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HomeMy WebLinkAboutPINECONE PUD FORT COLLINS HIGH SCHOOL SITE PLAN ADVISORY REVIEW - 60 91B - LEGAL DOCS - LEGAL COMMUNICATIONN City At.omey Citv of Fort Collins CONFIDENTIAL M E M O R A N D U M DATE: February 27, 1992 TO: Mayor and City Councilmembers FROM: Steve Roy, City Attorney W. Paul Eckman, Deputy City Attorney RE: New Fort Collins High School ISSUES: 1. What review processes are provided by state statute for the review of proposed school sites and which ones will be utilized by the School District? 2. What, if any, role might the City Council play in the review of the proposed Fort Collins High School site? 3. Can the City impose any conditions upon the development of the site? POTENTIAL RISKS/CONSEQUENCES: On the one hand, the construction of the school could possibly be enjoined by court order if proper public review procedures had not been followed. On the other hand, if the City raised obstacles to the construction of the school which were legally impermissible, the City could be liable to the School District for any damage incurred because of an unwarranted delay in construction. CONCLUSIONS/RECOMMENDATIONS: 1. There are three separate processes under the state statutes which the School District could attempt to utilize in seeking City review of its proposed development plan. Ultimately, none of these procedures would enable the City to overturn a decision of the Board of Education and prevent the School District from constructing the new high school at the site chosen by the School District. 2. Under the relevant state statutes, the City Council would play no role in reviewing the proposed school site. Under the City Code, however, the decision of the Planning and Zoning Board 300 LaPorte Aenue • P. O. But 380 • Fort Collins. CO 80322-0380 • (303) 2'_1-63'_0 Mayor and City Councilmembers February 27, 1992 Page 2 regarding the proposed development of the site would be appealable to the City Council, even though it is not ultimately binding upon the School District. Because this matter is one of mixed state and local concern, the provisions of the City Code should be read as supplementing the relevant state statutes. Therefore, the appeal procedures established by the Code should be given effect and followed. 3. None of the statutory review procedures afford the City an opportunity to impose conditions upon the development of the school site over the objection of the School District. It is possible, however, that there are other ways in which the City could legally require the School District to comply with certain City requirements related to the construction of infrastructure and/or the City's review of the development proposal. Because the City's ability to impose such conditions is uncertain under the law, it is helpful that the parties are attempting to negotiate an intergovernmental agreement to define their respective roles and obligations. ANALYSIS: The purpose of this memorandum is to advise Council of the various review processes (which involve the City) that could be utilized by the School District in the development of the new Fort Collins High School ("the High School"). It will also address the review processes which the School District actually intends to follow and the level of involvement that the City Council may have in any of these processes. STATUTORY REVIEW PROCESSES There are three statutory processes available to the School District in a project such as the High School: 1. The School District could utilize Section 31- 23-301(1), C.R.S. and seek a decision from the Zoning Board of Appeals that the "present or proposed situation of [the High School] is reasonably necessary for the convenience or welfare of the public." If the Zoning Board of Appeals should determine that the High School is reasonably necessary for the convenience or welfare of the public, then, based upon that statute alone, the School District could ignore the City's zoning regulations. Mayor and City Councilmembers February 27, 1992 Page 3 2. Another statute which gives the School District the ability to circumvent almost all of the City's zoning regulations is a statute enacted as a part of the education section of the statutes which pertains to the acquisition of land for school purposes and the construction of buildings or structures by school districts. This statute is found at Section 22-32-124(1), C.R.S, and requires the board of education to submit a site development plan for "review and comment" to the planning and zoning board prior to construction of any structure or building. However, this statute also provides that the review and comment rights of the municipality shall not be construed to limit the authority of the board of education to "finally determine the location of public schools within the district and erect necessary buildings and structures." The only remedy that the City has under this statute is the right to require the School District to hold a public hearing relating to the proposed site location or site development plan. 3. There is one final statutory provision that would apply to the construction of the High School found at Section 31-23-209, C.R.S., which states that when the Planning and Zoning Board: . has adopted the master plan of the municipality. . . no. . . public building or structure. . . shall be constructed or authorized in the municipality. . . until the location, character and extent thereof has been submitted for approval by the (Planning and Zoning Board]. Under Section 31-23-209, if the City disapproves the plan for the High School, it may require the School Board to overrule such disapproval by recorded vote of not less than two-thirds of its entire membership. Of the above processes, it is my understanding that the School District does not plan to utilize Section 31-23-301(1), C.R.S., by seeking a decision of the Zoning Board of Appeals that the school building is reasonably necessary for the convenience or welfare of the public. The School District does intend to submit the plan to Mayor and City Councilmembers February 27, 1992 Page 4 the Planning and Zoning Board for its review and comment under Section 22-32-124, C.R.S., and for its "approval" under Section 31- 23-209, C.R.S. Therefore, all of the public hearings at the City level will begin with the Planning and Zoning Board and not the Zoning Board of Appeals. COUNCIL INVOLVEMENT It is possible that Council could become involved in the school site review process since, under the City Code, any "final decision" of the Planning and Zoning Board (even an advisory one) is appealable to the Council. Section 2-46 of the Code defines the term "final decision" to mean "the action of a board or commission by vote of a majority of its members when no further rehearing is available before such board or commission." Section 2-48 of the Code further provides that any "party -in -interest" may appeal to the City Council any such "final decision." Admittedly, the internal appeal process authorized by the Code is not provided for in the state statutes referenced above. But, unless the subject matter in question is one of exclusively statewide concern, any provisions of the City Code which 12R21ement those established by state statute must be given effect. It seems apparent that the establishment of procedures for reviewing proposed school sites is a matter of both local and state interest. In such matters of mixed concern, a home rule municipality does not have a superseding authority, but it does have a supplemental authority which permits its ordinances to coexist with the provisions of the state statute, so long as they are not in conflict. Vick v. People, 445 P.2d 220 (Colo. 1968), cert denied 394 U.S. 945 (Colo. 1969). We do not believe that a provision permitting an internal appeal from the Planning and Zoning Board to the City Council conflicts with the provisions of any of the foregoing statutes. As indicated above, we view this internal appeal process as supplementing the procedure described in the statutes. Therefore, the appeal provisions of the Code should be followed and an appeal permitted if a timely notice of appeal is filed by any party -in -interest. CITY'S ABILITY TO IMPOSE CONDITIONS Councilmember Horak inquired as to the City's ability to impose binding conditions upon the School District, either as a part of the review processes above outlined or through any other mechanism. As far as the above -outlined land use review processes are concerned, the City's only remedy is to require a hearing before the School Board, in which event the School Board can overrule the Planning and Zoning Board by a two-thirds vote. Therefore, no conditions could be made binding upon the School District if it decided to overturn the decision of the Planning and Zoning Board Mayor and City Councilmembers February 27, 1992 Page 5 (and the Council if an appeal should occur). However, there may be other mechanisms whereby the City could bind the School District, as, for example, with respect to street construction. If the City were to construct a street adjacent to School District property which could be shown to have conferred a special benefit upon the School District, then the City may be able to collect sufficient funds from the School District to reimburse the City for its proportionate costs in constructing the street. Even though an "assessment" procedure would, most likely, not be available, there may be other procedures whereby the City could collect the money from the School District for such beneficial capital construction, and there have been cases that support that type of collection effort. Furthermore, although the School District is possessed of significant statutory protection regarding the construction and location of school buildings, an argument might be made under the logic of Metro Denver Sewage v. Commerce City, 745 P.2d 1041 (Colo. App. 1987), that the School District must obtain a building permit from the City and pay any fees incident thereto that are intended to reimburse the City for its costs in exercising its police power regulations. In summary, the City's ability to impose conditions upon the development of school sites is uncertain under the law. As you know, the City and the School District have been meeting regularly to try to arrive at an intergovernmental agreement which would clarify the respective roles and obligations of the parties with regard to the development of new school sites, the payment of fees, the construction of infrastructure, etc. Such an agreement would certainly be helpful from a legal standpoint, and our office will be meeting tomorrow with the attorney for the School District to discuss a draft of such an agreement. SJR:WPE:whm