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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. 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F I p t I t I 1, �I 0a�# k:-l� dab ppmmmme t 9 �'1 I 1 ru+tYrt � i I I _ ` 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. 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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. J� Q 00 9 {0, 300 9; V 9.00 9 !� 2L00 R 2100 U 000 m 7059 00000# I l 08/08i85 T 1O1P--I6/P/iAV)oNt C'OLOEV9 HyX I/yecce.[. _ L2.c./ T.Lt_ricilk J. 50y1r, Tow C1exW POSTED AT THE POLLOIHG PUBLIC PLACES WITHINTHE TOWN•OF AVON ON MARCH 28th, 1985. �> THE MAIN ENTRANCE'OP THE POST OFFICE, THE MAIN ENTRANCE TO CITY MARKET, THE P6Srn GAS STATION:. AND THE RAIN LOBBY IN THE MUNICIPAL BUILDING !1:11111i ma 61 #'>• I tM }� lit! jrW�! �r' _ W - - - - 4.1 i �a°1ij.-�Y�x4(�1r�;R�l+t����t • b i«i W tl ^ it I Zv _ i1 r - y# t Y # ' e_x ixYr^sWxial.x#its:xtsb�tde wr R a �gig 1 �1a ; iWY ry� #i=ijr't#8 a-Y#x"r�s _x 0rperEix11:3x`s�==!!##i��r.p=rIWe- No °l!si� ;H�9VIS s f AA i.�u .. • < W p fid S (�'y [. �•#. -.'.�' Gy 4 � M } W W r x► -an O d 4 -r # W CC w O m V Q Q - W 4 W (� OW0M fair Lu !G fa Z r, p r Z NQ�ri �Yy 1H if if Q p O —j N az- O O 3z� N LL IF1 a � s S ? O mi nZz 'In W Q N>m,� - Q WLL m w p CL O O W T ]C p T W p0 O W ,r � Q 0 th w < 2 Q V W W 4 m O xH f AA i.�u .. • -Ty ti,p0 fid S (�'y [. �•#. -.'.�' Gy r -r # a. 11M i ! t. fill f �Yy 1H if if #I fig. s sillsQ.# a � s S ? M big Sp e 'y6�yry\� �x .y66d 1m t tar b r I8 w 9 ' b I�rY F.X:iyiJ�rzyt.ryr�si.r�Jt fii#n#22.. x pf` s 00 n 11M i ! t. fill f �Yy 1H if if 3#n3�i 'y6�yry\� �x .y66d 1m t tar b r I8 w 9 ' b I�rY F.X:iyiJ�rzyt.ryr�si.r�Jt fii#n#22.. x pf` s 00 n �.-ti't Iir E t. fill 3#n3�i fig. s sillsQ.# S ? big Sp 0 l s 00 z jig, w kW KKKZZ¢ $8$$i18i$itiirir6i$i5i' M cCMa, R:•,;aRs4 taZ3sEg'i3'x .. i .0,,,�w n MEMORANDUM kV0K 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 - W11 �; F:9 r .� ri" r:,:;z�;'ia-;.r.�..;-,. �.:.• rz :r' �.�� !?/.��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 i 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 A-2 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, A-10 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 A-11 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 A-12 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. A-13 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. A-14 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. A-15 r ; io 11 � I If,,, I�Ifr blank. A-16 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 RE 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 ME 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. IM