PZC Packet 03-17-2009 (2)»ice'//
AVON
C O L 0 R A D 0
WORK SESSION (5:00pm — 6:00pm)
Town of Avon Planning & Zoning Commission
Meeting Agenda for March 17, 2009
Avon Town Council Chambers
Meetings are open to the public
Avon Municipal Building / One Lake Street
Discussion of Regular Meeting agenda items. Open to the public.
REGULAR MEETING (6:00pm)
Call to Order
11. Roll Call
III. Additions and Amendments to the Agenda
IV. Conflicts of Interest
V. Consent Agenda
• Approval of the March 3, 2009 Meeting Minutes
DESIGN REVIEW
VI. Minor Project
Property Location: Lot 64, Block 3, Wildridge / 4271 Wildridge Road West
Applicant. /Owner. Kyla Marsh
Description: The applicant is proposing to modify an existing structure by adding livable space
above the existing garage. The addition will utilize similar windows to the existing structure as
well as stucco as an exterior building material. The stucco will match the existing home's
color.
VII. Sketch Review
Horton Residence
Property Location: Lot 59, Block 3, Wildridge / 4340 June Point
Applicant: Millie Aldrich, Pure Design Studio / Owner Norma Horton
Description: The applicant is proposing to demolish the existing residence on the subject
property and replace it with a 5,100 square foot home. The proposed two story residence will
utilize concrete, stucco, and stone on the exterior walls and will have a standing seam metal
roof.
ZONING
VIII. PUD Amendment— CONTINUED PUBLIC HEARING
Property Location: Lots 1, 2, and 3, Wildwood Resort / Buck Creek Road
Applicant: Brian Sipes, Zehren & Associations /Owner. Oscar Tang
Posted on March 13, 2009 at the following public places within the Town of Avon:
• Avon Municipal Building, main lobby
• Avon Recreation Center, main lobby
• Alpine Bank, main lobby
• Avon Public Library
• On the Internet at httD://www.avon.oro / Please call (970) 748.4030 for directions
Description: The applicant is proposing to amend the existing Wildwood Resort PUD Plan and
Guide documents; and to further subdivide the existing Wildwood Subdivision, Lots 1, 2, and
3, into a total of six (6) lots and two tracts. The proposed is planned to allow for new land
uses, including but not limited to: fire station hub with separate administration building, 42
townhome units, Montessori school with office space, and natural science school campus with
employee housing. There is a corresponding Preliminary Subdivision application that is
tracking concurrently with this zoning application.
IX. Other Business
X. Adjourn
Posted on March 13, 2009 at the following public places within the Town of Avon
• Avon Municipal Building, main lobby
• Avon Recreation Center, main lobby
• Alpine Bank, main lobby
• Avon Public Library
• On the Internet at htto://www.avon.ora / Please call (970) 748.4030 for directions
V0 �
C O L O R A D O
WORK SESSION (5:OOpm — 5:30pm)
Town of Avon Planning & Zoning Commission
Draft Meeting Minutes for March 3, 2009
Avon Town Council Chambers
Meetings are open to the public
Avon Municipal Building / One Lake Street
Discussion of Regular Meeting agenda items. Open to the public.
REGULAR MEETING (5:30pm)
Call to Order
The meeting was called to order at approximately 5:35 pm
it. Roll Call
All Commissioners were present with the exception of Commissioner Evans
III. Additions and Amendments to the Agenda
There were no amendments
IV. Conflicts of Interest
Commissioner Lane stated that he had a Conflict of Interest on Item VII., PUD Amendment,
Lots 1, 2 & 3, Wildwood Resort
V. Consent Agenda
• Approval of the February 17, 2009 Meeting Minutes
Action: Commissioner Struve moved to approve the Consent Agenda. Commissioner Roubos
seconded the motion. It was approved 5-0 with Commissioner Lane abstaining.
VI. Minor Project
Property Location: Lot 64, Block 3, Wildridge / 4271 Wildridge Road West
Applicant.-/ Owner Kyla Marsh
Description: The applicant is proposing to modify an existing structure by adding livable space
above the existing garage. The addition will utilize similar windows to the existing structure as
well as stucco as an exterior building material. The stucco will match the existing home's
color. The addition will have a pitched roof with asphalt shingles.
Discussion: Jared Barnes presented Staffs report.
Kyla Marsh, owner, gave a brief overview of her proposal.
Commissioner Struve asked the applicant what the materials under the gable on the north and
south elevations are proposed to be. Kyla responded that the wood siding would match the
existing residence.
Commissioner Lane commented that some key use of siding would enhance the architecture.
He agrees with staff.
Commissioner Prince agreed with Staff and commented that the asphalt shingles should
match the tiled roofs.
Commissioner Roubos commented that three roofing materials are not acceptable and she
would prefer that the tile roofing be replaced with shingles.
Commissioner Struve agreed with the comments made about the roofing materials and the
greater architectural interest.
Commissioner Goulding commented that the gabled addition does not appear to match the
design of the home.
Commissioner Struve asked about the height calculations for an addition versus a new home.
Jared Barnes responded that the calculation would be done in the same manner for both.
Commissioner Green stated that the gabled roof does not appear to be compatible with the
architecture. He also had comments on the windows and how they appeared to match the
existing structure.
Action: Commissioner Goulding moved to table the application. Commissioner Prince
seconded the motion and it passed 7-0.
VII. PUD Amendment — CONTINUED PUBLIC HEARING
Property Location: Lots 1, 2, and 3, Wildwood Resort / Buck Creek Road
Applicant: Brian Sipes, Zehren & Associations /Owner. Oscar Tang
Description: The applicant is proposing to amend the existing Wildwood Resort PUD Plan and
Guide documents; and to further subdivide the existing Wildwood Subdivision, Lots 1, 2, and
3, into a total of six (6) lots and two tracts. The proposed is planned to allow for new land
uses, including but not limited to: fire station hub with separate administration building, 42
townhome units, Montessori school with office space, and natural science school campus with
employee housing. There is a corresponding Preliminary Subdivision application that is
tracking concurrently with this zoning application.
Discussion: Matt Gennett presented Staffs Report. He highlighted the site layout, the
proposed uses on each new lot, and the similarities between the proposed development
standards and certain Town Zoning districts.
Commissioner Roubos questioned the need for setbacks and what the ramifications are for
encroachments. Matt Gennett stated that the stream setback is a town standard and its intent
is to avoid degradation of live streams and other such natural waterways.
Commissioner Green also questioned the potential disagreement with the Planning and
Zoning Commission approving an encroachment that is not acceptable to the Department of
Wildlife. Matt Gannett stated that are not any foreseeable legal issues with the results of a
Planning and Zoning Commission's decision.
Commissioner Green asked why there was no development agreement presented with this
application. Eric Heidemann responded that no development agreement has been drafted yet
because the application has not received any formal recommendation from the Commission
and a development agreement may not be required.
Dave Kaslek, Zehren Associates, presented the public benefits of the project. He highlighted
the vast reduction of development rights from those currently in place, the new location for the:
fire station, a school location, reducing the affordable housing requirements, capping the gross
home size to 2,700 square feet, and providing the extra water rights for the Town of Avon's
future use.
Dave Kaslek commented on the future round -a -bout and restated that this proposal does not
create the need for a round -a -bout. He also stated that the project intended to house 50% of
the generated housing demand by providing, attainable housing on Lot 3 and employee
housing for the teachers working at both schools.
Dave Kaslek stated that all of the building heights were lowered by at least 2 feet and in some
cases 5 feet.
Commissioner Roubos questioned the potential round -a -bout at Buck Creek Road. Justin
Hildreth stated that there was a planned round -a -bout, but due to the lower development on
this site there is no longer a need for a round -a -bout there. He did state that there will be a
round -a -bout at Swift Gulch Road.
Dave Kaslek presented the details on the two proposed encroachments into the stream
setback.
Commissioner Roubos asked why the Science School would want to encroach into the
setback. Markian Feduschak, on behalf of the Gore Range Natural Science School (GRNSS)
responded that the setback is a political setback not an ecological setback. He stated that the
buildings would have an impact, but the encroachment would have no greater impact than the
general buildings placement.
The Public Hearing was opened.
Brian Woodell, representing the owners of the Golden Eagle site, questioned the impact of the
round -a -bout on the property to the south of this proposed PUD site. Justin Hildreth confirmed
there would likely be an impact, but that any future, potential impacts are not directly related
this application.
The public hearing was closed.
Commissioner Roubos questioned the phasing for the PUD. Dave Kaslek stated that the
project would start on either the north sidel or the south side of the proposed site. He said that
there are fundraising efforts for both the Fire Station site and the GRNSS. Commissioner
Roubos asked when the townhomes would be constructed. Dave responded that there is no
set date for the townhouse construction.
Markian Feduschak stated that the Gore Range Natural Science School planned to have
minimimal construction necessary for a successful campus.
Chief Moore stated that the Fire Station is working on the financing for the building. He stated
that the two buildings would most likely be built at the same time due to finances.
Commissioner Roubos stated she thinks the application is great and much better than what is
presently allowed under the current (Wildwood Resort SPA) zoning.
Commissioner Prince agreed with Commissioner Roubos and appreciated the new proposal
and how the encroachments were explained.
Commissioner Struve stated that the application is well done and likewise appreciated the
addressing of the comments made by the Commission at the previous meeting.
Commissioner Goulding revisited his concerns from the previous meeting and commented on
the changes made to address his concerns. He feels that the height was successfully
addressed, but has concerns with the housing. He stated the attainable housing generated
was planned to be mitigated with market rate housing and the attainable housing. Dave
Kaslek responded that the applicant was not able to propose anything to ensure that the
housing was available for locals.
Commissioner Goulding stated that there is a need for a high level of landscaping to help
mitigate the hard-scaped areas and development. He also questioned the traffic study and the
agreement of the Town. Justin Hildreth stated that he did agree with the results of the study
and it was reviewed by a third party analyst who is also in agreement.
Commissioner Goulding also commented on the phasing and the future construction appears
to be designed as independent modules. He also commented on the setback encroachments.
He stated that any other use would not even be up for debate, so essentially the use is driving
the variance. He stated that he wants the PUD to limit the site disturbance so that the town
can ensure future development will not negatively affect the stream.
Commissioner Goulding also stated that the PUD does not dictate the future architecture, but
he wanted to comment that he expects a high level of architecture. He also wanted to know
what the vesting on the property would be.
Commissioner Green also commented on the construction of the buildings in the setbacks. He
felt that it could be achieved with mature landscaping. He also questioned the AMI target
range for the proposed townhouses. He commented that he was unsure how the PUD
connected to the ECO trails system. He also wanted to ensure that the renderings provided
are the minimum architectural standards for future development. He stated that he wants the
sustainable design and construction on the Science School site carried through the entire
PUD.
Commissioner Goulding questioned the possible future vacancy of the buildings that encroach
into the stream setback and how this might be handled.
Commissioner Green stated that he felt a tabling would be beneficial to help button up the
remaining stated issues with the PUD proposal.
Commissioner Struve agreed that the proposal is not quite there yet.
Action: Commissioner Struve moved to table the application and Commissioner Goulding
seconded the motion. The motion passed with a 5-0-1 (Lane recused) vote.
VIII. Other Business
• Future Training
• Lot 61 Sale
IX. Adjourn
The meeting was adjourned at approximately 7:40.
Staff Report Ic-- ' 7/
MINOR MODIFICATION AVON
C O L O R A D O
March 17, 2009 Planning & Zoning Commission meeting
Report date: March 13, 2009
Project type: Addition
Legal description: Lot 64, Block 3, Wildridge Subdivision
Zoning: PUD — 2 Units
Address: 4271 Wildridge Road West
Introduction
The applicant, Kyla Marsh, is proposing an addition to a single-family residence along
Wildridge Road West in the Wildridge Subdivision. The proposed modification would
add livable space on top of the existing garage. The proposed addition design utilizes
stucco and wood siding on the exterior walls, and windows that plan to match the
existing structure.
The application has been modified since the Commission's first review on March 3,
2009. The modifications include but are not limited to: Removal of the new pitched roof
and its replacement with a flat roof, inclusion of a belly band, and the modifications of
window sizes and locations.
Attached to this report are a Vicinity Map (Exhibit A), pictures of the existing structure
(Exhibit B) and a reduced plan set (Exhibit C) containing existing/proposed floor plans
and elevations.
Design Review Considerations
According to the Town of Avon Residential. Commercial. and Industrial Desion Review
Guidelines, Section 7, the Commission shall consider the following items when
reviewing the design of this project:
1. The conformance with setbacks, massing, access, land use and other
provisions of the Town of Avon Zonina Code.
• Allowed use: The proposed residential use is permitted given the duplex zoning.
• Density. The lot is zoned for a duplex, and the property retains the potential to
convert into a two -unit building in the future.
• Lot Coverage: Since the project is not increasing the site coverage, the home
and this proposal are in compliance as determined during the previous reviews
for this property.
Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749
Lot 64, Block 3, Wildridge Subdivision — Marsh Addition
March 17, 2009 Planning & Zoning Commission meeting Page 2 of 4
• Setbacks: The application is in conformance with the prescribed setbacks. The
setbacks for the property are typical for Wildridge with a twenty-five (25') foot
front yard setback, and ten (10') foot side and rear yard building setbacks.
• Easements: This property contains typical Utility, Slope Maintenance, Drainage
and Snow Storage Easements. This application does not impede these
easements.
• Building Height The proposed modifications will increase the maximum height of
the structure to thirty-four feet and eight and one quarter inches (34'-8.25"). This
is under the maximum height of thirty-five feet (35') and complies with zoning.
An improvement location certificate (ILC) would be required at framing to confirm
compliance with this zoning standard. '
• Grading/Drainage: There are no modifications to the existing grading and
drainage for this property.
• Parking: This project requires three (3) spaces for the proposed single-family
residence (three (3) per unit over 2,500 sq. ft). The applicant has provided a total
of two (2) interior and at least one (1) fully functional exterior space.
2. The general conformance with Goals and Policies of the Town of Avon
Comorehensive Plan, and any sub -area plan which pertains.
The project complies with the Town of Avon Comprehensive Plan.
3. Whether adequate development rights exist for the proposed improvements.
Adequate development rights exist for the property.
4. The Final Design plan is in general conformance with Sub -Sections A through
D of the Residential. Commercial, and Industrial Design Guidelines.
A. Site Development:
o Site Design: This application complies with this subsection of the Design
Guidelines due to the application not affecting the site design. The extent
of the modifications are to the exterior of the building and overall height of
the property.
o Site Access: Access to the site is provided with an existing driveway from
Wildridge Road West. There are no planned modifications to the
driveway.
o Parking and Loading: Adequate parking and turnaround currently exist on
the property.
o Site Grading: There are no proposed modifications to the existing grading
on the site.
o Snow Removal and Storage: There currently exists ample snow storage
area on the site.
Town of Avon Community Development (970) 74114030 Fax (970) 949-5749
Lot 64, Block 3, Wildridge Subdivision — Marsh Addition
March 17, 2009 Planning & Zoning Commission meeting
B. Building Design:
Page 3of4 RuuH
o -Building Materials and Colors: The proposed materials and colors appear
to comply with the Design Guidelines and match the existing structure.
The applicant is proposing to utilize stucco on the entire exterior of the
addition. The stucco will match the existing stucco, in both its color and
application, on the residence. The applicant also plans on matching the
window sizes, types, and colors to the existing residence.
o Exterior Walls, Roofs, and Architectural Interest. As proposed, the wall
colors and materials should be compatible with the site and the
surrounding buildings. The architecture of the addition will also match the
existing structure as well as the surrounding properties. The proposed
design does meet the requirements of the Design Guidelines and is
compatible with the surrounding neighborhood.
o Outdoor Lighting: No new exterior lighting is proposed with this
application.
C. Landscaping:
o Design Character. There are no modifications to the existing landscaping
nor will any of the existing landscaping be damaged.
o Irrigation/Watering: There will be no modifications to the existing irrigation
plan.
o Retaining Walls: Not applicable.
5. The compatibility of proposed improvements with site topography, to
minimize site disturbance, orient with slope, step building with slope, and
minimize benching or other significant alteration of existing topography.
The design and building are compatible with the site topography. The proposed
modifications do not affect the existing vegetation.
6. The appearance of proposed improvements as viewed from adjacent and
neighboring properties and public ways, with respect to architectural style,
massing, height, orientation to street, quality of materials, and colors.
While the building massing is altered with this proposal, the appearance of these
improvements should not have any negative impact as viewed from neighboring
properties or from the public way.
7. The objective that no improvement be so similar or dissimilar to others in the
vicinity that monetary or aesthetic values will be impaired.
No monetary or aesthetic values will be impaired with this construction.
8. The general conformance of the proposed improvements with the adopted
Goalsi Policies and Programs for the Town of Avon.
The project is in general conformance with the Town's adopted goals and policies
and is a use by right pursuant to the Wildridge Subdivision.
Town of Avon Community Development (970) 748.4030 Fax (970) 949-5749
Lot 64, Block 3, Wildridge Subdivision — Marsh Addition
March 17, 2009 Planning & Zoning Commission meeting
Staff Recommendation
Page 4 of 4 Ry u H
Staff is recommending APPROVAL of this Minor Modification application for an addition
to the Marsh residence on Lot 64, Block 3, Wildridge Subdivision.
Recommended Motion
"1 move to APPROVE the Minor Modification application for an addition to the residence
on Lot 64, Block 3, Wildridge Subdivision with the FINDING that the design is in
conformance with the Town of Avon Zoning Code, Town of Avon Design Review
Guidelines, and the project is hereby approved subject to the following CONDITIONS to
be resolved prior to applying for a building permit:
1. Except as otherwise modified by this permit approval, all material
representations made by the applicant or applicant representative(s) in
this application and in public hearing(s) shall be adhered to and
considered binding conditions of approval."
If you have any questions regarding this project or any planning matter, please call me
at 7484023, or stop by the Community Development Department.
Rectfully submitteld, _
Ja arnes
Planner I
Exhibits:
A: Vicinity Map
B: Photos of the existing structure
C: Reduced plan sets
Town of Avon Community Development (970) 74114030 Fax (970) 949.5749
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Staff Report Sketch DesignAVON
C O L O R A D O
March 17, 2008 Planning & Zoning Commission meeting
Report date March 13, 2008
Project type Single Family Residence
Legal description Lot 59, Block 3, Wildridge Subdivision
Zoning PUD — 2 Units
Address 4340 June Point
Introduction
Millie Aldrich of Pure Design Studio, representing the owner of this Wildridge
Subdivision property, has submitted a Sketch Design application for the demolition of
an existing residence and the new construction for a single-family residence at the end
of June Point.
The proposed residence totals approximately 5,100 square feet inclusive of garage
area. The building exterior has cement boards, stone walls and stucco as
predominate building materials, and the proposed residence contains two levels of
living space. The main level contains a kitchen, offices, living/dining space, and the
master bedroom, while the lower level contains two additional bedrooms, garages,
and a media room.
Additional building materials include but are not limited to: standing seam metal
roofing, steel and cable railings, steel beams, solar panels, metal awnings, and steel
trellis.
Staff Comments
Based upon a preliminary review, this application appears to deviate from the Town of
Avon Residential. Commercial, and Industrial Desion Review Guidelines. Town Staff
and the applicant are requesting that the Planning and Zoning Commission provide
feedback on the following areas of discrepancy:
Buildina Materials and Colors
The intent of these guidelines is to provide architectural control to ensure that the architectural
design of structures and their materials and colors are visually harmonious with the town's
overall appearance, with surrounding development, with natural and existing landforms, and
with officially approved development plans. These guidelines should represent the minimum
standard to achieve this goal, without being so cumbersome as to not allow varied high-quality
design that meets this intens.
Minimum requirements:
1. The use of high quality, durable building materials is highly encouraged.
2. The following materials and wall finishes will not ordinarily be permitted on the
exterior of any structure: asphalt siding, imitation brick, asbestos cement
Town of Avon Community Development (970) 7484030 Fax (970) 949-5749
Lot 34, Block 1, Wiktridge Subdivision. Debra's Sketch Design
September 16, 2008 Planning & zoning Commission meeting
Page2of4 A
shingles or siding, imitation log siding or plastic. Metal siding, concrete or
concrete block will be permitted only with specific approval of the Commission.
Each building must use a minimum of two materials.
3. Indigenous natural or earth tones required.
4. All flues, flashing and other reflective materials shall be painted to match
and/or appropriately contrast with adjacent materials. In some cases, physical
screening may be required.
5. Electric and other utility meters shall be attached to the main structure and
screened to minimize contrast with adjacent materials.
As stated above, the design proposes to utilize concrete boards on the exterior of the
building. The design guidelines state that metal siding, concrete or concrete block will
need specific Commission approval. Without intended colors and samples of its
application, Staff cannot determine whether or not the exterior of the building will
complement the surrounding structures.
Exterior Walls. Roofs. and Architectural interest
The Town of Avon is not comprised of a singular and unified 'neighborhood' theme, however, it
does contain several architecturally distinct neighborhoods. Within these neighborhoods exist
a variety of exterior wall types that typify the type of design that is appropriate to our
community.
Minimum requirements:
1. Exterior wall colors should be compatible with the site and surrounding buildings. The
appropriate use of predominantly indigenous building materials such as native stone,
wood siding, and timbers is encouraged in our mountain community.
2. Projections such as deep eaves, overhangs, canopies, and other features that provide
architectural interest are encouraged. Fenestration should be articulated on large
exterior walls to break up massing. At a minimum, no single wall plane should exceed
70% of the elevation of any exposure. Breaks in the wall plane should form at least a
2 -foot step/setback.
3. All roofs, except the flat portion thereof, shall have a rise of not less than 4 -inches in
12 -inches of distance. Primary roofs shall have a 4:12 minimum, and a 12:12
maximum. Secondary roofs shall have a 4:12 minimum, and metal roofs shall have a
3:12 minimum. There shall be no unbroken ridgelines allowed, except on pueblo roofs
that are otherwise traditionally articulated.
4. Pitched roofs shall be oriented such that excessive snow and ice does not accumulate
over, or drop onto pedestrian walkways, parking areas or drives. Special protection
may be required for roofs so oriented. Overhangs are required on pitched roofs, and
shall extend at least one and one-half feet from the point where the wall meets the roof.
5. Roofing materials should be durable, weather resistant and suitable for environmental
conditions encountered in this area. Colors should be natural or earth tones. Large
expanses of bright, reflective materials will not be acceptable; however, metal such as
copper, cor-fen may be acceptable. Asphalt and fiberglass composition shingles must
be of high quality and minimum weight of 300 pounds per square. Untreated shakes
are not permitted.
The proposed design also does not appear to comply with the minimum roof pitch of
4:12. The guidelines state that primary roofs shall have a minimum pitch of 4:12,
while secondary roofs that are metal can have a 3:12 minimum. Also, without
reviewing the colors of the roof, Staff cannot determine that the roof will not be too
bright or reflective.
Although the Design Guidelines do not discuss solar panels, based on previous
approvals and the general design standards, Staff does not view this design as
compatible with the overall architecture of the building. The solar panels could be
Town of Avon Community Development (970) 748.4030 Fax (970) 949-5749
Lot 34, Block 1, wiklridge Subdivision. Debra's Sketch Design '�'
September 16, 2008 Planning 6 Zoning Commission meeting Page 3 of 4 AVA
reduced in pitch or the roof pitch could be greater so that the panels appear to be
more compatible with the design.
It appears from the proposal that the design of the site and landscaping comply with
the Design Review Guidelines. The applicant is proposing to keep a majority of the
existing landscaping, but this will be further reviewed at a Final Design review level
when a Construction Management Plan is available. Further details such as lighting,
colors, landscaping specifications, and materials will be reviewed in detail with a Final
Design application.
Design Review Considerations
The Commission and Staff shall evaluate the design of the sketch plan utilizing the
specific Design Standards, and by using the following general criteria:
1. The conformance with setbacks, massing, access, land use and other
provisions of the Zoning Code;
2. The general conformance with Goals and Policies of the Town of Avon
ComDrehensive Plan, and any sub -area plan which pertains;
3. Whether adequate development rights exist for the proposed
improvements;
4. General conformance with Residential Development Sections A through D
of the Town of Avon Residential. Commercial. and Industrial Desion
Review Guidelines;
5. The compatibility of proposed improvements with site topography, to
minimize site disturbance, orient with slope, step building with slope, and
minimize benching or other significant alteration of existing topography;
6. The appearance of proposed improvements as viewed from adjacent and
neighboring properties and public ways, with respect to architectural style,
massing, height, orientation to street, quality of materials, and colors;
7. The objective that no improvement be so similar or dissimilar to others in the
vicinity that monetary or aesthetic values will be impaired; and
8. The general conformance of the proposed improvements with the adopted
Goals, Policies and Programs for the Town of Avon.
The Commission will take no formal action on this sketch plan application. At the
meeting, the applicant will receive guidance from the Commission and Staff to
incorporate into a Final Design application. A full size (24" x 36") plan set will be
available for the Commission's review at the March 17th, 2009 meeting.
If you have any questions regarding this project or any planning matter, please call me
directly at 748-4023, or stop by the office of Community Development.
Town of Avon Community Development (970) 748-4030 Fax (970) 949.5749
Lot 34, Block 1, Wildridge Subdivision. Debra's Sketch Design
September 16, 2008 Planning & Zoning Commission meeting
Re ectfully submitted,
Ja Barnes �<y�
Planner I
Attachment
A. Vicinity Map
B. Reduced Plan Sets
Page 4 of 4 A
Town of Avon Community Development (970) 7484030 Fax (970) 949.5749
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Staff Report
PUD Amendment
March 17, 2009 Planning & Zoning Commission Meeting
Report date:
Project type:
Legal description:
Current zoning:
Address:
I. Introduction
u�
AV"'O
C O L O R A D O
March 13, 2009
Planned Unit Development (PUD) Amendment,
Preliminary Plan for Subdivision
Lot 1, Lot 2, Lot 3, Lot 4, Wildwood Resort
Subdivision
Planned Unit Development (PUD)
NA (No addresses assigned)
The applicant, Zehren and Associates, along with Jay Peterson, representing the owner of the
property, Tanavon Corp, are proposing to amend the existing Wildwood Resort PUD Plan and
Guide documents; and to further subdivide the existing Wildwood Resort Subdivision, Lots 1, 2,
3, and 4 and to create two new Lots.
This application was heard by the Planning and Zoning Commission at their February 17, 2009,
and March 3, 2009 meetings. Since those meetings, the Town has verified that the future
construction of a round -a -bout and associated improvements at the intersection of Nottingham
Road and Swift Gulch will not impact the proposed PUD development on Lot 1A of this
submittal. Staff has met with the applicants on several occasions to address the comments
received by the Engineering Department.
Changes to the PUD have occurred since the first meeting, including the lowering of building
heights for Lot 1A, Lot 1B, and Lot 2. The maximum allowable building height for Lot 1A has
been lowered from 50' to 45', and the allowable architectural projections from 60' to 50'. The
maximum allowable height for the residential units on Lot 1B and Lot 2 has also been lowered
by two feet from 44' to 42'. The maximum height for Lot 3 (GRNSS) was also reduced from 45'
to 38'.
Staff has prepared two resolutions for the consideration by the Planning and Zoning
Commission. These resolutions (#09-05 & #09-06) are attached to this report as Exhibit C for
your review. Resolution #09-05 recommends approval of this application to the Town Council,
and Resolution #09-06 recommends approval of the concurrent Preliminary subdivision
application to the Town Council.
The subject property is located on the northeast corner of Nottingham and Buck Creek Roads,
is presently zoned as the "Wildwood Resort SPA" (Specially Planned Area), and is platted as
Town of Avon Community Development (970) 74&4030 Fax (970) 949.5749
Buck Creek, PUD Amendment PRW
March 17, 2009, Planning 6 Zoning Commission Meeting Page 2 of 10 AM
the Wildwood Resorts Subdivision. The proposed amendments would modify the existing
approved land uses, and would modify the existing platted lot configurations.
The southern most lot, currently platted as Lot 1, would be split into two lots: Lot 1A and Lot 18.
A new Fire Station and separate administration building are proposed for Lot 1A with the
administration building located at the corner of Nottingham and Buck Creek Roads. Lot 1B
would include eleven (11) residential units in either a single-family, duplex, or three unit building
configuration. Further to the north, Lot 2 is proposed for the remaining thirty-one (31) whole
ownership residential units, also in either a single-family, duplex, or three unit structure mix. All
of the residential units on these lots are proposed to be a maximum of 2,700 square feet of
gross floor area.
The applicant is proposing to construct a campus for the Gore Range Natural Science School
on Lot 3, the northern most property in the subdivision. The uses proposed for this lot are
consistent with the uses allowed in the Government, Park, and Employee Housing (GPEH) zone
district. Lot 4 is to remain open space, and will likely be used for a future round -a -bout project
at the intersection of Swift Gulch and Nottingham Roads. Lot 5 is to be used for a Montessori
school or other similar early education facility, and also for an associated office use.
The current allowed uses for the development site are detailed in the governing zone document,
Ordinance No. 85-4, Series of 1985 and are referenced below in Section II of this report. In
addition to what is outlined above, the applicant is proposing to further define and modify the
allowed uses that are detailed in the goveming ordinance and the accompanying plat.
Background
In 1985, Section 36, Inc., a Colorado corporation, and Wildridge Development Company, a
Colorado partnership, applied to the Town of Avon for certain amendments to the Zoning District
Map and Zoning Code, and these amendments were eventually approved by Ordinance No 85-
4, which is attached to this report as Exhibit A. Pursuant to Ordinance No 85-4, the Town of
Avon Zoning District Map was amended to permit the "following uses" on Lots 1, 2, 3 and 4 of
the Wildwood Resort Subdivision, respectively, in addition to specifying restrictions for Tracts
"AA" and "BB":
150 hotel, motel and/or lodge (accommodation) units, together with accessory
uses and related commercial uses as allowed in the NC (Neighborhood
Commercial) zone district, to be located on Lot 1, Wildwood Resort.
Private park and recreation and related commercial uses including clubhouse
building for indoor and outdoor sports activities and customary support facilities:
swimming pools, tennis courts, archery range, restaurant4ounge, pro shop and
other similar activities or services to be located on Lot 2, Wildwood Resort.
50 residential multiple family dwelling units, together with accessory uses, located,
on Lot 3, Wildwood Resort.
The only uses permitted on Lot 4, Wildwood Resort, shall be open space,
drainage, landscaping and signage.
The only allowed uses permitted on Tract AA, Wildwood Resort shall be snow
storage, landscaping, drainage, signage and open space.
Town of Avon Community Development (970) 7484030 Fax (970) 949.5749
Buck Creek, PUD Amendment
March 17, 2009, Planning 8 Zoning Commission Meeting
Page 3 of 10 A
The only allowed uses permitted on Tract BB, W/ldwood Resort shall be snow
storage, landscaping, parking, drainage, signage and open space.
These permitted uses are also listed "for information purposes only" on the final plat. The final
plat was approved by the Avon Town Council on April 9, 1985, establishing the Wildwood
Resort as an SPA (Specially Planned Area). Accordingly, the Wildwood Resort's current
development rights exist as explicitly listed within Ordinance No. 85-4 and detailed upon the
corresponding plat. Any proposed amendments involving additions or changes to the uses
listed in Ordinance No. 85-4, and the reconfiguration of the subdivided lots depicted on the
corresponding plat, constitute a fundamental rezoning of the subject property.
Section 17.20.1100)(1) of the Town of Avon Municipal Code specifically states, with regard to
"precise or specific" development plans, " ... terms, conditions, and agreements contained within
those PUDs shall continue to be binding upon the applicants thereof and the Town". It is
evident that the precise or specific terms of the Wildwood Resort development plan as a whole
remain binding on both the Town and the developer as approved by the Town in the form of
Ordinance No. 85-4 and the corresponding Wildwood Resort final plat.
IV. Surrounding Land Uses
The existing land use and zoning for the surrounding properties are as follows:
• North: Trails / Opens Space
• South: Vacant Building, Coastal Mart, Vacant Land / Neighborhood
Commercial Zoning
• West: Low Density Residential / Open Space
• East: Open Space, Commercial / Open Space
V. Referral Comments
The subject application is a noticed public hearing with written notice provided to property
owners within 300' of the subject property. To date, Staff has received no public comments
regarding the applicant's request. In addition to the required public notice, Staff has transmitted
the application material to the following agencies, with their comments summarized below:
Eanle River Fire Protection District
Comments were received from Carol Gill-Mulson, Deputy Chief of the District. According to her
comments, revisions have been made to better accommodate ladder trucks in the residential
areas. Additionally, hydrant locations have been discussed in a preliminary manner.
Colorado Deoartment of Wildlife
While the DOW acknowledges the lesser impact of this amendment proposal, they cited impacts
to winter range habitat for mule deer migration. They recommend enhancement projects to
replace the loss of winter range, and closing access to the power line road that may be
accessible from the east side of the property.
The DOW takes exception to the stream setback requests due to the negative impacts that
these encroachments present. There is no clear rationale for the requested setback variances,
and their letter states that the PUD does not provide any mitigation for the impacts to wildlife.
Town of Avon Community Development (970) 7484030 Fax (970) 949.5749
Buds Creek, PUD Amendment M
March 17, 2009, Planning & Zoning Commission Meeting Page 4 of 10 AVIII
Eaale Counter School District Comments
To date, staff has not received a response to our request for comments.
Eacile River Water and Sanitation District
To date, staff has not received a response to our request for comments.
Colorado Deoartment of Transoortation
To date, staff has not received a response to our request for comments.
Eaqle County Plannina Deoartment
Staff has received comments from the Planning and Engineering Departments of Eagle County
and they are attached hereto.
Eagle County Health Services District
To date, staff has not received a response to our request for comments.
ECO Trails
Staff was contacted via e-mail by Ellie Caryl, the Eagle Valley Trails Coordinator. Ellie had no
comments on the subject application. She requested clarification that this project will not inhibit
the Buck Creek Trail, located further to the North, and this was confirmed.
United States Forest Service
To date, staff has not received a response to our request for comments.
In addition to the agency referral comments summarized above, and attached hereto, the Public
Works and Transportation Department and Engineering Department comments are attached to
this report for your review and consideration. Please refer to Exhibit B for their updated
comments. As stated above, no public comments have been received in response to the Public
Notice mailed to all property owners (or associations) within 300' of the subject property.
VI. PUD Design Criteria
According to the Town of Avon Zonina Code, Section 17.20.110, the following criteria shall be
used as the principal criteria in evaluating a PUD. It shall be'the burden of the applicant to
demonstrate that submittal material and the proposed development plan comply with each of
the following design criteria, or demonstrate that one or more of them is not applicable, or that a
particular development solution is consistent with the public interest.
Included in the applicant's binder is a detailed response to the following criteria:
1. Conformance with the Town of Avon Comprehensive Plan's Goals and Objectives.
The areas within the Comprehensive Plan that offer policy direction relative to the proposed
land uses are the Future Land Use Plan, the District special area policies, and the General
Goals and Policies of the Plan.
The Future Land Use Plan designates the proposed site by the delineation of each existing,
platted lot as follows: Lot 1 is Neighborhood Commercial; Lot 2 is Residential - low density,
and Lot 3 is designated for Civic/Public land uses.
The Neighborhood Commercial land use designation is described as follows: These areas
are intended to provide neighborhood -focused retail and service uses (such as markets,
childcare, restaurants, and cafes) that are conveniently located near and connected with
Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749
Buck Creek, PUD Amendment
March 17, 2009, Planning & Zoning Commission Meeting
Page 5 of 10 AAM
surrounding residential neighborhoods. Staff suggests that both the Existing and Future
Land Use maps be amended if this application is approved so that the proposed mix of land -
uses on this property can be accurately depicted.
Residential low-density calls for a maximum density of 7.5 dwelling units per acre. This
proposal contemplates a density consistent with that density, and therefore is in
conformance with the Comprehensive Plan's Future Land Use Plan designation.
The Civic/Public land use designation, which Lot 3 currently falls into under the Town of
Avon Comprehensive Plan, does contemplate school uses within these areas, but also
includes the following language: "Each proposed public use should be evaluated separately
in terms of its land area and topographical constraints, as well as its compatibility with
adjacent uses"
The subject property is also located within District 13: Nottingham Road Commercial District
under the Town of Avon Comprehensive Plan, which designates the area as a secondary
commercial district and contains specific planning principles to be applied for this area. This
application adheres to the following District 13: Nottingham Road Commercial District
planning principles:
• Limit Access points on Nottingham Road to simplify traffic movements
• Limit building heights to that which is compatible with the existing surrounding
development.
• Development intensity and activity should diminish when traveling north on Buck
Creek Road.
There are several Goals and Policies contained in the Comprehensive Plan which can be
applied to this property. Staff is in agreement with the majority of the Goals and Policies
highlighted in the applicant's binder, with a particular emphasis on the following:
Goal C. 1.6 — Include sufficient land for public uses such as schools, recreation,
community facilities (such as childcare), and government services near the people
who use them.
Goad D.1 — Ensure that development and redevelopment is compatible with
existing and planned adjacent development and contributes to Avon's community
image and character.
Goal H.4.3 — Require use of innovative and environmentally friendly appliances
and building techniques including water conservation approaches for new and
existing development.
Goal J.2.5 — Develop neighborhood and community-based childcare facilities and
include youth in the programming of community or public facilities.
2. Conformity and compliance with the overall design theme of the town, the sub -area
design recommendations and design guidelines of the Town.
With respect to establishing and maintaining a design theme, this submittal is clearly in
conformance with the 'theme' and level of quality established with recent Town of Avon
projects, and is consistent with the overall design theme of the Town.
Tom of Avon Community Development (970) 7484030 Fax (970) 949-5749
Buck Creek, PUD Amendment
March 17, 2009, Planning 8 Zoning Commission Meeting
Page 6 of 10 ft
While the level of detail varies depending on which portion of the project you are reviewing,
the conceptual architectural studies generally comply with the Design Guidelines of the
Town. A more detailed review will follow with the standardized Sketch and Final Design
review processes.
3. Design compatibility with the immediate environment, neighborhood, and adjacent
properties relative to architectural design, scale, bulk, building height, buffer zones,
character, and orientation.
There has been a deliberate attempt to not only respond to the topography and constraints
of the site, but to the greater design of the immediate environment and adjacent properties.
One deliberate departure to this response to the natural environment is the proposal to
encroach upon the setback from the live stream in a small portion of the development.
The 6,726 square foot "Mountain Discovery Center", part of the GRNSS campus, is
requesting the permittance of an encroachment into the Town's standard 30' setback from
the mean annual high water mark of Buck Creek.
The east end of the building would encroach between 20'— 25' lineal feet into said setback.
An at grade porch would also encroach into this setback. Please refer to either Sheet C2.1
or Sheet C2.5 of the J&K Plan Set for a detailed view.
The Avon Municipal Code defines "Stream Lot Setback" as:
"a thirty-foot strip of land measured horizontally from the mean annual flood high
water mark on each side of any live stream located within the boundaries of a
proposed subdivision and shall be protected in its natural state, with the exception
that footpaths, bridges, irrigation structures, flood control and erosion protection
devices may be constructed thereon... Underground utilities may be located in such
protected area, provided that there is no practical altemative location for such utilities,
that the plans are approved by the Town Council through its designated
representative and that all construction scars are revegetated."
On Sheets C2.1 and C2.5 you will also find a building encroachment, to a lesser extent than
the Discovery Center, for a portion of the 1,233 square foot Learning Studio building. It is
understood that these encroachments were intentional in the effort of the property owner to
bring students closer to the living river environment.
As mentioned above, the architectural designs are compatible with the neighborhood and
adjacent properties. The scale of development has been significantly decreased compared
to the existing entitlements, especially at the southern end of the PUD. with the elimination of
the 150 unit hotel building.
The building heights proposed with this submittal are as follows:
Lot 1A (Fire House)
Lot 1B (11 Townhomes)
Lot 2 (32 Townhomes)
Lot 3 (GRNSS Campus)
Lot 4 (Open Space)
Lot 5 (Montessori School)
45 feet; 50 feet for architectural projection
42 feet
42 feet
38 feet
N/A
35 feet
These building heights should be generally compatible with the surrounding properties and
are appropriate for buildout. While this site is surrounded by lower building heights (35'
Town of Avon Community Development (970) 748-4030 Fax (970) 949-5749
Buck Creek, PUD Amendment
March 17, 2009, Planning & Zoning Commission Meeting
Page 7 of 10 AAM
maximum), the buffer space between development and the orientation of the structures
appears to be compatible with the immediate environment and neighborhood.
At the first hearing, the Planning and Zoning Commission suggested the implementation of
lower building heights for Lot 1A, Lot 16, Lot 2, and Lot 3. And while the building heights
are still generally higher than those of the neighboring properties, this property not only acts
as a gateway to other neighborhoods in the Town, but also affords the opportunity to make
an architectural statement that is typical with civic/public buildings.
4. Uses, activity, and density provide a compatible, efficient, and workable relationship
with surrounding uses and activity.
The uses and density with this master planned development provide a compatible, efficient,
and workable relationship with surrounding uses and activities. The density has been
reduced from current approvals, and the intensity of use has also been diminished with the
elimination of the hotel.
The surrounding uses and activities include Swift Gulch and Buck Creek Roads, Pizza Hut,
the Goodyear building, and two gas station/convenience stores. There are also two vacant
Neighborhood Commercial (NC) zoned parcels immediately south of the proposed Fire
Station lot on Nottingham Road.
The surrounding lands to the east, west, and north are primarily open space in nature
S. Identification and mitigation or avoidance of natural and/or geologic hazards that
affect the property upon which the PUD is proposed.
The Preliminary Geotechnical Study, as required by the Subdivision Code, is provided in the
Appendices sections of the applicant's binder. The soils report provided prepared by HP
Geotech identifies sever soil stability issues and construction challenges, as well as
identifies the need for a geologic hazards report. A Geologic Hazard report has been
submitted and is now part of the record.
After a preliminary review of the Geologic Hazard report document, there are potential
hazards associated with development. However, there are no hazards that cannot be
avoided or otherwise mitigated.
6. Site plan, building design and location and open space provisions designed to
produce a functional development responsive and sensitive to natural features,
vegetation and overall aesthetic quality of the community.
The general site plan layout produces a functional development; and while the building
footprint locations are conceptual in nature, the final building locations and designs will be
governed by the Town's adopted design review process. According to the Development
Plan, final building locations will be permitted to move a reasonable distance (up to 5) and
as long as the intent of the PUD is maintained, provisions are included to allow Staff
approval for minor PUD amendments.
As mentioned, Staff has determined that future potential round -a -bout construction at
Nottingham/Swift Gulch Roads will not be impeded by the construction of the fire station hub
building, or vice a versa.
The Planning and Zoning Commission should consider the Division of Wildlife's comments
with respect to limiting disturbances and encroachments into the 30' live stream setback.
The GRNSS buildings that are currently depicted as encroaching this setback should be
reviewed in detail. Perhaps the discussion should be framed around the acceptable level of
encroachment that the Commission feels appropriate, if any.
Town of Avon Community Development (970) 74SA030 Fax (970) 949.5749
Buck Creek, PUD Amendment
March 17, 2009, Planning 8, Zoning Commission Meeting
Page 8 of 1 o f1
The existing open space lot (Lot 4) remains as open space. This is an appropriate
designation given the future potential need for the Town to use this parcel for Town
infrastructure. Tracts AA and BB are likewise unaffected by the subject application.
7. A circulation system designed for both vehicles and pedestrians addressing on and
off site traffic circulation that is compatible with the Town Transportation Plan.
The internal vehicular circulation system is functional. According to the applicant, one key
internal pedestrian connection is being added immediately adjacent to Buck Creek Lane
connecting to Nottingham Road through Lot 1A. This improvement will• provide better
pedestrian connectivity through the project. The Engineering Department will require an
improved crosswalk with ADA ramps across Swift Gulch Road to the east of the project
across Lot 4.
8. Functional and aesthetic landscaping and open space in order to optimize and
preserve natural features, recreation, views and function.
The applicant has made significant efforts to optimize and preserve the natural features of
the property. The development plan avoids natural stands of trees to the extent possible,
and some of the outdoor spaces will be protected due to the wetlands and other associated
development constraints. There are several easements old and new that will naturally
restrict development in large portions of the property. Landscape plans will be reviewed in
detail during the standard design review process.
9. Phasing plan or subdivision plan that will maintain a workable, functional, and
efficient relationship throughout the development of the PUD. The phasing plan shall
clearly demonstrate that each phase can be workable, functional and efficient without
relying upon completion of future project phases.
A construction phasing plan is included in the applicant's binder. Please refer to Sheets
CEA — CEA of the 'Preliminary Construction Plans", prepared by JBK, Inc. The plan for
Phase I is to construct traffic control measures, retaining walls associated with Buck Creek
Lane, utilities necessary to serve the Gore Ranch Natural Science School (GRNSS), and
the GRNSS campus in its entirety.
All forty-two (42) "townhome" units, and associated utility improvements, would be
constructed as part of Phase II of this development. The phasing demonstrates that each
phase can be workable, without relying upon completion of future project phases.
It became clear at the first hearing with the Planning and Zoning Commission hearing that
phasing for Lots 1A and 3, the fire station hub and Gore Range Natural Science School, will
depend on available funding and construction could begin as early as 2010.
10. Adequacy of public services such as sewer, water, schools, transportation systems,
roads, parks, and police and fire protection.
Some of the appropriate public service entities have submitted letters stating that they are
willing and able to service the areas subject to this amendment. While the water demand of
this proposal appears to be less than that of the current entitlements (118.6 SFE), this will
be certified and tracked through the building permit process. It is important to note that this
submittal does not contain evidence of approval by utilities for water and sewer services, as
required by the Avon Municipal Code.
11. That the existing streets and roads are suitable and adequate to carry anticipated
traffic within the proposed PUD and in the vicinity of the proposed PUD.
Town of Avon Community Development (970) 7484030 Fax (970) 949.5749
Buck Creek, PUD Amendment
March 17, 2009, Planning & Zoning Commission Meeting
Page 9of10 Af6N
The intemal street, Buck Creek Lane, is designed to meet the Town of Avon Standards and
Specifications. Surrounding the property are three public Rights -of -Way: Buck Creek Road
(west), Nottingham Road (south), and Swift Gulch Road (east). A Revised Traffic Impact
Study prepared for Tanavon Corporation by Kimley-Horn and Associates can be found in
the Appendices of the applicant's binder.
12. That the PUD or amendment to PUD requested provides evidence of substantial
compliance with the following public purpose provisions, as outlined in Section
17.28.085 of the Avon Municipal Code:
A. The application demonstrates a public purpose, which the current zoning entitlements
cannot achieve.
There is a public purpose inherent with educational facilities which are not currently possible
with the existing zoning. By relocating a regional fire station onto the property from the
Town Core, the Town's long-term Town Center West Implementation plans will continue to
evolve and be made possible.
B. Approval of the zoning application provides long term economic, cultural or social
community benefits that are equal to or greater than potential adverse impacts as a result of
the changed zoning rights.
The approval of this zoning application should not cause any adverse impacts to the long
term economic, cultural or social well being. There are cultural and social community
benefits inherent with the construction of an improved/expanded Fire Station, GRNSS, and
Montessori (or similar early education) school.
C. The flexibility afforded in approval of the zoning application will result in better siting of
the development, preserving valued environmental and cultural resources, and increasing
the amount of public benefit consistent with the community master plan documents.
This zoning application will undoubtedly increase the amount of public benefit the property
can offer over current entitlements. While cultural resources are preserved and enhanced
with educational land -uses, the impact on environmental resources must be reviewed
carefully.
VII. Staff Recommendation
Staff is recommending that the Town of Avon Planning and Zoning Commission hold a public
hearing in accordance with Section 17.12.100 of the Avon Municipal Code, and recommend
CONDITIONAL APPROVAL of this application to the Avon Town Council by approving
Resolution 09-05, subject to the following conditions:
1. The final form and content of the Buck Creek PUD Development Plan shall be
reviewed and found acceptable by Staff prior to Council review;
2. The property owner shall satisfactorily address the comments outlined in the
Engineering Department's Memo, dated March 11, 2009, the timing of which
depends on the specific comments.
3. The property owner shall dedicate to the Town, at the time of Final Plat approval,
the necessary road right-of-way along Nottingham Road and Swift Gulch Road,
along with associated easements, required for the construction of the Swift Gulch
round -a -bout;
Town of Avon Community Development (970) 7484030 Fax (970) 949.5749
Buck Creek, PUD Amendment
March 17, 2009, Planning & Zoning Commission Meeting
Page 10 of 10 A
ft
4. The property owner shall demonstrate that the site meets or exceeds the minimum
20% snow storage requirement and associated snow storage easements prior to the
issuance of building permit;
5. The property owner, or representative, shall process a Comprehensive Plan
Amendment application to update the Future Land Use Map to better reflect this
PUD Amendment application and associated Land -Uses. This application must be
submitted within 90 days of PUD approval.
6. The Town is entitled to use, at it's sole and absolute discretion, any and all water
rights for the entire site, which are in excess of the minimum water necessary to
serve the proposed uses;
7. Except as otherwise modified by this approval, all material representations made by
the applicant or applicant representatives in this application and in public hearings
shall be adhered to and considered binding conditions of approval.
Staffs recommendation is based on the determination that the Twelve (12) PUD Design Criteria
outlined in Section VI of this report have either been met, or will be met with the implementation
of the recommended conditions of approval.
If you have any questions regarding this project or any planning matter, please call me at 748-
4413, or stop by the Community Development Department.
Respectfully submitted,
Matt Piels r
Planner II
VIII. Report Attachments
Exhibit A: Ordinance No. 85-4, Series of 1985 / Wildwood Resorts Subdivision Plat (1985)
Exhibit B: Referral Comments
Exhibit C: Resolution #09-05 & Resolution #09-06
Town of Avon Community Development (970) 7484030 Fax (970) 949.5749
Exhibit A
9.
ib" GP Am j 3 1 8 1 6 4`
ORDINANCE NO. 85-4
Series of 1985 r,apmt� t
?POHNNETTE PHIIUPS'
AN ORDINANCE AMENDING ORDINANCE No. 83-21 AND PgomiNG' 1 ",AGIEUtRECOSOERj
0� FOR THE AMENDMENT OF THE ZONING CODE OF INS tOWN OF AVON J
BY THE AMSHDNKNT OF THE ORDINANCES ESTAELISHINC SPECIALLY
k� PLAN* AREAS IN THE BUCK CREEK AND SHIFT Guida ABSAS of AitG 8 �'`il
THE TOWN OF AVON.
WHEREAS, $action.36, Ire., a Colorado corporation, and Wildridge Development
Company, a Colorado partnership, haus filed application with the Tow of Avon to
amend the toning district sap and the toning code of the Tow of Avon by
effectively transferring certain development rights from the area described as
Parcel 1 and Parcel 2, Swift Gulch Addition to the Tow of Avon, (hereinafter
referred to as "Swift Gulch") to the ares presently described as lots 5, 52A and
52B of the Buck Creek SPA which, upoo approval of the al am FinPlat shall be
hereinafter described as Lots 1, 2, 3 and 4 of the Wildwod Renate Subdivision
(hereinafter referred to as "Wildwood However), tbrough the amendment of the
r -r ordinances, which previously established the development rights withio each
>"+i - respective. specially planned area; and
WHEREAS, public hearings have been held by the Flowing and Zoning
Commission of the Tow of Avoca pursuant to notices required by lav, at which the
applicants and the public wore given an opportunity to express their opinions
CA regarding the prbposed.ammadments; and
WHEREAS, following snob public hearings, the Planning and Zoning Commission
forwarded reports and recommendations on the proposed ameadaent to the Tow
Council; and
WNERZAS, after aaticea provided by lav, a public hearing was held before
this Cowcil on the 9th day*of April, 1985, at which time the applicants and the
public were given an opportunity to empress their'opinions regarding the proposed,
amendment; and
WHEREAS, based upon the evidence, testimony, and exhibits, and a study of
the Nester Plan of the Tow of Avon and the recommendations of the Pianniag and
Zoning Commission of the Town of Avon, this Council finds a$
follows:
1. The proper posting, publication and public notice was provided as
required by law for the hearings 'before the Planning and Zoning Commission and
the Tow Cowell of the Tow of Avou.
2. That the hearitis before the Planning and Zoping Commi.ssio_a and the Town
Council were both extensive and Complete and that all, pertinent facts, matters
and issues were submitted at those hearings.
3. That the proposed amendments to the Zoning District Nap and Zoning Olde
of the Two of Avoo are consistent with the Master Plan of the Tow of Avon;
provided that certain limitations hereinafter set forth be .establiahe-in
association with the respective specially planned areas.
4. That the requested amendment to the Zoning District and the Zealot Olde
of the Town of Awn will be in the best interest of the health, safety, welfare
and morals of the citizens of the Tow of Avon.
NOW, THEREFORE, BE IT ORDAINED BY TEM TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO, TBATn
Settled 1. Amendment to Swift Gulch SPA.
Section 1 of Ordinance No. 81-35 of the Tow of Avon as amended by Section 1
of Ordinance 83-21 #ball be and hereby is amended to read as follows: .
The Zoning District Map of the Sow of Avon shall be and hereby is arcaded
to reflect that the certain real property an soars fully and legally described
heraivabove, shall.be and -hereby is included in a Specially Planned Area Zone
J?istrittoas such tsrm is defined and subject to all the teras hod conditions
a !
thereof set forth in the Municipal Coda of the Town of Avon, as may from time to
time be in affect, provided the uses permitted on such Lads shall be limited to
the following:
105 residential multiple family duelling ,.nits and/or commercial
as allowed in the 80 (Shopping Center) Anne district.
Section 2. Amendment to suck Creek SPA, (to be recanted Wildwood
Resort SPA).
Section i of Ordinance No. 82-20 of the Town of Avon a$ amended by Section 2
of Ordinance 83-21 shall be and hereby is amended to read as follow:
The Zoning District Hap of the Town of Avon shall be and hereby is Amended
to reflect that the certain real property as rare fully and legally described
hereinabove, shall be and hereby is included in a Specially Planned Area Zone
District as such term is defined and subject to all the terms and conditions
thereof sat forth in the Municipal Cods of the Town of Avou, as may from time to
time be in effect, provided the uses permitted on such lands shall be limited to
the following uses:
A, 150 hotel, moral and/or lodge (accommodation) units, together with
accessary uses and related commercial uses as allowed in the NO
(Neighborhood Commercial) rose district, to be located oa Lot 1,
Wildwood Resort.
S. Private park and recreation sod related commercial uses including
clubhouse building for indoor and outdoor sports activities and „
customary support facilities: swimming pool&, tennis courts, archery
range, restaurant/lounge, pro shop and other similar activities or
services to be located on Lot 2, Wildwood Resort.
c. 50 residential multiple family dwelling units, together with
accessory uses, located on Lot 3, Wildwood Resort,
D. The only uses permitted on Lot 6, Wildmod Resort, shall be open
space, drainage, landscaping and signage.
E. The only allowed uses permitted on Tract AA, Wildwood Resort shall
be saw storage, landscaping, drainage, signage and open space.
F. The only allowed uses permitted on Tract Was Wildwood Resort shall
be saw storage, landscaping, parking, drainage, signage and open
apace.
Section 3. Effective Date. The Amendment to the Zoning District Map sod
the 20o n—g dCo a of the Tow of Avon provided for herein shall take effect in
accordance with the charter sod the ordinances of the Two of Avon, and the Mayor
Pro Tem sod the Town Clark are hereby directed and authorized to execute such
documents as may be required to reflect the amendment herein authorised, sod to
file a certified copy of such documents with the County Clerk and Recorder of
Eagle County, Colorado.
INTRODUCED, PASSED ON FIRST READING, APPROUD AND ORDERED POSTED, THIS 26tb day
of March, 1985 and a public hearing on this Ordinance shall be hold at the
regular meeting of the Two Council of the Town of Avon, Colorado, on the 9th day
of ARS.�Xe., 1985 at 7:30 P.K. to the Municipal Building of the Town of Awn.
•', ;� i KOITm
INTRODUCffi1 PASSED ON SECOND READING, APPROPED AND ORDERED POSTED this 9th day of
April, 1985.
�t`r /• J^y�'r�fl T d Mayor ro TONS
Yom Clark.:
E
STATE OF COLORADO )
COUNTY OF EAGLE ) SS.
TOWN OF AVON )
NOTICE IS HEREBY GIVEN OF A PUBLIC NEARING (SECOND READING) BEFORE THE TON
COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.N. ON TAE 9TH DAY OF APRIL, 1985
AT THS- MUNICIPAL BUILDING, 4A� 00 B9HCSNROAD, AVON,. COLORADO FOR THE PURPOSE OF
CONSIDERING THE ADOPTION OF ORDINANCE NO. 85-0, SERIES OF 1985:
AN ORDINANCE PROVIDING FOR THE AMENDMENT OF THE IDNING CODE OF THE TOWN OF AWN
BY THE AMENDMENT OF THE ORDINANCES ESTABLISHING SPECIALLY PLANNED AREAS IN THE
BUCK CREEK (UILDNOOD RESORT) AND SWIFT GULCH AREAS OF THE TOWN OF AVON.
A copy of said Ordinance is attached hereto and is also on file at the office of
the tow clerk and may be inspected during regular business hours.
Following this hearing, the Coun Eil my consider final pisagge of this
Ordinance.
This notice given and passed by order of the Town Council of the Tow of Avon,
Colorado. ._ ... _ .-.
Dated this 28th day of March, 1985.
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n MEMORANDUM
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C O L O R A D O
To:
Matt Gennett
From:
Justin Hildreth, Jeffrey Schneider, Shane Pegram
Date:
March 11, 2009
Re:
First Submittal of Buck Creek PUD Application, Dated January 2009
COMMENTS: The following comments are in response to our review of the above referenced
PUD application.
General Comments
A. Items to be addressed prior to Preliminary Plan Approval by Town Council
Exhibit B
1. The Town of Avon has been planning construction of a roundabout at the intersection of
Nottingham Road and Buck Creek Road since 2000. Upon internal discussions with
Town Staff and the Town's Traffic Engineer, it appears that a roundabout at Swift Gulch
Road would have similar favorable benefits to the road system, and require less
utilization of developable Buck Creek PUD property. The Engineering Department, with
the cooperation of Alpine Engineering, has determined that the roundabout will not
impact the proposed site design. Additional right-of-way and easements are being
requested to be dedicated to the Town for the construction of the future Nottingham Road
and Swift Gulch Road roundabout. The Preliminary Plat shall be updated to reflect the
required right-of-way and easements before the application goes to Town Council.
2. It appears that the project lacks adequate pedestrian facilities, both internal and external.
An improved crosswalk with ADA ramps should be constructed across Swift Gulch Road
to the east of the project across Lot 4. The Preliminary Plan shall be updated to include
these public improvements before the application goes to Town Council.
3. The driveway radii must be shown on the proposed Preliminary Subdivision site plan
before the application is presented to Town Council.
4. The developer is requested to dedicate an easement for public access (e.g., future trail)
along the eastern boundary of the parcels, and to include in his development construction
of one or more paved "spur trails" which connect his residential clusters to this easement.
By dedicating this easement, the developer offers a means to 1) provide pedestrian and
bicycle connectivity for this development to the town's existing and future transit and trail
network, and 2) assists the town in connecting the existing public trail network (e.g.,
between Buck Creek Trail Head and the other trails on Swift Gulch Rd. and Nottingham
Rd.) through and alongside his parcels in a convenient and sustainable manner which also
respects the privacy of inhabitants within this development. Because the developer has
not identified any plans for development in this area to date in the proposed PUD, there
should be no impact to the intended development from this request.
5. The plat title needs to be revised to include the previous lot and subdivision names for the
property as shown on the topographic survey.
6. It appears that Buck Creek Lane is intended to be a private street. Avon Municipal Code
states that the street must meet all requirements of Title 16. The following issues are
noted:
a. Buck Creek Lane violates AMC 16.40.050 (4) in that it is longer than
1,000 feet and serves more than twenty residential units. Commercial uses
Engineering Review of First Submittal of Buck Creek PUD Application dated January 2009
March 09, 2009
Page 2 of 3
such as the two school parcels are not permitted to be served via a cul-de-
sac.
b. The proposed 50 -foot right-of-way easement width does not contain all required
cut and fill slopes as stipulated in AMC 16.40.060.
C. A portion of Buck Creek Lane exceeds the maximum grade design criteria
of 8 percent as stipulated in 16.40.180(a).
d. Please include the specific exemptions to the development standards that are
being requested in the PUD. These modifications must be included as part of the
resolution approving the Preliminary Subdivision.
B. Items to be addressed prior to Final Plat Approval by Town Council
1. The Preliminary Plan submittal does not contain property lines and owners of record of
all parcels adjoining the proposed subdivision, including parcels separated there from by
only a public right of way as required in AMC 16.20.150 (4). This will be required to be
submitted with the Final Plat.
2. The preliminary plan submittal does not contain a brief description of proposed covenants
or a statement demonstrating the needs for the proposed subdivision, as required in AMC
16.20.150(12) g and h, respectively. Please submit the proposed covenants with the Final
Plat.
3. The level of detail in the submittal far exceeds the Preliminary Plan requirements.
Approval of the preliminary plan does not constitute approval of the items submitted
exceeding preliminary plan requirements such as detailed stormwater, roadway, and
utility infrastructure.
4. Please submit with the Construction Drawings and Final Plat submittal an exhibit
showing turning movements for the largest vehicles expected entering the various
townhome access drives, school sites, and cul-de-sac.
5. The area is known to contain geologic hazards. Town Staff is concerned about
excavating and potentially compromising the Buck Creek Road fill slope for construction
of Buck Creek Lane. Additional detail of proposed retaining walls, including all loading
calculations, should be provided in order to ensure slope stability must be submitted with
the construction drawings submitted with the Final Plat.
6. The proposed configuration of the entrance from Buck Creek Road will create stacking
problems for traffic including school buses and cars that must immediately turn left onto
Buck Creek Lane during rush hours. Appropriate traffic control methods for this
intersection must be analyzed as part of the Final Plat submittal.
7. A maintenance plan or agreement must be submitted stipulating the maintenance
responsibilities for all roadway, utility, and drainage infrastructure. Easements must be
granted allowing the Town to maintain said infrastructure if the private maintenance is
found to be inadequate; a cost recovery agreement for Town maintenance should be
submitted along with the required easements.
C. Items to be addressed during individual lot design review applications
1. The project is allocated 118.6 Single Family Equivalents (SFE) in the Town of Avon's
existing water rights allocation, based on existing zoning. Proposed development within
the subdivision cannot exceed 118.6 SFEs without providing additional water.
Preliminary calculations indicate that the proposed project will require less then the
allocated water rights. After the final determination of water demand is calculated during
CADocuments and Settings\mpielsticker\Local Settings\Temporary Internet Files\OLK360\2009 03 10 Engineering
Comments to PZ rev.doc 2
Engineering Review of First Submittal of Buck Creek PUD Application dated January 2009
March 09, 2009
Page 3 of 3
the building permit process, the remaining water will be transferred to the Town's
allocation.
2. It appears that the project lacks adequate snow storage. Much of the snow storage areas
proposed are shown conflicting with other uses, i.e. fire hydrants, stormwater inlets,
wetlands, and retaining walls. A revised snow storage plan should be updated as part of
the design review process, and each individual site will be evaluated against Town snow
storage requirements.
CADocuments and Settings\mpielsticker\Local Settings\Temporary Internet Files\OLK360\2009 03 10 Engineering
Comments to PZ rev.doc 3
MOUNTAIN STAR
Planning and Zoning Commissioners March 3, 2009
Town of Avon
On behalf of the Board of Directors of the Mountain Star Association, as well as the homeowners in
Mountain Star, I'd like to voice our concern over a number of issues raised in the PUD Amendment for
Lot 1, Lot 2, Lot 3, Lot 4, Wildwood Resort Subdivision. These comments are initial ones, and not
complete, after an initial review of the Zehren and Associates' PUD application that we recently received.
The most troubling aspect of the current design regards traffic. As I read the proposal, most or all of the
traffic will come -and -go via Buck Creek Road. The current intersection of Buck Creek Road and
Nottingham Road is already a safety issue with current traffic levels, especially at peak times. I have not
seen a traffic study, but I am convinced that a doubling or tripling (or more) of the traffic at that
intersection is untenable, in its current form. At one point we had discussed the construction of a traffic
circle at the intersection, and I think this should be considered. On the subject of traffic circles, it is my
understanding that one is being considered for the intersection of Swift Gulch Road and Nottingham
Road. Having just looked at the surrounding space there, this seems to impinge far too close to the current
retailers (Pizza Hut and two gas station/convenience stores), as well as too close to the current traffic
circle at the foot of the interstate. Any "back-up" from the new circle to the west would make the
intersection at Buck Creek and Nottingham almost unusable at peak times. Also, the land on the south
side of Nottingham Rd. will certainly be developed, and this will only add to the congestion at the
proposed circle at SGR and NR. We think this issue needs, and deserves, more study and analysis.
I have seen architectural renderings of the science school, and feel these are aesthetically pleasing, and I
am sure will work well for the school. The design of the multi -family homes is another matter. Though it
is difficult to tell from the renderings, the building facades seem simple and unattractive, and not in
keeping with the current level of design in the Town of Avon. It would seem more wood, timber, stone,
and other natural materials would be more appropriate. The height of the buildings also concerns me, as
Buck Creek is now a gorgeous open area, and these buildings reach too high, marring the natural look of
the surrounding hillsides and trees. Furthermore, a significantly greater amount of non -deciduous trees
should be considered in the landscaping plan, to provide a better screening of the development.
As I mentioned, these are our current thoughts, after a cursory reading of the proposed development. As
the Town's process continues, we look forward to contributing in a positive manner in the development of
these parcels.
Sincerely,
Steven C. Coyer
President, Mountain Star Association Board of Directors
39 Paintbrush, P.O. Boa: 1599
Avon, Colorado 81620
(970) 845-8156 • FAX (970) 845-7185
STATE OF COLORADO
Bill Ritter, Jr., Governor
DEPARTMENT OF NATURAL RESOURCES
DIVISION OF WILDLIFE
AN EQUAL OPPORTUNITY EMPLOYER
Thomas E. Remington, Director
6060 Broadway
Denver, Colorado 80216
Telephone: (303) 297-1192
wildlife. state. co. us
Town of Avon
Community Development
Attn: Matt Pielsticker
Box 975
Avon, CO. 81620
Mr. Pielsticker,
G�w�O
sroN OF �y4
For Wildlife -
For People
February 9, 2009
After reviewing the proposed PUD amendment for Buck Creek PUD, the Colorado Division of Wildlife (CDOW)
offers the following comments and recommendations regarding wildlife for your consideration.
Wildlife Impacts:
The proposed PUD amendment would have much less impact on wildlife than the existing plan.
However the PUD amendment does not provide all of the associated wildlife impacts or any information on how
the PUD would comply with the town's goals.
Goal H.1.3 - Require development and redevelopment to accommodate wildlife habitat, including deer and elk
migration routes, or otherwise mitigate loss of habitat.
The site is within mule deer winter range and migration corridor and elk winter range. The development of the
site would impact winter range habitat and could impact the mule deer migration corridor due to both site
development and traffic levels. The greatest impact could be an indirect impact from recreation activities by the
school and residents that chose to travel the existing power line road cut and disturb deer and elk wintering in the
area.
Mitigation measures could include:
No recreation use of the power line road cut from January 1 to May 1.
Habitat enhancement projects every three years to replace the loss of winter range (generally these would include
fertilization projects instead of burns due to the proximity of the town).
Stream set backs:
Request for exception from stream setbacks:
The CDOW does not support the request for the exception. Riparian ecosystems constitute one of the most
limited and yet species rich ecosystem in Colorado. The general stream setback for the Town of Avon is 30 feet
from the mean high water mark. The plan as shown on the CD shows there are two different encroachments into
the stream setback. The largest one is shown as 20-25 feet; this would be a significant encroachment and impact
DEPARTMENT OF NATURAL RESOURCES, Hams D. Sherman, Executive Director
WILDLIFE COMMISSION, Robert Bray, Chair • Brad Coors, Vice Chair • Tim Glenn, Secretary
Members, Dennis Buechler • Jeffrey Crawford • Dorothea Farris • Roy McAnally • Richard Ray • Robert Streeter
Ex Officio Members, Hams Sherman and John Stulp
on the riparian habitat.
The rational listed in the PUD plan: "In both instances the building elements within the encroachment will serve
to provide a "window" into the riparian habitat. One of these "windows" will be from the public museum space
and the other is from the aquatic learning studio. Both will allow observation into these environments and will
reinforce educational programs designed to promote understanding and stewardship of riparian areas."
and
"The Gore Range Science Schools has as it's mission "to awaken a sense of wonder and inspire environmental
stewardship through natural science education" through a combination of innovative school programs, summer
youth science camps, adult seminars, and year-round interpretive programs."
Requesting exceptions and negatively impacting limited and highly sensitive habitats is generally not how a
learning institution tries to promote and reinforce educational programs and inspire stewardship for the
environment. The PUD plan, as submitted, does not contain any information that would be compelling for such
an exception to the stream setback requirements. Further, the PUD does not provide any mitigation for the
exception and its impacts on wildlife.
The Division of Wildlife appreciates the opportunity to make recommendations and be involved with this project.
If you have any question or concerns with these comments please feel free to contact DWM Bill Andree at 328-
6563.
Sincerely,
Perry Will
Area Wildlife Manger, Glenwood Springs
Cc: Ron Velarde, Bill Andree, file
Memorandum
10V
To: Matt Pielsticker, Planner, Town of Avon 1,41 h.
��
From: Carol Gill-Mulson, Deputy Chief, ERFPD Oep
� �O�oR
Date: 2/11/2009 �JNIO
Re: Buck Creek PUD Submittal, Case PUD9001 OP
I reviewed the above referenced project for fire department concerns with the
following comments:
- Alpine Engineering has updated the site plan showing access and turning
movements for the ladder truck which is the most restrictive emergency vehicle. Per
a phone conversation this week, the updated version shows better access through
some of the residential areas. I will coordinate with them to get a copy for our files.
- Hydrants will be required within the PUD. I reviewed possible hydrant locations
with Alpine Engineering but based on the final project approval and flow demands,
those locations may be adjusted.
Please feel free to contact me with any questions at 970-748-4732.
EAGLE COUNTY
Matt Pielsticker
Town of Avon Community Development
P.O. Box 976
Avon, CO 81620
Email: mpielsticker@avon.org
RE: Inter Agency Referral for Buck Creek PUD
February 6, 2009
Mr. Pielsticker,
f tcF/V�
Fie � 7
Community pe 20p9
Bei®pment
Eagle County would like to thank you for the opportunity to review the Buck Creek PUD proposal. We
appreciate the relationship that exists between the Town of Avon and Eagle County. The project has
significant merits, including providing a much improved location for the fire district with better access
to 1-70. Moving the ERFD from its current location could provide an opportunity for redevelopment and
further the town's goals of the new "Main Street" project. This arguably could fall into the category of
creating economic opportunity. The Gore Range Natural Science School (GRNSS) portion of the
project provides very high marks with regard to building "social capital" in the community, not to
mention that the GRNSS's mission is aligned with "protecting and restoring the natural environment
upon which people and economies depend."
To provide the most quantitative feedback to the Town, we have applied the county's regulatory land
use tools to evaluate the Buck Creek development project. Our comments are based on an analysis
of the application as if it were being proposed within unincorporated Eagle County under the county's
guidelines. We understand and respect that the Town of Avon has different rules and regulations and
our analysis and comments are meant to provide the Town of Avon with an additional perspective.
Following are the county's comments for your consideration and the county staff would be happy to
discuss them with your staff further.
Planning/Zoning:
1) As a constructive exercise we applied the new Eagle County Sustainable Community Index
(SCI) to the Buck Creek project and have the following comments based on the tool. The SCI
is a required finding for new development in unincorporated Eagle County. Please see the
attached worksheet for individual checklist item scores. Also, the regulation with additional
language supporting the checklist items is available on our community development page of
our website www.ea4lecountv.us. Below are comments based on the SCI which would
improve the score of the project and we felt were applicable to the design and location.
Site/Location
• Wildlife/Ecological Communities=No evidence of DOW study or approval is
demonstrated.
• Riparian/Wetland Preservation=Large scale work proposed within stream setbacks and
riparian area. Eagle County requires a 75 -ft stream setback; further setback is
encouraged by the SCI to maintain wildlife migration corridors, water quality, and visual
aesthetics.
• Existing Vegetation Preservation= While the proposed site plan avoids existing
trees/shrubs for the most part, there are impacts could be further reduced.
• Stormwater Management= Bioswale or vegetative [pervious] systems being used in
the project could be expanded/improved. Currently there is a strong reliance on
underground piping for drainage infrastructure.
Connections and Uses
• Public Access=Access for the public to the GRNSS grounds and public access to the
Buck Creek trailhead is unclear; this would improve public benefit of the project.
• Clustering=Plan could reduce impacts and increase open space areas through
clustering uses and parking into more defined nodes.
• Open Space=No conservation easement proposed to preserve open space values on
the property.
• Reduced Parking Footprint=No evidence of creative parking. Only surface- clustered
• Reduced Parking= While the project doesn't provide parking in excess of what is
required, a truly pedestrian/transit-oriented design may demonstrate less onsite need
for parking. Parking studies which can demonstrate less parking need are
encouraged.
• Diversity of Housing Types=Recommended in addition to the townhouse, multi -family,
and live -work housing proposed, would be a differentiation of housing product which
promotes a diversity of owner -households within the development. Inclusion of some
smaller townhomes/duplexes, a couple single-family homes with accessory dwelling
units, and possibly another multi -family building (in addition to but fundamentally
different than the GRNSS housing) would provide improved housing diversity.
Transportation
• Walkable Streets=While connection to other uses within the Town of Avon is an
obvious strength of the project, pedestrian connection within the project could be
improved by connector trails between development/use nodes, and/or a connector trail
which integrates with the Buck Creek Trail. See worksheet.
• Access to active green space: it is recommended that a pocket park/play field/court be
included within the development.
Resource Efficiency
• Limited Turf, Xeriscaping, diverse native landscaping: not enough detail was provided
to determine if these items are included in the project, which is recommended.
• Solar Orientation= the site provides excellent potential for passive solar gain, building
orientation could be better oriented to take advantage of it. The SCI requires 75% or
more of buildings to have passive solar orientation, defined as the north -south aspect
is at least 1.5 times the east -west aspect. Also, our eco -build code awards points for
south -facing windows which represent at least 7% or more of total floor area.
• Renewable Energy= we commend the inclusion of a solar system for the GRNSS
building. However, the system would be likely only able to offset the energy needs for
the GRNSS and provide no additional energy offsets for the remaining development.
Recommended is inclusion of additional renewable energy systems for the
development, including more solar and/or micro -hydro.
Total score SCI for Buck Creek=67/219
133+ Exceeds Minimum Standards
67-132 Meets Minimum Standards
0-66
Summary:
Buck Creek's score falls within the category of "Does Not Meet Minimum Standards" for the
Eagle County Sustainable Communities Index. The SCI score is used as a tool to
comprehensively analyze how new developments contribute toward sustainable community
development. The intent of the SCI is to give staff, developers, and decision makers an
indication as to the level of sustainability a project includes within it, as well as its contribution
to the broader community. Eagle County defines Sustainable Community as; a community
which fosters economic opportunity and social capital while protecting and restoring the
natural environment upon which people and economies depend. Eagle County uses the SCI
for PUDs, PUD amendments, Final Plats, Major Special Use Permits and Zone Changes as a
required finding to be met for approval.
In the case of Buck Creek the index would be used to further improve the project with
reference to the low point categories such as on-site renewable energy, diversity of housing,
affordable housing and public access. It seems that Buck Creek PUD falls short in these
categories. A greater commitment to renewable energy such as micro -hydro, or larger scale
solar would greatly improve the proposal's score. Another quality opportunity to bolster Buck
Creek's SCI score would be to diversify the home types available with regard to size and type.
Allowing public access to the GRNSS property as well as the Buck Creek trailhead would also
raise the Buck Creek score and provide greater public benefit.
A proposal whose score on the index falls in the "Meets Minimum Standards" would most
likely not be denied solely on the basis of the index score but said project would have to be
favorable with regard to the other criteria used to judge the project such as public benefit and
social capital.
It is important to understand that the SCI works in conjunction with Eagle County's other goals,
plans, and policies. For example, the Town of Avon has a different strategy for affordable
housing than Eagle County. The SCI reflects a higher score if the proposal meets the county's
affordable housing guidelines.
Engineering: (comments provided directly from Engineering staff)
The Eagle County Engineering Department has received the above referenced file dated January 30,
2009, and has the following referral comments.
Due to a horizontal curve and trees along Buck Creek Road, it is recommended that the applicant for
development measure the site distance for the proposed Buck Creek Road access driveway. Site
distances for this proposed access must meet or exceed the applicable access code.
Thank you for the opportunity to review this development file. If you have any questions, I can be
reached at 328-3560
Housing:
The applicant has proposed to build 42 units at 2,750 square feet each (115,500 sq. ft. total) and
approximately 32,880 of commercial square footage. The applicant does not specify the whether the
housing would be offered. for rent or for sale, the rental or sales price points, or the relevant
restrictions applicable to these units. In addition to these units, the applicant has proposed to provide
housing on-site for both the Gore Range Natural Science School and for the Fire Station employees
to mitigate the housing impact of the associated jobs. Mitigation of jobs created is one of the
important outcomes of the county's guidelines.
The applicant's strategy is to limit the size of the units so that the individual units remain affordable to
the community. The applicant has proposed that their affordable housing strategy is in accordance
with the Town of Avon's plans, policies, and goals.
Under Eagle County's Local -Resident Housing Guidelines, the applicant would be required to build
affordable housing under one of the following options, based on the proposed Residential NSF and
Commercial NSF, as defined in the Housing Guidelines:
A. 35% AH or Commercial Mitigation'
1) 40,425 NSF of Affordable Housing ("AH")" affordable to households earning
100/110% of Area Median Income ("AMI") and
2) 23,509 AH @ 105/115% AMI
3) No RO
4) No transfer assessment;
B. 30% AH and 10% RO (or Commercial Mitigation)
1) 34,650 NSF of AH @ 100/110% AMI,
2) 19,235 AH @ 105/115% AMI, and
3) 11,550 NSF Resident -Occupied ("RO") units (market rate units sold only to locals)
4) No transfer assessment;
C. 30% AH and 1.5% Transfer Assessment (or Commercial Mitigation)
1) 34,650 NSF of Affordable Housing @ 100/110% AMI,
2) 21,372 NSF @ 105/115% AMI
3) No RO
4) 1.5% transfer assessment on all market rates units on the second and subsequent
sales (only for units not sold to locals);
D. 25% AH, 10% RO, and 1.5% Transfer Assessment (or Commercial Mitigation)
1) 28,875 sq. feet of Affordable Housing @100/110% AMI,
2) 13,152 sq. feet @ 105/115% AMI,
3) 11,550 RO Housing, and
4) 1.5% transfer assessment.
If you have any further questions or comments please feel free to contact me at
sean.hanaaan(Weacilecountv-us or 970-328-8748
Sean Hanagan
Eagle County Community Development
Environmental Planner
Commercial mitigation results in a smaller square footage AH requirement, but at a lower price point.
Developer may increase prices by 10 AMI points if parking is placed below interior residential living space;
Affordable Housing may be Affordable Rentals affordable to households earning 80/90% AML
"' 100% AMI reflects lower sales price for commercial mitigation requirements; rental rates do not change for
commercial mitigation, however.
PROJECT: 8(1 C_,< (j(D
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�.�� !?/.��a' i .� �./�.ii��: 2?Y:"it.:�"riEC�'�N�'W!l:3wd',JZ+i}r�,`4 �' t� �.A .y, � �.8'�!� ��5��£R-h:,%��;�'�w`�"'�--':
'vin; tr�"E=`'� r�2,i.i.« �+z.
PAS.
Z 2-5 LOCATION INFILL/REDEVELOPMENT: Infill (4), adjacent (2), and/or previously developed (1)
S" 5 TRANSIT: Over 50% of the development is within walking distance (1/4 mile) of transit stop (5).
y 2.4 PROXIMITY TO EXISTING WATERIWASTEWATER: ties into existing (4); public extension (2)
45 5 WILDLIFE/ECOLOGICAL COMMUNITIES: biological study with DOW compliance
051` Q 1-3 RIPARIAN/WETLAND PRESERVATION: 100' setback and water quality testing
NA I 3 AGRICULTURAL LAND PRESERVATION: Doesn't remove historic/potential agricultural land
1 1-2 1EXISTING VEGETATION PRESERVATION: <10% existing tree/shrubs impacted
I NIA 2-3 IBROWNFIELD/BLIGHT REDEVELOPMENT: Improves blighted lot (2), contamination cleanup (3)
1 2I 2 !STEEP SLOPES/RIDGELINES: on slopes less than 20%
! 11-3 ISTORMWATER MANAGEMENT: 100% of surface drainage through bioswale/vegetated system.
r� .R,'
2 1!OPEN COMMUNITY: no gates, amenities are open to the public
I 01 4 !!PUBLIC ACCESS: provides appropriate public access to public lands/rivers (with agency approval) 4 pts.
I `f I 4 !!COMPACT DEVELOPMENT: 7 or more units/acre; commercial >.50 FAR
/ 11-2 IIREDUCED FOOTPRINT: on previously disturbed area (1); all structures and parking <.50 lot (1)
I 0 I 2 1ICLUSTERING: efficient infrastructure, development concentrated in node(s), allowing for open areas.
7�d
1,--j 13-18 IIOPEN SPACE: conservation easement meets components of open space criteria. See regulations.
D 12-7 INDUCED PARKING FOOTPRINT: less surface parking (2-3), carpool (1), covered bike storage (1-2)
I % 12-4 !!PARKING LOCATION: surface parking to rear of structures only (4); to side and screened (2).
I ( 11-3 IIREDUCED PARKING: Does not exceed LURs: 1 pt. Study shows reduced on-site demand (2-3 pts.)
I Lf I 4 IIJOBS/HOUSING RATIO onsite housing for mixed-use non-residential �ee regulations)
!
01, 3 IISCHOOL PROXIMITY: within a mile of a public school --+ c p „�
I L( 11-20 IIDIVERSITY OF USES: 1 point each use category listed in regulations
I / 11-8 IIDIVERSITY OF HOUSING TYPES 1 point each housing type listed in regulations above 2.
Q 11-20 I11AFFORDABLE HOUSING 1 point each affordable housing unit provided above housing guidelines.
12-4 IIAFFORDABLE RENTt♦AgnLJ HOUSING: Onsite rental housing, see regulations.
un
(011-28 I WALKABLE STREETS: see commentary
O 11-3 �ISTREET NETWORK: grid small block pattern, 2 pts, pedestrian connection at cul de sacs (1)
I IC/A 12-3 I,ITRANSIT FACILITIES: transit stop provided within 1/4 mile (2 pts.), covered bike storage (1 add'1 pt.)
13 11-4 IIWALKABLE VICINITY: www.walkscore.com score 10-25=1pt, 26-50=2pts, 51-75=3pts, 76-100=4pts.
13 I 3 IIBICYCLE NETWORK: Connection to community center via bicycle paths/routes.
I I 2 IIACCESS TO PUBLIC SPACES: 90% of units within 1/4 mile of public green space
I 3 113 IIACCESS TO ACTIVE SPACE: within 1/2 mile of ball field, 3 -mile recreation trail, and/or dog park
D 11-3 IILOCAL FOOD PRODUCTION: private garden areas (1); community garden(s) (2); local market (1)
I d 11-2 I 1 MITED TURF/SPECIES: <25% landscaped areas turf (1). Turf uses 25% less water than KBG (1).
I I I 1 IIDIVERSE NATIVE LANDSCAPE: Landscape plan utilizes 10 or more local native low-water species.
16 I 2 IIXERISCAPE: Landscape plan incorporates seven xeric design principles (see regulations)
I 61 5 IISOLAR ORIENTATION: 75% of all buildings have solar orientation (see regulations)
13 13-30 IRENEWABLE ENERGY 3 points for every 5% total energy offset by onsite renewable system(s).
! 0 1 I IINFRASTRUCTURE RECYCLED CONTENT: Concrete/asphalt 75% or more recycled content.
f` IREQUIRED IIRECYCLING: Design includes areas for recycling co -mingled, paper, and cardboard.
IREQUIRED IILIGHT POLLUTION: Exterior lighting minimized, shielded, night sky compliant.
I X IIINNOVATION IN DESIGN: Items meeting intent not listed, case by case review
If I II
0 22111TOTAL
Exhibit C
TOWN OF AVON
PLANNING & ZONING COMMISSION _IV 0. .
RESOLUTION No. 09-05 C O L O R A D O
A RESOLUTION RECOMMENDING APPROVAL TO THE AVON
TOWN COUNCIL OF A PLANNED UNIT DEVELOPMENT (PUD)
APPLICATION FOR THE BUCK CREEK PUD, FORMERLY
LOTS 1, 2, 3, and 4, WILDWOOD RESORT, TOWN OF AVON,
EAGLE COUNTY, COLORADO
WHEREAS, the applicant, Zehren and Associates, and the owners representative, Jay
Peterson, have applied for a Planned Unit Development (PUD) Amendment and
concurrent Preliminary Subdivision, pursuant to Section 17.20.110 of the Avon Municipal
Code (AMC); as presented in the original application dated January, 2009; and
WHEREAS, Pursuant to the pertinent noticing procedures required by law, the Planning
and Zoning Commission of the Town of Avon held public hearings on February 17tH
2009; March 3`d, 2009, and March 17th, 2009 - at which time the applicant was given an
opportunity to present a proposal for a PUD Amendment and hear feedback from both
the Commission and members of the public, in addition to the written comments from
Staff regarding this PUD request; and
WHEREAS, The Planning and Zoning Commission was provided with Staff Reports at
each of the aforementioned hearings which included pertinent support materials and
which provided a thorough analysis of the technical zoning information as it relates to the
applicable twelve PUD Design Criteria found in Section 17.20.110(h), AMC; and
WHEREAS, The Planning and Zoning Commission has considered the following criteria
when evaluating this application:
1. Conformance with the 2006 Town of Avon Comprehensive Plan Goals and
Objectives.
2. Conformity and compliance with the overall design theme of the Town, the
sub -area design recommendations and design guidelines of the Town.
3. Design compatibility with the immediate environment, neighborhood, and
adjacent properties relative to architectural design, scale, bulk, building height,
buffer zones, character, and orientation.
4. Uses, activity, and density which provide a compatible, efficient, and
workable relationship with surrounding uses and activity.
5. Identification and mitigation or avoidance of natural and/or geologic hazards
that affect the property upon which the PUD is proposed.
6. Site plan, building design and location and open space provisions designed
to produce a functional development responsive and sensitive to natural features,
vegetation and overall aesthetic quality of the community.
7. A circulation system designed for both vehicles and pedestrians addressing
on and off site traffic circulation that is compatible with the Town Transportation
Plan.
8. Functional and aesthetic landscaping and open space in order to optimize
and preserve natural features, recreation, views and function.
9. Phasing plan or subdivision plan that will maintain a workable, functional, and
efficient relationship throughout the development of the PUD. The phasing plan
shall clearly demonstrate that each phase can be workable, functional and
efficient without relying upon completion of future project phases.
10. Adequacy of public services such as sewer, water, schools, transportation
systems, roads, parks, and police and fire protection.
11. That the existing streets and roads are suitable and adequate to carry
anticipated traffic within the proposed PUD and in the vicinity of the proposed
PUD.
12. That the PUD or amendment to PUD requested provides evidence of
substantial compliance with the following public purpose provisions, as outlined
in Section 17.28.085 of the Avon Municipal Code (as follows):
Zoning applications
The Town shall consider the following public benefit criteria when evaluating
zoning applications:
(1) The application demonstrates a public purpose which the current zoning
entitlements cannot achieve.
(2) Approval of the zoning application provides long-term economic, cultural
or social community benefits that are equal to or greater than potential
adverse impacts as a result of the changed zoning rights.
(3) The flexibility afforded in approval of the zoning application will result in
better siting of the development, preserving valued environmental and
cultural resources and increasing the amount of public benefit consistent with
the community master plan documents, and;
WHEREAS, after holding a public hearing on March 17th, 2009 meeting, the Planning &
Zoning Commission made the following FINDING with respect to the subject application:
1. The Planning and Zoning Commission finds this application in compliance
with the PUD Review Criteria outlined in Section 17.20.110(h), AMC.
NOW, THEREFORE, BE IT RESOLVED, the Planning and Zoning Commission of
the Town of Avon, Colorado, hereby makes a recommendation of CONDITIONAL
APPROVAL to the Avon Town Council of the Buck Creek PUD application, Town of
Avon, Eagle County Colorado; subject to the following conditions:
1. The final form and content of the Buck Creek PUD Development Plan shall
be reviewed and found acceptable by Staff prior to Council review;
2. The property owner shall satisfactorily address the comments outlined in the
Engineering Department's Memo, dated March 11, 2009, the timing of which
depends on the specific comments.
3. The property owner shall dedicate to the Town, at the time of Final Plat
approval, the necessary road right-of-way along Nottingham Road and Swift
Gulch Road, along with associated easements, required for the construction
of the Swift Gulch round -a -bout;
4. The property owner shall demonstrate that the site meets or exceeds the
minimum 20% snow storage requirement and associated snow storage
easements prior to the issuance of building permit;
5. The property owner, or representative, shall process a Comprehensive Plan
Amendment application to update the Future Land Use Map to better reflect
this PUD Amendment application and associated Land -Uses. This
application must be submitted within 90 days of PUD approval.
6. The Town is entitled to use, at it's sole and absolute discretion, any and all
water rights for the entire site, which are in excess of the minimum water
necessary to serve the proposed uses;
7. Except as otherwise modified by this approval, all material representations
made by the applicant or applicant representatives in this application and in
public hearings shall be adhered to and considered binding conditions of
approval.
ADOPTED THIS 17th DAY OF MARCH, 2009
Signed.
Date:
Chair
Attest.
Date:
Secretary
HEART of the VALLEY
I .Y
TOWN OF AVON voi
PLANNING & ZONING COMMISSION C O L 0 R A D o
RESOLUTION No. 09-06
A RESOLUTION RECOMMENDING APPROVAL TO THE AVON TOWN
COUNCIL OF A PRELIMINARY SUBDIVISION APPLICATION, WITH
CERTAIN EXEMPTIONS FROM TITLE 16 REQUIREMENTS, RELATED
TO THE PLANNED UNIT DEVELOPMENT (PUD) AMENDMENT
APPLICATION FOR THE BUCK CREEK PUD, FORMERLY LOTS 9, 2,
3, and 4, WILDWOOD RESORT, TOWN OF AVON, EAGLE COUNTY,
COLORADO
WHEREAS, Zehren and Associates, Inc, has filed Preliminary Subdivision Plan, containing
certain exemptions from the Title 16: Subdivision Regulations, in conjunction with an Application
to amend the existing Planned Unit Development ("PUD") for the Wildwood Resort; and
WHEREAS, the submitted Preliminary Subdivision Plan requests exemptions from the following
Subdivision regulations:
(1) AMC 16.40.050 (4) — Cul -de -Sacs
Exemptions are to allow an increase in the maximum cul-de-sac length from 1,000 feet
to 1650 feet for Buck Creek Lane, to allow the number of residential units served by a
cul-de-sac to be increased from 20 to 32, and to allow commercial uses as shown on
the
Buck Creek PUD Development Plan.
(2) AMC 16.40.070 — Roadway Width
Exemption is to allow the roadway widths within the Buck Creek PUD, which will all be
classified as local streets, to be reduced from the minimum of 22 feet to 20 feet along
their entire length. The interior roads within lots 1 B and 2 are not classified as roadways
but are classified as private driveways and therefore not subject to AMC roadway width
requirements.
(3) AMC16.40.070 (a)(2) — Grades, Curves and Sight Distances
Exemption is to allow the maximum grade for distance equal to the stopping sight
distance from intersection be increased from 6% to 6.3% for the east -west road through
Lots 1A and 1B.
(4) AMC 16.40.070 (a)(2) — Grades Curves and Sight Distances
Exemption is to allow the maximum grade of 4.0% be decreased from fifty (50) feet from
the intersection to 45 feet on Lot 1A and decreased to 27.5 feet on Lot 1 B.
(5) AMC 16.40.080 (a) — Grades, Curves and Sight Distances
Exemption is to allow the maximum roadway grade for Buck Creek Lane, which is
classified as a local street, be increased from 8% to 8.5% from Station 1+90 to 4+15, to
8.28% from Station 6+60 to 7+75, and to 8.5% from Station 10+40 to 11 +50. The Buck
Creek Lane stationing is measured starting from its southern most terminus as shown
on the Buck Creek PUD Preliminary Construction Plans dated January 2009 and
prepared by J&K Inc.
WHEREAS, the proper posting, publication and public notices for the hearings before the
Planning and Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning and Zoning Commission of the Town of Avon held public hearings on
February 17th, 2009; March 3rd, 2009, and March 17th, 2009, at which time the applicant and the
public were given an opportunity to express their opinions and present certain information and
reports regarding the proposed PUD Amendment and related Subdivision issues; and
WHEREAS, following such public hearings, the Planning and Zoning Commission forwarded its
recommendation for approval on the PUD amendment application to the Town Council of the
Town of Avon through Resolution 09-05; and
WHEREAS, the Subdivision exemptions appear to comply with the following criteria as set forth
in Section 16.20.030 of the Avon Municipal Code:
(1) The division shall not violate the specifications of any relevant, previously
approved subdivision;
(2) The division shall not result in prohibitive physical restraints upon access to, or
use of, either of the resulting parcels;
(3) The division shall qualify as one (1) or more of those exempted actions found in
Section 16.08.190(c) of the Town subdivision regulations; and
WHEREAS, the Preliminary Subdivision Plan appears to comply with the requirements of
Chapter 16.20, Preliminary Plans, of the Avon Municipal Code and in particular conformance to
applicable regulations as set forth in Section 16.20.040 as follows:
(1) The Comprehensive Plan;
(2) For Planned Unit Developments, the relevant Planned Unit Development Master
Plan and the Comprehensive Plan, as reflected in the approval of the Planned
Unit Development;
(3) Physical suitability of lots proposed for subdivision; and
(4) Compatibility with surrounding land uses.
NOW, THEREFORE, BE IT RESOLVED, that the Planning and Zoning Commission hereby
recommends approval to the Town Council for the exemptions from the Subdivision
Regulations and the Preliminary Subdivision Plan as submitted in conjunction with the Buck
Creek PUD Amendment application dated January, 2009 with the following conditions that must
be addressed prior to Final Plat approval:
1. Approval of construction plans for all utility services including but not limited to water,
sewer, electric, natural gas, phone and cable must be submitted to the Town of Avon by the
appropriate entities.
2. Completion of technical corrections as identified by Town Staff. Including but not limited
to those identified in Engineering Memo, dated March 11, 2009, attached hereto.
ADOPTED THIS 17th DAY OF MARCH, 2009
Signed:
Chair
Attest:
Secretary
Date:
Date:
m 0
Ic0friclals
Lm 0
iability Handbook
2007 Edition
CML CIRS
CIRSA Public Officials
MAE'R
.M. Liability Handbook CMS.
IN�1.�1:11.f1�i.1.A IIM4I.IEii:1H1Ii
Table of Contents
Foreword................................................................................................................................. 1
Introduction, Acknowledgements
Chapter 1.
Liability under state law: Introduction to the Colorado Governmental Immunity Act ............ 3
Introduction, Types of claims to which the Act applies, Types of claims to which the
Act does not apply, Persons and entities to whom the Act applies, Persons and entities to
whom the Act does not apply, Protections of the Act, Additional protections for employees,
Notification for public employees, Additional notification obligations for CIRSA members,
Waiving the Act's limits and immunities, Status of punitive damages under the Act
Chapter 2.
Liability under federal law: 42 U.S.C. §1983.......................................................................... 7
Background, Elements of a § 1983 claim, Application of § 1983 to local governments and
their officials and employees, Official policy and customs, Casual connection, Deliberate
interference, Public officials and employees, Defenses to §1983 claims, Remedies, Typical
§ 1983 claims against local governments, Suggestions for avoiding § 1983 liability
Chapter 3.
Reducing the risk of liability.................................................................................................. 13
Introduction, Protections from personal liability, Reducing remaining risks
Chapter 4.
Landuse liability................................................................................................................... 19
Introduction, Who should be concerned about land use liability, Sources of land use
authority, Exercising land use authority, Land use liability under federal law, Land use
liability under state law (Challenges pursuant to Colorado court rules, State constitutional
and statutory claims, State common law claims, Voter control of the land use process:
Initative and referendum), Ways to avoid land use liability
Chapter S.
Providinga fair hearing......................................................................................................... 27
Introduction, Who should be concerned about providing a fair hearing, When are notices
and a fair hearing (procedural due process) required, What is a quasi-judicial proceeding,
What if it is unclear whether the matter is quasi-judicial, What "process" is "due" to
ensure due process requirements are met (Notice + Hearing = Procedural due process), Why
is impartiality so important, How is impartiality (or the appearance of impartiality) lost,
What should be done if an actual or apparent conflict exists
Endnotes............................................................................................................................... 33
Appendix A.
Samplehearing procedure................................................................................................... A-1
Appendix B.
Sample employee defense policy......................................................................................... B-1
COPYRIGHT 1991, 1999, 2007 CIRSA
ALL RIGHTS RESERVED
Foreword
Introduction
This Public Officials Liability Handbook is intended to provide an overview of some of the
liability issues facing public entities, as well as some suggestions for avoiding or reducing
liability.
Chapter 1 describes the governmental immunity laws in Colorado that help protect
public entities and public officials from liability. Governmental immunity laws vary from
state to state, so it is important to research the specific laws that apply if your
particular jurisdiction is outside Colorado.
Chapter 2 covers public official liability that arises under federal law rather than state
law, in which cases state law protections are largely inapplicable.
Chapter 3 discusses an area of special concern to elected officials, the risks of personal
liability, and provides suggestions for reducing or avoiding such liability.
Chapter 4 addresses one of the most frequently litigated areas of public official liability
— liability for land use decisions.
Finally, Chapter 5 focuses on providing a fair hearing in a quasi-judicial matter.
When read together, these chapters may seem somewhat repetitive. The intent of the
drafters of this Handbook was to make each chapter a separate and complete resource,
enabling the reader to study the book in its entirety or to read about one aspect of public
official liability without having to cross-reference throughout the Handbook in order to
adequately comprehend the specific topic of interest.
Nothing in this Handbook or its appendices should be used as a substitute for the legal
advice of the public entity's attorney; when legal questions arise, contact legal counsel.
Except as otherwise noted, statutory citations in this Handbook are to the Colorado
Revised Statutes as amended through May, 2007.
Acknowledgements
This Handbook was originally published by the CIRSA Loss Control Department in 1999.
The original publication was drafted by Tami A. Tanoue, Esq., Samuel J. Light, Esq., Kathleen
K. Harrington, Esq., and Mary Kay Hogan, Esq. Many of these same people collaborated to
review and revise individual chapters of the Handbook, as indicated below:
Tami A. Tanoue, Esq., Colorado Intergovernmental Risk Sharing Association - Chapter 3,
Reducing the Risk of Personal Liability
Kathleen K. Harrington, Esq., Light, Harrington 8& Dawes, P.C. - Chapter 1, Liability
Under State Law: Introduction to the Colorado Governmental Immunity Act; Chapter 2,
Liability Under Federal Law: 42 U.S.C. §1983; and Chapter 5, Providing a Fair Hearing
Samuel J. Light, Esq., Light, Harrington & Dawes, P.C. - Chapter 4, Land Use Liability
Additional acknowledgements go to Rachel Allen, Esq., Staff Attorney, Colorado Municipal
League and Erin Goff, Esq., Senior Staff Attorney, Colorado Municipal League, each of whom
also reviewed portions of this Handbook, and Traci Stoffel, Publications Specialist, Colorado
Municipal League.
Sam Mamet Timothy A. Greer
�,,..�
CML executive director CIRSA executive director
'Plank,
Chapter One:
Liability under state law: Introduction to the
Colorado Governmental Immunity Act
Introduction
This chapter discusses the public entity liability laws as they exist in Colorado. Because
these laws vary from state to state, it is not possible to address the laws of each; it is important
for each jurisdiction to obtain information and advice on the particular laws that apply to it.
Types of claims to which the Act applies
The Colorado Governmental Immunity Act ("Act")' applies to all actions for injuries
brought under state law (whether in state court or in federal court) against pubic entities and
public employees which "lie in tort or could lie in tort regardless of whether that may be the
type of action or the form of relief chosen by a claimant."2 (A tort is a private or civil wrong or
injury, other than a breach of contract, for which there is a judicial remedy in the form of an
action for damages.) The Act is intended to provide for all the circumstances under which the
state, any of its political subdivisions, or the public employees of such public entities may be
liable in such actions.3
Types of claims to which the Act does not apply
Most of the protections of the Act likely do not apply to actions brought under federal law
in federal court.4 Examples of actions under federal law include actions for civil rights
violations under 42 U.S.C. §1983, and federal antitrust actions.
Of course, the Act does not apply to actions which do not lie in tort and could not he in
tort. An example of such an action would be an action for a breach of contract.
Except as provided in the Act, a public entity's liability is determined in the same manner
as if the entity were a private person.5
Persons and entities to whom the Act applies
The Act applies to "public entities," including "the state, county, city and county,
municipality, school district, special improvement district, and every other kind of district,
agency, instrumentality, or political subdivision thereof organized pursuant to law," as well as
to separate entities created by intergovernmental agreement.6 The Act applies to home rule as
well as statutory municipalities. A home rule municipality may provide greater monetary
compensation to injured persons than that provided for in the Act,7 but may not impose more
stringent requirements than those in the Act.$
The Act also applies to "public employees," defined to include generally an officer,
employee, servant, or authorized volunteer of a public entity, whether or not compensated,
elected, or appointed." Thus, the mayor and members of the city council, board of trustees or
other governing body, board and commission members, employees, as well as authorized
volunteers of the public entity, are covered by the Act.
Persons and entities to whom the Act does not apply
The Act excludes from the definition of "public employee" independent contractors and
persons sentenced to participate in any useful public service. 10 Thus, the protections of the Act
do not apply to these persons. Perhaps more importantly, from the public entity's perspective,
if the entity has contractually assumed an unlimited indemnification obligation i.e., an
obligation to defend and to pay the costs of any judgment or settlement) with respect to such
persons, the entity's liability is not limited by the Act (See Chapter 3, for an example of a non -
liability provision). Independent contractors should be of particular concern to the public
entity, since they are often used to perform important functions and services such as
construction work, building inspection, planning, engineering, and management.
Most of the Act's protections do not apply to a public employee whose act or omission
resulting in a claim did not occur during the performance of the employee's public duties and
within the scope of the public employment, or whose act was "willful and wanton."11 The term
"willful and wanton" is not defined in the Act; a separate statute12 defines "willful and wanton"
conduct as conduct "purposefully committed which the actor must have realized as dangerous,
done heedlessly and recklessly, without regard to consequences, or of the rights and safety of
others, particularly the plaintiff." Punitive or exemplary damages are discussed later in this
chapter.
Some of the Act's protections for public employees are lost if the employee:
. Fails to notify the public entity of the existence of a lawsuit within the required time, 13 or
. Compromises or settles a claim without the consent of the public entity,14 or
• Willfully and knowingly fails to notify the public entity of any incident which reasonably
could be expected to lead to a claim, within a reasonable time after the incident occurs. 15
Protections of the Act
The Act provides the following important protections to both public entities and public
employees:
• Imposes a 180 -day notice of claim requirement on persons claiming to have suffered
injury because of the act or omission of a public entity or public employee. 16 The claim is
forever barred if the notice of claim is not filed with the public entity's governing body or
attorney within 180 days after discovery of the injury.17
• Imposes maximum monetary limits on the payment of any judgment or settlement of
$150,000 per person and $600,000 per occurrence. 18 These monetary limits do not apply
to a public employee who was not acting in the performance of the employee's public
duties and within the scope of public employment, or whose acts or omissions were willful
and wanton. 19
. Provides immunity from liability, for public entities and public employees (except for
public employees who were not acting in the performance of their public duties and within
the scope of their public employment, or whose acts or omissions were willful and
wanton), in actions under state law which lie in or could lie in tort.20
However, no such immunity exists for injuries resulting from the following six
circumstances:
The operation of a motor vehicle, owned or leased by the public entity, by a public
employee while in the course of employment (unless the vehicle was an emergency
vehicle operating in accordance with C.R.S. X42-4-108(2) and (3), in which case
immunity may exist)21;
The operation of a public hospital, correctional facility, or jail by the public entity;
A dangerous condition of any public building;
Certain dangerous conditions of a public highway, road, or street which physically
interfere with the movement of traffic;
A dangerous condition of a public hospital, jail, public facility located in any park or
recreation area maintained by a public entity, or of a public water, gas, sanitation,
electrical, power, or swimming facility; and
• The operation and maintenance of any public water facility, gas facility, sanitation
facility, electrical facility, power facility, or swimming facility by a public entity.22
4
Focusing loss control efforts on the foregoing circumstances will help the public entity
limit or avoid losses in these areas of vulnerability.
Additional protections for employees
The following additional protections apply to public employees:
• The public entity is liable for the costs of the defense of the public employee (unless the
employee's act or omission did not occur during the performance of the employee's public
duties and within the scope of public employment, or the act or omission was willful and
wanton);23 and
The public entity is liable for the payment of judgments and settlements of claims
against the public employee (unless the employee's act or omission did not occur during
the performance of the employee's public duties and within the scope of public
employment, or unless the act or omission was willful and wanton).24
Both of these rights can be lost if the employee fails to meet the notification requirements
described in this chapter.25 Both rights can also be lost if the employee compromises or settles
the claim without the public entity's consent.26
If the public entity has provided a defense for a public employee whose act or omission is
later determined by a court to have been outside the performance of the employee's duties,
outside the scope of employment, or willful and wanton, the employee may be required to
reimburse the public entity for the costs and attorney fees incurred by the entity in providing
the defense.''27
Notification obligations for public employees
The public employee loses the right to look to the public entity for the provision of a
defense and for the payment of a judgment or settlement if the public entity has not been made
a party defendant in the action and the public employee fails to notify the public entity of the
existence of the action within 15 days after commencement of the action.28 Both rights are also
lost if the employee has willfully and knowingly failed to notify the public entity of the incident
or occurrence which led to the claim within a reasonable time after the incident or occurrence,
if the incident or occurrence could reasonably have been expected to lead to a claim.29
If the public entity has been made a codefendant in the action with the public employee,
the public entity must notify the employee within 15 days after the commencement of an action
whether it will provide a defense to the employee; if the public entity has not been made a
codefendant, the public entity must so notify the employee within 15 days after receiving
written notice from the employee of the existence of the action.30
Additional notification obligations for CIRSA members
CIRSA's Bylaws and coverages also impose notification requirements. Member obligations
under the Bylaws include the obligation to report to CIRSA all incidents or occurrences which
could reasonably be expected to result in CIRSA being required to cover a claim or loss. As is
typical of insurance policies, CIRSA's coverage documents also require the member to notify
CIRSA promptly of any event, claim, or suit that the member could reasonably conclude is
covered. In order to preserve any coverage which may exist, prompt compliance with the
notification provisions of the coverage documents is critical.
Upon a member's notification to CIRSA's claims adjuster of a claim against the member or
an employee of the member, the claims adjuster will provide notification as to whether coverage
exists and whether a defense will be provided.
Waiving the Act's limits and immunities
No waiver occurs by the purchase of insurance in excess of the Act's $150,000/ $600,000
monetary limits, or for acts for which immunity exists under C.R.S §24-10-106. The only
method by which the limits or immunities can be waived is by the public governing body's
adoption of a resolution waiving such limits or immunities.31 The resolution can apply only to
injuries occurring subsequent to the adoption of the resolution.32 Public entities should
approach such a resolution, if at all, with great caution, since insurance coverages may not
apply to the increased limits or expanded areas of liability. CIRSA's coverages are not expanded
by any resolution making such a waiver, and members must notify CIRSA in advance of any
such waiver.
Status of punitive damages under the Act
Punitive damages or exemplary damages (the terms are synonymous) are damages
awarded in circumstances where the injury complained of is "attended by circumstances of
fraud, malice, or willful and wanton conduct."33 State law limits the amount of punitive or
exemplary damages that can be awarded to an amount equal to the amount of actual damages
awarded to the injured person (or, in certain aggravated situations, three times the amount of
such actual damages).34
Public entities are not liable, either "directly or by indemnification," for punitive or
exemplary damages under the Act.35 However, public employees can be liable for the payment
of punitive or exemplary damages if the employee's act or omission was willful and wanton.36
Because the type of willful and wanton conduct which results in the award of punitive or
exemplary damages is likely to be the same type of conduct which results in an employee's loss
of the protections of the Act, engaging in such conduct is especially risky.
If a plaintiff alleges in an action that a public employee's act or omission was willful and
wanton, and the plaintiff fails to "substantially prevail" on the allegation, the court must award
attorney fees against the plaintiff and in favor of the employee (unless the court determines
that such an award would be "unjust").37
Public entities are authorized to adopt a resolution to defend a public employee against a
claim for punitive damages, or to pay or settle a punitive damage claim against the employee.38
CIRSA coverage does not exist for the payment or settlement of punitive damage claims.
Chapter Two:
Liability under federal law: 42 U.S.C. §1983
Background
Although state law provides the basis for many of the claims brought against local
governments, suits against public entities and public employees under the federal Civil Rights
Act of 1871 ("Act") have increased significantly over the past two decades. In fact, the greatest
percentage of federal court decisions involving local governments is based on liability under
§1983 of the Act (§1983).-1q These claims pose one of the greatest financial risks to local
governments. Therefore, it is extremely important to have a basic understanding of the liability
issues involved under §1983.
42 U.S.C. §1983 of the Act provides in pertinent part that:
Everyperson who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory, subjects or causes to be subjected. any citizen of
the United States ... to the deprivation of anv riahts, privileges or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proceeding for redress." (Emphasis added).
Since §1983 pertains to the deprivation of rights, privileges, and immunities secured by
the U.S. Constitution and other federal laws, many areas of local government activity are
subject to scrutiny under this provision. Common claims against local governments under
§1983 include those involving affirmative action, arrests, employment, land use, municipal
court procedure, and code enforcement. The following information is intended to clarify some of
the more crucial issues facing public officials in light of the sweeping nature of §1983 liability.
Elements of a §1983 claim
In order to prevail in a claim for relief under §1983, a plaintiff must establish that: (1) the
conduct that is the basis of the claim was committed by a person acting "under color of state
law"; and (2) such conduct violated a federally protected right. Each of these elements is
discussed below.
• Under Color of State Law. This phrase refers to action or inaction by a person under
the authority of state law or local ordinance or regulation. Almost every act or omission by
a local government official in furtherance of his or her duties will be deemed "under color
of law". This phrase can also apply to the actions of private individuals acting in concert
with public officials.
• Deprivation of Rights. The second element of a §1983 claim refers to the deprivation of
rights, privileges or immunities secured by the Constitution or laws of the United States.
Section 1983 does not create an independent cause of action; rather, it must attach to
another federally protected right. Section 1983 also does not pertain to rights conferred by
state statute; nor does it apply to federal statutes that provide an exclusive remedy or
statutes that are regulatory in nature and that do not create rights.40
Application of §1983 to local governments and their officials and employees
Liability under §1983 attaches to any person who, under color of law, deprives a plaintiff
of his or her civil rights protected by the U.S. Constitution and other federal laws. A
municipality is a "person" for purposes of §1983, and therefore may be held liable for damages
and injunctive relief under the Act.41 However, municipal liability under §1983 only extends to
those situations where a plaintiffs federal rights are violated by a municipal official or
employee acting pursuant to an official municipal policy or custom, and where the policy or
custom causes the violation of federal rights.42
Official policy and custom
An official policy or custom giving rise to a violation of a plaintiffs federally protected
rights can be made and implemented either by the action or the inaction of the local
government's legislative body or its officials. There is no definitive test for determining whether
the conduct of a public official or employee constitutes the enforcement of an official policy or
custom. This must be analyzed on a case-by-case basis. In trying to clarify this requirement,
the United States Supreme Court commented that the term "policy" could be "a policy
statement, ordinance, regulation, or decision officially adopted and promulgated..." by the local
government's legislative body.43 As one example, if a local government adopts an
unconstitutional ordinance, thus enacting an official policy, and that ordinance deprives a
plaintiff of a federal right, the government would be liable under §1983.
It is more difficult to ascertain what constitutes an official "custom" of a local government.
The Supreme Court has defined it as a practice "so permanent and well settled as to constitute
a 'custom or usage' with the force of law."44 A custom usually lacks formal approval by the local
legislative body, but may be inferred where there is continual failure to remedy known
constitutional violations or other violations of federal law. For example, one federal appellate
court has held that a municipality's perpetual failure to address its police officers' indifference
to the rights of arrestees is an official custom for purposes of §1983.45
The Supreme Court has also held that a single, isolated incident of unconstitutional
activity by a low-level city employee does not constitute an official policy or custom, and
therefore is not enough to establish liability for purposes of §1983.46 However, the official policy
requirement may be satisfied and liability may be imposed on a local government under §1983
where a single decision is made by an official of the government with final decision-making
authority. For example, the Supreme Court found a local government to be liable under §1983
where a: deputy district attorney authorized an unconstitutional search. The Court found the
deputy's action to constitute an official policy because the deputy was the final decision -maker
on the issue.47
Causal connection
In addition to proving that an employee or official acted pursuant to an official policy or
custom, a plaintiff who sues a local government under §1983 must prove that the local
government was the "moving force" behind the alleged deprivation of civil rights.48 In other
words, the plaintiff must establish that the action was taken with the requisite degree of
culpability, and must establish a direct causal link between the action and the alleged
deprivation of federal civil rights.
Deliberate indifference
To hold the local government liable, a plaintiff in a §1983 claim must also demonstrate
that the defendant acted with "deliberate indifference" to the risk that his or her action would
deprive the plaintiff of a particular constitutional or statutory right. This means that a
defendant must have purposely acted or failed to act, knowing that such act or omission risked
depriving the plaintiff of a federally protected right.
For example, the U.S. Supreme Court has found that a sheriff's decision to hire a deputy
without adequately scrutinizing the job applicant's background would only constitute
"deliberate indifference" where "adequate scrutiny of an applicant's background would lead a
reasonable policymaker to conclude that the plainly obvious consequence of the decision to
hire the applicant would be the deprivation of a third party's federally protected right."49
This standard also applies to training policies. A local government policy that is
constitutional on its face may be actionable under §1983 if the appropriate decision makers
were "deliberately indifferent" to the training required to implement the policy.,50
Public officials and employees
Section 1983 suits may be brought against a public official or employee in an "individual"
or an "official" capacity. The critical distinction between these actions is that a local
government as an entity can be held responsible for the actions of an employee or official in an
.official capacity suit. Conversely, judgment against an employee or official in his or her
personal capacity can be executed only against the individual's personal assets — not those of
the local govemment.51
- Official Capacity. A suit against an individual in his or her official capacity is the same
as a suit against the local government that the individual is employed by or represents.52
Therefore, this type of suit will result in liability to the local government itself, not to the
individual that violated the plaintiffs federal rights. Likewise, if an individual is sued in
his or her official capacity and it is determined that he or she was not acting pursuant to
official policy or custom, neither the individual nor the local government can be held liable
under §1983.
• Individual Capacity. It is easier for a plaintiff to establish liability against a local
government's official or employee in his or her individual capacity. In this type of suit,
unless immunity applies (discussed below), a plaintiff need only demonstrate that the
official or employee acted under color of law and caused the deprivation of the plaintiffs
federal right.
Defenses to §1983 claims
State law defenses such as those found under the Colorado Governmental Immunity Act
do not apply to §1983 proceedings. Defenses to §1983 claims are based on the common law
theories of absolute and qualified immunity. These are the most important defenses that an
official or employee has to a 31983 suit. They are not available to a local government as an
entity.
• Absolute Immunity. Public officials who are engaged in legislative, judicial, or certain
prosecutorial functions "intimately associated with the judicial phase of the criminal
process" may claim absolute immunity for their actions.53 This type of immunity is
designed to protect the functions that these officers are intended to carry out. Therefore,
legislative immunity applies only to legislative acts, judicial immunity applies only to
judicial activities, and prosecutorial immunity applies only to prosecutors while they are
performing prosecutorial acts.54 However, not all acts by legislators should be considered
legislative acts. For instance, in one recent decision, a legislative body's act of banning an
individual's attendance from the body's meetings was held to be an administrative act for
which no immunity existed, not a legislative act entitled to immunity.55
• Qualified Immunity. Qualified immunity extends to officials, subordinates, and non-
elected officials who carry out discretionary functions other than legislative, judicial, or
prosecutorial functions. It applies if the defendant had a reasonable and good faith belief
in the legality of the act that allegedly deprived the plaintiff of a federal right. It utilizes an
objective standard that essentially asks whether a reasonable person would have known
that the defendant's actions violated a settled law and deprived the plaintiff of his or her
constitutional or other federally protected rights. If the answer is yes, the defendant is not
entitled to the qualified immunity defense. 56 Again, this is an individual defense only, it is
not available to a local government.
Remedies
A prevailing plaintiff in a 31983 claim may be awarded the following: nominal damages;
presumed damages; actual damages; punitive damages; or injunctive or equitable relief. Most
importantly, pursuant to 42 U.S.C. 31988, attorney fees can be awarded to the prevailing party
in a §1983 suit. However, this provision usually applies only to the prevailing plaintiff, and
therefore seldom benefits a prevailing local government defendant; a defendant may only be
entitled to attorney's fees if the action was brought in bad faith or is frivolous and groundless. -5'
• Nominal Damages. A plaintiff in a 31983 suit does not need to prove that the violation of
federal rights resulted in personal injury, property damage, or impairment of dignitary
9
interests.53 A plaintiff that satisfies the elements of a §1983 claim but does not
demonstrate injury may be awarded only nominal damages; however, the local
government may still incur substantial costs as the plaintiff may also be entitled to
attorney fees. For example, in 1993 the Colorado Court of Appeals let stand a $30,000
attorneys fee award where the jury only awarded the plaintiff $2.00 in damages.59
• Presumed Damages. Under certain narrow circumstances, courts have awarded
presumed compensatory damages in cases where plaintiffs have not proven economic or
emotional injury. These cases involved violations of liberty interests of bodily integrity and
of probable cause as the basis of an arrest, and violations of religious rights guaranteed
under the Establishment Clause of the First Amendment. 60
• Actual Damages. Actual damages will be awarded where the plaintiff proves that the
violation of his or her federal right caused injury in fact. Actual damages may be awarded
for injuries to a plaintiff's person or property, and pertains to both economic and
emotional harm.
• Punitive Damages. In addition to actual damages, a plaintiff may seek punitive damages
against a public official or employee if it is shown that the person's conduct was
"motivated by evil motive or intent, or when it involved reckless... indifference to the
[plaintiff's] federally protected rights."61 These damages are not available for claims against
a local government itself.
Injunctive and Equitable Relief. Injunctive and equitable relief are available where no
adequate legal remedy is available to the plaintiff. This type of relief ranges in significance
and should not be underestimated. It can be used for wide-ranging relief, such as
preventing a local government from instituting a particular zoning change, all
encompassing prison reform, or school desegregation.
Typical §1983 claims against local governments
The most prevalent types of §1983 claims against local governments concern the areas of
employment and personnel decisions, land use decisions, and police activities.
• Employment and Personnel Decisions. Fourteenth Amendment due process claims
provide the basis for many §1983 claims against local governments. These claims often
involve an employee's right to notice and an opportunity to be heard before certain
employment or personnel decisions are made. For example, the due process clause
requires that before being fired, a non at -will public employee is entitled to a pre-
termination hearing, which must be followed by a more extensive post -termination
hearing. The Fourteenth Amendment is also used to bring §1983 claims based on a local
government's failure to provide equal service or treatment based on race, gender, or
membership in other definable classes.
First Amendment free speech claims are also widely used in §1983 litigation. These
claims involve a public employer's attempt to regulate employee speech. Although there
are circumstances in which a government employee's speech may be regulated (e.g.,
discussing matters that might be privileged), unless the government interests in curtailing
this right is substantial, the employee's First Amendment rights will prevail. Generally, a
public employee's speech will be protected if it addresses a "matter of political, social, or
other concern to the public."62 An example of this is a suit in which a professor's speech
attacking the mismanagement and misappropriation of funds by university administration
was found to be protected by the First Amendment.63
. Land Use Decisions. The Fifth and Fourteenth Amendment's prohibition on taking
private property for public use without just compensation also provides a basis for §1983
claims against a local government. These claims may involve total, partial, or temporary
physical or regulatory takings. These types of cases have involved challenges to a broad
10
range of land use policies from dedication requirements to historic preservation
ordinances.64 These types of cases are further discussed in Chapter 4.
• Police Activities. One of the most heavily litigated areas of local government liability
involves claims of excessive force and illegal search and seizure by police officers.
Reasonableness of force will be judged from the perspective of a reasonable police officer
at the time and place of the incident in question, without the benefit of hindsight.6s
Search and seizure issues usually revolve around the sufficiency of a warrant and
probable cause. Failure to adequately train police officers may also constitute grounds
for liability under §1983.66
Suggestions for avoiding §1983 liability
It is imperative that public officials familiarize themselves with the primary sources of
potential liability. The following non-inclusive list is intended to provide a starting point:
• Review personnel manuals and ordinances for compliance with the U.S. Constitution
and other federal laws.
• Periodically review and amend ordinances and regulations for constitutional deficiencies.
The ever-changing nature of constitutional law and the sweeping nature of §1983
necessitates timely review of these laws.
Impress upon heads of departments and other final decision makers the importance of
seeking advice of counsel before making even ad hoc decisions that could lead to litigation.
Establish written policies on high-risk law enforcement areas such as search and
seizure, arrest, deadly force, and privacy issues, which comply with constitutional
standards and other applicable laws. Review and update these and other law enforcement
policies periodically.
• Implement thorough training, supervision, and discipline policies for law enforcement
officers and other employees. Training is the primary method by which rules of conduct
can be properly understood by employees. Supervision, discipline, and a commitment to
ethical conduct and professionalism also play an important role.
• Do not ignore civil rights violations committed by employees. Be particularly careful not
to permit personnel to continue to engage in known conduct that is inconsistent with
established standards. Such inaction may be deemed an authorization of the type of
abuse at issue.
Educate persons serving on boards and commissions, such as planning commissions,
boards of adjustment, licensing boards, career service boards, and city councils and
boards of trustees, in understanding their functions, particularly when taking actions
which may affect an individual's property rights or other constitutionally protected
interests.
• Keep public officials and employees up-to-date on current developments and changes in
the law.
Be wary of taking disciplinary action against a public employee based on disagreement
with the content of the employee's public comments.
• Obtain the advice of your local government attorney whenever the potential for §1983
liability may arise.
11
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o. ge K I I, left, blank.,
12
Chapter Three:
Reducing the risk of personal liability
Introduction
An award of punitive damages in the amount of $1,500,000 (reduced by the court from
$2,250,000 after the trial) against a mayor was upheld by the 10th Circuit Court of Appeals.67
The Court rejected the mayor's argument that the award was excessive. The award resulted in
part from a jury's finding that the mayor had made disparaging comments about a former city
employee, and had deprived her of a post -termination contract, because of her association with
African-American groups. A punitive damages award of $1,000,000 against a supervisor found
by the jury to have been discriminatory towards the same employee in connection with her
termination was also upheld.
An award of punitive damages against a manager of Denver's Department of Health and
Hospitals was upheld in part by the Colorado Supreme Court.68 The award resulted from the
manager's involvement in the termination of a subordinate's employment.
Because punitive damages usually must be paid from personal funds, these cases
illustrate an area of growing concern. While reported judgments against officials personally are
still relatively rare, such claims appear to be made with greater frequency, particularly in the
areas of law enforcement, land use, personnel, licensing, and permitting decisions. Reasons for
the increase vary and are not always apparent. In some cases, there may be a belief that fear of
personal liability, or a desire to protect public employees from personal liability, will provide
elected officials an additional incentive to settle a claim. A plaintiff who has lost a job, liquor
license, or land use decision may want retribution in addition to compensation. Moreover,
punitive damages are generally not insurable, so the official may not be able to look to an
insurance policy for protection.
Protections against such claims do exist for public officials, and the risk of such claims -
or the risk of such claims being successful - can be reduced by understanding and acting
within those protections.
Protections from personal liability
At least three sources of protection from personal liability exist: state statutes (the
Colorado Governmental Immunity Act or "Act", described in detail in Chapter 1)69, common law
(court -made law), and insurance. These protections have limits; none are absolute. The
following describes the general scope and limits of each.
The Act. The Act provides five important protections to public officials70 from claims
actionable in tort. The five protections include a 180 -day notice of claim requirement71; a
maximum judgment of $150,000 per person, and $600,000 per occurrence (where more
than one person is injured)72; payment by the public entity of any judgment or settlement
resulting from the claim73; payment by the public entity of the cost of defense74; and,
immunity from liability for all actions which lie or could lie in tort except where the injury
results from an activity specifically defined in the Act.
These protections are available only under specified conditions:
You must be an officer, employee, servant, or authorized volunteer of the
public entity.75
The injury must have resulted from your act or omission occurring during the
performance of your public duties and within the scope of your public
employment.76
Your act or omission must not have been willful and wanton.77
13
• You must not compromise or settle the claim without the consent of your
public entity. If you do, the public entity is not liable for payment of the
judgment, settlement, or cost of defense.78
- You must notify your public entity of the existence of the lawsuit, in writing,
within 15 days after commencement of the lawsuit, if your public entity is not
named as a defendant. If you or the plaintiff fail to so notify your public entity, it
is not liable for payment of the judgment, settlement, or cost of defense.79
- You must notify your public entity of any incident which reasonably could be
expected to lead to a claim, within a reasonable time after the incident occurs. If
you do not and your failure is found to be willful and knowing, the public entity
is not liable for payment of any judgment, settlement, or cost of defense of a
claim resulting from that incident.80 (Written notice of the incident is advisable.)
• The public entity is not required to pay an award of punitive damages against
you.81
Whether any of the Act's protections apply to claims brought under federal law is
doubtful.82 The requirement that the public entity pay for the judgment, settlement, or
cost of defense of a claim against a public official (subject of course to the previously
described limits) may apply to federal claims; the wording of the Act83 is very broad, and
payment by the public entity would not limit the federal claim.
The two types of federal claims primarily brought against public officials have been
federal antitrust claims and federal civil rights act claims. The risk of monetary liability
under the federal antitrust laws, for public officials acting in an official capacity, was
removed by adoption of the Local Government Antitrust Act of 1984.84 The risk of
monetary liability under the federal civil rights act statutes remains, as discussed in
Chapter 2.
• Common law immunity. Courts, both federal and state, protect or immunize public
officials from personal liability in certain instances. The following is often given as the
reason:
It does indeed go without saying that an official who is in fact guilty of
using his powers to vent his spleen upon others, or for any other
personal motive not connected with the public good, should not escape
liability for the injuries he may so cause; and if it were possible in
practice to confine such complaints to the guilty, it would be monstrous
to deny recovery. The justification for doing so is that it is impossible to
know whether the claim is well founded until the case has been tried,
and that to submit all officials, the innocent as well as the guilty, to the
burden of a trial and to the inevitable danger of its outcome, would
dampen the ardor of all but the most resolute, or the most irresponsible,
in the unflinching discharge of their duties. Again and again the public
interest calls for action which may turn out to be founded on a mistake,
in the face of which an official may later find himself hard put to it to
satisfy a jury of his good faith. There must indeed be means of punishing
public officers who have been truant to their duties; but that is quite
another matter from exposing such as have been honestly mistaken to
suit by anyone who has suffered from their errors. As is so often the
case, the answer must be found in a balance between the evils inevitable
in either altemative.85
This common law immunity is in addition to the protections provided by the Act86
and applies to claims brought under federal law as well as state law. The immunity
exists only for discretionary decisions. Chapter 2 discusses more specifically the
circumstances under which the immunity exists under federal law. Generally speaking,
federal courts consider public officials to be absolutely immune from liability claims
14
when acting in a legislative or judicial capacity. 87 If the public official is exercising a
discretionary function but in an executive or administrative capacity, the official is
immune from liability unless the conduct violates a clearly established federal
constitutional or statutory right of which a reasonable person would have known.88
The immunity recognized by Colorado state courts on claims brought under state law
is less well settled; nevertheless, public officials are entitled to some immunity for
discretionary acts or decisions,89 that is, for acts or decisions which involve judgment,
planning, and policies.90 Whether public officials are entitled to absolute immunity for
legislative or judicial functions is not settled in Colorado. However, in exercising
discretion in an administrative or executive capacity, a public official will not be
personally liable for damages unless the conduct is willful, malicious, or intended to
cause harm.91 Stronger protection should be extended to public officials performing
legislative or judicial functions.
Insurance. Most public entities obtain public officials' liability insurance, sometimes
referred to as errors and omissions insurance.92 The insurance offers protection to the
public entity and public officials from the increasing43 costs of defense, and from
judgments and settlement of claims.
Typically, public official liability insurance covers public officials only when they are
performing public duties.94 It is often written on a "claims -made" basis.95 Aggregate limits
on all losses in any one policy year (rather than a limit on each individual loss) sometimes
are imposed, and defense costs may be included with the aggregate limits, further
reducing the protection afforded by the policy. Punitive damages are often excluded from
coverage, explicitly, implicitly from interpretation of policy wording, or based on the
insurance company's interpretation of "public policy."
Reducing remaining risks
Since all three sources of protection from personal liability — statute, common law, and
insurance — have limits, self-protection is advisable. The following lists a few suggestions for
self-protection. The list is not exhaustive,96 and the suggestions appear in no particular order
of importance.
• Know the limits of your authority and act within those limits. As previously
discussed, the protections provided by the Act, common law, and insurance policies
generally extend to an act or omission occurring in the performance of your public duties
and within the scope of your office or employment. Consequently, knowing the limits of
your authority and acting within those limits is important in reducing the risk of personal
liability.
Obtain legal advice prior to acting where a question exists and a claim is possible;
educate employees and officials about their office or employment and the limits of their
authority; ensure that adequate training and supervision are provided to the employees.97
Avoid any conflict of interest and the appearance of a conflict and do not act from
personal motivation; otherwise, your conduct may appear to be outside the scope of your
public entity duties. As a practical matter, the likelihood of suit can increase if personal
motivations appear to be involved; emotions may rise, making resolution of the suit more
difficult; and judges and juries are less likely to be sympathetic to your position.
Understand the rules applicable to your actions and decisions, follow the rules, apply
the rules even-handedly, and don't play favorites. Change the rules if they don't work.
Elected officials, by and large, act only as part of a governing body (such as a city
council or board of trustees), and by voting on matters in the context of a public meeting.
An elected official should be particularly cautious about acting outside this context, or
taking an individual action which has not been specifically authorized by a motion,
resolution, or ordinance. Potentially "outside the scope" activities could include:
Speaking to the press on personnel matters, particularly when you are not the
public entity's authorized spokesperson.
15
. Making promises (or threats) to the public; an individual employee; a citizen; a
contractor or vendor.
• Waiving the attorney-client confidentiality that runs between your public entity
attorney and the governing body.
• Revealing confidences that .you learned in an executive session.
Avoid willful, wanton, and malicious conduct. Again, the Act's protections do not
extend to such conduct, most common law immunities will not be available, and
insurance policies often exclude such conduct from coverage. Punitive damages are more
likely if such conduct is found to exist.
"Willful and wanton" is not specifically defined in the Governmental Immunity
Act; another statute98 defines the term "willful and wanton conduct" as "conduct
purposefully committed which the actor must have realized as dangerous, done
heedlessly and recklessly, without regard to consequences, or of the rights and
safety of others, particularly the plaintiff.".
Acting maliciously, vengefully, or out of personal motives,
Acting in a manner that is motivated by evil motive or intent, or that is
recklessly or callously indifferent to someone's legally protected rights.99
Ignoring professional advice without adequate basis.
Acting to benefit oneself or other individuals financially: any profit gained by
virtue of holding public office should raise red flags from an ethical, civil liability,
and criminal liability standpoint.
Retaliating because you disagree with an opinion expressed or legal right
exercised by another.
• Establish and follow where required, understandable, practical, and legally
sufficient procedures which meet due process requirements. Due process violations
often provide a basis for federal civil rights act claims, particularly with respect to land
use, employment, licensing, and permitting decisions. Typical claims often allege
inadequate or improper notice, lack of a hearing, inadequate hearing procedures,
improper timing of the hearing, biased decision makers, failure to follow required
procedures, consideration of improper evidence, and so forth. 100 The risk of liability can be
reduced if the public entity creates basic procedures to be followed whenever due process
requirements must be met, and periodically reviews those procedures for legal sufficiency.
The development of an understandable due process hearing manual containing the
procedures to follow — a standard preliminary statement by the presiding officer, an
outline of the order of the hearing, guidance on prehearing contacts and admission of
evidence,. and related matters — is helpful in establishing a standard process, thereby
reducing the chance of error. The public entity's attorney must, of course, be closely
involved in the preparation of the procedures and manual to ensure legal sufficiency. See
Appendix A for one example of a standard hearing procedure.
Be wary of involvement in personnel decisions. Both cases described at the beginning
of this chapter involve an award of punitive damages against elected or management
public officials. Each award resulted from a personnel decision, the dismissal of a public
employee. Increasingly, personnel decisions form the basis for lawsuits against public
officials. The law in this area is developing, and awards such as those described encourage
the filing of other suits. Moreover, personnel decisions are often fraught with emotion, and
the risk of suit is thereby increased.
For elected officials, in particular, personnel policies should be fashioned to delegate,
insofar as practicable, most personnel decisions to staff. Such delegation is particularly
appropriate in those municipalities that have a city/town manager or city/town
16
administrator form of government. Allowing the administrator or manager to handle most
personnel issues, reserving to the city council or board of trustees only those issues that
concern the council's or board's "direct reports," is a wise use of administrative resources
as well as a liability -reducing tool.
- Avoid independent contractor status. 101 The Act specifically excludes an "independent
contractor" from the definition of public employee and thus from the Act's protections. 102
An independent contractor may or may not be excluded from coverage under a public
official liability policy. 103
If you are an independent contractor, you might seek to have your position identified
as a "Public officer" in the contract, ordinance, home rule charter, state statute, or similar
document. It is unsettled whether a public "officer" — who is entitled to the protections of
the Act104 — loses the protections when retained under a contract. By obtaining "officer"
status, an argument for those protections can be made.
- Keep good records of what you do and why you do it. Being right is good; being able
to prove you're right is even better. The increasing volume of paperwork becomes
frustrating at times, but it is vital that accurate records of your public activities be kept,
that proper and lawful reasons are expressed for the actions you take, and that those
reasons are recorded in some fashion.
While public employees maintain records of formal meetings of the council, boards, or
commissions, it is wise to keep your own personal records and calendar of those
significant events which occur outside recorded meetings. Lawsuits can take months or
years to bring and years to conclude. Determining what happened in preceding years may
be important in successfully resolving the lawsuit. Memories fade, but documents often
remain available.
Be aware of video and/or audio recordings, and anything written in an e-mail. Be
guided by an assumption that what you say and write relating to your public entity will
become public knowledge and evidence in a lawsuit. To illustrate: evidence which
supported a punitive damage award in one case was provided by a tape recording secretly
made by one councilmember during a "private meeting" among the mayor and
councilmembers, at which the dismissal of the employee was discussed. The
councilmember who recorded the meeting was not sued by the employee. 10,5
- As elected officials, focus your efforts on legislative and significant quasi-judicial
decision-making. Common law immunities do not protect elected officials in every action
they take; instead, the immunities protect governmental operations of a legislative,
judicial, executive, or administrative nature. Legislative and judicial actions are afforded
greater protection by the courts than are administrative actions. Thus, while limiting the
involvement of elected officials in administrative matters is sometimes suggested as a good
management practice, it also is a good method of reducing their risk of personal liability.
Reduced risks of personal liability also can be achieved by delegating (assuming the
delegation is lawful, of course) authority to specialized boards, commissions, or job
positions where particular expertise is necessary and the risk of litigation is greater (for
example, establishing a beer and liquor licensing board to make or recommend licensing
decisions).
• Periodically review public services and regulations, and consider liability effects of
proposed new services and regulations. Most services and regulations of cities and
towns are discretionary; that is, most services are not required to be provided or
regulations required to be adopted. It is important to at least consider potential liability
before taking on new services or adopting new regulations.
Periodic review of existing services and regulations is also important to ensure that
the services can be adequately provided and the regulations adequately enforced. If any
cannot, changes should be made to protect the public entity and its officials.
In adopting regulatory codes, such as the Uniform Building Code, the public entity
might consider including a non -liability provision. Such a provision might help reduce
17
potential liability by expressing the public entity's intention not to create a private civil
liability remedy for an injury resulting from the public entity's failure to enforce the code
adequately. 106 The following is one example of such a non -liability provision:
Section _. Non-liabilitv. The adoption of this ordinance, and of
the code provided for herein, shall not create any duty
to any person, firm, corporation, or other entity with regard to the
enforcement or non -enforcement of this ordinance or said code.
No person, firm, corporation, or other entity shall have any civil
liability remedy against the (City)(Town), or its officers, employees,
or agents, for any damage arising out of or in any way connected
with the adoption, enforcement, or non -enforcement of this
ordinance or said code. Nothing in this ordinance or in said code
shall be construed to create any liability, or to waive any of the
immunities, limitations on liabilities, or other provisions of the
Governmental Immunity Act, C.R.S. X24-10-101 et seq., or to
waive any immunities or limitations on liability otherwise
available to the (City)(Town), or its officers, employees, or agents.
Have a written public policy addressing payment of defense costs, judgments,
settlements, and attorneys' fees for claims not covered by the Act. Such a policy can
resolve many questions raised by the wording of the Act, by common law, and by
insurance policies. For example, the public policy could address payment of defense costs,
judgments, settlements, and attorneys' fees for any federal claim. (Providing for payment
of attorneys' fees in addition to other costs is important since those are commonly made to
a plaintiff who prevails on a federal claim107 and can even exceed the amount of damages
awarded. los)
The Act's protections apply only to tort claims, or claims actionable in tort; other
claims can be brought against public officials, such as claims for declaratory or injunctive
relief. Defense costs exist, and attorneys' fees may be awarded to a prevailing plaintiff for
certain federal claims, even though money damages are not sought. 109 Thus, the policy
could address payment of defense costs and attorneys' fees for claims other than claims
for money damages.
The policy might also address such payments for a claim brought or continued after
an official leaves public office or employment, but based on an act or decision occurring
during the term of office or employment. The Act is and insurance policies may be unclear
with respect to coverage under these circumstances.
Such a policy should be carefully drafted to define the circumstances under which
any payment would be made. Care should be taken so as not to waive the monetary limits
of and immunities provided by the Act, unless the public entity intends to do so. (The Act's
monetary limits and any immunity granted by the Act can be waived by resolution of the
governing body of the public entity.' 10) Legal limits on the expenditure of public funds
should be identified and met in drafting the policy."' The policy might be adopted as an
ordinance to give it greater degree of permanence. An example of such a policy is provided
in Appendix B.
18
Chapter Four:
Land use liability
Introduction
The regulation of land use and development has been a traditional role of local
governments. As a consequence, legal challenges to local land use decisions are nothing new.
However, with burgeoning land use activity, and expanding theories of liability at both the state
and federal levels, it is increasingly likely that a local government will at some point face a legal
challenge to its land use decisions.
This chapter provides an overview of the potential sources of land use liability. It also
identifies the boards, commissions, and officials who should be most concerned about land use
liability, and briefly outlines the major sources of land use authority and how those authorities
are exercised. Finally, it makes some suggestions for avoiding or reducing the risk of legal
challenge. In light of typical insurance coverage exclusions (such as exclusions for "inverse
condemnation" or "takings" claims, and for breach of contract) which may negate coverage for
many types of land use actions, taking prudent measures to avoid or reduce liability risks is
particularly important in the land use arena.
Who should be concerned about land use liability?
From the elected governing body to the building inspector, a variety of boards,
commissions, and officials are involved in the regulation of land use and development.
All of the following should understand their roles in the land use process and their
potential liabilities:
City councils or boards of trustees;
Planning and zoning commissions and other bodies with land use functions (such as
historical commissions);
Boards of adjustment;
Planning departments;
Building inspectors and officials; and
Code enforcement officers.
Sources of land use authority
Under Colorado law, local governments are vested with extensive authority to regulate the
use and development of land. For example, municipalities are authorized to adopt master
plans,112 subdivision regulations'13 and zoning regulations,114 with key decisions in these areas
typically made by the governing body and the planning commission.' 15 Boards of adjustment
typically hear appeals regarding how the zoning regulations are administered, and may grant
variances to strict application of the zoning code. 116
Other statutes authorize regulation of planned unit developments (PUDs), 117 local
regulation of certain "matters of state interest"' 18, and adoption of building codes. 119 State law
also authorizes the annexation of land into municipalities, 120 and various types of
intergovernmental planning. 121 Finally, the Colorado Constitution grants home rule
municipalities broad power to regulate land use. 122
Exercising land use authority
Local government actions in the land use arena can be "quasi-judicial," "legislative," or
"administrative." As discussed in Chapter 5, the type of process and hearing required for each
type of action varies. For quasi-judicial actions, it is critical to provide proper notice and a fair
19
hearing. Quasi-judicial land use actions include but are not limited to rezoning decisions; 123
action on a development plan (site plan); 124 the grant or denial of a variance; 125 and the grant
or denial of a special use permit. 126
Legislative land use actions include the adoption of a master plan; 127 vacation of a
roadway; 128 annexation of property;129 setting of general rates and fees applicable to
development; 130 and approval of a zoning ordinance amendment of general application. 131
Though these actions are more general in nature, state statutes or ordinance or charter
provisions may require the local government give notice to ensure public input into these
legislative processes. 132
In most local governments, administrative land use actions occur daily in the carrying out
of the land use regulations. In addition to the three types of actions described above, land use
regulators must recognize that certain types of land use functions are "ministerial." For these
types of functions, the local government has no discretion; rather, these functions must be
performed once applicable requirements are met. 133 The most common example is the issuance
of a building permit. When an applicant meets the requirements of the building code, the
issuance of a building permit is a ministerial act which the building official must perform as
part of his or her duties. 134
All of these types of land use actions can raise potential liability, under both state and
federal law.
Land use liability under federal law
Although land use has traditionally been an area of local control, federal law is one of the
most significant sources of land use liability. Both the United States Constitution and federal
statutes provide bases of potential liability, which are briefly discussed below.
• Constitutional Claims. Most land use claims asserting a violation of the U.S.
Constitution are in fact brought pursuant to a federal statute — 42 U.S.C. section 1983
("§1983"). §1983 does not itself grant any substantive rights; rather, it is a remedial
statute that authorizes persons to sue for damages and other relief for violation of rights
secured by the U.S. Constitution or federal statute. Liability under §1983 is premised
upon (a) action under color of law, and (b) a violation of a constitutional or statutory
right. 135 Land use actions of local government entities and officials in the course of their
duties or employment will be considered actions "under color of law."
The more common federal land use claims — those for takings, due process, and
equal protection — are based on the amendments to the U.S. Constitution. These
guarantees apply to state and local governments through the Fourteenth Amendment,
which states that no state shall "deprive any person of life, liberty or property without due
process of law, nor deny to any person within its jurisdiction the equal protection of the
laws."136 This prohibition extends to political subdivisions of a state. 137
• The "Takings" Claim. A federal takings claim is based on a clause in the Fifth
Amendment to the U.S. Constitution which prohibits the taking of private property for
public use without "just compensation."138 One type of takings claim concerns a physical
taking of someone's property, which always requires compensation. 139 Another type of
takings claim in the context of land use regulation is an inverse condemnation claim,
which is not premised on a physical taken, but rather upon an allegation that a local
government's regulation has denied a property owner all reasonable use of the owner's
land.
The United States Supreme Court has held that a regulation "goes too far" and
results in a taking when no productive or economically beneficial use of land is
permitted. 140 It has also held that such a regulation — even if temporary — may constitute
a taking, 141 though temporary takings claims are often unsuccessful. Takings claims can
center on local government regulations requiring the dedication of land,142 the completion
of public improvements, the payment of impact fees, 143 and other matters.
A federal takings claim is a powerful tool because it is a claim for money damages
that is not subject to the monetary limits or other protections of the Colorado
20
Governmental Immunity Act. Additionally, a successful claimant may be able to recover
compensatory and punitive damages, as well as attorneys fees.144 However, a court
typically will not hear a takings claim under federal law until the property owner has first
sought compensation under state procedures.
• Due Process Claims. The U.S. Constitution also requires that no person be deprived of
property or liberty without due process of law. 145 This requirement encompasses both a
right to substantive due process and a light to procedural due process.
A substantive due process claim is in essence a claim that the government's decision
is without reason. The standard for winning this type of claim is high; for example, one
court has said a landowner cannot recover damages "unless no articulated basis for the
decision bears any rational relationship to a legitimate governmental interest.11146
A procedural due process claim is generally based on an allegation that an owner was
deprived of a property interest without notice or hearing. This type of claim does not apply
to legislative acts, but applies to quasi-judicial and administrative actions. To win such a
claim, a plaintiff must show that it was deprived of the opportunity for an appropriate
hearing granted at a meaningful time and conducted in a meaningful manner. 147 For land
use proceedings, these claims can usually be defeated by showing that the various
requirements of a fair hearing were met.
• Equal Protection Claims. Land use regulations often have the effect of creating different
classes of persons. For example, a zoning ordinance may exclude manufactured homes
from certain residential zone districts, thereby creating different classes of homeowners. 148
An equal protection claim is based on the allegation that the claimant is among a
class of persons that, without reason, is being treated differently than others, in violation
of the Equal Protection Clause. 149 As long as a claimant is not being discriminated against
because of the exercise of a fundamental right (such as the right to vote) or membership in
a protected class (such as an ethnic or racial minority), the equal protection claim is more
likely to fail. However, the courts will overturn a regulation if the plaintiff can show that
the distinctions being made are not rationally related to a legitimate government
interest.150
• other Federal Constitutional Rights. Land use regulations and actions may also
implicate other rights protected by the U.S. Constitution. For example, regulations of signs
and sexually oriented businesses have been challenged as violative of the First
Amendment right to freedom of speech. 151 Restrictions on the location of religious
institutions have been challenged under the Establishment Clause, which protects
religious freedom. 152 Growth restrictions have been challenged as a violation of the
Commerce Clause.153
Federal Statutory Claims. An increasing number of federal statutes also
impact local government land use regulation. These statutes typically provide for
specific rights and remedies if violated. The following is not intended as an
exhaustive Est of federal statutes that affect local land use; rather, it is intended
only to identify a few of the significant federal laws that should be of concern to
local planning officials.
The Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA).lS4 With respect to individualized land use determinations, such as
conditional or special use applications, RLUIPA prohibits a government from
substantially burdening a person's religious exercise unless the government
demonstrates that the burden "is in furtherance of a compelling governmental
interest" and "is the least restrictive means of furthering that compelling
governmental interest."155 RLUIPA is construed in favor of broad protection of
religious exercise, and provides a basis for setting aside land use decisions that
are contrary to the provisions of the Act. 156
21
• The Federal Fair Housing Act. 157 This Act prohibits discrimination in housing
based on race, ethnicity, national origin, religion, gender or disability. This Act
has been used to challenge local government land use decisions which interfere
with the development of low income housing or housing for mentally retarded or
other disabled person. 158
- The Telecommunications Act of 1996.159 Among other things, this Act affects
the ability of local governments to regulate the location of wireless
telecommunications facilities, including towers and dishes. For example, local
land use regulations for these facilities cannot discriminate between providers,
and cannot be based on health effects of radio frequency emissions. A denial for
such a facility must be in writing and supported by substantial evidence in a
written record. Providers also have an expedited right of review. 160 Besides the
risk that its decision will be reversed, local decision makers could be subject to
§ 1983 liability, though the law is unsettled on this issue. 161
• Federal Antitrust Liability. The Sherman Antitrust Act and later
amendments to federal antitrust law162 prohibit acts to monopolize markets or
restrain trade, or to conspire to do these things. While local governments enjoy
several protections against antitrust liability,163 and few successful cases against
zoning officials have been reported, the potential liability should still be
considered. For example, a credible case exists where a zoning board acts in
concert with a major developer to "zone out" its competitors. 164
• The Endangered Species Act (ESA). 165 Designed to prevent the taking of
endangered and threatened species, the ESA can impose additional
requirements on land use development. For example, the United States Supreme
Court has upheld regulations stating that the Act's prohibition on the taking of
endangered species includes private activities that result in significant habitat
modification. 166 This may have the effect of prohibiting uses that might otherwise
be permitted under local zoning regulations.
Land use liability under state law
Colorado laws provide a variety of methods to challenge local land use decisions. This
section briefly describes the more common methods, which may be grouped as challenges
based on court rules, the Colorado Constitution and state statutes, and the common law.
Cha/lenges pursuant to Colorado court rules
Under the Colorado Rules of Civil Procedure (C.R.C.P.), property owners may seek court
review of a quasi-judicial function in what is called a certiorari action. They may also seek
declaratory relief and may seek to compel the performance of a ministerial act. These types of
actions pursuant to court rule are discussed in turn.
• Certiorari Review Under C.R.C.P. 106(4)(a). An action for certiorari review may be
brought to review the decision of any governmental body or officer "exercising judicial or
quasi-judicial functions."167 Legislative and administrative acts are not subject to
certiorari review under C.R.C.P. 106(a)(4).168 The court's review in a certiorari proceeding
is limited to a determination of whether the body or officer exceeded its jurisdiction or
abused its discretion, and to cases where the law provides no other plain, speedy or
adequate remedy. 169
Under this standard courts give deference to the decision maker, upholding its
decision when there is "any competent evidence" in the record to support it. 170 An action
for certiorari review must be brought within 30 days after the final decision. 171 Also, the
Colorado Supreme Court has held that an action for certiorari review is the exclusive
method to obtain review of the merits of a quasi-judicial decision. 172 Therefore, certiorari
claims can be common and quick to follow a controversial decision.
If a claimant is successful in a certiorari claim, the court will reverse the local
government's decision and remand the case. However, damages are not available under
22
certiorari review, and attorneys' fees are rarely awarded. Therefore, claimants seeking
damages or attorneys fees often will add a § 1983 claim or similar claim in their lawsuit.
. Declaratory Relief. Under C. R.C.P. 57, persons may seek a declaratory judgment
regarding their rights and obligations under, among other things, a statute, local
ordinance or contract. This is a common method for challenging a legislative act, often on
the grounds that the act is unconstitutional. For example, actions have been brought
requesting that sign ordinances be declared unconstitutional as violations of free speech
rights. 173 Declaratory actions can also be used to determine rights under annexation and
development agreements, 174 and these types of cases are likely to become increasingly
common as voluntary agreements become an increasingly common method of land use
control. 17.5
Mandamus. Under C.R.C.P. 106(a)(2), a person may seek a court order compelling an
official to comply with a clear legal obligation owed to the claimant. This type of action is
one for mandamus (literally "we command.") Mandamus is not available when the official's
action involves some exercise of discretion. Rather, a court will only order an official to
perform a non -discretionary action which the law requires the official to perform by virtue
of an office, trust or station. 176 Unlike certiorari review, a judgment for mandamus shall
include any damages sustained.
The most common land use claims for mandamus center on the issuance of building
permits or the approval of subdivision plats. In the first instance, the general view is that
the building official must issue a building permit if the property use is lawful and the
proposal meets all requirements of the building code. 177 In the second instance, at least
one Colorado case has said that the approval of a final subdivision plat is mandatory if the
proposal meets all of the technical criteria of the subdivision regulations. 178
State constitutional and statutory claims
As noted above, the Colorado Constitution contains guarantees of just compensation, due
process, and equal protection which are similar to the U.S. Constitution. These guarantees
may serve as bases for state claims.
Additionally, Colorado has a number of statutes that may serve as the bases of claims
challenging a land use decision. These include but are not limited to state civil rights laws and
the Colorado Vested Property Rights Act,179 the latter of which is in addition to the long-
standing rules judges have made concerning the common law vesting of development rights.
The Colorado legislature has also codified certain common-law takings principles, as well as
principles related to the setting of impact fees. The takings statute creates an alternative
method to challenge conditions and exactions imposed on development, and places the burden
on the government to establish that any land dedication or payment requirement meets legal
standards. 180 There are also a number of statutory restrictions on the ability of local
governments to regulate specific types of land uses, such as oil, gas and electric facilities,181
and group homes. 182
State common law claims
As noted in Chapter 1, the Colorado Governmental Immunity Act (the "Act") provides
public officials with significant protections against tort liability. The areas in which
governmental immunity has been waived generally have little relationship to land use
regulation. Nonetheless, the Act does not protect an official whose conduct was willful and
wanton or outside the scope of the official's employment. In these situations, officials — from
the planning official to the public entity's attorney — are unprotected against state tort claims
seeking to recover money damages. 183
Apart from tort claims, the Colorado courts have recognized other claims of concern in the
area of land use regulation. For example, Colorado recognizes a common law theory of vested
rights. Under this rule, a property owner has the right to develop property free from
subsequent regulation once the owner has in good faith relied to its detriment on a government
action - which typically has meant actual construction under an issued building permit. 184
23
In situations where the owner has gone this far in developing property, courts have found it
unfair to subject them to new regulations.
Another area of potential liability is a claim for equitable estoppel. When applicable,
equitable estoppel requires a local government to follow through on a previous representation
that a party has reasonably relied upon to its detriment. 185 Where the vested rights theory
would require action taken in reliance on an issued permit, equitable estoppel may be used to
hold a local government to a representation regarding its land use policy, even if the property
owner had no permit, and even if the local government later decides to change its policy. 186
Finally, a local government may be liable for breach of contract, and contract and quasi -
contract claims are likely to increase as land use agreements grow in popularity. 187 Therefore,
officials making land use decisions must understand and comply with their obligations under
annexation, subdivision and development agreements. Similarly, while land use permits and
licenses are generally not contracts, planning and building officials must understand this
distinction and avoid both permit forms and actions that appear to promise the issuance of a
permit as a matter of contract. 188
Voter control of the land use process; initiative and referendum
Finally, but perhaps most importantly, public officials must be aware of the public's role
in the land use process. While much of the quasi-judicial process is focused on affording due
process to the applicant, the public plays an equally important role. Statutes regulating zoning,
PUDs and subdivisions all require ample notice to neighbors and other affected parties, and
these parties often have standing to challenge a rezoning, site plan approval, or granting of
a variance.
By initiative or referendum, the voters can also assume control of the land use regulatory
process. Except for emergency measures, any legislative act - such as a general rezoning or an
annexation ordinance - may be referred to the voters if a petition is filed for the same. 189 If a
complying petition is presented, the governing body's options are to undo the action, or to refer
the measure to a vote. 190 Irrespective of action by the governing body, the voters may also
initiate land use controls. 191 It is possible for an initiative to give the voters the final say on a
land use decision that would otherwise be left to the governing body. 192
Ways to avoid land use liability
Having surveyed the potential liabilities in the area of land use regulation, a common
question among planning officials is "How do we avoid a lawsuit?" No action, no matter how
prudent, can fully insulate a local government from being sued. However, prudent action can
certainly deter litigation and help avoid or reduce liability. The following are some methods to
reduce the risks of land use liability:
• Always Provide a Full and Fair Hearing. To landowners and public officials alike, the
land use process can seem deliberate at best, interminable at worst. However, the process
should never be short-circuited in hopes of short-term results. The decision-making body
or official should always provide a full and fair hearing, with proper notice. For quasi-
judicial actions, decision makers must be impartial and must not prejudge the matter.
They must not engage in ex parte (outside the hearing) contacts or participate in the
discussion or decision if they have a conflict of interest.
If there is any question about the validity of notice given prior to any action, it is
better to re -set a matter for a later date and correct any deficiencies. At the hearing, allow
persons ample time to speak, and prohibit testimony only if plainly irrelevant or t
redundant. If there is a desire to revise or revisit a land use decision, provide full notice to
all parties before doing so, and carefully consider the rights of all parties.
• Do Your Homework. Prior to adopting any land use regulation, several questions should
be asked. First, is there authority to do this? Check state statutes and where applicable
your own charter, to answer this question. If the answer is not clear — and to simply
confirm what you believe to be authorized — consult with your local government attorney.
24
Second, is this regulation fair? In takings parlance, fairness requires that a
regulation demanding something of a property owner be based upon an "essential nexus"
between the type of demand and the type of impact being regulated. 193 There must also be
a logical relationship between the amount of the exaction and the amount of impact the
exaction is intended to offset. 194 These relationships should be documented, explained,
and made part of the record. If the regulation makes distinctions between different classes
of persons, document why those distinctions are reasonable and how they help further a
legitimate goal to be achieved.
Third, is this regulation specific enough? If the regulation is to provide standards for
a decision, those standards must be sufficiently specific to allow persons to determine
what is required of them. A reviewing court must also be able to make sense of them. 195 If
the regulation has no standards — and decisions are left to the whim of the decision
maker — the regulation and decisions will likely be declared invalid.
In quasi-judicial proceedings,. the homework includes preparation of a thorough staff
report analyzing the application against the standards that apply. If a condition of
approval is recommended by staff in advance, or is suggested at the hearing, ensure the
condition is clear, authorized by law, and made a part of the record. If there is uncertainty
on any of these points, take a recess or continue the matter in order to reach a firm
conclusion. Last-minute conditions should not be viewed merely as bargaining tools or
methods to push a clearly inadequate application to the finish line. Unlawful conditions
are subject to §1983 claims certiorari review, and the procedures set forth in C.R.S. §29-
20-204.
- Make a Record. Every land use decision should be documented. If the action is quasi-
judicial, the record of the decision maker should include specific written findings that
support the decision being made. If written findings are not available at the conclusion of
the hearing, continue that matter if possible, so that written findings may be prepared and
brought back for review and action. Maps, reports and any other documents or evidence
presented at a quasi-judicial hearing should be clearly marked and preserved in their
entirety.
Legislative and administrative actions should also be well documented. Ordinances
and other legislative acts should be supported by findings, and legislators should be
provided copies of studies, reports and other data that are pertinent to the action being
taken. Drafts of general ordinances should be preserved. An action taken at the
administrative level should be supported by a complete and accurate file. Administrative
personnel should keep accurate notes of conversations and meetings.
Understand and Follow Your Own Regulations. The state laws authorizing local land
use regulation are often very broad, and details are often found only in local regulations.
All planning officials should know and follow the local regulations, and these regulations
should be consistently applied. All staff members should keep current on any changes to
the regulations. Similarly, written regulations should reflect current policy and be updated
as necessary. If there is disagreement or uncertainty about how a regulation is to be
applied, consult with your local government attorney.
Avoid Improper Conduct. As explained in other chapters, the protections and against
individual liability can be lost when conduct is willful, wanton, malicious, or contrary to
the clear rights of another party. In the land use arena, decisions based on emotion,
irrelevant criteria and personal interests must be avoided. Officials with a conflict of
interest or bias should recuse themselves; further, they should not participate in the
hearing or attempt to influence others. 11.16 Supervisors in the planning and building
departments should periodically follow-up with those they supervise to make sure that
decisions and instructions are being properly implemented, and that those they supervise
are trained to properly handle difficult situations.
• Take a Breather if Necessary. If faced with rapid growth and development, a local
government may have little time or resources to update or adjust its regulations and
25
processes, even if sorely needed. Further, a crush of on-going work may lead to
inadequate review, unintended departures from set procedures, and improper or
unsupported decisions.
A local government in these situations may consider establishing a moratorium on
certain types of land use actions. Temporary moratoria of reasonable duration, which are
enacted in good faith without discrimination, have been upheld as reasonable methods to
bring about effective decision making. 197 These breaks can provide needed time to study
and consider new regulations. However, a moratorium must be adopted by proper
procedures, 198 and should not be viewed as a method for imposing new regulations upon
developments which already enjoy vested rights.
. Provide Opportunities for Appeal. Another method to reduce the risk of litigation is to
include in your land use code opportunities for appeal or reconsideration. While these
procedures may lengthen agendas and increase work loads, they also provide internal
mechanisms to take a second look at a decision before litigation is launched. For non -
home rule municipalities, an opportunity for appeal must be provided if the governing
body has delegated its functions to a subordinate body. 199 In other situations, providing a
right of appeal or reconsideration, upon narrow and specific grounds, may on that
(hopefully) infrequent occasion allow the local government to correct its mistake - and
avoid land use liability - before a court takes the opportunity to do s0.200
26
Chapter Five:
Providing a fair hearing
Introduction
Federal civil rights201 lawsuits (discussed in greater detail in Chapter 2) are among the
most expensive faced by local governments and their officials. The expense includes the cost of
defense, any judgment awarded to the plaintiff, and - if the plaintiff prevails on any significant
issue in the case - the court may award the plaintiffs attorney fees.202 Judgments and attorney
fees are not limited to any maximum amount; the Colorado Governmental Immunity Act and
its $150,000/$600,000 limits likely do not apply.203
Violation of "due process" in a notice or hearing is a frequent federal civil rights complaint
against local governments. Deciding when and what "process" is "due" requires advice from
legal counsel. The following is a general introduction only.
Who should be concerned about providing a fair hearing?
Any public official, or local government body, potentially will be involved at some point in a
proceeding that triggers due process requirements. The following, to name a few, should know
how to provide procedural due process:
City councils, boards of trustees, and other governing bodies;
Planning commissions;
Boards of adjustment;
Career service commissions and personnel boards;
Liquor licensing authorities; and
Managers, clerks, fire chiefs, police chiefs, personnel directors and finance directors.
When are notice and a fair hearing (procedural due process) required?
Under the United States Constitution, no local government may "deprive any person of
life, liberty, or property without due process of law .... "204 In order to satisfy the procedural
due process requirement, an individual must be given notice and an opportunity to be heard. A
violation provides a basis for a claim under the federal civil rights statutes, as discussed in
Chapter 2. In order to bring a claim, a "life," "liberty" or "property" interest must exist. Any
doubt as to whether such an interest exists should be settled by providing due process.
Generally, quasi-judicial proceedings must be conducted in accordance with procedural
due process, as guaranteed by the Colorado and United States Constitutions.205 That means
adequate prior notice and an opportunity to be heard; and basic fairness in procedure,
including a neutral and impartial decision maker.206
Failure to provide procedural due process in a quasi-judicial proceeding may lead to
claims against the local government including, among others, violation of 42 U.S.C. § 1983,
discussed in Chapter 2. However, the Colorado Supreme Court has confirmed that public
officials cannot be sued in their individual capacity under § 1983 for actions taken in a quasi-
judicial capacity; they are absolutely immune.207
According to the Colorado Supreme Court, whenever a local government board or official
takes action in a quasi-judicial capacity, procedural due process is required.208 Thus, in order
to provide a fair hearing, the official must understand the concept of what a quasi-judicial
proceeding is, and what process is due in the context of that proceeding.
27
What is a "quasi-judicial" proceeding?
The actions of local governments can generally be categorized as "quasi-judicial,"
"legislative" or "administrative" in nature. Due process notice and hearing are not generally
required for legislative actions.209 Examples of local government actions that qualify as quasi-
judicial (requiring due process notice and hearing) and legislative or administrative (not
requiring due process notice and hearing) include the following:
Quasi -Judicial:
Action on a development plan.210
Rezoning decisions.211
Individual license or permit decisions, such as liquor and beer licensing and
massage parlor licensing decisions.212
Various career service or civil service commission decisions or decisions by other
public officials on personnel terminations (and perhaps other significant personnel
disciplinary decisions), at least where the employee has a property interest in
employment.213
A decision on a county -planned unit development sketch plan.214
Grant or denial of a zoning variance by a board of adjustment.215
Apportioning the cost of special improvements to properties within a special
improvement district.216
• Grant or denial of a special use permit or special review use.217
Tax assessment.'' -is
Approval or denial of a subdivision plat.219
Legislative:
Adoption of a non-binding land use plan or master plan.220
Adoption of an amendment to a mountain view ordinance, extending building height
restrictions to several hundred lots.221
• Setting of salaries and establishment of prevailing rates as an incident to fixing
salaries.222
• Vacating a roadway.223
Administrative:
Amendment of a lease agreement.224
City's decision to exterminate prairie dogs in a City park.225
However, not all actions of local governments fall neatly into one category or another. For
example, rezoning decisions are quasi-judicial for the purpose of judicial review, but are
legislative for the purpose of initiative and referendum.226
What if it is unclear whether the matter is quasi-judicial?
Ask your public entity attorney for guidance. Colorado courts have developed some
general tests to help determine whether particular actions are quasi judicial, legislative or
administrative in nature. The general distinctions between quasi-judicial and legislative actions
were described by the Colorado Supreme Court as follows:
Legislative action is usually reflective of some public policy relating to matters of a
permanent or general character, is not normally restricted to identi able persons
or groups, and is usually prospective in nature.
28
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.... If a statute or ordinance authorizes the exercise of quasi-
judicial authority but does not provide for notice and hearing, these basic
requirements may properly be implied as a matter of fundamental fairness to those
persons whose protected interests are likely to be affected by the particular
government decision.
[I]t is the nature of the decision rendered by the governmental body, and not the
existence of a legislative scheme mandating notice and hearing, that is the
predominant consideration in determining whether the governmental body has
exercised a quasi-judicial function in rendering its decision.2227
What "process" is "due" to ensure due process requirements are met?
"The essence of due process is fundamental fairness," and includes adequate advance
notice and an opportunity to be heard.228 Speck notice and hearing procedures required to
afford fairness vary depending upon "the type of proceeding involved and the interests at
stake. "229
Notice + Hearing = Procedural due process
• Notice requirements may vary depending upon the nature of the case; therefore, the
local government should obtain the advice of its attorney when any question exists as to
the adequacy of the procedure.
Despite the fact that the specific nature of a case is a factor in determining the
adequacy of notice, there should be - at a minimum - compliance with statutory, charter,
or ordinance notice provisions.230 Some general rules which may be helpful in reducing
the risk of liability for failure to provide adequate notice include the following:
Notice must reasonably describe the subject matter of the hearing, any charges
to be considered, and the action contemplated;
• Notice must be given to all persons whose protected interests are likely to be
affected by the decision; and
Notice must convey information sufficient to allow persons a reasonable
opportunity to prepare for the hearing.231
Be sure to identify the date, time, location, purpose of, and entity holding the
hearing. Consider providing copies of rules governing the hearing and identifying whom to
contact for additional information and how they may be contacted. Have standard notice
forms prepared and periodically reviewed by your attorney for recurring actions.
Hearing procedures required by due process also vary depending on the nature of the
case. Due process requires some kind of hearing appropriate to the nature of the case;
therefore, it is advisable to obtain legal advice whenever any question exists concerning
the adequacy of hearing procedures.
Some local governments have adopted standard rules applicable to all of their quasi-
judicial hearing matters. The following suggestions provide some practical and legal
procedures to those serving on hearing panels or as a hearing officer, to help avoid due
process challenges:
Before the Hearing:
• Have written rules of procedure, which afford minimum due process
protections, drafted by or with the assistance of an attorney.
29
. The rules of procedure should include such matters as the order of testimony,
right of cross-examination, presence of counsel, and rules of evidence to be
followed.232
Periodically review and revise the procedures as necessary or appropriate.233
Be sure that you, as the hearing officer or member of the hearing panel,
understand the rules of procedure.
• Have an opening script, prepared by your attorney, describing the purpose of
the hearing, establishing any rules and the order to be followed, identifying the
parties and hearing panel members, and so forth. One example of such a script
is provided in Appendix A.
• Request a specific response on the record from the parties on matters that may
become legal issues. For example, ask:
Are you prepared to proceed?
Do you have any objection to the procedures to be followed in this hearing
as described by me?
Do you object to the participation of in this hearing?
Do you object to an extension of time to for
• Try to obtain the consent of all parties, on the record, to any variation from
standard procedure; acquiescence may help avoid future challenge.
. Set the stage for the hearing. A courtroom set-up helps maintain control.
• During the Hearing:
Follow the rules of procedure.
Record the hearing by reliable electronic means or a court reporter. Test any
recorder periodically to make sure it is working.
. Swear in all the witnesses (not the attorneys). Have a standard oath available
to read.
• Require that all comments be directed to the hearing panel or officer, that
individuals speak only when recognized, and that individuals and hearing panel
members are referred to formally (Mr., Mrs., Ms., Councilmember, or Trustee).
Formality helps retain control.
• Exercise control over repetitive and irrelevant matters, and prevent personal
attacks and references.
• Where one party has on objection, permit the other party to respond before
ruling on the objection.
• Provide all parties adequate time to present their sides and to respond to the
other side.
• Do not permit general public comment before the adjudicatory panel or officer
on the matter at issue prior to a decision.234
• After the Hearing:
• Have a formal conclusion to the hearing, including a closing script where
appropriate.
• Whenever possible, postpone the decision to permit drafting of a written
decision meeting all legal requirements, reflecting factual findings supported by
the evidence, and reaching supportable legal conclusions with reasons
30
articulated for the decision.235 Obtain the advice of your attorney when drafting
the decision.
Do not reopen a closed hearing and take further evidence unless all parties are
notified in advance and are given an opportunity to be heard.236 Be certain
reopening is legally authorized before proceeding.
Use executive sessions only to discuss evidence presented at a hearing, and
only if your attorney advises that such sessions are permitted. Make no final
decisions, and take no "straw votes" in any session closed to the public unless
your attorney advises that such action is legal.237 Limit persons present at any
such sessions to the hearing panel and its attorney.238
Consider only evidence presented at the hearing.
Provide a copy of the written decision to the parties.
• Always:
• Permit the parties to be represented by counsel.
Be sure the local government's attorney does not both prosecute and advise the
hearing panel or officer.239
• Be impartial and maintain the appearance of your impartiality.240 Avoid
conversations or contacts with counsel or witnesses for only one side, or one of
the parties, while the matter is pending;241 do not prejudge the matter;242 have
no financial, personal, or private interest in the matter or outcome;243 avoid
participation in prior decision-making on the matter;244 and avoid contact with
the parties or their counsel prior to the hearing, except through officially -
approved processes. Impartiality is discussed in further detail below.
Why is impartiality so important?
The Colorado Court of Appeals summed up the importance of impartiality succinctly as
follows:
It is fundamental to the vitality of our judicial system that litigants believe in the
fairness of the process. An unfavorable decision perceived to be the result of an
impartial consideration may be bearable, but an unfavorable decision tainted by
even the appearance of partiality cannot be condoned.245
Courts presume integrity, honesty and impartiality by those serving in a quasi-judicial
capacity. However, this presumption can be overcome if a party shows that a decision -maker
has a personal, financial or official stake in the decision evidencing a conflict of interest.246
Persons conducting quasi-judicial proceedings are treated as the equivalent of judges and,
therefore, must be impartial and maintain the appearance of impartiality.247 Guidance on when
impartiality does or does not exist can, and perhaps should, be obtained from rules applicable
to judges, such as the Colorado Rules of Judicial Discipline, the Colorado Code of Judicial
Conduct, Rule 97 of the Colorado Rules of Civil Procedure (change of judge), C.R.S. §13-1-122
(when judge shall not act except by consent), and related cases.
How is impartiality (or the appearance of impartiality) lost?
Impartiality, or the appearance of impartiality, may be lost by:
• Having ex parte (outside the hearing) conversations with counsel or witnesses for only
one side while the matter is pending.248
• Having participated in prior decision-making regarding the matter under review.249
• Depending upon the circumstances, investigating a matter prior to the hearing.250
31
• Having a financial interest in the matter, a party, or the outcome of the proceedings.
Conflicts of interest arising out of financial and business relationships to the subject
matter of the hearing often lead to questions of integrity, honesty and impartiality.251
Having prejudged the matter.252
- Being, or being related to, a party, an officer, director, or trustee of a party, a lawyer in a
proceeding, a material witness in the proceeding, or being known to have an interest that
would be substantially affected by the outcome.2253
Being an employee of one of the parties.254
What should be done if an actual or apparent conflict exists?
If an individual feels he or she can be impartial despite appearances, it is recommended
that the advice of the local government's attorney be obtained. The safest approach, next to the
individual disqualifying himself or herself, is for that individual to disclose the matter of
concern to the parties on the hearing record at the beginning of the hearing, state that he or
she believes they can be impartial in reaching a decision, and ask the parties if they object to
or will consent to his or her participation in the hearing. Giving consent, or the failure to
object, by a party may result in waiver of the objection.255
Similarly, if it appears that all members of the hearing panel may be biased, the advice of
the local government's attorney must be obtained. The "rule of necessity" might apply; that is,
disqualification will not be permitted to destroy the only entity with the power to act.256 An
option might be retaining an independent hearing officer to hold a hearing, determine the facts,
and make recommendations, with the final decision retained by the "biased" entity.
32
Endnotes
1. The Colorado Governmental Immimity Act is codified at C.R.S. §24-10-101 through -120.
2. C.R.S. §24-10-105, §24-10-102.
3. C.R.S. §24-10-102.
4. Martinez v. Countv of El Paso- 673 F.Supp. 1030 (D. Colo. 1987), Chacon v. Zahorka, 663 F. Supp. 90 (D. Colo. 1987). See
Felder v. Casev, 487 U.S. 131 (1988), Martinez v. California, 444 U.S. 277 (1980).
5. C.R.S. §24-10-107.
6. C.R.S. §24-10-103(5).
7. DeLong v. Citv and Countv of Denver. 195 Colo. 27, 576 P.2d 537 (1978).
8. Linira v. Citv of Thornton. 41 Colo. App. 401, 585 P.2d 932 (1978).
9. C.R.S. §24-10-103(4)(a).
10. C.R.S. §24-10-103(4)(a).
11. C.R.S. §24-10-118.
12. C.R.S. §13-21-102(b) (applicable to the award of punitive or exemplary damages generally).
13. C.R.S. §24-10-110(2).
14. C.R.S. §24-10-110(l.5)(b).
15. C.R.S. §24-10-110(2).
16. C.R.S. §24-10-109, §24-10-118(1)(a).
17. C.R.S. §24-10-109(1).
18. C.R.S. §24-10-114(1), §24-10-118(1)(b). These are the limits as of the date of this publication.
19. C.R.S. §24-10-118(1).
20. C.R.S. §24-10-106(1), §24-10-118(2).
211 Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000); see also Tidwell v- Denver, 83 P.3d 75 (Colo. 2003).
22. C.R.S. §24-10-106.
23. C.R.S. §24-10-110(1)(a).
24. C.R.S. §24-10-110(1)(b).
25. C.R.S. §24-10-110(2).
26. C.R.S. §24-10-110(1)(b), §24-10-110(1.5)(b).
27. C.R.S. §24-10-110(1.5)(a).
28. C.R.S. §24-10-110(2).
29. C.R.S. §24-10-110(2).
30. C.R.S. §24-10-110(4).
31. C.R.S. §24-10-104,§24-10-114(2).
32. 1&
33. C.R.S. §13-21-102.
34. Id.
35. C.R.S. §24-10-114(4).
36. C.R.S. §24-10-118(1)(c).
37. C.R.S. §24-10-110(5)(c),
38. C.R.S. §24-10-118(5).
39. John C. Pine, Public Official Liability: Decisions in Federal Court, Volume 2, No. 3.
40. Maine v. Thiboutot, 448 U.S. 1, 7 (1980).
41. Monell v. Dent. of Social Services, 436 U.S. 658, 658 (1978).
42. Id. at 690.
43. Idat9O.
44. Adickes v. S.H. Kress & Co., 398 U.S. 144,167-168, 90 S.Ct. 1598,1613-1614,26 L.Ed.2d 142 (1970).
45. Herrera v. Valentine, 653 F.2d 1220 (8'i' Cir. 1981).
46. Oklahoma Citv v. Tuttle. 105 S.Ct. 2427,2429 (1985).
47. Pernbauer v. Citv of Cincinnati, 475 U.S. 469 (1986).
48. Brvan Countv v. Brown, 117 S.Ct. 1382,1388 (1997).
49. Id. at 1392.
50. Citv of Canton v. Harris, 489 U.S. 378, 389 (1989).
51. Kentuckv v. Graham. 473 U.S. 159, 166 (1985); See Win. Relvfine, Civil Suits for Civil Rights: A Primer on §1983, 26 Colo.
Lay., 5 (Nov. 1997).
52. Brandon v. Holt, 105 S.Ct. 873, 878 (1985).
53. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Virginia L. Rev 47 (1998).
54. Bogan v. Scott -Harris. 523 U.S. 44, 54 118 S.Ct. 966, 968 (1998)(legislative immunity); Pierson v. Rav, 386 U.S. 547, 553
(1967) (judicial immunity); Inibler v. Pachtman, 424 U.S. 409,430 (1976) (prosecutorial immunity).
55. Kamolain v. C-urry Countv Board of Comm'rs, 159 F.3d 1248,1252 (10th Cit. 1998).
56. Hunter v. Brvant. 502 U.S- 224, 229 (1991).
33
57. Glass v. Pfeffer, 849 F.2d 1261 (10`h Cir. 1988).
58. ReMine, supra.
59. Rogers v. Board of Trustees of the Town of Fraser, 859 P.2d 284 (Colo. App. 1993).
60. Memphis Community School Dist. V. Stachura. 477 U.S. 299, 3111, 106 S.Ct. 2537, 2545 (1986).
61. Smith v. )Wade. 461 U.S. 30, 51 (1983).
62. See, e.g., Gareetti v. Ceballos_ 126 S.Ct. 1951 (2006); See, e.g., Cormick v. Mevers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75
L.Ed.2d 708 (1983).
63. Cotter v. Bd. Of Trustees of Universitv of Northern Colorado, 971 P.2d 687 (Colo. App. 1998).
64. See, ems., Nollan v. California Coastal Comm'n. 483 U.S. 825 (1987) (building permit conditioned upon granting of
easement); Penn Central Transportation Co. v. New York Citv. 438 U.S. 104 (1978) (construction proposal denied on grounds
that it failed to comply with historic preservation ordinance).
65. Graham v. Connor, 109 S.Ct. 1865 (1989): Jimn v. Citv of Lakewood, 392 F.3d 410 (10`h Cir. 20041.
66. Citv of Canton v. Harris, 489 U.S. 378 (1989); Brown v. Grav, 227 F.3d 1278 (10'h Cir. 2000).
67. Hardeman v. Citv of Albuoueraue, 377 F.3d 1106 (10`h Cir. 2004).
68. Trimble v. Citv and Count, of Denver. 697 P.2d 716 (Colo. 1985).
69. C.R.S. §24-10-101 et seMc .
70. As used throughout this chapter, reference to "public officials" is intended to include public employees.
71. C.R.S. §24-10-109 and §24-10-118(1).
72. C.R.S. §24-10-114 and §24-10-118(1). The Colorado Supreme Court has unanimously upheld the constitutionality of the
monetary limits against an equal protection challenge. Lee v. Colorado Department of Health, 718 P.2d 221 (Colo. 1986).
73. C.R.S. §24-10-110.
74. C.R.S. §24-10-110.
75. C.R.S. §24-10-103(4).
76. C.R.S. §24-10-110 and §24-10-118.
77. C.R.S. §24-10-110 and §24-10-118.
78. C.R.S. §24-10-110.
79. C.R.S. §24-10-110(2).
80. C.R.S. §24-10-110(2).
81. C.R.S. §24-10-114(4).
82. C.R.S. §24-10-119 seeks to extend the Act to federal claims brought in a state court having jurisdiction over the claim, if the
action lies in or could lie in tort. The viability of this section is doubtful, at least as to claims under 42 U.S.C. §1983. Howlett v.
Rose, 496 U.S. 356, 110 S.Ct. 2430 (1990). For cases addressing application of the Act's notice requirement to federal claims,
see Deason v. Lewis, 706 P.2d 1283 (Colo. App. 1985); and Miami Int'l Realtv Co. v. Town of Mt. Crested Butte, 579 F. Supp.
68 (D.C. Colo. 1984).
83. C.R.S. §24-10-110.
84. 15 U.S.C. §§34, 35 (1984).
85. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950).
86. See, eg., Harlow v. Fitzgerald, 457 U.S. 800 (1982).
87. See Chapter 3.
88. See e.a , Harlow v. Fitzgerald, 457 U.S. 800 (1982).
89. Trimble v. Citv and Countv of Denver. supra note 3.
90. Id.
91. Id. The Colorado Supreme Court has recognized that members of the state parole board are entitled to absolute immunity
when exercising quasi-judicial functions. State of Colorado v. Mason, 724 P.2d 1289 (Colo. 1986).
92. Public Officials Liabilitv Insurance: Understanding the Market, by James A. Swanke Jr., at page 41.
93. Public Officials Liabilitv Insurance: T Tnderstandine the Market. supra note 29, at pages 13 -14.
94. For example, one policy covers an official, trustee, director, officer, volunteer, or employee of the municipality while "acting
within the scope of his duties as such..."
95. Generally, a "claims -made" policy covers only claims actually made during the policy period. In some circumstances an
extension of the period for reporting the claim can be purchased. In comparison, an "occurrence" policy covers an occurrence
during the policy period regardless of when a claim based on the occurrence is actually fled.
96. Other lists exist. See eg., Chapter 15 of Civil Riehts Litigation and Attornev Fees Annual Handbook, Vol. 1 (1985), entitled
"Avoiding Sec. 1983 Claims: Checklists for Municipal Officials", by John B. Murphy.
97. Under certain circumstances, municipal officials may be held liable for negligently selecting or supervising subordinates or
directing or authorizing their wrong. See, e&., Liber v. Flor. 415 P.2d 332 (Colo. 1966); and cf. Brown v. Reardon. 770 F.2d 896
(10th Cir. 1985).
98. C.R.S. §13-21-102).
99 Hardeman v. Citv of Albuoueraue. supra note 1.
100. See, e.g., Miller v. Citv of Mission. Kan.. 705 F.2d 36 (10th Cir. 1983).
34
101. This chapter focuses on reducing the liability of the public official, rather than of the public entity. However, if a public
entity wished to reduce its own risk, it might pursue services by independent contractors and require that they indemnify the
entity and provide proof of their own insurance.
102. C.R.S. §24-10-103(4).
103. Some policies cover persons with whom fine public entity is obligated by virtue of a contract to provide insurance, but only
in respect to operations by or on behalf of the public entity. From the public entity's perspective, anv such contract should be
carefiilly worded to limit the obligation to the extent of the insurance coverage available.
104. C.R.S. §24-10-103(4).
105. Miller v. Citv of Mission. Kan., supra note 34.
106. See Moreland v. Board of Countv Commissioners, 764 P.2d 812 (Colo. 1988).
107.42 U.S.C. §1988.
108. Citv of Riverside v. Rivera, 477 U.S. 561 (1986).
109. See e.g., 42 U.S.C. §§ 1983 and 1988, and 15 U.S.C. §26.
110. C.R-S. §24-10-104 and §24-10-114(2).
111. For example, public hinds generally may be expended only for public purposes; and Colorado Constitution, Art. XI,
Sections 1 and 3 limit a municipality's authority to pledge its credit, become responsible for debt, contract, or liability of another,
or make donations to or in aid of specified persons or entities.
112. C.R.S. §31-23-206.
113. C.R.S. §31-23-214.
114. C.R-S. §31-23-301 et seg.
115. See ,g.eT, C.R.S. §§31-23-215 (approval of subdivision plats); -304 to -306 (adoption of zoning regulations).
116. C.RS. §31-23-307.
117. C.R-S. §24-67-101 et se.
118. C.R.S. §24-65.1-101 et M. For example, under this article, municipalities may regulate development in mineral resource
areas, natural hazard areas, and other "areas of state interest"; and may regulate certain "activities of state interest," such as the
siting of airports, water and sewer treatment plants, and other facilities.
119. C.R.S. §31-15-601.
120. C.R-S. §31-12-101 et sec .
121. See, e.g., C.R.S. §§29-20-105 (authorizing and encouraging local governments to cooperate or contract with one another for
the proposes of planning or regulating land development); 31-23-212 and -213 (authorizing adoption and enforcement of major
street plans outside of municipal boundaries).
122. Colo. Const, art. Y.X.
123. Mareolis v. District Court. 638 P.2d 297 (Colo. 1981). However, a rezoning decision, including approval of a conditional
use, will generally be considered a legislative act for purposes of referendum. Id.; Citizens for Oualitv Grotattln Petitioners'
Conunnittee v_ Citv of Steamboat Shrines, 807 P.2d 1197 (Colo. App. 1990).
124. Clnerry Hills Resort Dev. Co. v. Citv of Cherry Hills Villaee, 757 P.2d 622 (Colo. 1988).
125. Andreatta v. Kuhlman. 600 P.2d 119 (Colo. 1979).
126. Norbv. v. Citv of Boulder, 577 P.2d 277 (Colo. 1978).
127. Condiotti v. Board of Countv Comm'rs of La Plata County, 983 P.2d 184 (Colo. App. 1999)(generally a master plan is
merely advisory but can become legislative when adopted by a legislative action that requires landowners comply with master
plan provisions in pursuing development proposals).
128. C.R.S. §43-2-301 et seq. sets forth the procedures for vacation of roadways. If the roadway has been established as a
municipal street, it shall not be vacated by any method other than an ordinance.
129. Town of Superior v. Midcities Co., 933 P.2d 596, 600-01 (Colo. 1997).
130. Krupp v. Breckenridge Sanitation Dist., 19 P.3d 687 (Colo. 2001)(setting of sewer plant investment fees).
131. Russell v. Citv of Central. 892 P.2d 432 (Colo. App. 1995).
132. For example, published notice must be given prior to adopting or amending a master plan or zoning regulations. C.R.S.
§§31-23-208, -304. Documents vacating a roadway must be recorded with Clerk and Recorder of the County where the road is
located. C.R-S. §§43-2-303(2)(f), 43-1-202.7. Notice of annexation hearings must be published at least four times. C.R.S. §31-
12-108.
133. Sherman v. Citv of Colorado Springs, 680 P.2d 1302 (Colo. App. 1983).
134. Malinke v. Coughenour. 458 P.2d 747 (Colo. 1969).
135. The statute states in pertinent part that "[e]very person who, ,under color of any statute, ordinance, custom, or usage, of any
State or Territory, subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws, shall be liable to the party injury in action at law, suit in equity, or
other proceeding for redress."
136. U.S. const. amend. XIV, §1.
137. The United States Supreme Court in 1978 ruled that municipalities could be sued under Section 1983. Moneil v. Department
of Social Services, 436 U.S. 158 (1978).
138. U.S. Const. amend. V. The Colorado Constitution contains a similar provision stating that "private property shall not be
taken or damaged, for public or private use, without just compensation." Colo. Const. art. II, § 15.
35
139. Loretto v. Teleprompter Manhattan CATV Corn., 458 U.S. 419 (1982).
140. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Animas Vallev Sand and Gravel. Inc. v. Board of Countv
Commn'rs of La Plata Countv, 38 P.3d 59 (Colo. 2001).
141. First English Evangelical Lutheran Church v. Countv of Los Angeles, 462 U.S. 304 (1987).
142. Dolan v. Citv of Tigard, 512 U.S. 374 (1994)(dispute over conditions of approval requiring dedication of pedestrian and
bike path, and dedication of approximately 10 percent of a lot for greenbelt).
143. Ehrlich v. Citv of Culver Citv, 12 Cal. 4th 854, 911 P.2d 429, 50 Cal. Rptr. 2d. 242 (1996).
144.42 U.S.C. §1988.
145. U.S. Const. amend V.
146. Sundheim v. Board of Countv Cornm'rs of Douglas Countv, 904 P.2d 1337, 1348 (Colo. App. 1995) aff'd 926 P.2d 545
(Colo. 1997).
147. Sundheim, sora, 904 P.2d at 1345.
148. See Colorado Manufactured Housing Ass'n v. Citv of Salida, 977 F. Supp. 1080 (D. Colo. 1997).
149. U.S. Const. amend. XIV § 1. The due process clause of the Colorado Constitution also guarantees a right to equal protection
of the laws. Colo. Const. art. II, §25.
150. Colorado Manufactured Housing Ass'n, supra (holding that the restriction of manufactured homes to certain zone districts
does not violate equal protection because the restriction was rationally related to legitimate public perceptions about the
incompatibility of manufactured and site -built homes, and the impact of manufactured homes on tax base and property values);
Citv of Montrose v. Public Utilities Cora n'n, 732 P.2d 1181 (Colo. 1987).
151. U.S. Const. amend I; Citv of Lakewood v. Colfax Unlimited Ass'n. Inc., 634 P.2d 52 (Colo. 1981)(upholding sign
regulations)- National Advertising Co. v. Board of Adiustment of Citv and Countv of Denver, 800 P.2d 1349 (Colo. App.
1990)(same); Z.J. Gifts D-2. L.L.C. v_ Citv of Aurora, 136 F.3d 683 (10th Cir. 1998)(upholding 1500 -foot separation requirement
and other restrictions on sexually oriented businesses).
152. U.S. Const. amend. I; Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988)(upholding exclusion of
church building from an agricultural zone district).
153. U.S. Const. art. 1, §8(3)(granting to Congress the power to regulate commerce among the states); Construction Industry
Ass'n of Sonoma Countv v. Citv of Petaluma, 522 F.2d 897 (9th Cir. 1975)(finding that a growth plan allowing a fixed amount of
development per year has only an incidental burden on interstate commerce and therefore does not violate the Commerce
Clause). ,
154.42 U.S.C.A. §2000cc.
155. Id. at §2000cc(axl).
156. See, e.g.. Sts. Constantine and Helen Greek Orthodox Church v. Citv_ of New Berlin. 396 F.3d. 895 (7f° Cir. 2005)(fmding
violation of RLUIPA vv -here City denied PUD plan to operate church).
157.42 U.S.C.A. §§3601-3631.
158. See, eea., Hovsons. Inc. v. Townshin of Brick, 89 F.3d 1096 (3rd. Cir. 1996)(where alternative locations were not adequate,
court found statute was violated when a township refused to grant variance to allow a nursing home in a particular zone district).
A Colorado statute also prohibits municipalities from "zoning out" certain types of group homes for the aged, mentally ill, and
developmentally disabled. C.RS. §31-23-303.
159. Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §151 et seg. and elsewhere in the United States Code).
160.47 U.S.C.A. §332(c)(7).
161. See Kenneth S. Fellman, The Right of Wireless Providers to Sue Zoning Authorities Under & 1983,28 Colo. Lawyer No. 3,
p. 77 (March 1999).
162. 15 U.S.C.A. § § 1 -7.
163. Local governments enjoy a "state action" immunity from antitrust liability in cases where state lav evinces a clear intent to
displace competition. TO\i'In of Hallie v. Citv of Eau Claire, 471 U.S. 34 (1985). The federal law also provides specific limits on
recovery against local governments and their officials. 15 U.S.C.A. §§34-36.
164. Westborough Mall. Inc. v. Citv of Caoe Girardeau, 693 F.2d 733 (8th Cir. 1982).
165. 16 U.S.C. §§1531-1544.
166. Babbitt v. Sweet Home Chanter of Communities for a Greater Oregon, 115 S.Ct. 2407 (1995).
167. C.R.C.P. 106(4)(a).
168. Though annexation is a legislative act, the authorized claim for an aggrieved landowner in the annexation area is an action
for certiorari review. C.R.S. §31-12-116. See, e.g.. Town of Superior v. Midcities Co., 933 P.2d 596 (Colo. 1997)(In case
involving annexation dispute, landowner brought a certiorari action, as authorized by statute, and a request for a declaratory
judgment that landowner had a right to withdrawal its annexation petition).
169. Id..
170. Bauer v. Citv of Wheat Ridge, 513 R2d 203 (Colo. 1973).
171. C.R.C.P. 106(b). However, this 30 -day tune limit does not affect a Section 1983 or other federal claim, which can be
brought outside of 30 days and irrespective of a certiorari claim. Board of Countv Comm'rs of Douglas Countv v. Sundheim, 926
P. 2d 545 (Colo. 1996). A state statute passed in 1997 attempts to further expedite actions for certiorari review of land use
decisions. It requires that the defendant file the record to be reviewed within 30 days after the action is brought. C.R.S. §13-51.5-
101 et seg.
36
172. Snyder v. City of Lakewood, 542 P.2d 371 (Colo. 1975).
173. City of Lakewood v. Colfax Unlimited Ass'n. Inc- 634 P.2d 52 (Colo. 198 1)
174. Gerahhes B.V. v. City of Greenwood Village. 583 F. Supp. 830 (D.Colo. 1984).
175. Colorado statutes expressly authorize development agreements and annexation agreements. C.R.S. §§24-68-104(2), 31-12-
121.
176. C.R.C.P. 106(a)(2).
177. Malinke v. Couehenour, 458 P.2d 747 (Colo. 1967); Hedecock v. People ex. rel. Arden Realty & Inv. Co.. 57 P.2d 891
(Colo. 1936)(mandamus available to obtain building permit where zoning that precluded the proposed project was unreasonable
and arbitrary).
178. Reynolds v. City Council of the City of Lonrunont, 680 P.2d 1350 (Colo. App. 1984). This case may be of limited authority
in those situations where die subdivision regulations contain criteria requiring greater - but not unfettered - exercises of
discretion.
179. C.R.S. §24-68-101 et seq. This Act states a property oiNmer may obtain a "vested property tight" upon approval of a "site
specific development plan." C.R.S. §§24-68-102(4),(5), -103. The right remains vested for three years, or longer if the local
government agrees. id. at §§-103(1), -104(1) & (2). During that time, the City cannot take any zoning or land use actions which
would nnpair the right, as set forth in the plan. Id. at §-105(l). There are certain exceptions, such as actions taken with the
consent of die owner, action taken upon payment of just compensation, and application of regulations 'which are general in
nature and are applicable to all property subject to land use regulation." Id. at §-105(2). Amendments to this act also require
municipalities to designate what types of approvals will create a vested right; otherwise the types listed in the act will create a
vested right upon approval. See H.B. 99-1280. The amendments also state that an application for a site specific approval is, with
limited exceptions, governed by the laws and die regulations in effect at the time the application is submitted. Id
180. See Senate Bill 99-218 (codified at C.R.S. §29-20-201 et sec . and Senate Bill O1 S2-015 (codified at C.R.S. §29-20-104.5).
181. For example, C.R.S. §29-20-108 provides for appeal to the Public Utilities Commission of certain land use decisions
affecting the siting of major electrical or natural gas facilities. Certain areas of local regulation of oil and gas facilities are subject
to preemption by state laws and regulations administered by state agencies. Town of Frederick v. North American Resources Co.,
60 P.3d 758 (Colo. App. 2002)(finding that local regulations regarding setbacks and certain impacts of oil and gas activities were
preempted).
182 C.R.S. §31-23-201(4). See also, City of Northelerm v. lbarra, 62 P.3d 151 (Colo. 2003)(in case involving other statutes,
Court found that state law preempted City ordinance attempting to limit number of adjudicated delinquent children who were
registered sex offenders living in foster care homes.
183. See Chapter 3 (discussing personal liability and actions which may result in the loss of legal protections). Further discussion
of personal liability can be found in Michael M. Shultz, Personal Liability of Planning and Zoning Officials. Rocky Mountain
Land Use Institute Technical Service Report No. 2 (1994).
184. Cline v. City of Boulder, 450 P.2d 335, 338 (Colo. 1969): Witkin Homes, Inc. y. City and County of Denver, 504 P.2d 1121
(Colo. App. 1972). The vested property rights act provides greater protections to die landowner. See note 179 supra.
185. Kohn v. City of Boulder, 919 P.2d 822, 825 (Colo. App. 1995).
186. Id. When the representation is actually a misrepresentation, the claim will be considered a tort claim barred by the
Governmental Immunity Act. See Lehman v. City of Louisville. 857 Colo. App. 455 (Colo. App. 1992).
187. A Colorado statute enacted in 1988 expressly authorizes development agreements. C.R.S. §24-68-104(2). Despite concerns
that such agreements were a "bargaining away" of the government's zoning authority, court have held that these types of
agreements can be proper exercises of the police power to promote the general welfare. See, L.& Geralnes B.V. v. City of
Greenwood Village, 583 F.Supp. 830, 839 (D. Colo. 1984); Ziegler, 4 Rathkonf's Law of Planning & Zoning §50A.02[3][a]
(1996). On the other hand, a City carmot contract away its police power to alleviate hazardous traffic conditions, and a contract
purporting to do so is void. Crossroads West Ltd. v. Town of Parker, 929 P.2d 62 (Colo. App. 1996).
188. See Patzer v. City of Loveland, 80 P.3d 908 (Colo. App. 2003)(a building permit is not a contract but a license to do what is
otherwise prohibited; therefore, the issuance of a building permit does not create a contractual obligation to issue a certificate of
occupancy).
189. Colo. Const. art. V, §l((9)(reserving initiative and referendum powers to registered electors of every city, town and
municipality); C.R.S. §31-11-101 et se .
190. C.R.S. §31-11-105.
191. Colo. Const. art. V, §1((9); C.R.S. §31-11-101 et sec.
192. See, e.g_ Minch v. Town of Mead, 957 P.2d 1054 (Colo. App. 1998)(upholding an initiated ordinance that requires voter
approval of any annexation to the Town).
193. Nolian v. California Coastal Comm'n, 483 U.S. 825 (1987). Therefore, if a project will impact a particular view corridor, a
sight easement demanded by the govermuent must serve to mitigate that impact. Id.
194. Dolan v. City of Tigard, 512 U.S. 374 (1994). The amount does not need to be determined with mathematical exactitude.
However, there must be some type of individualized determination that the amount of the demand - be it in land, money, or
required improvements - is roughly proportionate to the amount of the impact. Id. These takings principles are now codified in a
Colorado statute. See CRS. §29-20-201 et sec.
195. Beaver Meadows v. Board of County Comm'rs of Larimer County, 709 P.2d 928 (Colo. 1985).
196 Both the municipal statutes and the state Code of Ethics set forth the obligations of an official who has a conflict of interest.
37
See C.R.S. §§ 24-18-109(3)(a); 31-4-404(2).
197. Williams v. Citv of Central. 907 P.2d 701 (Colo. App. 1995); Droste v. Board of Countv Comm'rs of Pitkin Countv, 141
P.3d 852 (Colo. App. 2005) aff d, 2007 WL 1393757 (upholding County moratorium for adoption of zoning regulations).
198. For example, in Deighton v. Citv Council of Citv of Colorado SDrinss, 902 P.2d 426 (Colo. App. 1994), the court found the
City could suspend its adult business ordinance only by enacting another ordinance. Therefore, a temporary moratorium on
permits for these businesses could not be done by motion or resolution.
199. C.R.S. §31-23-227(1).
200. In Town of Frisco v. Baum, 90 P.3 845 (Colo. 2004), the Colorado Supreme Court held that a home rule jurisdiction could
vest its municipal court with exclusive jurisdiction to hear appeals of certain matters of local concern, which resulted in a finding
that a party must file an appeal of approval of a conditional use permit in that Town's municipal court prior to proceeding to
district court. Thus, the municipal court may also provide an avenue for appeal, perhaps resolving cases that may be headed for
more costly and time-consuming litigation in state or federal courts.
201. See 42 U.S.C. §§ 1983, 1985.
202. 42 U.S.C. § 1988; Farrar v. Hobbv, 506 U.S. 103 (1992). The Tenth Circuit Court of Appeals, the federal appellate court
that hears appeals from the United States District Court for the District of Colorado, continues to apply the attorney fee provision
of 42 U.S.C. § 1988 very liberally, notwithstanding the limitations recomized by the United States Supreme Court in Farrar. See
Brandau v. Kansas, 168 F.3d 1179 (1& Cir. 1999).
203. See C.R.S. § 24-10-119; but see Howlett v. Rose 496 U.S. 356 (1990); Felder v. Casev, 487 U.S. 131 (1988).
204. U.S. Const. amend. XIV; Colo. Const. art II, § 25.
205. City and County of Denver v. Eggert. 647 P.2d 216 (Colo. 1982).
206. Id. at 224 , Soon Yee Scott v. Citv of Englewood. 672 P.2d 225, 227 (Colo. App. 1983).
207. State Bd. of ChiroDractic Exam'rs v. Stiernholm, 935 P.2d 959 (Colo. 1997).
208. Schoenberg Farms. Inc. v. PeoDle, 444 P.2d 277 (Colo. 1968).
209. Cottrell v. Citv and Countv of Denver, 636 P.2d 703,708 (Colo. 1981).
210. Chem Hills Resort Dev. Co. v. Citv of Cherry Hills Village, 757 P.2d 622 (Colo. 1988).
211. See Margolis v. District Court. 638 P.2d 297 (Colo. 1981); Snvder v. Citv of Lakewood, 542 P.2d 371 (Colo. 1975)
overruled on other grounds. But see Jafav v. Board of Countv Comm'rs, 848 P.2d 892 (Colo. 1993) (characterizing a county
rezoning action that affected 4,000 parcels of laird encompassing 25,000 acres as "quasi -legislative," based on the prospective
nature and broad impact of the rezoning).
212. Two G's. Inc. v. Kalbin, 666 P.2d 129 (Colo. 1983); Eggert, 647 P.2d 216; Price Haskel. Inc. v. Denver DeDt. of Excises
and Licenses. 694 P.2d 364 (Colo. App. 1984); Soon Yee Scott, 672 P.2d 225.
213. Turner v. Citv and Countv of Denver. 361 P.2d 631 (Colo. 1961); Wells v. Del Norte School Dist. C-7, 753 P.2d 770 (Colo.
App. 1987). Comnare Hoffman v. Citv of Fort Collins, 489 P.2d 355 (Colo. App. 1971).
214. Best v. La Plata Planning Comm'n, 701 P.2d 91 (Colo. App. 1984).
215. Andreatta v. Kuhlman, 600 P.2d 119 (Colo. 1979); Benes v. Jefferson Countv Bd, of Adiust., 537 P.2d 753 (Colo. 1975).
216. Orchard Court Develop. Co. v. Citv of Boulder. 513 P.2d 199 (Colo. 1973).
217. Norbv v. Citv of Boulder. 577 P.2d 277 (Colo. 1978); C&M Sand and Gravel v. Board of Countv Comm'rs. 673 P.2d 1013
(Colo. App. 1983); Garland v. Board of County Comm'rs, 660 P.2d 20 (Colo. App. 1982).
218. Gold Star Sausage v. KemD£ 653 P.2d 397 (Colo. 1982).
219. Revnolds v. Citv of Longmont, 680 P.2d 1350 (Colo. App. 1984).
220. Stuart v. Board of Adiust., 699 P.2d 978 (Colo. App. 1985).
221. Landmark Laird Co. v. Citv and Countv of Denver. 728 P.2d 1281 (Colo. 1986).
222. Keeline v. Citv of Grand Junction, 689 P.2d 679 (Colo. App. 1984); Denver Police Protective Ass'n v. Citv and Countv of
Denver, 665 P.2d 150 (Colo. App. 1983); Reeve y. Career Service Bd.. 636 P.2d 1307 (Colo. App. 1981).
223. Sutphin v. Mourning. 642 P.2d 34 (Colo. App. 1981).
224. Witcher v. Canon City, 716 P.2d 445 (Colo. 1986).
225. Prairie Dog Advocates v. Citv of Lakewood, 20 P.3d 1203_ (Colo. App. 2000).
226. Margolis, 638 P.2d 297; Sn yder 542 P.2d 371.
227. Clierry Hills Resort, 757 P.2d 622 (emphasis supplied).
228. deKoevend v. Board of Educ.. 688 P.2d 219 (Colo. 1984); Eggert, 647 P.2d 216.
229. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); Glatz v. Kortz, 807 F.2d 1514 (10' Cir. 1986); Patterson v.
Cronin 650 P.2d 531 (Colo. 1982).
230. Hallmark Builders and Realtv v. Citv of Gunnison, 650 P.2d 556 (Colo. 1982).
231. Chem Hills Resort, 757 P.2d 622; Egge_rt 647 P.2d 216; Price Haskel, 694 P.2d 364.
232. Formal rules of evidence need not be followed, but some test for admitting or denying evidence should exist, as well as a
structure for ruling on objections. Colorado DeD't of Revenue v, Kirke, 743 P.2d 16 (Colo. 1987); Fueston v. Citv of Colorado
Springs, 713 P.2d 1323 (Colo. App. 1985) (evidence should possess "probative value commonly accepted by reasonable and
prudent persons in the conduct of their affairs").
233. See McArthur v. Zabka, 494 P.2d 89 (Colo. 1972). But see Sundance Hills Homeowners Ass'n v. Board of County
Comm'rs. 534 P.2d 1212 (Colo. 1975).
234. Norton v. Board of Educ., 748 P.2d 1337 (Colo. App. 1987).
235. Spencer v. Board of Counh- Comm'rs, 39 P.3d 1272 (Colo. App. 2001).
236. Sclavenitis v. Clnerry Hills Bd. of Adiust., 751 P.2d 661 (Colo. App. 1988).
237. See Hudspeth v. Board of Countv Comm'rs, 667 P.2d 775 (Colo. App. 1983); Einarsen v. Citv of Wlieat Ridee, 604 P.2d
691 (Colo. App. 1979).
238. deKoevend,688 P.2d 219 (Colo. 1984).
239. See People v. Brown, 770 P.2d 1373, 1375 (Colo. App. 1989).
240. Miller v. Citv of Mission. 705 F.2d 368 (10" Cir. 1983); Weissman v. Board of Educ., 547 P.2d 1267 (Colo. 1976); Soon
Yee Scott, 672 P.2d 225.
241. Wells, 753 P.2d 770.
242. Booth v. Town of Silver Plume. 474 P.2d 227 (Colo. App. 1970).
243. See C.R.S. § 31-4404(2) (for statutory cities and towns); Zoline v. Telluride Lodee Ass'n, 732 P.2d 635 (Colo. 1987).
244. See Wood Bros. Homes. Inc. v. Citv of Fort Collins, 670 P.2d 9 (Colo. App. 1983); Johnson v. Citv Council, 595 P.2d 701
(Colo. App. 1979); Booth, 474 P.2d 227.
245. Williams v. Farmers Ins. Groun, 720 P.2d 598 (Colo. App. 1985).
246. Best, 701 P.2d 91; Soon Ye Scott, 672 P.2d 225.
247. Hadlev v. Moffat Countv School Dist. RE -1, 681 P.2d 938 (Colo. 1984); M�e , 753 P.2d 770.
248. See deKoevend, 688 P.2d 219 (school superintendent and principal, who testified in support of dismissal of teacher, should
not have been permitted to attend otherwise closed deliberations of the school board considering dismissal); Wells, 753 P.2d 770
(during lunch break, hearing officer should not have sat at the same table as counsel and witness for one party).
249. See Wood Bros. Homes, 670 P.2d 9 (judge who is also a member of a city planning and zoning commission should
disqualify himself from the commission consideration and review of a plat where that plat was in dispute in a trial heard by the
judge); see also Venard v. Dent. of Corrections, 72 P.3d 446 (Colo. App. 2003) (finding abuse of discretion when a decision
maker failed to withdraw despite an appearance of impropriety).
250. See Booth 470 P.2d 227 (fact that committee of town trustees investigated application for liquor license prior to hearing on
the matter and recommended against issuance of license, with other facts, denied the applicant a fair and impartial hearing).
251. See Zoline, 732 P.2d 635 (judge Nn=Ino owned controlling interest in bank in which a party was a substantial depositor should
have disqualified himself from hearing the case.); Best, 701 P.2d 91 (impermissible business or financial relationship of county
commissioner not established); see also C.R.S. § 24-18-101, et sec.. (establishing a code of ethics for local government officials).
252. See Booth, 470 P.2d 227 (where every town trustee signed petitions against issuance of liquor license prior to the hearing,
and committee of town trustees submitted report at hearing recommending against the license, the applicant was denied a fair and
impartial hearing); Soon Yee Scott. 672 P.2d 225 (councilmember properly disqualified himself from voting on an application for
a massage parlor license where he helped organize a petition drive in opposition to the proposed license, appeared at the public
hearing before the council and presented on behalf of his constituents the petitions in opposition to the license, testified during
the hearing, and published in a newspaper prior to the hearing an article related to the license); McClure v. Independent Sch. Dist.
No. 16, 228 F.3d 1205 (10"' Cir. 2000) (finding public statements by a decision maker that demonstrate actual bias deprived the
plaintiff of the right to an impartial tribunal).
253. See Code of Judicial Conduct, Canon 3C(1)(d) (judicial disqualification); C.R.S. § 24-18-101, et �M. (establishing a code of
ethics for local government officials).
254. See Getsch v. Hawker, 748 P.2d 1304 (Colo. App. 1987) (city personnel regulation provided for disqualification of hearing
officer where employer-employee relationship existed).
255. Getsch, 748 P.2d 1304; McClellan v. State. 731 P.2d 769 (Colo. App. 1986); see Code of Judicial Conduct, Canon 3D
(disclosure provision); C.R_S. § 13-1-122.
256. Leonard v. Board of Directors. 673 P.2d 1019 (Colo. App. 1983)-
39
Appendix A:
Sample hearing procedure
Local Licensing Authority
City of Golden, Colorado
Rules of Procedure
October 2000
(As Amended)
RULE I APPLICABILITY OF RULES AND DEFINITIONS
In addition to any other rules or laws which may be applicable, including Chapter 2.35 of
the Golden Municipal Code (City Administrative Hearing Procedures), the Golden Home
Rule Charter (Charter) and the Colorado Beer, Liquor, Special Event Codes and Code of
Regulations (Colorado Liquor Code), these Rules of Procedure (Rules) shall govern all
proceedings before the Local Licensing Authority (Authority) of the City of Golden. All
meetings shall also be conducted in compliance with these Rules and Robert's Rules of
Order. These Rules shall govern in the event of a conflict with Robert's Rules of Order.
Any provision of these Rules not governed by the Charter, the Golden Municipal Code or
the Colorado Liquor Code, may be temporarily suspended at any meeting of the Authority
by a majority vote of all members of the Authority. Any rule may be suspended by general
consent if presented by the Chair and if there are no objections from any member.
RULE II CHAIR. VICE CHAIR AND DUTIES OF MEMBERS
A. CHAIR AND VICE CHAIR
1. Chair - The Chair shall preside at all regular and special meetings of the
Authority.
2. Vice Chair - In the absence of the Chair, the Vice Chair shall preside. If the
Chair and Vice Chair are both absent, the members present shall
designate a person to act as Chair during their absences.
3. The Chair and Vice Chair shall be nominated by members of the Authority
and approved by a majority vote of all members for a term of one year. The
nomination and appointment shall take place during the Authority's
annual organizational meeting. In the event that no members accept
nomination for Chair or Vice Chair, the City Clerk shall inform the City
Council immediately, who shall designate a Chair and Vice Chair.
B. DUTIES OF CHAIR
The Chair shall have the responsibility to ensure that all meetings are conducted
in an open and fair manner and that no individual member's opinion is allowed to
dominate a meeting. The Chair shall clearly document any problems or issues and
work with members who deviate from acceptable procedural standards. If a
member has not taken steps to comply with such standards, on the second
incident, which is noted by the Chair, the Chair will notify the City Clerk to advise
A-1
the City Manager and the City Council of the matter. If the Chair is not following
the standards, the City Clerk shall notify the City Manager who will forward the
issue to City Council. The Chair shall attend meetings with the Mayor and report
the results to the Authority. The Chair shall assist the City Clerk in training of
new members. The Chair shall act as liaison with the City Council and
communicate City Council goals and policies to the Authority.
C. DECORUM DURING MEETING
The Chair shall maintain decorum during a meeting. The Chair shall have the
right to eject, after reasonable warning, any person disrupting a meeting. No signs
or placards will be displayed by any person or party in attendance at a meeting or
public hearing. Loud sounds such as cheering, applause, or booing shall be
restricted by the Chair. Video or audio recording of a hearing by persons other
than City employees is at the discretion of the Chair and in no event shall any
recording interfere or impede a meeting or hearing.
D. DISQUALIFICATION OF MEMBER FROM PARTICIPATION
No member may participate in the debate or vote upon any question when in
violation of Chapter 2.32, (Code of Ethics) of the Golden Municipal Code. A
request to be excused from participation in or voting upon a question for any
other reason must be made before the vote is taken.
RULE III MEETINGS - GENERALLY
A. REGULAR, SPECIAL AND ORGANIZATIONAL MEETINGS
All regular meetings of the Authority shall be held on the fourth Tuesday of
each month, if necessary, in the City Council Chambers, however a
meeting can be canceled by the City Clerk if there is not business to
transact no later than 24 hours prior to the meeting. Notification of the
cancellation shall be by telephone, electronically or by other
communication's technology, or first-class mail. Meetings shall start at
7:00 p.m.
2. Special meetings shall be held as necessary, as scheduled by the Authority
or upon call of the City Clerk who shall provide notice to each member of
such meeting. Notice shall be by first-class mail, electronically, telephone,
or by other technology or means of communication 24 hours prior to the
meeting. Oral or written consents and waivers of notices of meetings or
continuances are permitted. Cancellation procedures for special meetings
shall be the same as for regular meetings.
3. The Authority shall hold an organizational meeting immediately prior to its
first regularly scheduled meeting in January of each year.
B. ORDER OF BUSINESS
The following Order of Business may be used for meetings:
Call to Order
Roll Call
Approval of Agenda
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Motion to Admit the License Applications and the City Clerks
Communication
Documents into Evidence
Consent Agenda
Business
Public Hearings
Other Matters/New Business
Adjournment
The Authority may change the Order of Business to assist and facilitate the
conduct of its meetings.
C. PROCEDURE FOR MEETINGS
The City Clerk will prepare, or cause to have prepared, the meeting room
and provide public hearing sign-up sheets to be placed in the lobby or
Council Chamber prior to the meeting for the benefit of those persons
wishing to speak on those matters on the agenda. Not later than 72 hours
prior to any meeting, the City Clerk shall prepare an agenda with the order
of business, copies of communications, resolutions, if applicable, with
supporting documents, and other related items, and make same available
for each Authority member.
2. The Chair shall call the meeting to order and describe the order of
business. The Chair should request such information, evidence and
testimony as is appropriate for the item being considered.
3. Except during a public hearing, persons other than members of the
Authority and City officials shall not be permitted to address the Authority
except upon recognition by the Chair. Any Authority member may request
that the Chair recognize any person other than a City official. If permission
is not granted, the decision of the Chair may be appealed. Any member
may appeal a ruling of the Chair to the Authority. If the appeal is
seconded, the member making the appeal may briefly state the reason for
the same, and the Chair may briefly explain the reason for the ruling; but
there shall be no debate on the appeal, and no other member shall
participate in the discussion. The Chair shall then put the question, "Shall
the decision of the Chair be sustained?" If a majority of the members
present vote "Yes," the ruling of the Chair is sustained; otherwise it is
overruled.
4. At the conclusion of the evidence and testimony, the Chair shall entertain
a motion regarding the disposition of the item.
5. When a motion is made and seconded, the Chair shall ask for and allow
discussion of the motion by the Authority.
6. Upon completion of discussion, the Chair shall request a vote by the
Authority. The City Clerk will record the vote.
7. The meeting may be adjourned by motion of the Chair or any member. A
recess may be called at any time either by the Chair or upon motion by a
member with the consent of the majority. The Authority shall not adjourn
while in recess but must reconvene prior to adjournment.
A-3
D. MINUTES OF THE MEETING
The City Clerk shall prepare and keep, or cause the preparation of and retention
of, the minutes of all regular and special meetings of the Authority. The minutes
shall not be a verbatim transcript of the proceedings, provided tape recordings of
all proceedings are retained by the City Clerk's office in accordance with the State
Archives retention schedule for reference when and if necessary. The purpose of
the minutes shall be to record the Authority's transactions rather than its
deliberations; therefore, debates, arguments, and discussion among the Authority
shall not be included. Specific direction to the support staff, the City Clerk and
City Attorney, shall be included in the minutes when such direction may affect the
outcome of a decision to be made by the Authority. A court reporter may be in
attendance for the purpose of recording the proceedings when the Authority, an
applicant or a Party In Interest (as defined in the Colorado Liquor Code) so
requests; however anyone requesting a court reporter is responsible for paying the
full cost thereof.
The City Clerk should include the following in the minutes of each meeting:
1 Name - Meeting of the Local Licensing Authority of Golden, Colorado.
2. Kind of meeting (Regular, Special).
3. Place and date of meeting.
4. Officer presiding, Authority Members and Staff present.
5. The decision in each point of order arising.
6. A record of the Authority's actions, which will in most instances, be a
motion reflecting the decision taken by the Authority.
7. The time and place of re -assembling unless it the regular meeting time and
place.
8. A record of the applicant(s) and witnesses in attendance and the purpose
of their presence.
9. Whether previous minutes were approved.
10. The signature of the City Clerk and the Chair at the time the minutes were
approved.
11. All motions, seconds, the vote thereon (including abstentions), and any
subject matter reports given and disposition of same.
E. ATTENDANCE AT MEETINGS
Attendance Required - A written report signed by the Chair shall be sent
to the City Council concerning any member of the Authority who has
three consecutive unexcused absences from Authority meetings for City
Council determination as to whether this shall result in removal of that
member from the Authority. Such report shall be sent to the City Council
following such member's third unexcused absence.
A-4
2. Excusal from Meetings - No member shall be excused from attendance at
an Authority meeting unless the member has informed the Chair or the
City Clerk prior to the meeting. No member may be excused while in a
meeting without permission from the Chair.
F. SUPPORT SERVICES
1. Legal - The City Attorney and/or such Assistant City Attorneys, as the City
Attorney may designate, shall attend all regular and special meetings of
the Authority as the legal and procedural advisor to the Authority. In any
public hearing where evidence is to be presented in regard to a show -cause
hearing in support of a suspension or revocation or any other quasi-
judicial type proceeding, Special Counsel may be appointed by City
Council in accordance with the Charter.
2. Secretarial; records custodian - The City Clerk, or her designee, shall serve
as the secretary and records custodian for the Authority and perform the
functions that a corresponding secretary and recording secretary usually
perform. Additionally, the City Clerk shall be responsible for overseeing the
publication concerning public hearings and other required notifications.
G. DELEGATION OF AUTHORITY TO CITY CLERK.
The City Clerk is authorized to act as the Local Licensing Authority for the
following Colorado Liquor Code and Colorado Beer Code licensing functions:
1. Processing and issuance of special events permits pursuant to Article 48 of
Title 12, C.R.S., provided that there are no parties filing a written objection
to said permit.
2. Annual Colorado Liquor Code and Colorado Beer Code license renewals,
provided that the licensee has not violated any provisions of the Colorado
Liquor or Beer Codes and associated regulations during the preceding
year.
3. Changes in shareholders, officers, directors or trade names of a licensee,
provided that any investigation conducted by the City does not reveal
information that may reasonably form the basis of a determination that
the applicant is not qualified to hold the respective license.
4. The issuance of temporary permits pursuant to and in compliance with
the provisions of Section 12-47-302, C.R.S., and Section 12-47-303,
C.R.S. A temporary permit fee of $100.00 shall be charged in conjunction
with the issuance of each temporary permit.
The City Clerk may, nevertheless, refer any licensing decision authorized under
this Rule to the Local Licensing Authority if, in the Clerk's discretion, the matter
should be presented to the full Local Licensing Authority. (Rule III G. added.
Council Resolution No. 1178, adopted January 25, 2001.)
A-5
RULE IV PUBLIC HEARING PROCEDURES FOR NEW, TRANSFER,
CHANGE OF LOCATION, CHANGE OF CORPORATE
STRUCTURE, MANAGER'S REGISTRATION, AND REOUEST TO
MODIFY APPLICATIONS',
A. The Chair or presiding member shall have full authority to control the
proceedings, to admit or exclude testimony or other offers of evidence and to rule
upon all motions and objections. A majority of the Authority members present
may overrule the Chair on any such rulings.
Unless the member has reviewed all the evidence and a transcript of the prior
proceedings, any member who has been absent during any portion of a public
hearing may not vote or participate in deliberations and discussions at the public
hearing.
B. The Authority shall not be bound by strict rules of evidence prevailing in courts of
law or equity, however the right of cross-examination shall be preserved.
Irrelevant, repetitive and cumulative testimony and evidence should be excluded
when possible. Motions may be written, but, shall be read into or summarized for
the record. Objections shall be stated orally for the record. All testimony shall be
given under oath. In all public hearings under this Rule IV, the applicant has the
burden of persuading the Authority that the application, or request, should be
granted.
C. All exhibits or other documentary evidence to be admitted shall be submitted to
the City Clerk and pre -marked 48 hours before the hearing. These exhibits shall
be introduced as in civil cases. If the applicant desires to distribute copies of
exhibits to the Authority at the hearing, the applicant shall provide a sufficient'
number of copies. Neighborhood petitions signed by inhabitants and submitted to
the Authority in accordance with these Rules shall be considered by the Authority
when determining the "requirements" and "desires" of the neighborhood.
D. The following order for the presentation of evidence shall apply:
1. Call the public heating to order.
2. opening remarks by Chair.
3. Opening statement by the applicant or the applicant's attorney.
4. opening statement by the City Attorney or Special Counsel.
5. Presentation of applicant's evidence and witnesses. Prior to excusing
applicant's witnesses, cross-examination shall be permitted in the
following order:
a. City Attorney or Special Counsel.
b. Authority members.
1 In the event of a conflict between these procedures and the provisions/procedures
of the Charter, City Administrative Hearing Procedures and the Colorado Liquor Code,
the aforementioned laws, rules and regulations shall apply, as applicable, over these
procedures.
A-6
C. Any person who is a Party In Interest (if applicable).
6. Presentation of City's evidence and witnesses. Prior to excusing any of the
City's witnesses, cross-examination shall be permitted in the following
order:
a. Applicant's attorney.
b. Authority members.
C. Any Party In Interest.
7. Presentation of witnesses and evidence by any Party In Interest. Prior to
excusing witnesses, cross-examination of interested parties and their
witnesses shall be permitted by applicants, City and Authority members.
8. Applicant's rebuttal evidence.
9. City's rebuttal evidence.
10. Applicant's closing statement.
11. City's closing statement.
12. Applicant's reply closing statement.
13. Close the public hearing.
14. Deliberation and call for motion.
15. Applicable motion to grant or deny application, discussion and vote.
E. Reopening of a Public Hearing - Whenever a public hearing has been opened and
continued to another date or if it has been closed and the Authority determines to
take additional evidence prior to a vote or a reconsideration of a vote, the Chair
may reopen the public hearing for purposes of taking such additional evidence.
The Chair may limit the scope of such evidence to be taken. If a public hearing is
reopened and additional evidence is taken, all such additional evidence shall be
incorporated into the original public hearing.
F. Evidence for Public Hearings - New licenses, transfer of ownership, change of
location, change of corporate structure, manager's registration, and request to
modify.
1. Evidence concerning whether the Applicant (individual, corporation, or
other entity) is qualified to hold the type of license applied for (not
applicable for request to modify or change of location), which evidence may
include:
a. other facilities operated by applicant.
b. training and experience of applicant.
C. familiarity with state and local laws.
d. procedures and policies regarding enforcement of liquor laws.
e. reputation and particular history of applicant regarding liquor
laws.
A-7
2. Evidence concerning the reasonable requirements of the neighborhood and
whether existing outlets are adequate (not applicable for transfer, change
of corporate structure, or manager's registration), which evidence may
include:
a. number of existing outlets and proximity.
b. testimony from adults residing in the relevant neighborhood.
C. testimony from applicant or applicant's officers.
d. testimony from petitioner or entity submitting petitions.
3. Evidence concerning the desires of adult residents for existing outlets (not
applicable for transfer, change of corporate structure, or manager's
registration), which evidence may include:
a.
testimony from adults residing in the relevant neighborhood.
b.
testimony from a manager or business owner in the relevant
neighborhood.
C.
petitions submitted by the applicant or petition entity.
d.
testimony from applicants.
4. May
receive other evidence concerning:
a.
nature of establishment and location.
b.
discussion concerning meeting all applicable City codes or
ordinances.
C.
discussion concerning financial interest in establishment.
G. Any Party In Interest desiring to participate in the hearing must so inform the
Authority at the onset of the hearing. That party may cross-examine witnesses
and introduce evidence with regard to the following matters:
Reasonable requirements of the neighborhood and the number and type of
relevant existing outlets.
2. Any other pertinent matters affecting the qualifications of the applicant,
including but not limited to the applicant's character, record or reputation.
3. Any other evidence, which would indicate that the building or location
proposed for the operation of the license, is not suitable for the intended
purposes.
4. Desires of the inhabitants in opposition to the issuance of the license
expressed by witnesses and/or through petitions.
H. The City Clerk may grant an applicant's request or the City's request to continue a
matter set for hearing to a following regular or special meeting, if such request is
made prior to the time that publication and posting of notice of hearing on the
matter is to be made. Once a matter has been scheduled for public hearing and
public notice thereof has been given, the matter may be continued only by the
Authority upon a showing of good cause. The Authority may, in its discretion,
grant or deny an applicant's request for a continuance, or it may grant the
continuance subject to the payment of costs or other expenses reasonably caused
by applicant's request.
A -S
Unless excused by the Authority, the following persons shall be in attendance at
the public hearing on the application:
If the applicant is an individual, that individual; or
2. If the applicant is a partnership, any managing or general partner or
his/her authorized designee; or
3. If the applicant is a corporation, the president of the corporation, an officer
or director or such other corporate representative as the president may
designate in writing; or
4. If the applicant is a limited liability company, a managing officer, or
his/her authorized designee.
J. The Authority may deliberate in open session or may, in compliance with the
Golden Municipal Code, recess into executive session to deliberate upon the
evidence presented. The executive session shall not be utilized for the purpose of
receiving any evidence nor shall a final determination be made during such
executive session. Final decisions shall only be made in public meetings.
K. It is within the discretion of the Authority whether to make an immediate decision
upon the conclusion of the public hearing or require the City Attorney's office to
prepare written findings within a reasonable time after the hearing, not to exceed
30 days.
L. Any findings, either written or oral, (which shall mean findings of fact, conclusions
of law and order), may be prepared by the City Attorney's office and may be
available for adoption by the Authority at the public hearing or at a subsequent
regular or special meeting. Written findings of fact shall be mailed by certified mail
to the applicant within 30 days after the determination is made.
M. All decisions of the Authority are final, subject only to appeals (litigation) to a
court of competent jurisdiction.
RULE V PUBLIC HEARING PROCEDURES FOR RENEWALS,
SUSPENSIONS, FINES, AND REVOCATIONS Z
A. Following investigation and public hearing, at which the licensee shall be afforded
an opportunity to be heard, the Authority is authorized to suspend, deny renewal
of or revoke any license issued by the Authority for violations by the licensee, or
by any of the agents, servants, or employees of such licensee of the provisions of
the Colorado Liquor Code, or any of the rules, ordinances and regulations
authorized pursuant to such Code or of any of the terms, conditions or provisions
of the license issued by the Authority.
B. Suspension and revocation proceedings shall be commenced by the Authority by
issuing and causing to be served upon the liquor licensee by first-class mail to the
licensee at the address contained in the license, an Order to Show Cause and
Notice of Hearing (Notice) _The Notice shall command the licensee to appear and
show cause why its license should not be suspended or revoked as it appeared to
the Authority that there was probable cause to believe that the licensee or any of
Z See Footnote 1.
A-9
the agents, servants or employees violated laws, rules or regulations of the
Colorado Liquor Code or any of the terms, conditions or provisions of the license
issued by the Authority. The Notice shall notify or inform the licensee of the
charges or alleged grounds for suspension or revocation and shall be prepared for
the Authority by the City Attorney.
C. All proposed settlements and dispositions of matters scheduled for a public
hearing shall be in the form of joint stipulations and shall be submitted in writing
to the offices of the City Clerk and the City Attorney at least 10 days prior to the
scheduled public hearing date. The Authority has the discretion to consider a
proposed disposition prior to the hearing.
The scheduled public hearing shall be automatically vacated if:
a. The proposed settlement or disposition is properly and timely made
in writing in accordance with Section C above; and
b. The proposed settlement is approved as'to legal form by the City
Attorney; and
C. No prior proposed settlements or dispositions on the same matter
have been previously submitted to the Authority for consideration;
and
d. The licensee has not, within the preceding two years, had its
license suspended and/or paid a fine in lieu thereof (Fine).
2. The City Clerk shall provide the Authority members with a copy of the
written notice of proposed settlement or disposition in their packets, or
shall provide the Authority members with personal, telephonic, electronic,
other communication method, or first-class mail notice of the matter.
3. Consideration of proposed disposition by the Authority; continuance of
hearing upon rejection.
a. Upon timely filing of the notice of the proposed disposition as
provided in Section C above, the Authority shall, at the time of the
scheduled hearing, consider the proposed stipulations and
recommendations. However, the Authority may, upon good cause
shown, consider dispositions presented either orally or in writing
without regard to the provisions of Section C. Upon a finding that
the public interest is not served by the proffered disposition, or if
the Authority significantly changes the proposed settlement order
and during the Authority's consideration of such, either party has
an objection to such changes, the hearing on the merits shall be
continued and rescheduled to the next regular or special meeting
of the Authority. The continued hearing shall be at least 10 days
after the original scheduled hearing date, unless both parties are
prepared and agree to proceed immediately after rejection of the
proposed disposition.
b. In the event of rejection of the proposed disposition, the Authority
shall identify the reasons for such rejection, which may include,
without limitation, seriousness of the violation, aggravating or
mitigating circumstances, the history of the subject establishment,
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corrective actions taken, likelihood of reoccurrence, and any other
relevant matters impacting the public health, safety and welfare.
4. Subsequent proposed dispositions.
In the event that the Authority, in the exercise of its discretion, may reject
the proposed disposition of a matter, and the issues are rescheduled for
hearing on the merits as set forth in Section 3(a) above, and the parties
submit an amended notice of proposed disposition, the parties must
nevertheless be prepared to proceed on the merits of the case at the
rescheduled hearing in the event the amended proposal for disposition is
also rejected by the Authority as herein contemplated.
5. Effect of rejection of proposed disposition --no prejudice.
In the event that the Authority may reject any proposed disposition
pursuant to the provisions of these Rules, neither the City nor the licensee
shall suffer any prejudice or detriment as a result of such rejection. The
legal standards and burden of proof applicable to the proceedings shall be
as if the proposal had not been presented, and a licensee shall suffer no
detrimental presumption or inference as a result of such rejection upon a
hearing on the merits.
6. Factual stipulations.
Nothing in these Rules shall be deemed or construed to preclude or limit
either party before or during a hearing from offering to stipulate as to the
existence of any fact.
7. Notice to licensees.
Along with the Notice sent to any licensee or Notice of Non -Renewal to be
considered at a public hearing, the City Clerk shall include a copy of Rule
V of these Rules.
D. All requests for continuance of a scheduled public hearing by which the Authority
will be considering whether a license may be suspended or revoked shall be
submitted in writing to the offices of the City Clerk and the City Attorney, or if the
City is requesting the continuance, to the City Clerk and the business address of
the applicant/licensee or its legal counsel at least 10 days prior to the scheduled
public hearing date.
1. A continuance of the public hearing shall be granted by the City Clerk to
the next available meeting of the Authority if.
a. The written request is properly and timely submitted to the City
Clerk's office in accordance with this Section D; and
b. Both parties or their representatives agree to the continuance; and
C. Neither party has been previously granted a continuance in the
matter under consideration; and
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d. The City Clerk's office has not incurred any costs for publication of
the public hearing date.
2. In the case of a renewal scheduled for a public hearing, a continuance of
the public hearing shall be granted by the City Clerk to the next available
meeting of the Authority if such request is made prior to the time that
notice of hearing on the matter is to be made.
3. Uncontested requests for continuances of scheduled hearings submitted
within 10 days of the hearing date may be granted by the Chair of the
Authority if the Chair, in its discretion, determines good cause for such a
continuance exists. In such event, the hearing shall be set for a new date
during the meeting at which the hearing was originally scheduled.( New
Rule V D. 3. Council Resolution No. 1478, adopted March 11, 2004.)
4. If the request for continuance is not made and granted in accordance with
Subsection D (1) or D 3. above, both parties or their representative shall
appear before the Authority at the scheduled public hearing prepared to
proceed with their case. (Rule V. D. 4, renumbered from Rule V. D. 3 and
amended, Council Resolution No. 1478, adopted March 11, 2004.)
5. Upon a showing of substantial hardship or other good cause by the
requesting party, as determined solely by the Authority, the Authority may
grant continuances upon such terms and conditions as it deems just and
proper.
E. A hearing on the suspension, revocation, or non -renewal shall be held at a place,
day and time designated by the Authority as stated in the Notice. Evidence in
support of the charges shall be given first, followed by cross-examination of those
testifying thereto. The licensee, in person or by counsel, shall then be permitted to
give evidence in defense and in explanation of the charges, followed by the cross-
examination of those testifying thereto.
F. In the event the licensee is found not to have violated any law, rule or regulation,
the charges against the licensee will be dismissed. If the licensee is found to have
violated a law, rule or regulation, the license shall be suspended, revoked or not
renewed in accordance with the procedures set forth in Subsection L below.
G. The City Clerk shall mail the licensee the Authority's decision by first-class mail
for a liquor licensee to the address contained in such license within 30 days
following the hearing.
H. In the event of revocation, or suspension, no portion of the license fee shall be
refunded.
I. Orders of suspension shall indicate the effective date of suspension. For
suspensions of 14 days or less, the effective date shall be at least 10 business
days after announcement of the suspension unless the Authority makes fundings
which indicate the need for an earlier effective date.
J. If the Authority has probable cause to believe a licensee is guilty of a deliberate
and willful violation of any applicable law or regulation or that the public health,
safety, or welfare imperatively requires emergency action, the Authority may
temporarily or summarily suspend the license for a period not to exceed 15 days
pending a hearing on the suspension or revocation, which hearing shall be
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promptly instituted and determined. Any finding by the Authority that a
temporary, summary, suspension is appropriate under this section must be by a
vote of four members of the Authority, and specific findings of a willful violation or
immediate threat to the public health, safety or welfare must be made and entered
in the record and incorporated into any suspension or revocation order.
K. A licensee wishing to petition the Authority to pay a Fine in lieu of a suspension of
14 days or less, must submit a written petition to the City Clerk's office at least
three working days prior to the effective date of the suspension and follow the
procedures in The Colorado Liquor Code.
The petition for payment of a Fine shall include all information and
documentation that the licensee would like the Authority to consider when
acting on the petition. The petition shall include, among other things, such
information which indicates the licensee is eligible for the payment of a
Fine pursuant to The Colorado Liquor Code and a calculation of the
proposed fine with sufficient financial documentation so as to permit the
Authority to substantiate the amount of the proposed fine.
2. The City Clerk shall not accept for filing a petition for payment of a Fine
unless the petition is timely filed.
3. Except as provided in this Section K, upon the acceptance of filing of a
petition for payment of a Fine, the suspension of the license shall be
temporarily stayed until such time as the Authority acts upon the petition
for payment of a Fine. The petition shall be presented to the Authority at
the next available regular meeting of the Authority following the filing of
the petition.
4. If the Authority denies the petition for payment of a Fine, the suspension
shall be reinstated and the Authority shall indicate the effective date of the
suspension.
5. If the petition for payment of a Fine is granted, the granting of the petition
shall be deemed to be conditioned upon the payment of the Fine within 10
working days of the action of the Authority. A new suspension period will
be set out in any order granting a petition for payment of Fine, which
period of suspension automatically becoming effective in the event that the
licensee fails to pay the fine.
L. The public hearing for a revocation, suspension or non -renewal shall be
conducted following the same applicable procedures as outlined in Rule IV above,
however, the City will have the burden of persuading the Authority that a violation
occurred or the license should not be renewed, as follows:
1. The following order for the presentation of evidence shall apply:
a. Opening statement by the City's Special Counsel.
b. Opening statement by the Licensee.
C. Presentation of City's evidence and witnesses. Prior to excusing any
of the City's witnesses, cross-examination shall be permitted in the
following order:
1. Licensee's attorney.
2. Authority members.
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d. Presentation of Licensee's evidence and witnesses. Prior to
excusing applicant's witnesses, cross-examination shall be
permitted in the following order:
1. City's Special Counsel.
2. Authority members.
e. City's rebuttal evidence.
f. Licensee's rebuttal evidence.
g. City's closing statement.
h. Licensee's closing statement.
i. City's reply closing statement.
j. Close the public hearing.
k. Deliberation and call for motion.
1. Applicable motion to suspend, revoke, or not renew license,
discussion and vote.
2. Evidence for Public Hearing - Suspension, Non -Renewal
City presents evidence concerning whether the licensee committed the
violations listed in the Verified Complaint, which evidence may include:
a. Evidence from individual witnesses, either employees or
contractors who were present when events occurred.
b. Evidence from experts, including health or other County or State
officials, concerning events surrounding the incident.
C. Evidence from City officials, including code enforcement officers,
finance officers, and building code officials.
d. Evidence from the police department.
3. In the event the Authority finds that a violation occurred, the Sentencing
Guidelines should be applied to assist the Authority in determining a
penalty.
4. In the event that the Authority finds that a violation occurred, then the
licensee may also present evidence in mitigation or explanation and the
City may present evidence in aggravation prior to the Authority issuing its
Order relating to the penalty, conditions or sanctions to be imposed.
5. The Authority may deliberate in open session or may, in compliance with
the Golden Municipal Code, recess into executive session to deliberate
upon the evidence presented. The executive session will not be for the
purpose of receiving any evidence nor shall a final determination be made
during such executive session. Decisions of the Authority shall be made in
public meetings.
6. It is within the discretion of the Authority whether to make an immediate
decision at the conclusion of the public hearing or require the City
Attorney's office to prepare written findings within a reasonable time after
the hearing, not to exceed 30 days.
7. Any findings, either written or oral, (which shall mean findings of fact,
conclusions of law and order), shall be prepared by the City Attorney's
office and shall be available for adoption by the Authority at the public
hearing or at a subsequent regular or special meeting. Written findings of
fact shall be sent by first class mail to the licensee within 30 days after the
determination is made.
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8. All decisions of the Authority are final subject to appeals (litigation) to a
court of competent jurisdiction.
RULE VI PETITIONS
A. Petitions circulated by the applicant and any protestants or their agents shall be
submitted to the City Clerk not later than seven business days prior to the public
hearing. The Authority may continue any hearing where the City Clerk has not
had sufficient time to verify the accuracy of the petitions. The Authority may waive
the seven-day requirement upon a majority vote.
B. Petitions shall be circulated within the designated relevant neighborhood and
signed by residents, business owners, or managers within the designated area.
Petitions must be signed with the full given name. No signatures will be accepted
if a wife or husband has signed for both unless accompanied by a proper and
sufficient power of attorney for the non -signing spouse.
C. All signatures shall be identifiable with a residence or business address listed on
the petition, together with the age of the person signing the petition and the date
signed. Each individual signing a petition shall indicate his/her relationship to
the relevant neighborhood (e.g. resident, business owner, employee, business
manager). Signatures will not be accepted if it is not clear whether the signatory is
a business owner or manager or a resident of the designated area.
D. Each petition shall contain an affidavit signed by the circulator of the petition that
the circulator personally witnessed each signature appearing on the petition, that
each signature thereon is the signature, of the person whose name it purports to
be, that the address given opposite that person's name is the true business or
residence address of the person signing the petition and that the requirements of
this Rule have been complied with.
E. All petitions shall be in substantial conformity to the format approved by the City
Clerk. Petitions will not be accepted unless a signed Affidavit is submitted for each
circulator and the applicant is clearly identified on the face of each petition.
F. All signatories of petitions for or against the issuance of a fermented malt
beverage or malt, vinous or spirituous liquor license must be 21 years of age or
older.
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Appendix B:
Sample employee defense policy
Appendix B:
Sample employee defense policy
Legal representation for employees who are defendants in
certain civil actions
1.0 Purpose -
1.1 The purpose of this Policy is to establish procedures implementing the
provisions of the Colorado Governmental Immunity Act ("Act") which
pertain to legal representation for City/Town employees and to extend
such representation to certain federal actions.
2.0 Scope and Definitions
2.1 The Act provides that the City/Town, under certain circumstances, must
assume the cost of defending its employees and paying judgments and
settlements against its employees. This Policy implements the provisions
of the Act and applies to the same extent as the Act. This Policy also
applies to claims brought under federal law which lie in tort, but only to
the extent the City/Town has available insurance coverage therefor.
2.2 As used in this Policy, "claim" means a civil action, brought in state or
federal court, which is subject to the Act or which is based on a federal
law and lies in tort.
2.3 As used in this Policy, "employee" shall have the same meaning as
provided in Section 24-10-102(4), and shall include a former employee of
the City/Town.
3.0 Policv
3.1 Costs'of Defense: The City/Town shall be liable for the reasonable costs,
including reasonable attorney fees, of the defense of an employee against
a claim if:
3.1.1 The City/Town Attorney determines that the claim arose out of
injuries sustained from an act or omission of the employee
occurring or alleged in the complaint to have occurred during the
performance of the employee's duties and within the scope of the
employee's employment with the City/Town; and
3.1.2 The City/Town Attorney determines that the employee's act or
omission was not willful or wanton; and
3.1.3 The employee does not compromise or settle the claim without the
written consent of the City/Town; and
3.1.4 The employee provided written notice to the City/Town Attorney
of the incident or occurrence which led to the claim, within a
reasonable time after the incident or occurrence, if the incident or
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occurrence could reasonably have been expected to lead to a
claim; and
3.1.5 In the case of an action to which the City/Town is not a party
defendant, the employee provided written notice to the City/Town
Attorney of existence of the action against the employee within
fifteen (15) days after the commencement of the action.
3.2 Leizal Representation for Emplovee
3.2.1 The City/Town shall have met any responsibility it may have
under 3.1 through the services of the attorney assigned by the
insurance entity which provides a defense for the claim, or
through the services of the City/Town Attorney or a different
attorney selected by the City/Town. Nothing herein shall prohibit
an employee from retaining the services of his or her own
attorney, but, except as otherwise provided in Section 3.7, the
fees and costs of those services shall be borne solely by the
employee.
3.3 Pavment of Judgments and Settlements of Claims Aizainst City/Town
Emplovees
3.3.1 The City/Town shall be liable for the payment of all judgments
and settlements of claims against a City/Town employee under
the circumstances specked in 3. 1.1 through 3.1.5 above but only
if sovereign immunity would not bar the action against the
City/Town. However, even if such immunity would otherwise bar
the action against the City/Town, the City/Town shall still remain
responsible, pursuant to this paragraph, to pay any judgment or
settlement of a claim against an employee where the action arose
out of the employee's operation of an emergency vehicle and the
employee was operating the vehicle within the provisions of
section 42-4-106(2) and (3), C.R.S.
3.4 Emplovee Responsibilities
3.4.1 Any employee involved in an incident or occurrence in which any
person may have been injured or any physical damage to property
may have occurred as a result of an act or omission of the
employee occurring during the performance of the employee's
duties, shall, as soon as practicable but in any event within
seventy-two (72) hours following the incidence or occurrence,
notify or have a supervisor notify the City/Town Attorney's Office
of the incident or occurrence.
3.4.2 If a civil action is filed against a City/Town employee and
the action contains any claim of injury to a person or to property
from an act or omission of the employee occurring during the
performance of the employee's duties or within the scope of the
employee's employment with the City/Town, the employee or the
employee's supervisor shall provide written notice to the
City/Town Attorney of the existence of the civil action within
fifteen (15) days after the commencement of the action. The
employee or the employee's supervisor shall promptly transmit to
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the City/Town Attorney a copy of the complaint served on the
employee.
3.4.3 The employee shall not compromise or settle any claim
unless the City/Town Attorney has notified the employee in
writing that the City/Town will not bear the cost of the legal
defense of a civil action against the employee. If an employee
violates this provision, the City/Town will not be responsible for
payment of the employee's costs, attorney fees, judgments or
settled claims.
3.5 Notification to Emnlovee
3.5.1 Within fifteen (15) days after receipt by the
City/Town Attorney of any written notice provided pursuant to
3.4.2, the City/Town Attorney shall notify the employee in writing
whether the City/Town will assume the defense of the employee.
3.5.2 If the City/Town is made a co-defendant with an employee
in a civil action, the City/Town Attorney shall notify the employee
in writing within fifteen (15) days after the commencement of the
action whether the City/Town will assume the defense of the
employee.
3.6 Reimbursement of Expenses
3.6.1 If a defense is provided pursuant to this Policy in an
action filed against an employee and the trial court determines
that the injuries did not arise out of an act or omission of the
employee occurring during the performance of the employee's
duties and within the scope of the employee's employment, or
that the act or omission of the employee was willful and wanton,
the employee shall reimburse the City/Town for reasonable costs
and reasonable attorney's fees incurred in the defense of the
employee.
3.7 Conflicts of Interest
3.7.1 In the event that an attorney who represents both
the City/Town and the employee pursuant to 3.2.1 determines
that representation of both would create a conflict of interest,
separate counsel shall be appointed pursuant to 3.2.1 for each
party.
3.8 Reimbursement of Punitive Damages
3.8.1 The City/Town is not liable for punitive damages which
are awarded against an employee nor is the City/Town required
to defend an employee against a claim for punitive damages,
unless the City/Town Council, in its sole discretion, determines
otherwise pursuant to the procedure set forth in X24-10-118(5),
C.R.S.
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