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HomeMy WebLinkAboutPlanning And Zoning Board - Minutes - 02/06/2003Council Liaison: Karen Weitkunat Chairperson: Mikal Torgerson Vice Chair: Jerry Gavaldon Staff Liaison: Cameron Gloss Phone: (W) 416-7435 Phone:(H) 484-2034 Chairperson Torgerson called the meeting to order at 6:30 p.m. Roll Call: Meyer, Colton, Carpenter, Craig, Gavaldon, and Torgerson. Member Bernth was absent. Staff Present: Gloss, Eckman, Barkeen, Olt, Jones, Virata and Deines. Director of Current Planning Cameron Gloss reviewed the Consent and Discussion Agendas: 1. Minutes of the October 17, 2002 Planning and Zoning Board Hearings. (Continued) 2. Modification of Conditions of Final Approval. (Harmony Ridge) 3. Modification of Conditions of Final Approval. (Hearthfire PUD) 4. #40-02 Lake Sherwood Wireless Telecommunications — Project Development Plan. 5. #5-98A Ed Carroll Auto Dealership Parking Lot — Project Development Plan. Discussion Agenda: Recommendation to City Council for the City Plan Update and the Transportation Master Plan Update characteristics for Future Size and Character of Fort Collins. (Continued). Jim Ringenberg, citizen pulled Item 2, Modification of Conditions of Final Approval for Harmony Ridge for discussion. Member Gavaldon pulled Item 4, Lake Sherwood Wireless Telecommunications for discussion. Member Gavaldon moved for approval of Consent Agenda items 3 and 5. Member Craig seconded the motion. The motion was approved 6-0. Planning and Zoning Board Minutes February 6, 2003 Page 2 Project: Modifications of Conditions of Final Approval. Project Description: Request to modify the condition of final PUD approval, which required that the development agreement, final plans and final plat for Harmony Ridge, 2nd Filing be executed prior to November 21, 2002. Recommendation: Approval Hearina Testimony, Written Comments and Other Evidence: Marc Virata, Development Review Engineering gave the staff presentation Lucia Liley, 300 South Howes, representing the applicant spoke to the Board. She encouraged the Board to grant the requested extension to September 18tn She fully understands and shares the Board's desire to bring the process to final conclusion. It is in nobody's best interest not to do that. She stated that that this was not a situation where the city staff or the developer has not been diligently trying to resolve all of the issues. There have been a couple of very unforeseen circumstances that has arisen unique to this project. There is only one issue, the developer as requested had executed the development agreement. They were notified by the city that they believe the plat, which had been signed earlier in the process, was now stale, and the city wanted an update. They went back to the real estate attorney who had certified the original plat look at it again, and what was discovered was that there was a small parcel of the project that had been deeded earlier to the Homeowners Association. That affected two lots. Now the developer was in the position of having to secure the Homeowners Association's signature, but no longer being in control of the Homeowners Association. There are only two options at this point. The developer did go to the Homeowner's Association and initially the Homeowner's Association declined to sign the plat and the development agreement. The options are to continue to work with the Homeowner's Association and initially to try and get the signatures, which she feels that there is some reason to believe that perhaps that could be done. If that fails, the other option would be to make changes that would remove two complete building lots, take all of that ownership off of the approved development and thus they would not need the third party signature. The developer will diligently pursue both of those options, but in the event the they need to remove two lots, that would be a much longer process and that is why they are asking for the September date in case it would take that long. They Planning and Zoning Board Minutes February 6, 2003 Page 3 would like to set a conservative date that will ensure the have enough time for full staff review if they do have to make changes to the plan. The city has the power to extend the execution of the development agreement. That really is to the benefit of the city. It is an administrative power that they have to keep projects moving and have some control over developers, who for what ever reason, might want to sit on a project indefinitely and delay the life of the project. That is not the case here. Although this is a ratification and extension was done earlier by this Board on the project when the city was having trouble getting all their natural resources issues brought forward, negotiated and resolved. This project was approved as a preliminary and final with no condition of approval for development agreement at all. Just as a strictly, narrow legal matter, that gives rise to potentially certain assertions. They don't desire to do that. The City Attorney has requested and they have agreed, and they have in writing, a waiver with regards to those assertions if the Board grants the extension. They asked the Board to consider the equities involved. This developer has spent four years and she was not sure how much money in the entitlement process to get to this point. This project has been appraised at a low end of 1.2 million dollars. Ms. Liley submitted that at this point, based upon this unforeseen last minute need to get a third party signature that it would be grossly unfair and unequitable to have the whole project go away. For all of those reasons, they would respectfully request that the extension be granted. Ms. Liley submitted documentation of the process the project has gone through. Public Participation Jim Ringenberg, attorney from Dwyer, Huddleson and Ray, 215 West Oak, 1000 First Tower, Fort Collins representing Mr. Les Jones, more technically and IRA that is Mr. Jones property. They also were concerned with the equities in this case and some of those equities, they believe have to be considered in that Mr. Jones has been an owner, along with another individual, of a majority of the Homeowner's Association that is impacted by this substantial encroachment into the Homeowner's Association common area. He has great respect for Lucia Liley and they believe that if they can sit down and discuss some of these things, there can be a meaningful accommodation that does justice to all parties concerns. They are very concerned about an encroachment into a Homeowner's Association and the lack of notice, which under the certifications filed with the city, Mr. Jones and Mr. Hearns and others were owners of this Homeowner's Association, long before the certification of notice. They never received any notice of the proposed Planning and Zoning Board Minutes February 6, 2003 Page 4 encroachment into the common area and do not consent to that. They will not give their consent unless they can reach a meaningful and reasonable resolution that is not harmful to the Homeowner's Association and to their individual interests. Mr. Jones and Mr. Hearns collectively have the ability, and at this point, he is informed, would not consent to the proposed changes. He believes that with Lucia Liey's assistance and the good faith of the parties, they could come to a resolution, he would hope fairly shortly. They do not desire to have any type of economic loss or an unjust result. With the lack of notice to people who are owners and the majority of the Homeowner's Association there is the equity of things, no reason to continue a process in which they were not notified and which they would not consent to. The fairness to the developer is in the eye of the beholder. In this case, even though he has spent substantial effort and money, he is convinced as a developer of the property, due process notice to people he has given warranted deeds to is not a matter that should be overlooked by this Board or him. In fact, to be blunt about it, they are at the fringe of litigation, pleadings have already been drafted and can be on file shortly. This is a result, which they believe not to be in the best interest of any of the parties. Their request would be that this Board consider, and based upon an assurance that he would accept from Lucia Liley, of the good faith negotiation within a period of 60 days to sit down and either have a "yea" or "nea" from the Homeowner's Association. If that cannot be accomplished, in what he considers to be a reasonable and fair amount of time, that that alternative would be abandoned, and then the developer would have the remaining period until September, as requested, in which they could get their work together and submit amended plans. It is not their desire to cause an undue burden, nor it is their desire to give up valuable property in the Homeowner's Association common area, particularly when they have not been notified of a substantial encroachment. Public Input Member Gavaldon asked staff if they felt this could be resolved by September. Engineer Virata responded that it would be resolved one of two ways. Either they are able to workout this issue with Mr. Jones and Mr. Ringenberg, or they will have to remove that area from the plan boundaries. There will be a review process for that and it would be to everyone's best interest to have that completed within that time frame. Planning and Zoning Board Minutes February 6, 2003 Page 5 Member Gavaldon asked what would be a realistic amount of time to resolve this issue. Engineer Virata replied that it would really be hard to have a good answer on how many months does he think it would take. If option two is taken and they have to remove those two disputed areas from the plan boundaries and redo everything, they will probably be looking as staff review time to take a look at plans and documents, which typically take a three week turnaround from when they get them. It would also take time for them to make changes if they don't have everything satisfactory from a city standpoint. The development agreement would also have to be changed. It brings up a potential — by changing the plan boundary, it actually reduces the density on the property, which in turn makes it a Major Amendment through the reviews process. There would have to be a hearing of some sort. Staff feels comfortable with September, giving time not just to the applicant, but to staff itself. Chairperson Torgerson asked Ms. Liley if the issue with the Homeowner's Association could be dealt with in the next 60 days. Mr. Ringenberg had asked that a condition be placed on this request. Ms. Liley replied that she was not sure if it was requested as a condition or if they wanted their good faith commitment to attempt to do that. She simply dose not have the ability to agree to that. Her client was delayed in Denver and is not here. The only concern she has with that is that again — she can absolutely pledge that within the next 60 days, they will work very hard with the Homeowner's Association to get this resolved. It is in their best interest to do that as well. She would not like it to be a condition, but would commit to work very hard in the next 60 days with the Homeowner's Association. Chairperson Torgerson asked Mr. Ringenberg if he was comfortable with their good faith offer. Mr. Ringenberg replied that because it is Lucia Liley saying it, that means an awful lot to them. His first reaction is that he would like to make is a condition. They would like to have the opportunity to negotiate in good faith and resolve their differences otherwise it will be in litigation. The fact that it comes to the 615` day does not mean that everything is off, but as a practical matter, it would seem to him that the applicant would have to be doing a good deal of due diligence to prepare their own planning process and complete it by September. He would again request that a condition be that the negotiations be immediately commenced and they be commenced in good faith and with what ever it takes Planning and Zoning Board Minutes February 6, 2003 Page 6 with sit down discussions, and face to face negotiations. Sadly, Mr. Padia has previously refused to do so. Member Gavaldon moved that the board modify the condition that it imposed upon the Harmony Ridge Second Filing preliminary and final PUD, No. 49-95D at its November 4, 2002, meeting to require that the development agreement, final plans and final plat be fully executed and delivered to the City on or before September 18, 2003, and that if said development agreement, final plans and final plat are not so delivered, then the Harmony Ridge Second Filing preliminary and final PUD No. 49-95D shall terminate, become null and void and of no further force and effect unless further extended by the Board. Member Carpenter seconded the motion. Member Colton asked Ms. Liley to agree to waive the right to the argument that the plan was originally approved without condition and is therefore not subject to any requirement that it obtains extensions from the city before we go ahead. Ms. Liley replied that she would be delivering a written waiver to Mr. Eckman so he has that. The Motion was approved 6-0. Project: Lake Sherwood Wireless Telecommunication Equipment, Project Development Plan, #40-02 Project Description: Request for a wireless telecommunication antenna to be located on the top of an existing 90-foot electric transmission pole. The pole is located within the Union Pacific Railroad Right of Way, between the railroad tracks and Parkland Drive, just north of Lake Shore Circle. The property is zoned RL, Low Density Residential. Recommendation: Approval Planning and Zoning Board Minutes February 6, 2003 Page 7 Hearina Testimonv. Written Comments and Other Evidence: Member Gavaldon asked Planner Barkeen to look into putting this in underground and could that be done. Planner Barkeen stated that he forwarded his concerns onto the applicant after worksession last Friday. He has not heard back from them about that, but they are here tonight. Steve Olson, Starbridge Communications, representing Spring PCS, 4255 Kitridge Road, Denver Colorado stated that they have worked with the Planning Department and the Parks Planning Division in the design of this facility to minimize its impact on the surrounding area. The search area defined by Sprint for them for this project was centered around the intersection of Drake Road and the Union Pacific Railroad tracks. This site is needed by Sprint to provide and improve coverage from Prospect Road, south to Horsetooth Road and from Lemay Avenue, east to 1-25, with particular emphasis on the Drake Road Corridor As the materials in their submittal show, the site design calls for the use of an existing utility pole, which is encouraged by the zoning code and eliminates the introduction of a new structure to support the antennas. The antennas will be mounted below the top of the existing Platte River Power utility pole and will be painted to match the pole to minimize their appearance. The antennas will be attached to the pole using a single arm support mount, which is in keeping with the existing single support mounts used by Platte River Power for their electrical lines. No increase in the height of the existing utility pole is proposed. As required by Platte River Power, a structural analysis on pole number 312 and shows that the pole has sufficient integrity to support the antennas. Also at the request of Platte River, the ground equipment area has been placed approximately 50 feet south of the utility pole. They asked for the 50-foot setback so their crews can safely access the pole and perform work on the pole in the event that is requires maintenance. A natural colored cedar fence will enclose the ground equipment for this site in order to blend with the character of the area. The fence will be treated with an oil -based sealant in order to preserve its natural color. Existing mature trees at the intersection of Lake Shore Circle and Parkland Drive will provide the landscape buffer for the enclosed ground equipment. Trees would be added to the south side of the enclosure to further screen the area. The facility is unmanned and therefore would not generate any additional traffic in the area. Planning and Zoning Board Minutes February 6, 2003 Page 8 They are quite mindful that the community near Lake Shore Circle and Parkland Drive is a residential area and have worked to incorporate a design that minimizes any potential visual impact on the area. By utilizing the existing Platte River Power utility pole, the site will not introduce a new structure in the area to support the antenna. By the design elements he has already discussed, including concealing the antenna cables behind a shroud, which is painted to match the pole, the site will provide the coverage required by sprint with minimal impact to the character of the area as noted in the Boards staff report. The proposed facility has been found to be in substantial compliance with all applicable requirements of the Land Use Code and is a permitted use in this zone district. They respectfully requested the Board's approval of this development plan. Member Gavaldon asked about burying the apparatus below ground Mr. Olson replied that there are several reasons why Sprint would prefer not to do that. A vault requires air conditioning units. Anytime the equipment is enclosed or sealed in a vault or shelter that is above ground, it requires air conditioning units to keep the equipment at a particular temperature. Those units have to be mounted above grade and therefore generate noise. There are no air conditioning units proposed with the design that the Board has tonight. Mr. Olson stated that the Land Use Code does not require vaulting. He thought that they have demonstrated in the photo simulations and in the plans in front of them, including the staff report concurring, that the existing mature trees and landscaping along Parkland Drive, in addition to the landscaping that they are adding, and the fencing that will be around the enclosure will be sufficient to screen it from public view. Mr. Olson stated that it would seem to him that it would be a burden to Sprint to require that the equipment be placed in a vault for a site that is located away from the arterial roads and is situated in a utility easement along a railroad track In addition screened from public view with landscaping. Member Gavaldon stated that the reason he brought the issue up is because it has come up a number of times on past applications. He thought the question would continue to be asked to make sure the communications companies have looked at all the alternatives. Member Craig thanked Mr. Olson for the photo simulations provided. She felt they really helped. Planning and Zoning Board Minutes February 6, 2003 Page 9 Public Input Robert Burger, 1930 Lakeshore Circle spoke to the Board about his concerns. He thought that the pictures that are shown are not correct. They show a huge tree that happens to be on the other side of the railroad tracks. It is not going to be adjacent to the box there. He made a suggestion to Mr. Olson that they could go down to pole 314, which would put them right behind the Nelson Farms pool and tennis courts, not adjacent to any of the homeowners around there. There is open land and a trail next to it. He would like to see this go somewhere else because there is already irrigation ditch and railroad tracks there. Public Input Closed Chairperson Torgerson asked Mr. Olson if they had explored the location Mr. Burger spoke about. Mr. Olson replied that they had. It was listed in a letter that was sent out to the affected property owners. Several sites were considered for the location of this facility. The problem that is encountered with moving the site south to pole 314 is that it ends up'/, miles south of the area where the pole is now. Their guidelines from Sprint define a very specific geographic quadrant and a radius around that quadrant, which they need the site to be placed so that it can work with the other sites that it will connect to in their network. Placing the facility'/, mile south will bring into conflict with the site that it would be nearest to the south and would cause it to interfere with the site at Harmony and Lemay. Mr. Olson also responded that he was not aware of any vehicle access back to the area of pole 314 or 315. There is a pedestrian path that goes under the bridge, as the road curves; there is not any vehicular access, which they would need, both for construction and an occasional visit from the maintenance technicians. Member Colton asked if the Board had any discretion in saying where they can locate. Deputy City Attorney Paul Eckman replied that we are limited by the Federal Telecommunications Act. Director Gloss would have to address whether he feels that there is anything in the Land Use Code that has not been complied with, with regards to this application. Beyond that we cannot impose conditions that make these things not function telecommunication wise under the Federal Law. Planning and Zoning Board Minutes February 6, 2003 Page 10 Member Craig asked if more landscaping could be put in to block the fence from the neighborhood. Planner Barkeen reviewed site shots for the Board. The site shots showed the existing landscaping. There is some existing evergreen trees asn a variety of deciduous trees. Most of them are smaller type trees and have to remain small to eliminate any possible interference with the overhead wires. He thought that there would be some more vegetation out there. There should not be too much though as to crowd anything out. What is out there now is not mature and the trees will continue to get bigger. The new landscape will be on the sides which is intended screening for the recreation trail. Member Craig asked that if anymore landscaping is added she would like to see it be evergreen trees or junipers. She would like to leave it up to staff to determine if it is needed and where. Member Colton thought vaulting could be looked at with a potential Code change, but it would have to be looked at to see how expensive it would be for something like this. Member Gavaldon recommended approval of the Lake Sherwood Wireless Telecommunication project, #40-02 including the findings of fact on page four of the staff report. Member Colton seconded the motion. The motion was approved 6-0. There was no other business. The meeting was adjourned at 7:34 p.m. Approved by the Board May 1, 2003.