization which has standing to appeal the Code. The posting shall include, where possible, final decision of a board or commission. Such information about the availability of agenda ma- standing to appeal shall be limited to the fol- terials. lowing: (Ord. No. 91, 1992, § 8, 9-15-92) (1) The applicant; Secs. 2-35-2-45. Reserved. (2) Any party holding a proprietary or posses- sory interest in the real or personal property DIVISION 3. APPEALS PROCEDURE* which was the subject of the decision of the board or commission whose action is to be Sec. 2-46. Definitions. appealed; The following words, terms and phrases, when (3) Any person to whom or organization to used in this Division, shall have the meanings which the city mailed notice of the hearing ascribed to them in this Section: of the board or commission; Appellant shall mean a party-in-interest who has (4) Any person who or organization which sent taken an appeal from a board or commission to written comments to the board or commis- the City Council by the filing of a notice of appeal. sion prior to the action which is to be Applicant shall mean the person who or orga- appealed; nization which submitted the application to the board or commission whose decision has been (5) Any person who appeared before the board appealed. or commission at the hearing on the action which is to be appealed; Final decision shall mean the action of a board or commission by a vote of a majority of its mem- (6) The City Council as represented by the re- bers when no further rehearing is available before quest of a single member of the City Council. such board or commission; provided, however, (Code 1972, § 3A-2; Ord. No. 67, 1993, § 1, 7-20- that a recommendation to the City Council from a 93) board or commission shall not be considered as a Cross reference—Definitions and rules of construction gen- final decision of that board or commission. erally,§ 1-2. New evidence shall mean any evidence relating Sec. 2-47. Certain appeals to be taken to to the proposal or application which was the sub- City Council. ject of final decision by a board or commission and which was not presented at the hearing before Appeals from the following boards and commis- such board or commission. sions, permitted under the provisions of this Divi- sion, shall be taken to the City Council in the *Cross references—Appeals from the Liquor Licensing Au- manner as set forth in this Division: thority,§3-36;appeals from the Building Review Board may be heard by the City Council,§5-312;appeals from the decision of (1) Building Review Board; the city regarding alarm permits to the City Council, § 15-36; appeals from the determinations of the Building Review Board (2) Fire Board of Appeals; regarding alarm permits to the City Council, § 15-41(b); disapproval of pawnbroker's license may be appealed to the City Council, § 15-265(c);applicant for license regarding places (3) Landmark Preservation Commission; of entertainment may appeal the decision to the City Council,§ 15-298; appeals from the denial of the secondhand dealer's (4) Planning and Zoning Board; license to the City Council, § 15-318(d); appeals for denial of a license for a mobile home park may be appealed to the City (5) Storm Drainage Board; Council,§ 18-5(d). Supp.No.24 160 • • ADMINISTRATION §2-50 (6) Zoning Board of Appeals. Sec. 2-49. Filing of notice of appeal. (Code 1972, § 3A-1) Editor's note—Subsection(4)formerly referred to the Build- An appeal shall be taken by filing a notice of ap- ing Contractor Licensing Board, which is no longer in eels- peal of the final decision of a board or commission tence,being replaced by the Building Review Board pursuant to to which this Division applies with the City Clerk Ord. No. 93, 1987. The editor has, therefore, deleted former within fourteen (14) days after the action which is subsection (4) and has renumbered subsections (5)—(7) as (4)—(6). the subject of the appeal. Such notice of appeal cross references—Building Review Board, § 2-101 et seq.; shall be signed by all appellants and shall include Landmark Preservation Commission, § 2-276 et seq.; Planning the following information: 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. (1) The action of the board or commission which is the subject of the appeal; Sec. 2-48. Appeal of final decision per- mitted. (2) The date of such action; A party-in-interest may appeal to the City (3) The name, address, telephone number and Council the final decision of any board or commis- relationship of each appellant to the subject sion to which this appeal procedure applies in the of the action of the board or commission; manner provided in this Division. Except for ap- peals. by members of the City Council, for which (4) For all appeals except those filed by mem bens of the City Council, the grounds for the no grounds need be stated, the permissible grounds for appeal shall be limited to allegations appeal, including specific allegations of error that the board or commission committed one (1) and a summary of the facts contained in the or more of the following errors: record on appeal which support those allega- tions. (1) Able of discretion, in that its decision was (Code 1972, § 3A-4; Ord. No. 111, 1989, § 1, 8-1- arbitrary and without the support of corn- 89; Ord. No. 23, 1990, § 2, 4-3-90; Ord. No. 67, petent evidence in the record; 1993, § 2, 7-20-93) (2) Failure to properly interpret and apply rele- Sec. 2-50. Review of notice of appeal by vant provisions of the Code and Charter; City Attorney. (3) Failure to conduct a fair hearing in that: Within five (5) working days of the date of the filing of the notice of appeal, the notice shall be a. The board or commission exceeded its reviewed by the City Attorney for any obvious de- authority or jurisdiction as contained in fects in form or substance. The City Clerk shall the Code and Charter; notify the appellant in writing by certified mail of b. The board or commission substantially any such defect in the notice of appeal, which no- ignored its previously established rules tice shall be mailed no more than ten (10) working of procedure; days from the date of filing of the notice of appeal c. The board or commission considered and which shall specify the period of time within evidence relevant to its finding which which any amended notice of appeal must be filed was substantially false or grossly mis- under§ 2-51. leading; or (Code 1972, § 3A-5; Ord. No. 111, 1989, § 2, 8-1- d. The board or commission improperly 89; Ord. No. 23, 1990, § 3, 4-3-90) failed to receive all relevant evidence offered by the appellant. (Code 1972, § 3A-3; Ord. No. 124, 1987, § 1, 9-1- 87; Ord. No. 23, 1990, § 1, 4-3-90) Supp.No.24 161 • • §2-51 FORT COLLINS CODE Sec. 2-51. Amended notice of appeal per- same within a reasonable period of time mitted. prior to the date for hearing the appeal, at a cost not to exceed the actual reproduction An amended notice of appeal may be filed by the costs incurred by the city. appellant at any time prior to the time for mailing (Code 1972, § 3A-8; Ord. No. 174, 1988, § 1, 12- by the City Clerk of notice of the appeal to other 20-88; Ord. No. 23, 1990, §§ 5, 6, 4-3-90) parties-in-interest as contained in § 2-54. Such amended notice of appeal shall contain all of the Sec. 2-54. Scheduling of the hearing. information required under§ 2-49 for the original notice of appeal. In the event of an appeal, the City Clerk shall (Code 1972,§3A-6; Ord.No. 111, 1989,§3, 8-1-89) schedule a date for hearing the appeal before the City Council as expeditiously as possible. The City Sec. 2-52. Cost of appeal. Clerk shall provide the appellant and all other parties-in-interest fourteen (14) days' written no- In all appeals except those filed by members of tice of the date, time and place of the hearing as the City Council, the appellant shall be charged a well as the grounds for the appeal as contained in fee of one hundred dollars ($100.) for the cost of the written notice of appeal. the appeal, to be paid to the City Clerk at the time (Code 1972, § 3A-9) of the filing of the notice of appeal. (Code 1972, § 3A-7; Ord. No. 23, 1990, § 4, 4-3-90) Sec. 2-55. Procedure of the hearing. Sec. 2-53. Record on appeal. (a) At the hearing on the appeal by the City Council, the following procedure shall be followed: Any appeal to the City Council shall be an ap- peal on the record of the hearing before the board (1) In all appeals except those filed by members or commission. The record provided to the City of the City Council, there shall first be a de- Council shall include the following: termination by the City Council, by majority vote of its members, whether the written (1) Detailed minutes of the proceedings before grounds for appeal conform to the require- the board or commission from which the ments of§ 2-48. If the grounds do not so con- appeal has been taken; form, the appeal shall be denied. (2) All exhibits, including, without limitation, (2) If the grounds do so conform, or if no finding all writings, drawings, maps, charts, graphs, as to the sufficiency of the grounds is re- photographs and other tangible items re- quired, the City Council shall then consider ceived or viewed by the board or commission the merits of the appeal. at the proceedings; (3) A verbatim transcript of such proceedings (b) The presentation of argument on the merits .before the board or commission, or any por- of the appeal shall be made in the following order, tion thereof, at the option and expense of subject to such limitations, in time and scope as any party-in-interest. In the case of an ap- may be imposed at the discretion of the Mayor: peal filed by a member of the City Council, (1) Explanation of the nature of the appeal and the cost of the transcript shall be borne by presentation by city staff; the city. (2) Presentation of argument by the appellant (4) If available, a videotape recording of such and any party-in-interest in support of the proceedings before the board or commission. appeal; The cost of reproducing any such videotape for review by the City Council shall be borne (3) Presentation of argument by any party-in- by the city. Additional copies shall be pro- interest who is an opponent of the appeal; vided to any party-in-interest requesting the Supp.No.24 162 • • ADMINISTRATION §2-71 (4) Rebuttal presentation by the appellant and ever, that the City Council may instead remand any party-in-interest in support of the ap- the matter for rehearing if it finds that the appel- peal; lant was denied a fair hearing before the board or commission for any of the reasons stated in § 2- (5) Rebuttal presentation by any party-in-inter- 48(3). No later than the date of its next regular est who is an opponent of the appeal; and meeting, the City Council shall adopt, by resolu- (6) Motion, discussion and vote by the City tion, findings of fact in support of its decision. The date of passage of such resolution shall be the date Council. of final action of the City Council for the purpose (c) No person making a presentation to the City of any subsequent judicial review of the decision of Council shall be subject to cross-examination ex- the City Council. cept that members of the City Council and the (Code 1972, § 3A-11; Ord. No. 124, 1987, § 3, 9-1- City Attorney 'y inquire of such person for the 87; Ord. No. 23, 1990, § 8, 4-3 90; Ord. No. 67, may purpose of eliciting information and for the pur- 1993, § 3, 7-20-93) pose of clarifying information presented. Secs. 2-57-2-70. Reserved. (d) 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 ARTICLE III. BOARDS AND procedure contained in subparagraph (b) above so COMMISSIONS* as to expedite the hearing of such appeals. (Code 1972, § 3A-10; Ord. No. 124, 1987, § 2, 9-1- DIVISION 1. GENERALLY 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- Sec. 2-71. Meetings defined, open meetings 90; Ord. No. 139, 1990, 1-15-91) required; exceptions. Sec. 2-56. Alternative actions available to (a) The following words, terms and phrases, the City Council; date of final ac- when used in this Division, shall have the mean- tion. ings ascribed to them in this Section: (a) The City Council shall consider an appeal Meeting shall mean any gathering of a quorum based upon the record on appeal and relevant pro- or three (3) or more members, whichever is fewer, visions of the Code and Charter. New evidence of any board or commission of the city, or any shall not be considered on appeal except to the ex- committee of such board or commission, at which tent that such new evidence is offered in support any public business is discussed or at which any of or in opposition to an allegation under § 2- formal-action may be taken, but shall not mean 48(3)c that a board or commission considered evi- any chance meeting or social gathering at which dence relevant to its findings which was substan- the discussion of public business is not the central tially false or grossly misleading. Any such new purpose. evidence shall be limited to that which directly re- buts or supports the allegedly false or misleading evidence. The Mayor, upon the advice of the City Attorney, shall determine the admissibility of all evidence at the hearing on appeal, which determi- nation may be overturned by majority vote of the *Charter references—Appointive boards,Art.IV,§ 1;Water members of the Council present at the hearing. Board,Art.XII,§7. Cross references—Open meetings, § 2-621 et seq.; Liquor (b) At the conclusion of such hearing, the City cLicerenatesidng§ Author7-26; Mityassage establishedLicensi,n§Auth3-31;or Bo ity ard of Elections , g created, § 16-16; Council shall uphold, overturn or modify the deci- Personnel Board created, § 21-26; Board of Trustees of the sion of the board or commission; provided, how- Firefighters' Pension Plan created, § 21-42; Retirement Committee created,§21-86. Supp.No.25 163 • • DECISION OUTLINE for Arapahoe Farms Townhomes Final PUD March 28, 1994 Motion Re Grounds for Appeal Presentations Re Merits of Appeal V Motion and Vote Re Fair Hearing Issues 4, If Board Failed to Hold If Board Did Not Fail to Hold A Fair a Fair Hearing, Remand to Hearing, Consider Abuse of Discretion P&Z Board Issues ff �J Vi_ If Board Abused Its Discretion (no If Board Did Not Abuse its Discretion, competent evidence in the record to Consider Interpretation/Application of Law support decision), Uphold Appeal (Should Board's Decision be Upheld, Overturned or Modified?)