2010 DRCOG Planning Commission Workshop. August 7, A. Colorado Revised Statutes: C.R.S and , et seq.

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1 2010 DRCOG Planning Commission Workshop August 7, 2010 Gerald E. Dahl Murray Dahl Kuechenmeister & Renaud LLP I. THE ROLE OF THE PLANNING COMMISSION A. Colorado Revised Statutes: C.R.S and , et seq. 1. Prepare and submit to the Council/BOCC a comprehensive or master plan 2. Review of the matters assigned by local land use code B. Appointed by Council/BOCC Relevant to your appointment: (i) do you have the time for this assignment? (ii) are you able to set aside your personal views when acting on land use applications? C. Scope of Review of Development Applications 1. The applicant is in charge of its application, not the Commission. 2. The Commission must stay within the limits of the Code and comprehensive plan. 3. As an appointed rather than an elected body, social, financial and political issues are not relevant to the Commission s review. II. STANDARD LAND USE REGULATORY TOOLS A. Planning 1. Local officials are delegated authority to plan by statute, local charter and ordinance. The Planning Commission develops and recommends the plan; in counties, the Commission s adoption is final; in municipalities the Council/Board of Trustees acts on the plan sent to it by the Commission. 2. The comprehensive plan is not regulatory: Theobald v. Summit County (1982) unless adopted as a regulation BOCC v. Conder, 927 P.2d 1339 (Colo. 1997).

2 3. It is common, however, for the local land use code to require development applications to be consistent with the comprehensive plan. 4. Three mile plan (C.R.S (1)(e): a precondition to annexation by municipalities; must be updated annually and is commonly a chapter or division of the comprehensive plan. B. Zoning 1. Traditional zoning by district: uses by right, conditional or special review, and prohibited uses. 2. Standard tests for eligibility of a property for rezoning: (1) error in the original zoning ordinance; (2) to bring the property into conformance with the comprehensive plan, or (3) "changed conditions." 3. Local land use code may include other criteria. C. Subdivision Controls and Site Plan 1. Allows the local government a role in designing the project. 2. Lot and street layout. 3. Utilities. 4. Dedication requirements; security for public improvements. 5. Reynolds v. Longmont (1984): subdivision plat must be approved if in compliance with zoning and subdivision regulations. D. Planned Unit Development 1. More flexible: allows a combination of residential and commercial uses. 2. Combines aspects of district zoning and subdivision review. 3. Creates a mini-zoning district with its own design standards. 4. Eliminates need for variances. 2

3 E. Conditional or Special Uses 1. Allows uses which may be compatible with adjacent properties, but require case-by-case review. 2. Standard Criteria for Review: a. proposed use complies with all requirements of the Code b. proposed use is in conformance with the comprehensive plan c. proposed use is compatible with adjacent uses [conditions of approval may be imposed to achieve this] d. suitability of location e. history of compliance by applicant f. ability to meet conditions imposed F. Exactions and conditions 1. The local government must have the delegated authority (in statute) to impose. Cherry Hills Resort Development Co. v. Cherry Hills Village (1990). 2. Beaver Meadows v. Larimer County (1985) a. BOCC requires mitigation of off-site road impacts and emergency services as conditions of approval. b. Court holds that a specific delegation of authority is required and present in statute, but not County regulations. c. Regulations at issue not specific enough. 3. Reasonable relationship to legitimate government interest required (Nollan v. California Coastal Commission, 483 US 825 (1987) 4. Exaction must be roughly proportional to impact. Dolan v. City of Tigard, U.S.(1994); C.R.S C.R.S Conditions on land-use approvals. (1) In imposing conditions upon the granting of land-use approvals, no local government shall require an owner of 3

4 private property to dedicate real property to the public, or pay money or provide services to a public entity in an amount that is determined on an individual and discretionary basis, unless there is an essential nexus between the dedication or payment and a legitimate local government interest, and the dedication or payment is roughly proportional both in nature and extent to the impact of the proposed use or development of such property. This section shall not apply to any legislatively formulated assessment, fee, or charge that is imposed on a broad class of property owners by a local government. (2) No local government shall impose any discretionary condition upon a land-use approval unless the condition is based upon duly adopted standards that are sufficiently specific to ensure that the condition is imposed in a rational and consistent manner. 6. Must meet due process standards. Since most conditions and exactions are imposed on site-specific approvals or rezonings, the standard is that for quasi-judicial actions (notice; opportunity to be heard and to rebut evidence; no ex-parte contact between applicant and the commission). 7. Commonly imposed conditions: building height, parking, access improvements on site, sound and view impact mitigation, evidence of financial capability, landscaping/paving, utilities, snow storage/drainage. 8. Commonly imposed exactions: impact fees, park and school dedications, recreational facilities, street improvements off site. 9. Distinguished from impact fees under C.R.S ; fees are legislatively adopted and applicable to a broad class of properties; exactions and conditions are project-specific. 4

5 III. QUASI-JUDICIAL ACTIONS AND EX PARTE CONTACTS A. Amendments to the zoning map (rezoning), conditional and special use permits, subdivisions, PUD s site plans and variances are "quasi-judicial," while the original zoning map itself is legislative. This distinction affects the procedure by which the action is taken as well as the method for challenging it. Legislative action is usually reflective of some public policy relating to matters of a permanent or general character, is not normally restricted to identifiable persons or groups, and is usually prospective in nature. Quasi-judicial action, on the other hand, generally involves a determination of the rights, duties, or obligations of specific individuals on the basis of the application of presently existing legal standards or policy considerations to past or present facts developed at a hearing conducted for the purpose of resolving the particular interests in question. Cherry Hills Dev. Co. v. Cherry Hills Village (1988). B. The consequences of the fact that an action is quasi-judicial are several: 1. Notice and hearing required. 2. Right to present witnesses and evidence. 3. Right to cross-examination? Yes, but grant only if requested. 4. Right to legal argument. 5. No ex-parte contacts allowed. 6. Rules of evidence: informal. C. Ex-Parte Contacts 1. Defined: contacts between the applicant or opponents and the members of the public body outside of publicly scheduled hearings and meetings on the application after it has been filed with the local government. 2. Why should these contacts be avoided? The consequence of engaging in them can be as severe as invalidating the final action of the Council/BOCC or Commission. 5

6 3. How can ex-parte contacts be avoided? Once approached or called by the applicant or opponent and the matter is identified, immediately advise that it is improper for you to talk about the case outside of the hearing room. Urge them to bring their points of view and testimony to the hearing. 4. The prohibition extends to written materials and s: Make sure any materials you receive from applicants, opponents, or interested parties outside of the hearing room are given to staff to be copied and shared with everyone at the time of hearing. 5. What to do if an ex-parte contact has occurred: Disclose the contact at the beginning of the hearing; describe its content as completely as possible. In an extreme case, you may be required to step down and not further participate. 6. Site visits: Appropriate if you avoid any contact with either side at the site. Even "informational" contact at the site is still an ex-parte contact. 7. Contact with staff: Permitted, so long as staff is not used as a "human telephone" with which to communicate with the applicant or opponents. IV. PERENNIAL ISSUES A. Vested property rights 1. When the right to build the project "vests" such that the government may not prevent its completion. 2. By common law, building permit issuance, combined with the owner s reliance, usually in the form of commencing the project. 3. By statute: C.R.S , et seq (4)(a) and (b): (4) (a) "Site specific development plan" means a plan that has been submitted to a local government by a landowner or such landowner's representative describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property. Such plan may be in the form of, but need not be limited to, any of the following plans or approvals: A planned unit development plan, a subdivision plat, a specially planned area, a planned building group, a 6

7 general submission plan, a preliminary or general development plan, a conditional or special use plan, a development agreement, or any other land use approval designation as may be utilized by a local government. What constitutes a site specific development plan under this article that would trigger a vested property right shall be finally determined by the local government either pursuant to ordinance or regulation or upon an agreement entered into by the local government and the landowner, and the document that triggers such vesting shall be so identified at the time of its approval. (b) "Site specific development plan" shall not include a variance, a preliminary plan as defined in section (6), C.R.S. or any of the following: (I) A sketch plan as defined in section (8), C.R.S.; (II) A final architectural plan; (III) Public utility filings; or (IV) Final construction drawings and related documents specifying materials and methods for construction of improvements. 4. By local ordinance or resolution as permitted by C.R.S (4)(a): Example Code provision: For all developments, the final approval step, irrespective of its title, which occurs prior to building permit. B. Regulatory Takings: the outside limit of permitted regulation 1. No right to the "highest and best use of property; only a reasonable use." 2. Denver v. Chuck Ruwart Chevrolet, (Colo.App. 1973); Nopro v. Cherry Hills Village, (Colo. 1972); Art Neon v. Denver, (10 th Cir. 1973) [sign code]. 3. The regulatory takings line of cases is not new, but the point at which a land use regulation will be declared a taking continues to be refined, as does the measure of damages. 7

8 V. ROLES AND RESPONSIBILITIES A. The Chair 1. The Chair is the role model for the Commission. 2. Acts affirmatively to control behavior. 3. Sticks to the agenda, and to the topic for action. 4. Focuses discussion. 5. Reminds Commission members of the time 6. Expedites discussion and action (example: "I'll entertain a motion on that.") 7. Knows the art of suggesting when the time is right to act 8. As a participant in meeting rather than as the chair, you have the opportunity to exercise some of the same leadership roles. B. Taking Testimony 1. Impact of elected and appointed officials role as volunteer public servants (often the only officials of the local government that citizens meet or deal with) 2. Importance of courtesy and demeanor. 3. Goal: That attendees leave the hearing feeling that it was fair and that their views were heard and appreciated. a. Explain the rules for the hearing at the outset. b. Suggest speakers don't repeat prior testimony if they can state they agree with an earlier speaker, but be ready to listen in any event. c. Make sure that all attendees at the public hearing know they have the right to speak. d. Actually listen to each speaker. e. Thank all the speakers for appearing. 8

9 C. Admissibility and Weight of Evidence: 1. Relaxed rules of evidence: admissible unless clearly off the subject. 2. It is appropriate for the Commission to consider the weight and credibility of testimony. 3. Hearsay is admissible: "I heard J. Dahl say that..." [Where J. Dahl is not present and cannot be cross-examined], but it is appropriate to give it less weight. 4. Consider all the testimony and evidence. (You were appointed for your ability to think; don't let the number of people for or against the application determine your decision.) D. Executive Sessions 1. Unless set aside by a local home rule municipal charter or ordinance, the state statute, C.R.S (4), controls. 2. Two thirds vote of quorum present required to convene an executive session. 3. Executive session may only take place within a regular or special meeting of the Commission. 4. Permissible topics (as relevant to work of the Commission): a. Legal advice b. Instruct negotiators c. Personnel matters (not to include discussion concerning any member of the Commission or an elected official) 5. No formal votes may be taken in executive session, neither may the Commission use an executive session to deliberate on an application or other matter before it. V. TAKING ACTION AND SURVIVING JUDICIAL REVIEW A. Importance of findings and reasons for approval: 1. Compare the evidence against the standards in the Code. Summarize the evidence and relate the evidence relied upon to satisfy those standards. 9

10 2. Options for action: (1) motion to approve, with or without conditions; 2) motion to deny; (3) continue for further action at a future date certain. 3. Conditional Approval: The Commission has the authority to recommend conditions as a part of its action. Conditions should be reasonable, should relate to the impact of the project and be based on the Code. 4. Written Findings: The best way to survive an appeal. Draft your own Use the staff report Direct the attorney/staff to draft for approval at the next meeting 5. State your conclusions, conditions and amendments in the motion taking action. B. Amendments to motions: 1. Must be germane to the motion. 2. Are a good way to add one or a series of conditions. C. Failed motions; tied motions: 1. Failed and tied motion(s) mean no recommendation. 2. If approval motion fails, someone on the prevailing side should immediately move to recommend denial, unless your local code says failure to approve equals denial. D. Stick to the request before you 1. Apply the same standards of relevance you would want to see in public testimony. 2. If it is a site plan application, don t question the use. If it is a rezoning case, don t engage in site planning. 3. Applicant is in charge of its application; not the commission. If the request is for rezoning to C-1; that is what you vote on. (Exception: variances.) 10

11 E. HOA covenants, guidelines and declarations are not adopted or enforced by local governments. F. Surviving Judicial Review 1. Substantially improved chances if there is a preponderance of the evidence in the record on each of the required elements, and if that evidence is summarized in written findings. 2. Generally, the courts will not substitute their judgment for yours unless you have clearly abused your discretion. 3. Common reasons you can lose: a. ex-parte contacts b. notice or hearing defects c. conditions or decision not based on the Code VI. ETHICS AND CONFLICTS OF INTEREST A. Local Code & Statutory Requirements 1. Typical county/municipal code provision: "No officer or employee shall have a substantial financial or personal interest, direct or indirect, in any transaction with any department, the Council/BOCC or any Commission over which he or she has the power to take or influence official action." No member of the Council/BOCC or any Commission or commission shall officially participate or vote on any issue in which the member or a member of the Council/BOCC members' immediate family has a substantial financial or personal interest, or on any issue concerning his or her own conduct. 2. Colorado Revised Statutes , et. seq., contains very detailed requirements. B. What to Remember 1. What is a prohibited conflict of interest? 2. What is the "appearance of impropriety?" 11

12 3. What must you do about a conflict of interest? [Disclose; step down; don't vote] C. What is a prohibited conflict of interest? Some examples: 1. Are you in a business which sells materials or supplies to the applicant or to the local government? 2. Do you have a financial interest in the land or the applicant who is applying for a land use approval? 3. Do you provide services or materials to someone who has a contract with the applicant or the local government? 4. Are you the applicant for land use approval? [Note: Most of these examples have in common some financial transaction between the public official and the government, or between the public official and the private party who is applying for a governmental approval.] D. Appearance of Impropriety Difference between prohibited conflict of interest (generally financial), and "appearance of impropriety" (not prohibited, but puts you and/or the local government in a bad light). E. Safe Harbors: What isn't a "personal or private interest"? 1. Parking variance for church of which you are a member. [Example: Town of Minturn case]. 2. Member is related by blood or marriage to applicant, but has no financial connection or potential of experiencing financial gain or loss. 3. Member is next door neighbor of applicant. 4. Member and applicant are friends, go to the same church, are members of the same club, play golf together, like each other or hate each other. Note: These fact patterns all lack potential of personal financial gain or loss. 12

13 F. What to Do if You Have a Conflict 1. Consult the county / municipal attorney before the meeting. 2. Disclose the conflict before the item is discussed. 3. Step down. 4. Don t vote or otherwise participate. 13