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HomeMy WebLinkAboutPlanning And Zoning Board - Minutes - 07/22/1996L..J M 11 The meeting was called to order at 6:35 p.m. by Chairperson Bell. Roll Call: Gavaldon, Weikenut, Colton, Bridges, Davidson, Byrne, Bell. Staff Present: Blanchard, Duvall, Deines, Olt, Shepard, Schlueter, Bracke, Ashbeck, Haas and Wamhoff. Agenda Review: Current Planning Director Blanchard reviewed the consent and discussion agendas. The consent agenda items are as follows: 1. Minutes of the March 25 1996 Panning and Zoning Board Hearing. April 8, 1996 minutes will be on the August 12, 1996 Consent Agenda. 2. #10-96A West Plum Street PUD - Preliminary and Final 3. #52-90A Fairview PUD, Phase IV (C.B. Potts Brewery) -Amended Final 4. #17-96 South Glen PUD, 5th Filing - Final 5. Modifications of Conditions of Final Approval 6. Resolution PZ96-9 Easement Vacation (Continued) 7. Resolution PZ96-10 Easement Vacation 8. #50-83D Overlook PUD - Abandonment of PUD 9. Recommendation to City Council Regarding the Pedestrian Plan 10. Recommendation to City Council Regarding the Parking Plan for CSU, and the Downtown and CSU Neighborhoods (Continued) 11. #21-96 Recommendation to City Council Regarding Rezoning Downtown Properties from IG, General Industrial to RC, River Corridor 12. Appeal of an Administrative Change for Timberline Storage PUD 13. #55-84E Ridgewood Hills - Amended Overall Development Plan 14. #47-95 Shenandoah PUD - Preliminary Planning and Zoning Board Meeting July 22, 1996 Page 2 15. #20-82C Harbor Walk Estates PUD - Referral of an Administrative Change (To be heard August 12,1996) 16. #49-95 Harmony Ridge - Overall Development Plan (Continued) 17. #49-95A Harmony Ridge PUD, Phase One - Preliminary (Continued) 18. #73-82R Provincetowne PUD - Overall Development Plan (To be heard August 12,1996) 19. #46-88F Park South PUD - Amended Overall Development Plan (To be heard August 12,1996) 20. #46-88G Park South PUD, Third Replat - Final (Continued) 21. #6-96 Harmony Towne Center PUD - Preliminary (Continued) Member Gavaldon pulled Item 3, Fairview PUD, Phase IV (C.B. Potts' Brewery) - Amended Final for discussion. Chairperson Bell suggested that this item be placed at the end of the agenda. Member Gavaldon suggested that in the interest of time, this pulled item should be placed on the August 12 agenda. Member Gavaldon moved to place Item 3 on the August 12, 1996 Discussion Agenda. Member Davidson seconded the motion. The motion passed 7-0. Member Colton moved to approve Consent Agenda Items 1, 2, 4, 5, 7 and 8. Member Bridges seconded the motion with the addition that Item 2 have a variance to Criterion 81.1 of the LDGS. Member Colton accepted the addition to the motion. The motion passed 7-0. Kathleen Reavis, Transportation Planner, introduced Ray Moe from Balloffet & Associates, the lead consultant on this project. The project team also include Mark Engemoen and Tom Chapel from City Engineering and people from Police Services, Neighborhood Resources, Traffic Engineering and Advance Planning. Ms. Reavis gave a brief history of the plan. Planning and Zoning Board Meeting •July 22, 1996 Page 3 Mr. Moe discussed the key items under consideration which included level of service, the pedestrian right- of-way ordinances, pedestrian/traffic impact analysis needs, issues of policies and standards, addressing sidewalks, comer ramps and stop bars and finally an issue about funding. He proceeded to discuss the ten study areas that were identified which ranged from different neighborhoods, to business communities and different street crossings. He stated that one area they studied was Old Town which provides a place to walk and sit, provides an opportunity for cafes and provides activities along the pedestrian linkages. He added that College Avenue is easy to cross in the downtown area. Mr. Moe continued by stating that they had concerns about many locations in the city that do not have "directness", or how direct is a route from a particular location to an activity area. Another concern is continuity, the opportunity to have a continuous sidewalk so that one does not have gaps in the sidewalk. He cited several locations where there was no sidewalk or the sidewalk ended abruptly or was not wide enough. Another issue was street crossing and the timing of the pedestrian crossing signalization and maintenance of existing sidewalks. Mr. Moe presented observations that have been discussed such as the lack of education of traffic laws and the lack of funding to deal with the pedestrian problems. He believed that there needs to be a prioritization of improvements and a need to have development of minimum development standards so . the problems can be capped and dealt with from this point on. Mr. Moe stated that the focus group arrived at the following goals and objectives: Elevate the pedestrian, increase the safety of the pedestrian, design the facilities for all ages, maintain pedestrian facilities, heighten professional awareness, consider changes in the laws, concept of activities centers, linkages between activities, homes and transit, prioritize projects, balance the funding of pedestrian travel as well as the other modes of travel, and tailor policies and standards by neighborhoods. Mr. Moe stated the five action items needed to successfully create a walkable city which include: approving the pedestrian Level of Service (LOS) measurements on the needs of the city; change the city traffic ordinances to give right-of-way to the pedestrian; require that all new developments conduct a Transportation Impact Analysis that addresses pedestrian issues and mitigations; approve revised sidewalk, corner ramps, and other miscellaneous standards and policies that will evaluate the pedestrian as a mode of transportation; and approve an implementation and funding program to successfully achieve the vision of Fort Collins as the "walkable City". There was no Citizen Input. Member Bridges asked if there was a consideration to specifically address the conservation of the stone sidewalks in the Old Town area and in areas that were appropriate, including some sort of plan for repair and rehabilitation of filling in the gaps. Planning and Zoning Board Meeting July 22, 1996 Page 4 Ms. Reavis replied that the plan does not include specific projects such as this. However, areas of improvements have been looked at and specific details could be worked out on a project -by -project basis. The maintenance issue is critical and improvements need to be looked at to maintain the character of the areas that would be worked on. Member Bridges stated that all of his questions focused on looking at the pedestrian in this plan, such as key pedestrian counts, or what the pedestrian is doing now and what he would do after improvements. He stated that he did not find what the pedestrian was doing in the plan. He added that Fort Collins may not have enough pedestrians to have a full blown pedestrian count on every project, but believed that information should have been provided on what the pedestrian was doing in this plan. Mr. Moe responded that the only Level of Service they reviewed was on counts and believed that because of the current pedestrian environment, the count opportunity did not lend itself to the design of the facility of the city that was envisioned in the City Plan. Ms. Reavis added that this plan is a piece of the overall transportation puzzle. Other efforts that are currently going on include a mobility report card that was developed as part of the regional and local transportation demands management program. Member Byrne asked if funding was currently being received through the Infra modal Surface Transportation Efficiency Act (ISTEA). Ms. Reavis replied that some funding is being received from ISTEA, for example, the SmartTrips Alternative Transportation Program, of which walking is one of the choices. Member Byrne asked if the recommended $1.1M was city dollars. Ms. Reavis stated that those dollars would not have to come from one particular source and could be made up from a variety of sources. Member Gavaldon asked if this plan is within the scope of the ADA regulations for present and future plans. Mr. Moe replied that one of the key issues is that there are new standards which are doing their best in their attempt to meet the objectives of the ADA requirements. He commended the City Engineering Department for putting on a very good set of improvement standards for the future. Member Gavaldon asked Mr. Moe, in his projections of where the direction is going with the plan, if the city would be anywhere near, or close to, where it was when the automobile was not the dominant mode of transportation. Planning and Zoning Board Meeting July 22, 1996 Page 5 Mr. Moe replied that he was uncertain. He stated that a paragraph was placed at the end of the plan that states that the plan would not be a quick fix. Chairperson Bell commented that she served with Mr. Moe and Ms. Reavis on the committee developing the Pedestrian Plan and believed that this is a milestone in what is going on in Planning. Transportation modes, bicycle plans and roads are always talked about but the pedestrian is always overlooked. However, she does understand that this is an infant document. There is not much data around the US and hasn't been done in very many cities. Ms. Reavis stated that as the individual projects evolve on the neighborhood level, the city will need to monitor on how things are going and make changes as required. Member Davidson asked what mechanism for funding would be available at a local level should the federal level funding not be available. Ms. Reavis stated that the future capital improvements projects includes pedestrian improvements. When street oversizing improvements are made, they are looking at incorporating the pedestrian and bike improvements. The Transportation Maintenance fee did not include funding for new facilities because it was a maintenance oriented mechanism. Other options are being reviewed. Member Davidson asked if there would be a savings to street improvements resulting from better pedestrian access in that there will be savings in other areas that can be passed on. Ms. Reavis replied that in the long term savings can be looked at. With the Master Street Plan, if the mode split is approved where more people are using alternative transportation, it gives you the opportunity to not have to build as wide of streets which would result in savings. Mr. Colton asked about the width of the sidewalk depending upon the automobile traffic volume. Ms. Reavis replied that they did not decide upon the width of the sidewalk based upon the auto traffic volume, they looked at the function of the street and the type of area that would be around those type of streets. Mr. Moe commented that they are very critical in making sure that there were caveats in the plan. These widths are just the minimums. Mr. Colton asked how it could be determined, as in an infill project that currently only has the minimum sidewalks, that it is a pedestrian zone and not just an extension of the street that already has the sidewalk standard. Planning and Zoning Board Meeting July 22, 1996 Page 6 Mr. Moe replied that inherent in the level of service, there are certain targets that have to be achieved. Whether that is continuity, which is in essence meeting the minimum standards or directness or some of the other measures, as one increases in those zones, the standards and requirements get higher. Those area were designed to be complimentary to the City Plan. If that infill project is in the heart of the pedestrian district, one would have to do improvements higher than those that are outside. Mr. Phillips stated that some of this deals with the philosophy that the city is trying to present over the past year or so. The street is a transportation corridor which includes sidewalks, bike lanes, roadways for transit as well as automobiles and other kinds of automotive carriers. When the Transportation Maintenance Fee was developed, a trip is considered a trip whether it be by automobile, bicycle, walking or transit. Member Byrne asked how these sidewalks will be dealt with in the winter time. Mr. Moe stated that they spent time talking with staff and the clearing of the snow from the street in a. mandate by the city to remove and also a mandate of the individual property owner to clear their sidewalks. He stated that there are procedures that are used by the city for people being delinquent in clearing their sidewalks however, he was unsure what the procedure is. Chairperson Bell stated that the year round maintenance issue needs to be reviewed for the sidewalks, transit stops and all the connections. Member Weikenut moved that the Planning and Zoning Board recommend adoption to City Council of the Pedestrian Plan as part of the City Plan and the Master Transportation Plan. Member Gavaldon seconded the motion. Member Davidson commented that funding should be reviewed and commended the Transportation Department for the speed in which this plan was developed. He commented that this was a good plan. Member Weikenut commented that this is an infant of the Pedestrian Plan and hoped that as time evolves, the areas of concern will be found and refined and perfected. She did not believe that the document as written is anywhere near perfect but, because it is a child and has not even begun to evolve, this will come with time. She also commended staff for putting it together with the quality and ideas that were presented. Member Davidson supported this document however, believed that the funding issue will be the key. Member Bridges commented that he would feel more comfortable with the stone sidewalks being addressed as a part of the plan only because one tends to forget about it. His major concern is that he feels that the plan is one of the best plans that he has ever seen as a pedestrian facilities plan. But as an overall Planning and Zoning Board Meeting •July 22, 1996 Page 7 pedestrian plan, he believed that it was missing the pedestrian activity component. In particular, he did not see enough pedestrian behavior and goals for improvement in order to support the long term financing needs. There is no measures of success or achievement other than the fact that another 20,000 yards of concrete was poured and now its red versus white concrete. Those are not measures of effectiveness that can be used to justify continued funding for the plan. He stated that he was not looking for the volume levels of the pedestrian as justification to build the facility. He believed that this plan was incomplete however he believed that it should be adopted and added to the Comprehensive Plan. Member Gavaldon commented that he supports the plan. Mr. Phillips stated that they are at a disadvantage and are unable to complete all of the plans at one time so they are seen by the Board incrementally. If this plan is referenced in terms of the Transportation Demand Management Program which addresses many of the pedestrian activities that are being encouraged, it addresses the research on measuring. This will be monitored every two years. Chairperson Bell commented that this is a good plan and liked the idea that pedestrians are being placed at the first part of the plan. She stated that if the portion regarding school children could be addresses then this could be a really good plan. . The motion passed 7-0. ,_ 1 ulul �I . 1 IZ�7JIyY�iiL1�C1I�11�7xeZ1�71� s_ 1,IJ � 1 � Ted Shepard gave the Staff Report recommending approval. He stated that the requested rezoning has a policy basis in two policy plans, the Poudre River Land Use Plan and the Downtown Plan. There have been meetings with the affected property owners, Council Growth Management Committee, the Downtown Development Authority and the Chamber of Commerce Legislative Affairs Committee. He demonstrated the affected area on a map. CITIZEN INPUT Jan Cottier, affected property owner, had concerns about the definition of the zone and that this area was clearly discussed and defined as a downtown river corridor area in the Poudre River Trust Plan in 1985 and the Downtown Plan carried through that same definition of the area and recommended that it be zoned RC. Now that this is coming forward, she would like to know why only some of those properties are deleted. Another concern is if this is in keeping with the original intent of the Poudre River Trust Plan which specifically called out the need for public/private partnerships. The intent of that plan was to help revitalize the downtown area and very strongly acknowledged that this required public/private cooperation. It appeared to her that now they are asking just the private people to come up with the next . steps in implementing the plan with very little public participation to date, specifically in the realm of Planning and Zoning Board Meeting July 22, 1996 Page 8 street and utility type of improvements that are crucial to getting things going in revitalizing the downtown area. Another concern was that the Poudre River Trust Plan made very clear statements to the effect that it was not the intent of the plan to force the displacement of any existing business or residence but to find incentives to increase compatibility among and between public and private uses. The plan also clearly states the idea of the process that should be involved and recognized. She asked for clarification of which existing uses are considered permitted uses and which are not permitted. She asked if light industrial uses could be added to existing industrial uses. She asked for the status of the Poudre Land Use Plan and if there is a potential recommended zoning change in the plan. In regards to her specific property, she asked what is considered their existing use and what would be their permitted use. She also asked how their floor area would be determined. Tom Moore, business owner at 115 Lincoln Street, stated he was a member of the Poudre River Trust committee. He stated that the major businesses in this area are totally left out and are non -conforming uses. His business is an industrial use and they use the railroad tracks which the city is trying to get removed from that area. This has been a "benign neglect" area. He asked the Board to consider this recommendation more closely. Citizen Input closed at this time. Mr. Shepard stated that the exclusion of the BC zone into this is because the North College Plan was recently adopted and the BC zone is a result of that plan. The North College Plan gave a lot of policy basis and a lot of legitimacy to the BC zone. The Commercial zone that fronts on Vine does not have a river corridor orientation and this is believed to have the current appropriate zone. However, they are not adverse to including it given recommendations from the Board. Regarding the reference to partnerships and working with property owners, he believed that the Storm Drainage Department has a downtown drainage project that is being funded. The railroad relocation project is a large capitol project and is designed to prevent the traffic tie-ups that happens when the trains cross North College Avenue. This is a public money and no SID for this project. The plan also references housing mixed use and industry and that is exactly what the RC zone is. Presently, the IG zone does not allow housing but the RC does. In terms of being punitive with the property owners, especially in reference to the LDGS being too restrictive, that is exactly why there are 29 permitted uses in the RC zone. Only a use that is not permitted would be subject to going through the LDGS and only if it is a new use that is not existing. He added that if a property is an existing use, the expansion clause allows one to expand if one is expanding less than 25% of the floor area. One does not have to go through the RC Site Plan review process. When one goes over 25% and is an existing use and the property is non -conforming or non -permitted use, then one must go through the RC Site Plan review process. This is an administrative review process. Member Byrne asked if Mr. Moore's property considered light industrial Mr. Shepard replied that it is light industrial, non -conforming use. Planning and Zoning Board Meeting July 22, 1996 Page 9 Member Byrne stated that this area is somewhat of a nurturing place for entrepreneurs which is an important economic element. These are the kinds of businesses that the city should want to continue. He asked what the breweries in this area were zoned. Member Bridges asked if there is a list of the uses in the zone that would now be non -conforming uses after the rezoning and have notified the property owners that they will be non -conforming. Mr. Shepard replied that all the property owners in the zone have been notified, have had two meetings but there is no list. Meetings were held with Poudre Pre -Mix, Schrader Oil bulk plant, and Ranchway Feeds. There are also some non -conforming uses that will become conforming uses such as residential. The New Belgium Brewery and the new O'Dell Brewery were processed as Light Industrial IL Site Plan reviews which are considered permitted uses. Member Bridges asked if any use would be permitted in this area as a PUD. Mr. Shepard stated that this is correct. . Member Bridges asked if there are others that may not know that they will be non -conforming. Mr. Shepard replied that he does not know if they don't know that they will be non -conforming. He continued that the status of the Poudre River Land Use Plan is being spearheaded out of the city's Parks and Recreation Department and is an attempt to arrive at a land use plan for the Poudre River corridor and to be very geographic specific. He stated that there is lots of opportunities for citizen input and participation. He commented that this area has been an area of "benign neglect" in that there has not been a lot of capitol improvement projects, street widening, sidewalk improvement project in this area. They have also heard the other side which is the disapproval of street improvement which would result in losing parking in front of the businesses. There is no intent to make life any more difficult for any existing use. The primary purpose is to implement the Downtown Plan and make sure vacant, undeveloped properties come through a process that reflects a little more of the modern era but not to take away any of the historic character that is currently in the area. Chairperson Bell stated that, on the abbreviated process, there seems to be a sense that the change might lessen that abbreviated process. She asked how much time was given on this specific recommendation. Mr. Shepard stated that they have working on this since May. The meetings began in June. The three week time frame is such that the present three week language allows the Planning Director to make a decision. Chairperson Bell asked if the appeal applies only to the applicant or are there other affected parties. 0 Planning and Zoning Board Meeting July 22, 1996 Page 10 Mr. Shepard replied any party in interest which can be anyone within the distance, anyone who has received a mailing, anyone who comes to the public hearing or anyone who has written a letter. Member Davidson asked if a company were to expand less than 25% one year, then come back 3 years later and expand less than 25% of the existing new square footage, would they ever go through the process. Mr. Shepard stated that one must calculate the 25% based on a denominator which would be the day that the ordinance becomes effective on which that particular property was zoned into the RC zone. This is not accumulative. It would be based on a one time date. Member Weikenut asked if there was something in the specific language that a property needs to adhere to with the river being a part of the RC zone. Mr. Shepard replied no there is not. It is a mixed use zone. Member Weikenut asked if the RC zone is appropriate or not as opposed to C on the other side of the river. Mr. Shepard replied that the answer is because this is what was adopted in the Downtown Plan. This plan does call for some of the property along the east side frontage to be included in the Poudre River corridor. Mr. Blanchard stated that if there is a concern about notifying non -conforming property owners, one of the things that the Board could consider an option of requiring that this be done before going to City Council. Member Bridges moved to recommend adoption of the RC Zone to City Council with the additional stipulation that public notification to non -conforming property owners be a prerequisite for that zoning applying to them. Member Byrne seconded the motion. Member Byrne stated that it is important to recognize that this is only a recommendation. He seconded the motion because the recommendation to City Council would be that they take a hard look at those non- conforming land uses and make sure that people are aware of what is about to happen. Member Weikenut commented that this should happen prior to the recommendation because zoning is serious business and not done on a temporary measure and hope that these things are abated. She suggested that these people be part of the process. She added that part of her concern is that some of these property owners are businesses which is critical to the downtown area. She believed that it is putting the cart before the horse. .Planning and Zoning Board Meeting July 22, 1996 Page 11 Chairperson Bell concurred with Member Weikenut. Mr. Shepard reminded the board that there has been three mailings on this project. First, for a neighborhood meeting for all the IG property owners, second for a notice that the city was going to send to all the RC property owners with the code changes, and third for this evening's meeting. Member Gavaldon asked Ms. Cottier if she was aware of how many people were not notified and how many she believes would not be in compliance. Ms. Cottier replied that no, she has only talked with three property owners in the area today and none of those three knew there was a meeting tonight. One of those people informed her that their property was not non -conforming but this evening it has been said that it is non -conforming. Chairperson Bell stated that the issue at hand seems to be one of public input. Member Bridges asked if the non -conforming property owners were identified and notified, how long would it take to get back to Staff. . Mr. Shepard replied that at the earliest, it would be the September P& Z meeting. Member Bridges stated that he would like to leave the motion on the table to make sure there is public process before going to City Council. He believed that the zoning was appropriate but they have not yet mitigated the issues for the property owners. Chairperson Bell concurred with Member Weikenut in that when rezoning properties, the Board needs to take the utmost care in making sure the citizenry knows what is going on with their properties. Member Colton had a concern about what the notification process needs to be. He did not see what good another mailing would do. Also, if non -conforming property owners should come out, their only alternative would be to show up at the City Council hearing to plea their case. Member Gavaldon concurred with Member Weikenut in regards to citizen input concerns and the magnitude of it. Staff has done an excellent job notifying property owners because one can only go so far. However, based on this, another input is important to the P & Z Board to get all the data so they can give a firth recommendation to City Council and not leave any loose ends. However, it still gives the citizens the opportunity to give their input as follow-up data to City Council beyond a recommendation. He stated that he would not support the motion. Member Colton stated that he would not support the motion unless he gets further clarification on what sort of notice Staff will send. Planning and Zoning Board Meeting July 22, 1996 Page 12 Member Weikenut stated that she has reviewed the mailing list and there is a lot of duplication and she wasn't sure if all the businesses were on the list. She added that because it is these people's livelihood and is important to the city's core, she would like to see the C zone added. She believed that the citizen input is critical in knowing that the RC zone is appropriate. She stated that she would not support the motion. Member Bridges stated that his intent in making the motion was to facilitate the process and to make sure that the public input was there and was available by the time it reached City Council. He then withdrew the motion. Member Byrne withdrew his second. Member Weikenut moved that this item not be sent to City Council but be put back on the drawing board and secure some greater input from the area that is concerned with the rezoning and include the area that has been excluded. Member Bridges seconded the motion with the addition that it specifically include a list of the non- conforming uses in that zone and that the Board knows that there was a process of notifying them that they were non -conforming. Member Weikenut was amenable to Member Bridges' addition. Mr. Blanchard asked what is implied by "greater input" and if the excluded properties include the currently commercially zoned properties on the north side of the river that are shown on the Downtown Plan. Member Weikenut stated specifically the C area. She stated that she was not fully clear on who was included in the process with the exception of the DDA and the mailing. Mr. Blanchard stated that the mailing list is based on the Assessor's records so there is one name for every parcel which could cause duplication. Member Weikenut believed that the critical part is that the property owners of the non -conforming uses be notified. The motion passed 7-0. Planning and Zoning Board Meeting July 22, 1996 Page 13 APPEAL OF THE APPROVAL OF AN ADMIMSTRATIVE CHANGE TO THE TIMBERLINE STORAGE PUD - #7-82D.E Chairperson Bell stated that since this item will take a couple of hours, she suggested that Item 13, Ridgewood Hills - Amended Overall Development Plan, and Item 14, Shenandoah PUD - Preliminary, be heard at the August 12, 1996 continued P&Z meeting. There were no objections from the Board or citizens. Mr. Michael Schultz, attorney representing Mr. Dwight Smith, suggested that the time frame for the applicant's rebuttal should be deleted. He believed that 20 minutes per side to argue this with a chance to summarize would be appropriate. Mr. Duval stated that after the presentation of the appellant new issues are raised that would be appropriate for the applicant to address, then a rebuttal period is appropriate. Perhaps, if new issues come up in the rebuttal, then the opportunity should be given to the appellant to address those issues as well. Chairperson Bell stated that the timed outline is used to help everyone with the rules of the road. Mr. Blanchard gave the Staff Report stating that this item is an appeal to approve an administrative change request that was approved by the Planning Department on July 1, 1996. He presented the surrounding zoning and land uses and background. Ms. Lucia Liley, attorney representing the applicant, Vigor Family Partnership, stated that the applicant believes the appeal is improper based on: 1) the appellant does not have the right to appeal a decision approving a minor administrative change to a final PUD; 2) even if this appeal is authorized by the City Code, it was not timely filed within the 14 day period because the administrative change was approved on either May 23 or at the latest June 4, and; 3) an issue related to equitable stopo. She added that the owner is not uncomfortable if there is an argument on the merits. In regards to the first issue, what right does a person have to file an appeal of a minor amendment to a final PUD. She cited Section 29-526F6 in the LDGS which is the specific procedure on how to make amendments to final PUDs including minor amendments. This is the specific code section that tells one what the process is and what is involved. This provides for no public hearing process, no notice, is a private transaction between the applicant and the city. The only provision regarding appeals in this section states that one has the right of appeal if it is referred to the P & Z Board instead of being decided administratively then one has the right of appeal to City Council. It has been suggested that Section 2-353, which is a code section that deals with the powers of the P & Z Board dictates that an appeal is appropriate for a minor administrative PUD. She believed that this was inconsistent with the more specific ordinance dealing with minor administrative changes. In addition, she believed that there are insufficient standards if there can be an appeal of a minor administrative change. This is based on two things: 1) there are no limits in that ordinance as to who can appeal and an appellant is not a party -in -interest as defined in Section 2-46, and; 2) there is no notice as to when a minor amendment is approved. She stated that the administrative guideline states that the Planning and Zoning Board Meeting July 22, 1996 Page 14 applic has the right to appeal a minor administrative change if denied which is their argument. This makes sense in context of the ordinance providing that this is a process between the owner and the city. Ms. Liley continued that this appeal was not timely filed within the 14 day period because of when the administrative change was approved. The evidence that the approval actually occurred on May 23 is that the request for the minor subdivision approval and the change were both for exactly the same project. The request for both was submitted within six days of each other - the subdivision on March 29 and the change on April 5. The required submittal documents for both were filed on the same day with the subdivision. The review of the request was intended to be and was done concurrently by all the affected city departments. The same comments were made by the reviewing staff on both the subdivision and the administrative change. In the April 18 letter, the Planning Staff said to the owner that they have sent the project out for comments and that they have received comments back and will not schedule the administrative public hearing on the minor subdivision until all comments and concerns have been addressed by the developer. On April 22, comments were received by Natural Resources and Storm Drainage. The hearing date for the minor subdivision was set for May 23 and, approved on that date. One can reasonably assume that the issues raised were believed by the Planning Department to have been solved or it would not have been scheduled for hearing on May 23. She believed that at that point in time, no one knew there was a discrepancy between the approved plan and the actual constructed boundary. The assumption was the existing boundary was 100 feet and the proposed boundary was going to be 100 feet so there was no issue. Ms. Liley stated that the minor subdivision approval on May 23 set the date for the three year vested rights to begin. She submitted an affidavit of the owner, Bill Vigor, regarding an April 23 minor subdivision meeting held with Mr. Blanchard, Mr. Olt, Mr. Vigor, Duane Lebsack, and Tom Chandler. She also submitted an affidavit from Tom Chandler regarding the same meeting. Duane Lebsack, Lebsack & Associates, stated that he has no financial or equitable interest in Timberline Storage. The City of Fort Collins hearing meeting regarding the expansion of Timberline Storage was May 23, 1996 at 2:5 p.m. It was stated that the purpose of the meeting was to approve or*disapprove the proposed Timberline expansion and the hearing had two purposes: 1) a minor subdivision approval and 2) the administrative review of the proposed expansion. At this meeting, Mr. Blanchard asked Mr. Olt if all departments had responded and were there any negative responses. Mr. Olt said that all departments had responded and there were no negative comments. Mr. Olt also stated that he did not received any responses from the neighborhood. Mr. Blanchard stated that they would wait about five minutes in case someone came in to object to this. After five minutes, it was stated that the minor subdivision was approved and signed by Mr. Blanchard. At this time, he informed Mr. Blanchard and Mr. Olt that they would be closing on the purchase contract the following day, May 24, 1996 since a contingency in the contract for city approval was now met. Immediately following this meeting, he went down to the lobby and called Mr. Gene Fisher's office and scheduled a real estate closing for 11:00 am the following morning. When they left the meeting, they were under the understanding that the project was approved. Planning and Zoning Board Meeting .July 22, 1996 Page 15 Ms. Liley stated that the closing documents would show that the closing did occur and the invoices for all the landscaping and sprinkler system were per the administrative change. Required signatures of engineering and building inspections were obtained. Then on June 4, after the May 23 approval, Mr. Olt specifically approved the administrative change. June 4 was the date after the applicant had been informed that the subdivision plat would be recorded the next day. It was also the date Mr. Blanchard signed the notice stating the minor subdivision had been approved. She asked the Board to consider whether or not the evidence reasonably establishes an approval, either on May 23 or June 4, and in either event, this appeal is not timely filed. Mr. Schultz stated that the administrative change is an alleged change to a PUD made by the Planning Staff with a documented order dated July 1. He suggested that it would be unseemly if citizens who are originally given notice as adjacent property owners on the project, were not able to appeal administrative changes allegedly made by the Planning Staff. If the number of units was to be increased by 20%, or the height increased, the change of character of a project, would these be minor amendments. What is a condition that would be changed that might have been grounds for disqualifying the project in the first place. These are criteria for determining what a minor amendment is. Presumably, that is in the exclusive prerogative of the Planning Director and the audacity of the citizen in this community who resides within that adjacent property owner notice area to come before this body and ask the Planning and Zoning Board to review the administrative change. He suggested that Mr. Smith clearly has that right to do so. He stated that last Friday there was a meeting between the developer, Ms. Liley and members of city staff in an effort purely intended to dissuade Mr. Smith from taking this appeal in the first place. He asked why city staff would meet with the developer and his attorney to convince an appellant who spent $100 to seek an appeal to this body. This seems to be highly inappropriate and if there are issues surrounding this minor change, it ought to be heard on a public record before a publicly appointed body. He observed the apparent failure of city staff to fully protect and promote the public's interest. It is seen far too often, with all due respect to staff, is a staff bent on protecting the developer's interest in projects and not protecting the community's interest in health, safety, welfare, aesthetic issues, environmental issues, the drainage issues to a city -owned marsh. Yet, at every point of ambiguity, the decision will be made in favor of the developer and not in favor of the citizens. Do not a few of these decisions go in favor of the citizens or the appellant who is forced to hire an attorney to come to these meetings to argue the right to appeal. Mr. Schultz stated, in terms of legality of Mr. Smith's appeal, under the code it is the Planning Director only who can approve minor changes to PUDs. There is a June 4 date that is under the signature of Mr. Olt who is not the Planning Director. Then there is a July 1 approval signed by Mr. Blanchard. He asked if this was approved on May 23 or June 4, why is Mr. Blanchard approving with his signature on July 1, 1996 with conditions. The code allows a citizen to appeal any order that any administrative official makes within 14 days after the action which is subject to the appeal. He suggested that a minor amendment to a PUD is within "any order", which is under Section 2-353-Functions of the Planning and Zoning Board, to review appeals of ANY order of an administrative official who implements the provisions of the zoning 0 regulations including planned unit development regulations. How are citizens supposed to know about Planning and Zoning Board Meeting July 22, 1996 Page 16 these orders. It seems fair to say that someone who is given original notice on the project is a party -in - interest and can appear and appeal a decision. Under the city code, a minor amendment is defined as "...one that does not constitute a change in character of the development." That is questionable in this case because the city is decreasing a setback requirement by almost half from a city -owned wetlands area. A minor amendment is not one that would normally cause a project to be disqualified under the applicable LDGS criteria. Would this project originally have been approved with the setback requirements that are now being proposed. He added that Mr. Smith would strongly urge that this is not an amendment for a minor change to a PUD but, in fact, is a major amendment and, by city code, had to come to the P & Z Board. If this were a minor amendment, what would be the Planning Director's authority. He stated that Mr. Smith would like to know why the Planning Director did not take it to the P &Z Board for a recommendation. Why, in a controversial project in which the Storm Water Board, Utility and the Natural Resources Department originally expressed grave concerns about this change on April 23, 1996, did this not go before the P & Z Board. Apparently, it was going to because Ms. Liley wrote on June 26, 1996 to Mr. Blanchard and Mr. Olt "It is my understanding that this decision has now been made to refer this administrative change to the Planning and Zoning Board at its meeting of July 22, 1996." Ms. Liley wrote a letter to Mr. Blanchard and Mr. Olt suggesting that they go ahead and approve the administrative change without it going before the P&Z Board despite her understanding that Mr. Blanchard had already decided to take it before the Board to get a recommendation as to what should be done. The concerns of the Water/Sewer utility and the Natural Resources Department were resolved June 28, not May 23 or June 4. As a result of resolving those concerns on June 28, Mr. Blanchard, with conditions, approved the alleged minor change July 1. He believed that it was persuasive that despite whatever someone said at a May 23 meeting, it was not the Planning Director making an official documented approval of a minor amendment to a PUD. Mr. Schultz continued that Ms. Liley had some arguments regarding equitable stopo, which means that the Planning Staff apparently represented something that the developer went out and relied upon it, in good faith, and the city should not be able to change its position now. He believed that this is an argument that to take up in the appeal itself. Not a question as to whether Mr. Smith has a timely appeal, but whether the city should then, after hearing his appeal, side with him and say in all fairness, we ought to go ahead and let those changes stand because the developer relied upon something told to the him at a May 23 meeting. Ms. Liley is probably the most knowledgeable attorney in Fort Collins about the LDGS. He believed that to a large extent, the Board will rely on Mr. Duval's legal recommendations, particularly the recommendations about possible litigations if the Board sides with Mr. Smith. The decision should be based upon what is in the best interest of the public. If there are issues to discuss that are tough ones, issues that imply things about the staff or may raise questions about being sued for damages, these decisions ought to be on the record and the public ought to hear them. Ms. Liley stated that if one looks at the final administrative change, one will see that Mr. Blanchard did in fact, add his signature on the administrative change block on July 1. The fact that Mr. Blanchard later added his signature does not change the fact that Mr. Olt, on June 4, wrote the word approved. The Planning Director does not typically need to approve administrative changes - they are approved by the Planning and Zoning Board Meeting July 22, 1996 Page 17 project planner. In this case, that was Mr. Olt. It doesn't need Mr. Blanchard's signature to make the approval valid. The June 4 date is the date it was signed "approved" by the Planning Department. At the meeting last Wednesday with staff and Mr. Smith, she stated up front that the purpose of this meeting was not to get him to withdraw the appeal. She just wanted to hear what he had to say to see if there was any common ground to try to resolve the situation. Ms. Liley stated whether someone should be able to file an appeal is dictated by the laws of the city. There is an ambiguous appeal provision in where an appeal must be filed in a timely manner. This was not a timely file whether it was May 23 or June 4. She added that Mr. Smith made it clear to the city that he was not going to close on this property unless it was approved and when he believed they said it was approve, he closed on it, did landscaping and sprinkler system work in accordance with the administrative change. If it wasn't approved, why was it said to be okay for Mr. Smith to go ahead and do the work. Why wasn't there an objection by the city saying that the work couldn't be done because the administrative change wasn't approved and might not be approved. Mr. Smith was not given notice of this administrative change and that is what governs party -in -interest. Appropriately, he received notice on the original PUD but that has nothing to do with the legal arguments that are being made now. The concerns of Natural Resources and Storm Drainage were not grave concerns. They were minor comments that are typical in routing of any administrative change. She added that she believed that they have a very . liable equitable stopo argument which is based on nothing more than fundamental fairness. Mr. Schultz stated that the city code states that minor changes to a PUD may be approved administratively, if at all, by the Planning Director. It does not say Planning Division, it does not say staff planner nor project manager. He stated that the comments from Storm Water stated that the administrative change cannot be approved as shown since the drainage affects neighboring property and an easement has been provided. Natural Resources comments stated that they had concerns that wetlands boundary as shown may be incorrect and an accurate boundary and sufficient buffer and transition of native vegetation at least as much as on the previously approved plans. This was dated April 23, 1996. He asked how something could have been approved on May 23 when there are two city departments saying they cannot sign off on it. It wasn't until June 28 that there was an approval by Mr. Olt, who is not the Planning Director, and then the signature with conditions by Mr. Blanchard with a statement saying that the Natural Resources Department was satisfied only as late as June 28 that their concerns were addressed. This was not approved on May 23. If anybody purported to approve it, it was an unlawful approval. Mr. Smith, appellant, presented aerial photos of the site. He stated that he was on a 23 day vacation and came back and noticed the earthmoving machines working. He was unaware as to what was going on because he received no notification. On June 3 of 4, he talked with someone in the Planning Department and, at that time, did not realize how important all of this was going to be. He wasn't sure who it was he talked with but they said that it was news that the construction had begun but it should not have been because the administrative change had not been approved. Within a few hours the work ceased. On June 6, he talked Mr. Olt who said that Mr. Vigor had submitted a request and a site plan for an administrative Planning and Zoning Board Meeting July 22, 1996 Page 18 change to the original PUD. Mr. Olt told him that the request for subdivision had been approved but the administrative change had not been approved. On June 7, he met with Mr. Vigor, Mr. Wilkinson and Suzie Gordon of the Natural Resources Department, and Tom Chandler. He was asked that if the administrative change were approved if he would appeal. He did offer the observation that from what he knew at that point, it seemed to him an appeal would be appropriate. On June 11, Mr. Wilkinson telephoned him to say that he had recommended to Planning that the administrative change be referred to the Planning and Zoning Board before approval. Mr. Wilkinson stated that if this happened, he would not have to file an appeal. On June 21 he received a memo from Mr. Olt, along with the site plan, for the proposed Timberline Storage expansion as submitted with the administrative request plus the revised site plan showing the loss of two units in the new building. The measurements on the various plans that have been submitted varied tremendously. On July 1, he called Mr. Blanchard about the status of the administrative change and Mr. Blanchard said that it would be referred to the Planning and Zoning Board before approval. In the afternoon of the same day, Mr. Blanchard called him back and said that he did not want him to be caught by surprise. Mr. Blanchard had consulted with Mr. Tom Shoemaker, Natural Resources Director, and it was decided to approve the administrative change. The next day, he hand delivered to the City Clerk and to Mr. Blanchard his appeal. Member Byrne stated it appeared to him that this entire situation is a victim of some staff work that did or did not occur in a timely way. Mistakes get made. He added that had some staff work been done where the communication were of a higher quality, the Board would not be seeing this tonight. Member Colton asked Mr. Smith the date when he returned from vacation and noticed the work being done. Mr. Smith replied that he returned on May 30 and saw the work on the morning of May 31. He stated that he did not read the announcement of the May 23 meeting until June 3. Chairperson Bell asked Mr. Smith if he received a letter from the city about the May 23 meeting. Mr. Smith replied that he did and when he got home he saw the letter from the city and thought it was a bill so looked at his personal mail first. It was on June 3 that he read the letter regarding the meeting. Mr. Blanchard stated that what Mr. Smith received was the normal public notification letter that occurs with all public hearings that announces the date of the hearing and says that the city is interested in comments and invites one to come down and offer comments at the hearing. There is an APO (affected property owner) list for all notifications. Mr. Smith asked how many responded to that letter Chairperson Bell replied that they will get to that as they proceed •Planning and Zoning Board Meeting July 22, 1996 Page 19 Member Bridges asked Mr. Wilkinson when the fist meeting was held on the site. Mr. Wilkinson replied that the first date he has recorded was June 6 and also had one recorded on June 7. He believed that there was one held on June 5 or earlier in the week of June 3. He believed they had three meetings in the field that week. Member Bridges asked who all was present at the June 6 meeting. Mr. Wilkinson replied that people present included Mr. Olt, Mr. Vigor, Mr. Vigor's engineer and myself. Member Bridges asked who was present at the meeting earlier than June 6. Mr. Wilkinson replied that Mr. Olt, myself and Mr. Steve Easter. Mr. Smith was at the June 7 meeting as was Mr. Vigor. Member Bridges asked if, at the June 7 meeting, was it discussed whether the project was approved or not. Mr. Wilkinson replied that it was his opinion at that time from things that were said that there was not an administrative approval yet. Member Bridges asked Mr. Wilkinson if he had mentioned to Mr. Smith that the administrative change was not approved yet. Mr. Wilkinson stated that his position was that he had concerns that he did not feel that the project as shown on the site plan or as proposed was consistent with what had been approved by the P&Z Board initially, with the 100 foot buffer, and, for that reason, he did not feel comfortable giving administrative sign off at that point. This was based on his April 23 comment that he had written on the administrative change. Member Bridges asked that on April 23, Mr. Wilkinson did not give approval and when he met on June 7 with Mr. Smith and Mr. Vigor, you had still not approved this project. Mr. Wilkinson replied that this was correct. He added that at a previous meeting, he had said that there should be some input from the neighbors because Mr. Vigor was proposing an alternative other than 100 feet. He was attempting to make some judgement on that and felt some discomfort in that it was not consistent with the 100 feet, especially since it had been a major during the hearings. Member Bridges asked when Mr. Wilkinson expressed to Mr. Vigor that he did not feel comfortable approving the change. Planning and Zoning Board Meeting July 22, 1996 Page 20 Mr. Wilkinson replied that June 6 was when he told Mr. Vigor that he did not feel comfortable with it. He informed Mr. Vigor that he did not see a hardship that would say that they should require anything less than the initial 50 feet. Member Colton asked Mr. Duval asked for his interpretation of the appeal process for a minor change. Mr. Duval stated that for minor subdivision approvals, the time frame for filing is seven days. But there is a more general provision that, Section 2-353 Subparagraph 4, which states: "the Board has the authority to hear and decide appeals from or view any order requirement decision or determination made by an administrative official which pertains to any planning item previously reviewed or approved by the Board if such appeals and requests for review are filed not later than 14 days after the action which is the subject of such appeal or request for review." The City Attorney' Office interprets this as providing a general means to appeal any administrative decision of the type that is now before the Board. Member Colton asked if it has ever been interpreted that one cannot appeal a minor administrative change. Mr. Duval replied no it has not. Member Byrne asked for confirmation as to who can sign off on administrative changes. Mr. Duval stated that there is another city code provision that discuss rules of construction and these rules are applied to all provisions in the code. It specifically states that whenever a provision appears requiring the head of a department or officer of the city to do some act or make certain inspections, it is to be construed to authorize the head of the department or officer to designate, delegate or authorize subordinates to perform the required act or make the required inspection less the terms of the provision or section designate otherwise. He added that it is possible for the Planning Director to designate or delegate the authority to make these administrative change approvals and decisions. He added that there could be a question here as to whether that occurred or not but that is a question of fact that would have to be asked of Mr. Blanchard or Mr. Olt. Member Byrne asked if Mr. Olt was so authorized. Mr. Blanchard replied that Mr. Olt was the project planner on this particular review and he did sign it on June 4. I have a standard practice on my office that the project planner that is assigned the project is authorized to sign for approval for the Planning Department unless there are extenuating circumstances. In this particular case, there were the issues that were noted, after Mr. Olt had signed it, that neither Storm Water nor Natural Resources had signed off on the administrative change. He also has a policy that an administrative change is not approved until everyone approves of it. At that time, even though Planning had signed it, he had determined that it needed further review so he became the signatory. Member Bridges asked when the administrative change took effect. r� Planning and Zoning Board Meeting July 22, 1996 Page 21 Mr. Blanchard replied July 1. Member Gavaldon asked if there are documents pertaining to the authorization and having all signatures in place before it is approved. Mr. Blanchard responded that it is an operating procedure that he has outlined for the department and all reviewers. Chairperson Bell asked for clarification of the different between the minor subdivision and the administrative change. Mr. Blanchard stated that the minor subdivision was to add a piece of property to the PUD. This does not allow vested rights for development. It is just dividing the lots. The hearing for this was May 23. In order for construction to occur, the administrative change would have to be approved. Chairperson Bell asked that, given this information, how did the developer come to feel that they could begin construction. She asked Mr. Blanchard if he said that, after the May 23 meeting, that they could begin construction. Mr. Blanchard replied that the May 23 was the hearing for the minor subdivision. The administrative change does not require a hearing. He added that he could not imagine that he would say that the hearing was for the two purposes. The formality of an administrative change is required by the code unless there is a complication surrounding the minor subdivision, it is really just an exercise. His contention is that there was no indication that there was a hearing for two different items. Chairperson Bell asked Mr. Vigor what lead him to the impression that he could go ahead and proceed with construction. Mr. Vigor stated that when he attended the meeting, the situation that was transpiring was discussed and it was explained to him that it was a two part deal. He stated that he talked with Mr. Olt prior to the meeting and twice after the meeting and again ask him if there were any problems in any of the departments or entities that were required to sign off on this. He stated that Mr. Blanchard asked Mr. Olt if there any inquiries in regards to this project. Mr. Olt responded that there were no protest. Mr. Blanchard then stated that they would wait another five minutes to see if anyone comes in to protest otherwise they will go on with the approval. After that time, Mr. Blanchard signed the minor subdivision plat and said that it is approved. At that point, he commented to Mr. Olt that since this has gone through all the departments, he would like to proceed with preliminary work while the plans are being approved for pouring concrete and such. Mr. Olt commented that this was a good idea. He also commented to Mr. Olt that he had hired a landscaping firm to remove plants and trees. Consequently, it was verbally agreed upon that he would go ahead with the project and doing some preliminary work prior to having the building permit issued. 0 Planning and Zoning Board Meeting July 22, 1996 Page 22 Mr. Olt stated that he was the project planner on this project. He stated that the minor subdivision request was submitted and approximately at the same time the administrative change was submitted. The minor subdivision process typically takes five to six weeks to review. The administrative change effectively submitted the same type of information as the minor subdivision which includes the site plan, landscape plans, building elevations to review and can occur within 3 to 5 days provided there are no complications. In this case, it was determined that Natural Resources, Poudre Fire Authority and Stormwater Utility would have to be added to review issues. He stated that he had indicated to Mr. Vigor on several occasions, prior to May 23, that the city would not process and finalize the administrative change until the minor subdivision plat had gone to public hearing and conceivably approved. The minor subdivsion request was approved May 23 and approved by me after the seven day appeal waiting period had passed. Mr. Colton asked if the approval to proceed with landscaping was related to the minor subdivision. Mr. Olt replied that in talking with Mr. Vigor prior to the public hearing, Mr. Vigor's landscaping consultant had told him that due to the weather and time of year, the existing landscaping along the east side of the approved and constructed Timberline PUD needed to be removed. The landscaping consultant asked if he could remove those and heal those in someplace to protect them until the new construction was done then he would replace those in the same fashion that they had previously been installed for the PUD. He stated that to the best of his recollection, he recalls saying to Mr. Vigor that until he gets to the subdivision plat, he could not suggest doing anything like that. At the time of the May 23 hearing, there were effectively five departments that had reviewed and signed the administrative change, three of them with approvals and two with outstanding comments. The Planning Department had not signed off on it at that time. He then admitted that he discovered that the two departments did not approve the administrative change after he had signed off on the administrative change on June 4. Member Davidson asked how is the applicant informed of approval or denial. Mr. Olt replied that the project planner telephones the applicant and informs them of approval or denial of the administrative change. Then a copy of the application with the decision is sent to the applicant. Member Davidson asked if there is a paper trail and the applicant would know if they are approved or denied because they could not get a building permit without the application. Mr. Olt replied that this is true, the applicant could not be issued a building permit until the approved application is in the building department. Member Bridges asked if the applicant pulled a building permit or was he required to pull a permit for any of the work that is on the site. Mr. Olt replied that, to date, there are no permits issued. This is why on June 6 the developer had to stop work at this time. There is the ability to do some earth work. The Engineering Department and the Planning and Zoning Board Meeting .July 22, 1996 Page 23 Stormwater utility can issue overlot grading work assuming that the erosion control plan is in order and the appropriate erosion control deposit is in place. In this case it was determined that the framing that was being constructed was done without any building permit being issued. Member Bridges asked if a building permit would be needed to excavate and place forms in. Mr. Duval replied that the fact that Building Inspections has issued a stop work order indicates that some work is being done that is not permitted without a permit. Ms. Liley stated that there has never been a stop work order placed on this property. If there is, the owner knows nothing about it. She stated that his work was completed prior to June 4. Mr. Schultz stated that they object in that this is new testimony that they have no opportunity to respond to and he did not believe that the question and answer was called for. Mr. Duval stated that the issue was raised in the questioning about the building permits and if someone was asking Ms. Liley a question about that I believe it is appropriate for her to respond. Member Byrne asked Mr. Schultz if the first Mr. Smith noticed construction was going on was around June 3 then he called the city. Mr. Schultz stated that he observed the construction approximately May 30 or 31. Mr. Smith called the city on June 3 or 4 about the work. He stated that the work was going on within that seven day window of appeal if this was approved on May 23. Member Byme stated that, in essence, the city did not know work was going on until that point in time. Mr. Schultz stated that Mr. Smith's testimony is that when he called the Planning Department they were surprised that the work was going on and then he observed that the work stop almost immediately after his call. Mr. Duval suggested that deliberations be reserved until after all the evidence is in. Mr. Duval asked Mr. Olt to clarify the building permit issue and his understanding if there actually exists a stop work order. Mr. Olt stated that on June 5 he was out in the field with Mr. Wilkinson and they noticed that there had been grading work along the east side. The administrative change was still in the process at this time. There was framing work going on for the north building which is the furthest away from the wetlands area. When he went back to the office, he asked Mr. Barnes if there was any work going on that requires building permits and, if so, are building permits issued. Mr. Barnes checked and stated that no permits Planning and Zoning Board Meeting July 22, 1996 Page 24 had been issued to date and he immediately called one of the building inspector on the radio and asked them to check the site. The inspector called back and indicated that there was unauthorized work being done. On June 6, Mr. Wilkinson and he were on site and the developer had voluntarily ceased work. There has been no work on site since then. He was uncertain as to whether there is a formal written stop work order. Ms. Liley asked the Board as they deliberate this issue to put themselves in the place of this owner and to aske the question, under all the circumstances, whether it was reasonable for them to have believed what they believed and to have taken the action that they took. If there is an owner that has put a contract on a piece of property and has been careful to condition that contract upon a final approval by the city, it is an owner who knows and is concerned. He followed the appropriate steps of the process. If one goes through all the documents, everything culminates on June 4. That is the date about a week after the city said all the paper work is going to be done. That is the date the final plat is signed off. That is the date Mr. Blanchard signed the notice saying that he approved the minor subdivision. It is the date on the notice saying June 4 is the approval date for the administrative change. Granted, it is not signed but weight cannot be placed on that. The point is somebody had already said June 4 is the approval date. She suggested that it wasn't signed because Mr. Smith called, probably on June 4, and asked what was going on. Then somebody reviewed the file and said maybe there is an issue about the wetlands buffer. The point is, even Mr. Olt admitted that after he signed the administrative change on June 4 he discover that there was a problem. The point is, it was signed and Mr. Olt had authority as a project planner to sign it. This is what the paper trail shows. She asked that the Board consider the circumstances. In regard to the work issue, she stated that all three gentlemen were very clear in their statements and affidavits and that the question was specifically put at the May 23 hearing that there was site work and grading work that they wanted to do. This was work on the landscape plan and had nothing to do with the minor subdivision. Mr. Schultz stated everyone has a very different view of what happened here. There were two applications made. But there were two processes. There are some overlaps but there are very clearly two processes going on. The May 23 notice to the neighbors simply said that it was a minor subdivision plat hearing. The testimony of the city officials is that nobody at that meeting told the applicant that the administrative change had been approved. May 23 has been said to be the date of approval yet there is no approval document that is dated May 23. Mr. Wilkinson, Mr. Olt and Mr. Blanchard have testified that they did not tell anyone the administrative change had been approved. Then June 4 was said to be the approval date. This developer got a minor subdivision plat approved on May 23 of which there is a seven day appeal period. Yet, the developer closed on May 24 and within a week, he has put thousands of dollars of construction work into that site still within that seven day appeal period. The developer also undertook work that required a building permit and for whatever reason has now stopped. He believed that the building permit has nothing to do with this appeal. If the building department had issued building permits, then that would be an indication that there was an approval. But there were no building permits issued. There has never been any defense by the developer that this is a minor change. Planning and Zoning Board Meeting July 22, 1996 Page 25 Member Colton moved that the Board should hear the appeal. Member Byrne seconded the motion. Member Colton commented that he finds that Mr. Smith is a party -in -interest since he did get the original mailing on the original PUD development. He believed that appeals of administrative decisions are valid and have been done in the past. He added that although there is a lot of uncertainty around the dates, the May 23 was not the date that it was approved in an official manner. Even if the approval date was June 4, he believed that Mr. Smith came in on tJune 6 or 7 and talked to people that said the administrative change is not approved. If he had found that it was approved on June 4, he probably would have file his appeal earlier. He was acting on good faith, like other people acting on good faith that it was approved, that it was not approved. So the fact that he held out until July 1 was because he was going by the information that he had at the time. Member Davidson added that this could be interpreted as a major change rather than a minor change. On the surface it appeared to be a minor change in regards to measurements, but in relation to its possible impact on the wetlands, he views this as a major change. He can see where it could have been disqualified because of its infringement on the wetlands and also a change in character of the •development. He sees wetlands in a sense as part of this development and has to be looked at as part of that development. Member Weikenut stated that there are two ideas here. One is whether or not Mr. Smith has the right to appeal and secondly whether it was appropriate to go through an adminstrative change as opposed to going before this Board. Chairperson Bell added that Mr. Smith did receive notice for the May 23 meeting which she strongly feels makes him a party -in -interest. Member Bridges commented that the code allows citizens the right to appeal an administrative decision of any official that falls under the purview of this Board. The question of whether the appellant is a party -in - interest is also important. When the discussion of special appeal rules for certain criteria is defined doesn't exclude the fact that regular administrative decisions can be appealed. He believed that the code is very clear on this. His other concern is the issue of time limits. The notice for the meeting on May 23 stated that it was a meeting for the approval of a minor subdivision not of the administrative change. This constitutes what the amount of the hearing can be is for that purpose. The subsequent issue as to whether the change may have been approved on June 4, if any of that discussion occurred in the Planning office, there was no communication from the Planning Department occurred after the June 4 date conveying to the applicant that this was approved. That date itself cannot be an approval to the applicant because he never received notice of that June 4 date. Finally, we heard that it was approved and signed July 1 and the conduct was that before that was even sent to the applicant, the Planning Department called the appellant. It is important to note that July 1 was the date of the approval. Apparently, the appellant immediately Planning and Zoning Board Meeting July 22, 1996 Page 26 went and made the application to appeal. He stated that he would support the motion to hear the appeal based on the fact that it was timely filed and it is appropriate that the individual should be able to appeal. Each of the individuals here had equal opportunity to participate in the process and to state their feelings and determine as to whether they should appeal or question the staff decision throughout the process. Member Byrne commented that this was a complicated process and a number of people found themselves involved for the first time. He stated that it may have been that during the development process there was some expectations in terms of how quickly things would move along. Everything needs to be done according to the letter of the procedures as they are spelled out in the ordinances. Member Gavaldon commented that he believed the process, the documentation, the time lines and the appeal were all in order. He will support the motion to go ahead with the appeal. He stated that Mr. Smith, in receiving the letter, is a part of the process and has exercised the process. The motion passed 7-0. Mr. Duval stated that the Board's next step is to go to the merits of the appeal which is whether the decision of the Planning Director approving with conditions the administrative change to the Timberline Storage PUD should be upheld or reversed, which means deny approval or approve with other conditions or approve with the same conditions. Member Colton asked, given the hour, if the merits of the appeal could be heard at the next meeting as opposed to continuing on now. Member Weikenut believed that it would be appropriate to continue because so many people have put in a good amount of time already and some of this information has been presented. Member Davidson stated that the Board is dealing with two different issues. The appeal itself is a totally different subject matter and different facts. He believed that this could be continued to the next meeting. Mr. Blanchard stated that since we are in the midst of this, he believed that it would be appropriate to proceed tonight. Mr. Schultz asked that this be continued until the next meeting. Ms. Liley urged the Board to conclude this item this evening. Member Gavaldon asked if there was compelling data input that would warrant a continuation that would have merit to this item if they were continue this until the next meeting. .Planning and Zoning Board Meeting July 22, 1996 Page 27 Mr. Smith replied that the issue of negative or positive impact this project can have on Timberline wetlands has not been discussed. He believed that this input should be before the Board. Member Wiekenut had concerns, as a Board member, that when they hear an appeal that it stops everything. If this is continued, it would take another three weeks. Member Weikenut moved to continue this evening with this process with the parties involved. Member Davidson stated that the appellant is the one who has the right to decide whether they want to continue or not. There will be a lot of new information that will be heard that has nothing to do with the argument over whether they could or could not appeal. Everything that the Board will hear will be in regards to the impact on the wetlands and what transpired to create that concern. Member Weikenut stated that the other side of that is that the other party is held hostage. Member Bridges seconded the motion. Member Colton stated that he would not support this motion because there have been a few times that this Board started something this late thinking that it wouldn't be that bad and a couple of those times they made some of the worst decisions they have made. Member Gavaldon concurred with Member Colton. Member Byrne commented that the job of the Board is to make good decisions not quick ones. He did not feel that he personally makes very good decisions after working a 10 hour day and then put in another five hours on the Board. The motion was denied 5-2. Member Davidson moved to continue the discussion of the Timberline Storage PUD Administrative Change at the next P&Z scheduled meeting and place it at the beginning of the agenda. Chairperson Bell seconded the motion. The motion passed 7-0. The meeting adjourned at 12:15 a.m. 0