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August 13, 2000 Legislative History

MEMORANDUM   TO:                  MAYOR WELBORN AND FELLOW MEMBERS OF THE CHERRY HILLS VILLAGE CITY COUNCIL   CC:                  CITY MANAGER; DIRECTOR OF COMMUNITY DEVELOPMENT; CITY ATTORNEY; INTERESTED PARTIES   FROM:            DOUGLAS M. TISDALE, ESQ., COUNCILMAN   DATE:             AUGUST 13, 2000   RE:                   “FINAL DRAFT” OF CB 12-00 (“Expanded Use Ordinance”)   The “final draft” of Council Bill No. 12, Series of 2000 delivered Saturday morning raises five issues of significant concern by virtue of Staff’s redrafting efforts.   I.          Amendment Made by Staff Without Council Approval and Without Mention in the Cover Memo   Section 4 of the Expanded Use Ordinance has been amended from the version that was, as amended by consensus, unanimously approved by Council.   Specifically, a sentence that had been deleted by the ordinance in the draft we unanimously approved at first reading has now been re-inserted into this so-called “final draft” of the ordinance.   The sentence that has now been re-inserted by staff into the ordinance after our vote is found on page 3 of the ordinance, in the first full paragraph of text on page 3.  It reads:   “When more than one use is conducted on a single lot, parking shall be required for each use, even though one use is accessory to the other.”   You will note, by referring to page 3 of the draft that we actually voted on and unanimously approved on the record at our July 18, 2000 Council meeting, that this language had been shown as deleted language.  That is what we voted on and, after numerous other consensual amendments to other sections, approved unanimously.   Now, in this so-called “final draft,” the language has been re-inserted.   If the re-insertion is the result of an oversight or error, it should be corrected before our meeting of August 15, 2000.   If the re-insertion was intentional, it is in derogation of action taken by a unanimous Council in an open meeting and should be stricken.
The fact that this change is not mentioned at all in the Staff Memo dated August 15, 2000 may support the conclusion that this change was accidental and will promptly be fixed by staff, now that it has been noted.   II.            Unilateral Rejection of a Change Expressly Directed by Council   Section 5 of the Expanded Use Ordinance has been amended from the version that was, as amended by consensus, unanimously approved by Council.   Specifically, a new sub-section “E” has been added to the draft we unanimously approved at first reading.  This new sub-section E is found on page 5 of the “final draft” of CB12-00.  This new sub-section E re-inserts the concept of condemning existing parking lot lighting and requiring that the same be replaced within three years.   The situation is this: —  the draft discussed on July 18 expressly said that all pre-existing non-conforming lights must be brought into compliance within three years.  See July 18, 2000 Draft, page 6 at top. — Council engaged in an extended discussion about whether it was reasonable to require corporate citizens of the Village to change their lighting facilities, especially where they had constructed these facilities pursuant to a City-approved lighting plan, just because the City now had changed its mind. — to resolve the issue, Council unanimously agreed that  the lighting requirements would apply to new lighting installations only. — on that basis, and with that amendment adopted by consensus, the ordinance was unanimously approved on first  reading. — now, in this “final draft,” the unanimous agreement and direction of this Council has been overridden by Staff fiat.   Such a unilateral change is inappropriate and does not reflect the express action of Council.   Additional Information Needed.  Further, since Staff has now re-inserted a concept that was expressly rejected by the Council after extensive discussion of the precise point involved, Staff should present the Council with the following specific information on Tuesday night: — how many corporate citizens of the Village will be affected by this proposed change; — what is the useful remaining life of the lighting facility; — was the lighting plan approved by the Village at the time of installation; — what will be the cost of requiring these citizens to bring their existing, and in many cases City-approved, lighting facilities into compliance with this new ordinance.  
Additional Notice Required.  Finally, special notice should be provided to all these affected corporate citizens of the Village as to this change.  Representatives of our churches and schools were in attendance at the public meeting where we discussed — and resolved — this issue.  They have a right to rely on the fact that this Council will not now turn 180 degrees on such a fully discussed issue without at least providing them with special notice of this change.  Basic notions of fundamental fairness to our citizens requires no less.   III.            Potential Inconsistency of Lighting Standards   Section 5 of the Expanded Use Ordinance still creates a potential inconsistency in enforcement.   Specifically, the inclusion of subjective non-measurable standards in Section 5.A (as set forth on the top of page 5) with objective measurable standards in Section 5.B creates the possibility of confusion in the mind of any enforcing authority.   The point is this: We included subjective non-measurable criteria in sub-section A so that Staff and enforcement officers could conduct a quick and easy assessment of lights that might be suspected of violating the standard.   But sub-section B was included so that our corporate citizens would be given the option of proving — at their own expense, as a matter of affirmative defense — that their lighting does not violate the ordinance.   In short, an individual might think that the light is offensive to the ordinance, and might therefore complain.  And a police officer might be persuaded to issue a ticket for an alleged violation.  But the owner ought to be given the opportunity to prove — at his own expense, as an affirmative defense to the prosecution — that the light in fact does not violate the objective and measurable standards for lighting established by  the international illumination societies knowledgeable in such matters.   The potential inconsistency is easily fixed.   Add a clause to sub-section B so that it reads as follows:   “It shall be an affirmative defense to any prosecution under this Code that the maximum horizontal illumination at the property line at ground level does not exceed 0.2 foot-candles.”   IV.            “Triggers” for Application of New Chapter 19 Have Been Added   A useful set of triggers has been proposed.  These are intended to create an objective and measurable standard to invoke the strictures of Chapter 19.  The proposed triggers are found in bold face on page 6 of the “final draft.”   The problem is that two of the triggers — at least as they are proposed — insert entirely new concepts.  These are new concepts that have not been discussed by Council, and are concepts that go beyond the purposes previously expressed for this ordinance.  
  The two triggers in question are found on page 6 of the draft and are labeled 3 and 4, to wit:   “3.         The addition, modification, or increase in number, size, direction, or intensity of existing exterior lighting other than modifications made to bring the property into conformance with Section 6-15-2;”   “4.         The creation, addition[,] modification[,] or increase in outdoor recreational fields or recreational facilities, including but not limited to playgrounds, parks, courts and swimming pools.”   While the spirit behind Staff’s request that the Council now consider such triggers is well-intentioned and beneficial, the effect of the proposed language would expose corporate citizens of Cherry Hills to the specter of a complex and expensive process for even insignificant conduct.   For example, the decision to convert a baseball diamond to a soccer field will trigger the entire panoply of Chapter 19 requirements.   Likewise, a reduction in the number of exterior lights will trigger the application of Chapter 19.   It is difficult to see how such requirements relate to the health, safety and welfare of Village citizens, which they must in order for us constitutionally to regulate such conduct.   V.            Conclusion   The preparation of a “final draft” of an ordinance that “cherry picks” from the changes made by Council through a process of open, public debate and by way of consensus reveals a problem in the process of law-making in the Village.   Informed action of elected officials should not be overturned after the fact by their appointees.   Any standard less than that invites chaos and usurps a fundamental right of the body politic — the right to have their will expressed through their elected representatives.   Respectfully submitted,   Doug Tisdale

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