Fort Collins Mayor Wade Troxell and Mayor Pro-tem Kristin Stephens were cleared of a trio of ethics complaints that challenged their participation in the Hughes Stadium rezoning process.
The complaints cite their employment at Colorado State University and Troxell’s history of receiving campaign contributions from the National Board of Realtors.
Troxell and Stephens’ five fellow Fort Collins City Council members decided unanimously on Monday that the ethics complaints don’t warrant investigation, but they acknowledged the peculiarity of a group of council members fielding a complaint about one of their own. They might change the procedure for future ethics matters.
The complaints alleged Troxell and Stephens had a financial and personal interest in council’s Nov. 5 decision to rezone the former Hughes Stadium site. An additional complaint alleged Troxell had a conflict of interest in the decision because the National Board of Realtors donated about $40,000 to his 2017 re-election campaign and Realtors stand to gain if more houses can be built on the site.
Troxell and Stephens were on the majority side in the 4-3 vote approving split zoning with higher density housing on the site’s east side and lower density housing on the west side — a decision that allows for more housing units than the city’s planning and zoning board’s recommendation. Low-density zoning on the whole site would necessitate two-acre lots that aren’t conducive to Fort Collins’ affordable and attainable housing goals, the majority of council said.
The former Hughes Stadium site consists of 165 acres located between the foothills and Overland Trail north of Dixon Canyon Road. It has provoked controversy since CSU’s Board of Governors decided to sell the land to developer Lennar Homes for $10 million. Community group PATHS (Planning Action to Transform Hughes Sustainably) has been pushing for low-density or no development on the site. Members argue the land is too precious to sully with development.
Council was slated to revisit the zoning vote Dec. 3 because the initial vote wasn’t unanimous, but they opted to push the second vote to Jan. 21 in light of the ethics complaint. Unless at least one council member on the majority side changes his or her mind, the January vote will seal the land’s mixed zoning designation and clear the path for Lennar to officially purchase the property and build hundreds of homes there.
Fort Collins residents Nicolas Frey and Mary Satterfield Grant filed the complaints alleging Troxell and Stephens had personal and financial interest in the rezoning. Attorney Gordon Hadfield filed an additional complaint on behalf of Grant related to Troxell’s campaign financing.
City code directs council members to recuse themselves from voting on issues where they have personal or financial conflicts of interest. Personal interest is defined as “any interest (other than a financial interest) by reason of which an officer or employee, or a relative of such officer or employee, would, in the judgment of a reasonably prudent person, realize or experience some direct and substantial benefit or detriment different in kind from that experienced by the general public.”
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Troxell is an associate professor of mechanical engineering at CSU, and Stephens is a program assistant in the university’s Department of Statistics. Both disclosed their employment in advance of the Nov. 5 vote but said they had no financial or personal interest in the outcome. Troxell added at the time that he has no involvement with CSU at the system level, which is responsible for decisions such as land sales.
He said he asked the ethics review board to advise him on the possibility of a conflict of interest in 2015, when council accepted an intergovernmental agreement with CSU for what’s now Canvas Stadium. The board advised Troxell that his employment at CSU didn’t present a conflict of interest.
The complaint noted the land’s $10 million value is contingent on medium- to high-density zoning and some commercial development. The purchase-and-sale agreement between CSU and Lennar includes a “feasibility period” during which Lennar can back out of the purchase, and the contract states the deal will not go forward if Lennar believes the city won’t approve at least 600 homes. The university stands to gain an additional $16,000 for every lot approved beyond 625.
If fewer than 625 lots are approved, Lennar can reduce the price by $16,000 per lot, up to $400,000, according to the contract.
Frey, speaking at the review board meeting, said both Troxell and Stephens stand to experience a direct, substantial benefit or detriment from the zoning decision because they’re CSU employees. All sides agreed the land sale won’t put money directly in Stephens’ or Troxell’s pockets, but Frey contended they have an unmistakable personal interest in a decision that could cost or net their employer millions of dollars.
“Because of this backwards process that was decided upon by the council, the zoning directly impacts whether this contract happens or not,” he said.
He added that Troxell and CSU are “intrinsically linked” not only because Troxell works there but also because Troxell and his children attended school there and he met his wife there.
Troxell said his association with CSU is irrelevant to his ability to vote on the site’s zoning because the payment for the land wouldn’t benefit him or the university programs he’s affiliated with. If the contract goes through, the CSU System’s Board of Governors will decide how to spend the money.
“Every point that is being made in this allegation is akin to a rooster crowing and then the sun coming up,” Troxell said. “Basically, the complainants are trying to argue that the rooster brings the sun up, and by examining the facts, that just isn’t the case.”
Stephens told the board the zoning decision won’t affect her standing at CSU because she’s a state classified employee, meaning the Colorado legislature rather than CSU leadership mandates her salary, pension and other aspects of her employment.
Council members decided unanimously that Troxell and Stephens didn’t have any personal or financial interests in the stadium site’s zoning.
City code explicitly makes an exception for “financial interest” if the decision in question financially impacts a city officer’s employer but wouldn’t have a “foreseeable, measurable” impact on the city officer individually.
The definition for “personal interest” in city code is so narrow that council members and City Attorney Carrie Daggett struggled to come up with a feasible example of it. Council member Ross Cunniff volleyed one hypothetical scenario: A city council member voting to exercise eminent domain on the land of a neighbor who also happens to be their arch-nemesis.
“If the state law and city code (said), ‘If your employer has a financial interest in a decision, then that constitutes a conflict,’ that might make it easier and clearer,” Cunniff said. “I think that might be what people assume (the policy) is. But it turns out that’s not what it is. … For better or worse, we do and must look at the details here and make our findings consistent with the way city code and state law are written.”
Council member Ken Summers argued Stephens and Troxell might’ve voted differently on the Hughes rezoning if they were truly motivated by their affiliation with CSU. The split zoning Stephens and Troxell voted for is unlikely to support the more than 600 homes desired by Lennar. City long-range planning manager Cameron Gloss estimated the maximum number of homes would be about 550 or fewer because of site constraints.
Fielding the complaint about the National Board of Realtors’ donations to Troxell’s campaign, council members said candidates can’t control who contributes to their campaigns. Troxell said he didn’t consult with the Realtors group on his vote.
Possible changes to review board
Monday’s votes on the council-related ethics complaints might be among the last of their kind. The Ethics Review Board is typically made up of three council members and one alternate council member. When two or more members of the ethics board are sitting council members, the rest of council serves as the board.
But Cunniff wondered whether the circumstances create the appearance of “the fox guarding the hen house.” He asked Daggett to come back to council in 2020 with more information about a possible rework: When an ethics complaint involves a council member, a randomly selected group of city board and commission members could serve as the ethics board. Other council members said they liked the idea.
“I view it as a win-win,” Cunniff said. “It will mean additional burden on the staff, and yet, I think trust in government is worth that kind of investment.”
Jacy Marmaduke covers government accountability for the Coloradoan. Follow her on Twitter @jacymarmaduke.
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