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HomeMy WebLinkAboutPlanning And Zoning Board - Minutes - 03/06/1978PLANNING AND ZONING BOARD MINUTES MARCH 6, 1978 Board Members Present: Bob Burnham, Phyllis Wells, Ed VanDriel, Robert Evans, Gary Ross, Gary Spahr, Wm. Dressel. Staff Present: Les Kaplan, Eldon Ward, Paul Deibel, Sue Cilley, Ken Waido, Robert Steiner Legal Representative: Lucia Liley Bob Burnham: Called the meeting to order at 6:40p.m. Explained the procedure for the meeting and announced that the Board would consider only - - items one through thirteen on the agenda. Requested Lucia Liley explain the legal implications of down zoning. Lucia Liley: 1. Outlined Colorado Law concerning rezoning: - a substantial change in conditions warranting a rezoning _must be shown or, - a rezoning must further and promote a masterplan. Said the situation in Fort Collins dictated both conditions be met. Concerning vested rights, said they were established upon issuance of building permits. Concerning non -conforming uses, said any use existing at the time of down zoning could continue indefinitely and that use changes could occur if the new use was in conformance with any more restrictive zone than the one permitting the existing use. Approval of minutes, February 6, 1978. Phyllis Wells: Had correction on page 16 concerning the review of P.U.D. variances. Added to the record her concern about the Planning and Zoning Board acting as a variance board for P.U.D.s. Two major concerns: lack of clear cut assurances for the surrounding residences, the intentions of the zone, and also the anticipated increase in the Planning and Zoning workload without provisions for postponing items for thorough discussions. Ed VanDriel: Moved to accept the minutes as corrected. Gary Ross: Seconded the motion. Vote: Motion carried unanimously. Ed VanDriel: Abstained from discussion and voting on the following three items: 029-78,.036-78, and 024-78. Bob Burnham: Explained time allotments on each rezoning request. 2. 029-78 Wells, et. al. - West Mountain Rezoning. i Planning and Z g Board Minutes . March 6, 1978 page 2 Description: Proposal to rezone 88 acres located west of Shields Street on Mountain Avenue from R-M, Medium Density Residential District, to R-L, Low Density Residential District. Applicant: Neighborhood Residents, c/o Phyllis Wells, 1426 W. Mountain Avenue, Fort Collins, Colorado, 80521. Phyllis Wells: Abstained from discussion and voting because of her participatic in requesting the rezoning. David Frick(1300 W. Mountain, representing the petitioners): Explained he represented 178 people or about 78 percent of the residents involved in the rezoning. Said the RM zoning had been assigned to the area to encourage the private sector aiding in housing students from CSU. Said this need had never materialized and that only 15% of the neighborhood was used as multifamily. Noted the area was bounded on three sides by RL zoning. Said existing non -conforming uses were creating large traffic - problems. Excerpted from the Fort Collins Existing Land Use Report points in defense of the requested rezoning: multi -family zoning extends too far from CSU campus; mixed or conflicting land uses produce problems. Pointed out the large amount of existing multi -family zoned land within the City which could be developed. Quoted from the City Goals and Objectives supporting maintenance of the character and identity of older neighborhoods. Ken Waido: Presented the following comments concerning_tbe rezoning -:request History: 1965 rezoned to RM in anticipation of aiding student housing problems. 15% of units in neighborhood are multi -family at this time. Planning Department used following elements of City's Comprehensive Plan in analyzing this rezoning request: 1. Background Report (January 1977) 2. Goals and Objectives (August 1977) 3. Existing Land Use Report (November 1977) -Also utilized computerized Land Use Inventory. In the beginnings of the Fort Collins "Comprehensive Planning Process" the unique problems of older neighborhoods surfaced. Redevelopment Citizens Task Force on Comprehensive Planning noted these problems: Background Report housing conversions due to zoning ordinance Goals and Objectives to alleviate problems Existing Land Use Report also refers to the problems of housing conversions and neighborhood stability problem: present RH and RM zoning districts recommends: reduction in size of the areas covered by the RH and RM zones. The Planning Department believes this neighborhood clearly can be included as part of the over -extended RM zoning district. Conversions of houses to multi -family use are probably due Planning and Zoni�Board Minutes • March 6, 1978 page 3 more to economic interests of scattered individual property owners than to heavy pressures for student housing. Figures indicate that approximately 15% of units in area are multi -family units. When viewed over a 12 year period there does not seem to be overbearing pressure on this area to provide housing conversions. With the leveling off of CSU enrollment and the opportunity in other sections of the City for apartment provision there should be less pressure exgrted in the future. Thus, based on elements of the Comprehensive Plan and the lack of indication that the area is needed to provide multi -family housing; Staff recommends: Approval of this petition. Les Kaplan: Presented the Board one letter written in opposition to the rezoning (attached). -_ Kelsey Smith(co-owner of proposed Kelger Park Subdivision located within _ the area of the requested rezoning): said he was not opposed to the rezoning provided the City honored its approval of the Kelger Park Subdivision. Bob Burnham: Asked for a show of hands from those opposed to the -rezoning - ten. Ada Morgan(1808 W. Mountain): Stated she lived west of Bryan and requested the area between Bryan and Grandview not be downzoned. Frank Richards(1810 W. Mountain): Felt because of the large amount of vacant land in the area betweenBryanand Grandview that it should stay RM. J.D. Loucks(Realtor and Appraiser): Said land would appraise up to 35% more in the RM zone. Thought there was not an overabundance of RM zoning especially in relation to the downtown core area of the city. Kemper Riffe(116 Lyons): Objected to the manner in which petitioners sought signatures for the downzoning. Thought it might be illegal to point at a single proposal (Kelger Park) as an example of what would happen to the neighborhood if the downzoning did - not occur. Argued it was more rational to promote increased density in populated areas of the City to help preserve and maintain a measure of open land and to stop the spread of pollution. Bob Burnham: Told the speaker to conclude his remarks and said he could not address the issue of how signatures on the petitions were obtained. Riffe: Claimed the petitioners were more concerned with a neighbor- hood then the quality of air and.that they were introducing "outside" values which appeared anti -people. Alice Milton(116 Pearl): Claimed petitioners used duplex examples only Planning and Zoni Board Minutes March 6, 1978 • page 4 to highlight the differences between RL and RM zoning. Said scare tactics had not been employed. Wm. Dressel: Asked counsel what the status of Kelger Park was. Lucia Liley: Said the subdivision plat had received approval from Council but that no vested rights yet existed. Hence, if Council approved the downzoning, the development would be prohibited. Wm. Dressel: Asked what the consequences of excluding the Kelger Park site from the rezoning -request were. Lucia Liley: Said it might constitute spot zoning to benefit a property owner. Suggested as alternatives tabling the item or delaying its appearance before Council to allow building permit issuance, thus establishing a basis for vested rights and legal non- conforming status. Gary Ross: Thought the down zoning should encompass the entire site or nothing at all. Saw no logic in allowing duplexes in one spot but not in others. Prefered tabling action. Wm. Dressel: Said maintaining the "character" of the neighborhood was a - - good idea and was supported by the Goals and Objectives. Questioned the rationale of including in the rezoning request the area between Bryan and Grandview. Robert Evans: Asked for staff input on the area between Bryan and Grandview. Ken Waido: Said it was a -typical, had no sewer system and recommended it be downzoned. Wm. Dressel: Said because the original premise for RM zoning - to provide student housing - was no longer valid and because the .Goals and Objectives supported such rezoning action, moved to recommend approval with special concern that City Council consider establishing vested right status for Kelger Park. Gary Spahr: Seconded the motion. Robert Evans: Expressed reservations about rezoning the'area between Bryan and Grandview. Thought the area needed a higher zone to attract development. Wm. Dressel: Agreed, but thought not enough concern had been expressed about it. Bob Burnham: Agreed with Robert Evans and also concerned about maintaining city credibility toward the Kelger Park developers. Wm. Dressel: Asked counsel if Council could not work out a solution for establishing vested rights for Kelger Park. Lucia Liley: Said it might be possible and would be worked on. Gary Ross: Objected to frustrating• the motion. Said it was wrong to Planning and Zoni0Board Minutes March 6, 1978 page 5 • use gimmicks or loopholes. Vote: Robert Evans - NO; wanted land between Bryan and Grandview excluded from the rezoning. Gary Ross:- YES Wm. Dressel - YES Gary Spahr - YES Bob Burnham - NO; concerned with area between Bryan and Grand- view and with the Kelger Park site. The motion carried, 3-2 3. 036-78 Kotich, et. al. - Mathews Street Rezoning. Description: Proposal to rezone 3.54 acres located at the northwest corner of Mathews Street and Dartmouth Trail from H-B, Highway Business District, and B-P, Planned Business District, to R-M-P, Medium Density Planned Residential District. Applicant: Ralph J. Kotich, 212 Dartmouth Trail, Fort Collins, Colorado, 80521. John Kochenburger(attorney representing Ralph Kotich, the applicant): Said the rezoning was the result of the proposed skateboard park. Said erroneous zoning was a basis for a zoning change2. Said a zoning which permitted "parlors" did not fit with the area. Bob Burnham: Told the speaker to restrict comments to the rezoning question. Kochenburger: Said he had petitions with 690 signatures supporting the rezoning. Ralph Kotich(212 Dartmouth): Said petitioners were attempting to preserve the character of the neighborhood. Said a down zoning would not deprive the property owners an economic return on their land. Felt a majority of the residences in the area supported the 'rezoning. Les Kaplan: Recommended denial on the basis of the following comments: Traditionally, the validity of an amendment to the zoning ordinance is recognized according to the principle of "changed conditions" or "mistakes in the original ordinance". While conditions in the area have obviously changed since 1970, the petitioner does not demonstrate how such changed conditions now warrant an amendment to the zoning ordinance. Nor has the petitioner referred to a failure of the City to foresee or to an actual, present error of classification at the time of initial zoning. Clearly the development of H=B uses would impact the sur- rounding residential areas. However, the site plan review requirements for development within the H-B zoning district are intended to_protect nearby uses from unreasonable in- trusions. The use a person makes of his property must inevitably affect Planning and Zonin Board Minutes March 6, 1978 • page 6 his neighbors. These real interests are entitled to be balanced against the rights of a property owner. A property owner with a proposed use is not required to ob- tain the consent of persons neighboring the property; this goes beyond any reasonable public purpose. However, through the process of public review and comment offered through P.U.D. development, the public is encouraged to come forward with those site planning recommendations which would help assure the compatibility of a proposed use. It is possible that conditions imposed at the time of site plan review could serve to restrict the developed uses of the site. Were this to apply to the majority of permitted uses within the zone, the appropriateness of the district would indeed be questionable. According to case law, property owners have no vested rights by reason of the enactment of an ordiance establishing use districts. However, if a general zoning ordinance is passed and persons buy property in a certain district, they have a right to rely upon the rule of law that the classifica- tion made will not change unless the change is required for the public good. Vested interest does occurs as incremental steps are taken to improve the property. The power to amend is not arbitrary. It cannot be exercised merely because certain individuals want it done or think it ought to be done. It should be assumed by the Planning and Zoning Board and the City Council that the original ordinance was validly enacted. The mere enactment of the original ordinance gives use to certain presumptions, i.e., that the restrictions and permitted uses are reasonable and appropriate and that the boundaries of the district are similarly reasonable.• The burden of proof of original mistake or substantial change is upon the proponents of the change. While sound arguments exist for higher density residential zoning on the subject site, the burden of proof deals with proving error in the existing zoning classification or a substantial change in the character of the neighborhood. Said one letter was received from Bill Wyatt opposing the rezoning. James Martell(attorney representing Bill Franz): Objected to the downzoning and submitted a legal brief (attached). Said the rezoning request violated the comprehensive nature of zoning, possibly constituted spot zoning, was zoning for particular people, not the general public, was unconstitutional in that it was a denial of equal protection. Said the applicants had not proven substantial changes had occurred in the neighborhood. Paul Harder(owner of apartment complex on Dartmouth): Argued for the rezoning on the basis that the site was surrounded on three sides either Planning and 2onig Board Minutes March 6, 1978 • page 7 by residences or a park, that the current HB zoning was invalid since it was not on a highway, that HB zoning should not have residences contiguous. Said property had once been zoned RH and would insist the city prove the existing zoning. Les Kaplan: Said the 1965 zoning map showed the site zoned BP and BG and that prior to 1965 the area had been zoned commercial. Harder: Disagreed. Questioned how he could have developed an apartment complex in the area if the zoning had been other than RH. Eldon Ward: Said the zoning where Harder built the apartment complex had been RM at the time building permits had been issued. Harder: Asked how he could have built at the density he did if the zoning had been RM. Eldon Ward: Said he should not have been permitted to build. Lucia Liley: Told the Board it must proceed according to what the Planning Staff said was the correct zoning or table the item. Gary Gass(2223 Mathews): Said there had been a great deal of change_.in;:the area. Kochenburger: Said he had been unable to determine previous zoning but thought the present classification constituted spot zoning. Mr. Warren(308 Dartmouth Trail): Said he was under the impression the zoning had once been RH. Phyllis Wells: Said zoning configuration was significant because the argument for rezoning would be made weaker if the area had a long history of being zoned commercially and made stronger if it had once been residential. Wm. Dressel: Agreed with comments that there had been substantial .,change, that the HB zone didn't have a highway near it, and that the surrounding area was predominantly residential. Suggested rezoning the HB to BP. Gary Ross: Disagreed. But suggested changes in the HB zone itself (adult uses, warehouses) negated its acceptability in a predominantly residential area. Robert Evans: Agreed with Wm. Dressel. Moved to zone the HB to BP and leave the rest as is. Wm. Dressel: Seconded the motion. Said such zoning would soften the - impact on the surrounding neighborhood. Planning and Zor0 Board Minutes • March 6, 1978 page 8 Phyllis Wells: Gave her reasons for favoring the motion: Remington not a thru-street; increased residential intensity; BP orientation toward neighborhood services and protection of surrounding areas. Felt these aspects were important vis - a - via the Goals and Objectives which promoted less traffic infringement on residential areas. Did not consider this an easy decision when the vested rights of the skateboard developers were considered. Vote: Robert Evans - YES Gary Ross - NO, Felt a skateboard park would be an appropriate use at the site. Felt if a downzoning were to carried out it should be down to a residential zone. Wm. Dressel - YES, Said residential uses were allowed in the BP zone. Thought the proposed skateboard use -only pointed out the: inappropriate uses permitted in the HB zone. Phyllis Wells - YES, Said consideration of the proposed use and the rezoning request had to be kept seperate. Said all uses permitted in the HB zone had to be considered in a request for rezoning. Gary Spahr - YES Bob Burnham - YES The motion carried, 5-1. Les Kaplan: Said Board should proceed with consideration of the Skateboard Park P.U.D. since City Council would have to consider it without a Planning and Zoning recommendation otherwise. Lucia Liley: Noted a recommendation of approval for the skateboard P.U.D. would be inconsistent with the previous recommendation on the rezoning, but that such a recommendation could be made if the Board made it clear to the Council it was contingent upon denial of the rezoning. Bob Burnham: Said the Board would address the Skatepark proposal. Les Kaplan: Said Planning and Zoning recommendations on both the rezoning and the Skateboard proposal could go before Council March 21. Bill Wyatt: Asked if what the Skateboard developers would submit to Council for consideration would be a final with all the required engineering details completed. Paul Deibel: Said no and that a preliminary could be submitted for Council reaction. Said it would be difficult for the Planning staff to give thorough review to a final submittal prior to the March 21 Council meeting. Wm. Dressel: Said the item could be put off until Council consideration but thought it unreasonable to ask all the people in the audience to return a second time. Asked if the applicants wanted the Planning and Zoning Board to review the item. Planning and Zon* Board Minutes . March 6, 1978 page 9 Bill Wyatt: Said he did want to go ahead but did not want to be faced with a situation where all the expense for engineering and drawing of final plans was put out only to have the issue of the Skatepark P.U.D. made moot by a rezoning which would not permit it. Said the situation indicated why there were laws dealing with abuse of process and said that was what was happening in this instance. Said it was illegal. Les Kaplan: Explained the normal process was to submit the preliminary to Council prior to the final and that if the applicants went ahead with a final submittal to Council without first submitting a preliminary, they would be doing so at their own risk. Kochenburger: Said there were many people wishing to be heard. Bob Burnham: Said it was the concensus of the Board to consider the Skateboard P.U.D. 4. #24-78 Skate Park P.U.D., Preliminary Plans. Description: Proposal for a recreational P.U.D. on two acres zoned H-B, Highway Business District, located at the northwest corner of Mathews Street and Dartmouth Trail. Applicant: Vigor Construction, 5800 E. Vine Drive, Fort Collins, Colorado, 80521. Paul Deibel: Made the following staff comments: 1. Landscape treatment. The revised plan still provided no detail with respect to the landscape design within the skateboard run area. The peripheral landscape treatment shows sufficient number of trees, however, this peripheral treat- ment should be better integrated into the overall design of the park. on the one hand, overall landscape treatment is normally not required for preliminary plans. The applicant is also understandably hesitant to undertake detailed landscape design without a preliminary indication of approval by the City. On the other hand, overall landscape treatment is critical to the review of this proposal because; a) the visual impact of this or any skateboard park will be largely dependent upon internal landscape design (inasmuchas the use would be enclosed by a see -through green vinyl covered chain link fence, and because adjacent residential uses will look down on the site) and, b) the most feasible if not the only way to mitigate noise and lighting impacts for an outdoor use at this location is through landscape treatment. (It should perhaps be noted here than an alternative way to completely eliminate noise and lighting impact would be to contain the skateboard use within a structure. However, the visual aesthetics of a building or other structure large enough to be feasible would probably be undesirable at this location. planning and Z g Board Minutes March 6, 1978 page 10 It would also perhaps be unsuitable to the sport of skate- boarding.) Specifically the staff would suggest the extensive use of large deciduous and coniferous trees within this area so as to provide visual relief through vertical landscape elements. :.This treatment should be such that it would also absorb noise as well as eventually provide a canopy effect, at least while the shade trees were in leaf. (The staff recognized that this approach will require significantly greater maintenance.) The plan should also indicate landscape treatment in the R.O.W. along Remington. The use should also be recessed 6' from the property line along Remington so as not to conflict with utility easements. 2. Lighting. The applicant's written statement indicated that "the skating area will have seven pole lights --- which will be non -glare direct into the skating area." This may - -be -a feasible minimum impact treatment, but lighting should be carefully designed and specified on the plan in conjunction with the landscape design. 3. Noise. The written statement submitted by the applicant indicates that noise would not be a problem. The attached report from the American Society of Planning Officials tends to support this position. It is the staff's opinion that the noise generated on a busy day (100 skateboarders) would perhaps be less than or equal to the noise emanating from a community swimming pool. Landscape treatment could be used to absorb some of this noise, as noted above. 4. 'Parking. The staff questions the sufficiency of proposed parking. The attached ASPO report suggests 1 space per 5 skateboarder capacity, which when added to the standard parking requirements for the proposed building would indicate a need for at least 32 spaces as against the 23 proposed. The applicant feels that this parking would be excessive, as discussed in his attached written statement. Also, the parking lot layout should be improved to provide circular movement as well as to eliminate unnecessary drive lane asphalt. Bicycle parking should be addressed in much more detail than simple a note on the plan that 40 bikes will be accommodated. 5. Vacant area. As noted last month, it is insufficient to designate areas within a P.U.D. as being for "future develop- ment." Permanent uses or landscape treatment should be indicated for at least the 2.0 acres (min. size for a P.U.D.) on which the use is located. Specifically, additional parking and landscaping could be shown for the area at . the corner of Spring Park Dr. and Remington Street. 6: Termination of Use. An additional concern raised by the Police Department concerns security of the skateboard area if the business is unsuccessful and the use terminates. Planning and Zonip Board Minutes March 6, 1978 page 11 Said Board action hinged on whether or not the plan could be designed to mitigate effects on the neighborhood. If it thought it could) then conditional approval was appropriate. Said the staff position was that problems could be rectified and that approval was recommended contingent upon the final returning for review by the Planning and Zoning Board. Bill Wyatt: Said the applicant concurred with the staff recommendation. But objected to the late date at which the applicant was made aware of staff comments and concerns regarding the preliminary submittal (Friday prior to the Planning and Zoning Board meeting). Said the applicant was willing to supply internal vegetation. Thought the plan was compatible with Edora Park and the proposed bank. Said he considered the applicant to have met alI regulations and that, given enough time, would continue to co-operate. Thought it prudent to move the item along with the rezoning petition on the site. Wm. Dressel: Said problems existed with the area just north of the site included as part of the P.U.D. but not designated for any use. Said this made the plan deficient. Said that it was not the staff which was at fault in the delay of information since it was the onebeingrequired to find the necessary revisions and improvements to make the proposal compatible with the neighborhood. Said this was not the staff's responsibility and that the applicants should have submitted a proposal anticipating staff concerns, hence avoiding any delays. Wyatt: Said no insinuation was intended by his comments. Les Kaplan: Said the undeveloped part of the P.U.D. would have to be, at the minimum, landscaped. .Phyllis Wells: Outlined other concerns with the proposal: accessability for young people regarding drop-off traffic, safe bicycle parking and good internal pedestrian circulation. , Wyatt: Requested those concerns be made into conditions of approval. Bill Vigor(applicant): Said the drop-off design as designed on the plan was staff recommended. P$ul Deibel: Concurred, but suggested better drop-off design for the internal area should also be provided. John Kochenburger(representing those opposed to the plan): Said if the Planning Department had worked out all problems what need was there for those opposed to be present. Asked if the whole thing was predetermined. Asked if the people were per- mitted to say whether they wanted the Skateboard Park or not. Bob Burnham: Said that design features were under consideration. Planning and Zo Board Minutes March 6, 1978 page 12 Wm. Dressel: Said if the use is premitted then only the design features should be considered but asked counsel to clarify the issue of incompatibility. Lucia Liley: Said the Board should consider only the design features subject to the possibility that, regardless of conditions imposed, a plan submitted was so incompatible with the surrounding neighborhood that it would never be approved. Suggested Mr. Kochenburger could address the inability of landscaping and other revisions to solve the incom- patibility issue in an effort to make the question of use within the zone relevant. Kochenburger: Bob Burnham: Said counsel'was indicating he had a burden which was impossible to meet. Said the ordinance indicated the Board and City Council could approve a submittal, not that they were required to grant approval. Said if the latter were the case even the most liberaluses permitted in a zone would have a carte blanche. Restated the issue: does the plan as submitted mitigate neighborhood concerns over the proposed use? Kochenburger: Said the neighborhood was concerned about having a pinball parlor and skateboard rink on the site. The people were concerned with a high intense use in the middle of their homes. Questioned if a neighborhood deserved subjection to such treatment. Said he and the people he represented were not going to assume that it was law that required them to put up with such intense use. Said the facility would have 5000 members with 500 daily users and the neighborhood would have to put up with these type of people. Said it could create 500-800 cars a day coming from across College Avenue; that it was not an attractive venture; it would be lighted; would go on late into the night; would abut residential areas; would expect teenage traffic going through homes; would be impossible to landscape it so it could not be seen; impossible to cut sound; that the area was too small for what's contemplated - too intense for the neighborhood. Submitted petitions with 730 signatures opposed to the plan. Bob Burnham: Asked if this proposal mitigated neighborhood concerns. Kochenburger: Said it did not mitigate the intensity, lighting, noise, or traffic. Ralph Kotich: Requested calling three people who were residents of the Quarter -Horse area and who "went through Hell". (Located at corner of Harvard and Remington). Gary Blinger(Resident Harvard at Remington): Said ran into problems of control of the young people, night lawn parties till 2-3 a.m. Concerned about location of the skateboard Planning and Zo Board Minutes • March 6, 1978 page 13 park. Not a proper location for a pinball parlor - asked if he was correct in stating there would be a pinball parlor. Paul Deibel: Said there would be a pinball arcade. Blinger: Said there was heavy abuse of drugs at the Quarter Horse, evening parties, and found it very upsetting. Jim Hartman(2216 S. Mathews): Concerned with increased traffic on Mathews and the problem of handling both parallel parking - and through traffic. Did not want his grandchildren playing pinball. Larry Moline(312 Dartmouth Trail): Thought parking overflow would impinge on Edora Park and that the park would "liven up" after the skateboard.facility closed in the evening. Harold Bowling(1519 Mathews): Said he understood the concern of the neighborhood. But said he'd seen skateboard parks in other areas and that they were quiet because of the high degree of concentration required to perform the sport. Said it was unjust to judge the proposal as a porno -place - that each businessman runs his business as he saw fit. Said property values in 'San Diego were enhanced by a skatepark. Noted traffic problems would not be as serious as suggested since not every skateboarder in the City would be there at the same time. Jim Webber (Director Wilderness -Ranch C6nference Association): Said his interest was with the young people in the community, not in the neighborhood or the specific proposal. Said he was concerned about drug abuse by youth and was upset that these people were so quick to get "up in arms"' about a proposal giving young people something constructive to do to occupy their time. Said he was willing to place his reputation on the line that the project would be handled correctly. Skateboard enthusiast: Said most kids lived East of College Avenue. Suggested there were other places to play pinball more appropriate than a skateboard park and that it was logical to assume that those people who would frequent the skateboard park were there to skate, not play pinball. Steve Perk(Green Hall, C.S.U.): Said skateboarders at C.S.U. were enthusiastic about the proposed skateboard park. Pointed out that the location was close to a firestation with two paramedics, that skateboarding is tiring leaving little energy for post -skateboarding parties, that the site is next to a bus route and bike path. Paul Harder: Said the proposed plan was based on financial economics, not necessarily for the public good. Suggested everyone was familiar with outdoor amusement parks. Planning and Zo� Board Minutes March 6, 1978 page 14 Cathy Neiswender(Ri.alto, California): Said she worked with young people and suggested if the adults in the audience were concerned about drugs, they should visit the high schools attended by their children. Said her father (W.F. Vigor) had been building with integrity and pride in Fort Collins for 5 years. Phyllis Wells: Asked staff how much undeveloped HB zoning existed in the city. Les Kaplan: 210 acres. Wm. Dressel: Asked staff if it felt the plan could be integrated into the cmammity. Les Kaplan: Said yes. Gary Ross: Noted that the site was unusual with the apartments to the south sitting above the site of the proposed Skateboard Park. Paul Deibel: Said that was the reason so much emphasis was being placed on interior landscaping. Gary Ross: Said many comments and intense feelinqs had been expressed. Was aware of concerns by the neighborhood about property values and other problems. Pointed out the majority of growth was to the southeast mitigating the problem of crossing College Avenue. Said it was necessary to set emotions aside and work out the most reasonable approach to solving the incompatibility of the proposal with the neighborhood in the event the park actually went in. Robert Evans: Expressed concern with the 'cumbersome" drop-off situation. Thought internal landscaping would make the proposal viable and that it would create only maintenance,not safety problems. Phyllis Wells: Moved to recommend approval subject to all staff conditions, subject to consideration for the safety and parking of bicycles, subject to final plans returning to the Planning and Zoning Board, and subject to City Council denying the requested rezoninq of the site. Said her motion was made in the belief that all problems could be mitigated and that in the event City Council approved the rezoning request the applicant, with 210 acres of undeveloped HB zoning to choose from, could easily relocate the park. Gary Ibss: Seconded the motion. Asked to prohibit piped music. Kochenburger: Asked how it could be prohibited. Lucis Liley: Said such a condition could be made a stipulation of approval. Gary Ibss: Also requested the area at the north end of the site be designated as a parking and landscaping lot for at least Planning and Zon* Board Minutes March 6, 1978 page 15 a year. Paul Deibel: Said to express that as a part of the final plan to be used as additional parking if necessary. Gary Ross: Requested it be cut and dry so there could be no contention about the necessity. Phyllis Wells: Accepted both Gary Ross's amendments to her motion. Gary Spahr: Said he thought the proposal could be made compatible but suqgested wider landscaping around periphery and wider vegetation spacing within the site. Paul Deibel: Said he agreed wider spacing was probably necessary. Vote: Motion carried unanimously. Bob Burnham: Said the item would go to City Council alona with the rezoninq request. 5. #34-78 Betz - Eastgate Rezoning. Description: Proposal to rezone 2.27 acres located on Riverside Avenue between Montgomery Street and Pitkin Street from R-MAP, Medium Density Planned Residential District, to B-L, Limited Business District. Applicant: George W. Betz and Danny J. Bailey, P.O. Box 7, Fort Collins, Colorado, 80521. George Betz(applicant): Requested the rezoning to establish a buffer between the RMP zoning at the rear of the site and the industrial zoning across Riverside Avenue. Les Kaplan: Gave staff position and recommended approval. Said the•BL zone would promote the establishment of a hard physical buffer as opposed to a parking lot. Fan. Dressel: Asked if the strip would orient toward the interior. Les Kaplan: Said the design was not being proposed but that such a layout was feasible. Wm. Dressel: Suqgested such a configuration would impose on the RMP zone. Phyllis Wells: Asked if there was site review in the BL zone. Les Kaplan: Said no. Phyllis Wells: Said the ordinance called for a fence or wall to separate the BL zone. Thought the RMP zone would have to be buffered from any BL zone. Bob Burnham: Thought with good responsible design, RMP was the best zone. Felt there were too many unanswered questions. Planning and Zoning Board Minutes , March 6, 1978 • • page 16 Phyllis Wells: Pointed out the RMP zone had a coimiercial allotment. Betz: Said internal traffic routing was intended to avoid curbcuts onto Riverside. Gary Ross: Said BL zoning didn't provide enouqh buffering. Sugqested BP. Dan Bailey (applicant) : Asked if the BP zone allaged the same uses as BL with the addition of site plan review. Les Kaplan: Said BP zoninq was slightly more permissible. Bailey Said any road would be more like an alley, not a major street and would not generate much traffic. Ed VanDriel: Asked what the commercial allotment in the RMP zone was. Les Kaplan: Said about 3,000 square feet. Gary Foss: Moved to deny the requested BL zoning and recommended BP. Fdobert Fans: Seconded the motion. Vote: Robert Evans - YES Ed VanDriel - NO, favored the RMP zone. Gary Foss - YES Wm. Dressel - NO Phyllis Wells - NO, favored the RMP zone. Gary Spahr - YES Bob Burnham - YES Rhe motion carried 4-3. 6. #33-78 HCI - FA�nay Avenue Rezoning. Description: Proposal to rezone 5.8 acres located south of East Drake Road on Lemay Avenue from R-P, Planned Residential District, to B-P, Planned Business District. Applicant: HCI, Inc., P.O. Box 1208, Fort Collins, Colorado,80522. Gene Mitchell (applicant) : Explained he had discussed his plans for increasing the BP zoning at the corner with all the neighborhoods in the vicinity. Said the larger BP zone was necessary to accommodate a larger scale neighborhood facility and that this was consistent•.gith city plans and policies. Said the additional acreage was necessary to provide room for a buffer to the area south of the site. Said the design of the center would conform to the affluent nature of the area. Ken Waido: Gave staff position and recomc-ended approval. Les Kaplan: Submitted letters, two opposed and three in support. Planning and Zoning Board Minutes March 6, 1978 • page 17 Bob Burnham: Told the Board not to weight the visual aids too much since only a rezoning was under soncideration. John Eckel(V.P.Parkwood HOA): Read a statement opposing the rezoning. Earl Hocgan Member Parkwood Meadows HQA): Saw no need for additional neighborhood service facilities." Concerned about increased traffic and a cheapening of the area. Lloyd Yarlow(2717 Aberdeen Court): Spoke in favor of the petition. Suqgested that if enlarging the site would mean a better done develop- ment then the rezoning should be granted. Wilbur Garfield(2700 Balmoral Ct.): Supported the requested rezoning. Phyllis Wells: Questioned the size of the proposed facility. Concerned about the line between a neighborhood service center and a rajor shopping center. Suggested that if areas to the south (Collindale, Collindale South North Shore etc.) stuck to their allotted commercial square footage.then:a bigger area was needed. Wm. Dressel: Asked staff why it was recommending approval here and had recommended denial for a similar rezoning at the corner of, Prospect and Lemay. Ken Waido: Said the present proposal was adjacent to an existing commercial zone which was not the ..ease at Prospect and Lemay. Said there was not another potential site capable of handling the proposal within a mile. Phyllis Wells: could see some advantages in the request but still expressed doubt about the potential "regional" size of the proposal. Les Kaplan: Said the proposal complimented the South Fort Collins Land Use Report. Suggested that when the site was originally zoned BP the decision not to make it larger might not have been farsighted enough in light of the way the city was growing. Wm. Dressel: Didn"t think the larger size would generate any more traffic. Phyllis Wells: Suggested approval would constitute a good argument against any other commercial development in the area. Ed VanDriel: Said there were commercial allotments at both Collindale and Collindale South. Also, thought the traffic problems could be bad. Les Kaplan: Pointed out that none of the surrounding areas had used their commercial allotments and that Scotch Pines was the first to do so. Phyllis Wells: Asked what the Council decision regarding the commercial site in Collindale South had been. Les Kaplan: Said it had left it in the T zone. Planning and Zonin�Board Minutes March 6, 1978 page 18 Vh. Dressel: Said it was essential. to he critical of the increased size and expressed concern that the site was too close to other commrcial areas. Bob Burnham: Had no problems with the increased size and thought the interior orientation was a plus. Gary Ross: Pointed out that eight major subdivisions were located along Iemay Avenue and considered this a logical spot for a com- mercial site. Nbved to recommend approval. Iobert Evans: Seconded the notion. ` Vote: Robert Evans - YES Ed VanDriel - NO Gary Ibss - YES Wm. Dressel - YES Phyllis Wells - YES, Urged City Council to the further implementation of the South Fort Collins Land Use Report and that this enlargement should not necessitate anv further large commercial rezonings and that other convenience centers should be located as part of P.U. D. allotments.1 Wm. Dressel: Asked that the record show that he agreed with Phyllis Wells's comment in relationship to further development south. Gary Spahr - NO, Felt the location for such a commercial site would be more appropriate further to the south. Bob Burnham - YES The motion carried. 5-2 7. #30-78 Fletcher - N. College Rezoning. Description: Proposal to rezone 7 acres located west of North College Avenue and north of Hibdon Court from M-M, Medium Density Ibbile Home District, to H-B Highway Business District. Applicant: L.W. Fletcher, 1801 Falls Court, Loveland, Colorado, 80537. The petitioner was not present. Gary Ross: INbved to table the item to the following Monday meeting. Bill Thompson (Neighbor to the south of the property being petitioned for rezoning): Stated he had come in opposition and was disappointed to have waited so long for nothing. Questioned the logic of zoning the land HB since it did not have frontage on North College Avenue. Bob Burnham: Advised Mr. Thompson to stay in touch with the Planning Office. Planning and ZonieBoard Minutes . March 6, 1978 page 19 Ed VanDriel: Seconded the motion. Vote: Motion carried unanimously. 8. #31-78 Buckeye - Buckingham Rezoning. Description: Proposal to rezone 14 acres located east of third Street and south of Buckingham Street from R-M, Medium Density Residential District, to I-L, Limited Industrial District. Applicant: Buckeye Land and Livestock Company, Inc., P.O. Box 35, Eaton, Colorado, 80615. Charles Unfug(Attorney representing the applicants): Requested IL zoning because the site lacked easy access, the unusual topography, to adjoin the IL property to the east and to encourage development. Les Kaplan: Recommended IP zoning, pointing out the differences between IL and IP zone did not involve uses permitted so much as performance standards and landscaping. Ed VanDriel: Asked if site was in the floodplain. Ken Waido: Said it was in the floodway fringe. Bob Burnham: ThoughtlP was more appropriate because of the residential zoning directly to the north. Wm. Dressel: Nbved to deny the request for IL and recommended the site be zoned IP. Ed VanDriel: Seconded the motion. Vote: Motion carried unanimously, Gary Ross abstained. 9. 432-78 CSU - West Prospect Rezoning. Description: Proposal to zone 7 acres located on West Prospect Street east of Center Drive, B-P, Planned Business District. Applicant: George G. Olson, President, CSU Research Foundation, Administration Building, Colorado State University, Fort Collins, Colorado, 80523. George Olson(President CSU Research Foundation): Said the request was submitted to permit construction of a hotel near the CSU Student Center. Said the Foundation would be neither constructor nor operator of the hotel. Wm. Dressel: Asked if the lease would be subordinated. Olson: Said yes. Lucia Liley: Asked how long CSURF had owned the property. Planning and Zoninn Board Minutes March 6, 1978 • page 20 Olson: Said since 1970. Said he would accept a restriction to allowing only a hotel on the site. Dick Siever(Commercial applicant): Said the facility would not be a convention center but only a facility to compliment CSU. Did not think the hotel would compete with any new downtown hotel. Said the intent was for a national franchise with high rentals. Said it was essentially a private, tax paying venture. Ken Waido: Gave staff report and recommended denial - based on the following comnents; Denial of the petition. Attempts to rejuvenate the core area of Fort Collins hinge on changing the tradional function of the Central Business District. Because of the establish- ment of a regional shopping center and the alternate. commercial activities on College Avenue, the Central Business District will never be able to regain its prominence as a retail sales center. Rather, as suggested by Barton- Aschman Associates, Inc., the CBD should be an area of specialty markets such as restaurants, entertainment facilities, and student oriented shops. The emphasis of the area should be on attracting non -retail components such as offices, motels, and residential units as a first step in developing an activities center image of the core area. If the area can develop as suggested, then an expanded retail function is possible at a later date. The Barton-Aschman Associates, Inc., report was prepared in December 1974. There is a possibility that the economics of the situation concerning conference hotel facilities have changed. There may be new market findings which will effectively nullify the conclusions of Barton-Aschman and two, or more, conference hotel facilities are now possible in Fort Collins. However, it is not the Planning DeparttTents duty to analyze whether a private enterprise proposal is financially feasible. It is the staffs duty to implement City goals and policies. The Planning Department believes the redevelopment of the core area of Fort Collins is one of highest priorities of the City. Although the proposed facility is absent and needed within the City and the proposed site has no major difficulties the staff is recommending denial of the petition. The first locational preference for a conference hotel facility should be in the core area. Any similar facility which develops outside of the core area can only undermine the chances, regardless of economic market analysis, of a location of another facility in the core area. The Planning Department fears that consideration of this proposal will parallel the type of consideration given the Hewlett-Packard rezoning request"in the spring of 1976. The Planning Department agrees the facility'is needed, will be of tremendous economic benefit to the City, etc. However, Me the Hewlett-Packard request, the Department feels the Planning and Zon Board Minutes March 6, 1978 page 21 • location is not appropriate. The staff feels the City should use its zoning power now, not so much to locate uses in proper locations, which is important, but also to use zoning as a timing mechanism. The staff recommends the City not to provide alternative locations for conference hotel facilities until such a facility is developed in the core area. Most of the analysis and recommendations have centered specifically on the location of a conference hotel facility at the proposed location. The requested zone is B-P, Planned Business zone, which allows many other uses. This analysis has not followed the normal procedure iof reviewing a site for all allowable uses within the zoning district because of the ownerships of the tract of land. Since the Colorado State University -Research Foundation is a quasi -public organiza- tion it has a direct input into how the land will be used. However, the staff had doubts whether or not a private lease will limit the uses and give the City adequate protection for land uses on the site. Barry McFall (President Fort Collins Innkeeper's Association): Requested the Board deny the rezoning petition because of increased traffic congestionand detrimental effects on downtown redevelopu nt. Protested the use of endowed funds. Thought the land should be sold at its appraised value. Asked what would happen with termination of the lease. Noted there were four motels within walking distance. Claire McMillan QJotel owner): Concerned having "big brother" involved with private enterprise. Agreed with comments made by the former speaker. Concerned that CSURF would own the hotel at the end of the lease creating unfair competition. Lyle Rodd(O.mer University Motor Inn): Said he was considering building a new motel downtown. Felt that a hotel on Prospect was not needed. Wm. Dressel: Asked how many rooms were projected. Siever: Said 120-140 with 500 of the business being CSU oriented. Said also there would be a few small meeting rooms. Said no access would be provided directly to or from Prospect. Ed VanDriel: Asked whether the project could proceed regardless of a City decision on the zoning. Lucia Liley: Said an agreement with the State Board of Agriculture had been made in 1965 allowing for CSU land to be annexed but that no zoning would be assigned. Said in this instance the land was owned privately (CSURF) and therefore develop- ment could be precluded by the City. McMillan: Asked Mr. Olson if CSURF considered selling the land. Olson: Said it was considered. Planning and Zoning Board Minutes March 6, 1978 • • page 22 McMillan: Said he did not want to compete with the state. Larry Preacher(owner Stonecrest Motel): Asked the length of the lease. Olson: Said 33 years. Gary Ross: Said traffic congestion,_must be considered. Phyllis Wells: Said the City conmitrient to the downtown was the most important consideration and that this issue could make or break it. Moved to deny the request. Wm. Dressel: Seconded the motion. Robert'Evans: Did not see the hotel comrpeting with downtown because of its orientation to CSU. Wm. Dressel: Said it was parammnunt to push the revitalization of the downtown area. Ed VanDreiel: Concurred. Vote: Robert Evans - NO Ed VanDriel - YES Gary Ross - YES Wm. Dressel - YES Phyllis Wells - YES Gary Spahr - YES Bob Burnham - YES, Said this demonstrates to the City to reassess its commitment to downtown. Said it was necessary to consider the tremendous growth and to reconsider and reassess the area between Downtown and South Fort Collins. Ihe motion carried, 6-1. 10. #35-78 Miller - South overland Trail Rezoning. Description: Proposal to rezone 2.77 acres located on Overland Trail south of Prospect Street from B-L, Limited Business District, to R-M, Medium Density Residential District. Applicant: Rex S. Miller, 1300 Glen Haven Drive, Fort Collins, Colorado, 80521. Eldon Ward: Said the petitioner had left. Gary Noss: Moved to table the item. Ed VanDriel: Seconded the motion. Vote: Motion carried unanimously. 11. #37-78 Laporte Business Rezonings. (County Referral) Planning and zon* Board Minutes • Mardi 6, 1978 page 23 Description: Proposal to rezone 4 acres at the intersection of N. Highway 287 and Overland Trail from O, Open to B, Business. Applicant: Area property owners, c/o L.L. and G.L. Bickel, 3310 N. Highway 287, Fort Collins, Colorado, 80521. Eldon Ward: Gave staff position and recommended approval subject to access onto and off Route 287 being regulated. Ed Vandriel: Moved to approve subject to staff conments. Gary Ross: Seconded the motion. Vote: 11 Pbtion carried unanimously. 12. #38-78 Higgason - North -Highway 287 Rezoning. (County Referral) Description: Proposal to rezone 1.2 acres located on U.S. 287 north of Willox Lane from O, open to C, Commercial. Applicant: Gene & Louise Higgason, 1125 E. Eisenhower, Loveland, Colorado, 80537. Eldon Ward: Gave staff position and recommended denial. Wm. Dressel: Moved to recomTend the .inappropriateness of the proposal based on the staff rationale. Phyllis Wells: Seconded the motion. Vote: Nbtion carried unanimously. 13. #39-78 Thomas - Iemay Special Use Review. (County Referral) Description: Request for a use requiring special review on 4.4 acres zoned FA, Farming, located on N. Iemay Avenue south of Willox Lane. Applicant: Wm. Thomas, 1409 Lindeureier Road, Fort Collins, Colorado, 80521. Eldon Ward: Presented the following discussion: This is a request for a permit for a garden sales shop as a supplement to the existing greehouse use on the property. The site is being considered for involuntary annexation to the City of Fort Collins. It was reviewed by the Board in January as the Hyatt annexation. Between the time the annexation plat was drawn up (and property owners noted) and the January meeting, the site was purchased by Mr. Thomas. The staff's information indicated the property was owned by Mr. Hyatt; therefore the correct property owner was not notified of the Board's annexation hearing. At its January meeting the Board followed the staff's recommen- dation and prescribed RLP, Low Densitv Planned Residential Planning and zoni*Board Minutes • March 6, 1978 page 24 zoning for the site: the rationale being that the site was surrounded on three sides by that zone. After closer examination, however, the staff feels the existing greenhouses and anticipated expansion would not be particularly problematical at this location. In order to facilitate expansion beyond 25ia without a variance, the site cannot be put into a legal nonconforming status. The IP- Industrial Park zone is the most restrictive zone that would allow a wholesale greenhouse use. Added that the use was retail, not wholesale. Recommended the Board approve the special use Permit and reopen the zoning discussion. Lucia Liley: Said rezoning could not be considered without notification. Wm. Dressel: Suggested recommending to Council that when it review the item, another zoning district might be advisable. William Thomas (applicant): Said he had never been informed of the annexation. Said an IP zone was not suitable because he would not be able to meet the required setbacks. Les Kaplan: Said the area could be annexed with legal nonconforming use status and that a variance could be sought for expansion beyond the allowable 25 percent. Wm. Dressel: Said there were two questions: The special use permit and the zoning question. Said if the special use permit was approved the implication was that the land use was compatible. Les Kaplan: Said if you zone to legitimize a land use it constituted spot zoning. Lan. Dressel: Said an error in zoning was made at the time of annexation. Phyllis Wells: Said the Board had been aware the site was used as a green- house but that the RLP zone had been assigned for future redevelopment. Ed VanDriel: Moved to recommend granting the Special Use Permit and that City Council consider zoning the site according to the present use. Wm. Dressel: Seconded the motion. Lucia Liley: Suggested the zoning question should be reconsidered by the Board. Les Kaplan: Asked if the applicant had a zoning request. Thomas: Said he preferred to stay in the County. Phyllis Wells: Suggested Thomas and the Planning Staff meet to consider what zone would be most appropriate. Planning and Zoni�Board Minutes • March 6, 1978 page 25 Thomas: Asked that the annexation plat be changed to carry his name. Vote: Motion carried unanimously. Gary Ross: Moved to adjourn the meeting. Wm. Dressel: Seconded the motion. The meeting adjourned at 1:15 a.m. : 79_ ,7 0 • 1 Aberdeen Court t Collins, CO 80521 March b, 1978 City of Fort Collins Planning and Zoning Board 300 LaPorte Avenue Fort Collins, CO 80521 Re: HCl Request to Rezone Property on Lemay near Strachan Dear Board Members: As a citizen who loves Fort Collins and enjoys living here, I would like to urge the board to give very serious consideration before allowing the re - Zoning of the above -captioned property. Scotch Pines and the surrounding area is a beautiful residential area, with easy access to any conceivable shopping and services that one would or could possibly need. I would hate to diminish the attractiveness and the feeling of neighborhood by extending the boundaries of a shopping center. This development would add much congestion and unwanted activity to an area that has been one of the quietest and most pleasant in the city. Especially in the light of the expansion already in progress at Foothills, I do not believe there is a need for such a facility as is being proposed, or of a large a one that is requiring five acres (extra). You on the board are in the enviable position of deciding what Fort Collins will be like this year and five, ten, fifty years hence. I would not like to see Lemay Avenue as another South College Avenue, and I would hope you would not either. The project in question has grown from its original proposal, perhaps, too big for the neighborhood. Although traffic should be diverted from South College Avenue, I don't feel that needs to be done by a. shopping center, but merely by people realizing there are not shopping centers there to tie up traffic. Which brings me to another major concern: Will the city allow access to this shopping center on Drake or Lemay, or will it eventually be virtually in our back yards. This would dismay me and I would think dismay many residents of the area. I understand the design of the propsal is an attractive one and that is commendable, but the issue being, discussed tonight is doubling the size of the shopping center in a lovely residential area. I simply think the city can do very well without that kind.of development. I am not educated as I should be on this kind of presentation, but I want you to hear a very sincere citizen who has Fort Collins and a very special life style that the City has to offer, in mind. Than% you for your consideration in this matter. Respectfully submitted, • � : 33-71c March 6, 1978 Mr. Robert Burnham, Chairman Fort Collins Planning & Zoning Board 300 LaPorte Avenue Fort Collins, Colorado 80521 RE: scotch Pines Village Shops Dear Mr. Burnham and Members of the Planning & Zoning Board: It has come to the attention of the Parkwood Homeowners ,Association that HCI, Inc. is requesting additional commercial development land on the southwest corner.of Lemay Avenue and East Drake Road. This property is diagonally across the intersection from our subdivision. In 1975, the Planning and Zoning Board approved a zoning change for this site to BP. This site contained enough land to build 40,000 square feet of commercial devel- opment for a convenience neighborhood shopping center. It is our understanding that HCI, Inc. is now proposing 80,000 square feet of retail space plus 10,000 square feet of office space for this corner. The city planning staff has recommended that approximately 115,000 square feet would be needed for neighborhood retail space. We can understand the need for some convenience neighborhood retail space, but is 90,000 to 115,000 square feet really a neighborhood shopping center? The site for this proposed*commercial development is only 14 miles from Foothills Plaza Shopping Center and the Century Mall. Foothills Plaza is the major regional shopping center for Northern Colorado and Southern Wyoming. It now contains 400,000 square feet of enclosed shopping mall, which is only four times as large as the proposed development. In addition, Foothills Square Shopping Center is currently being built by HCI, Inc. on the southeast corner of South College Avenue and Horsetooth Road. It will have two major chain stores, and it will contain only.approximately 103,000 square feet. Foothills Plaza North is located directly across Foothills Parkway from the Foothills Plaza Mall. It runs from the Goodyear Tire Store on the corner of South College Avenue and Foothills Parkway Drive back to the Foothills Twin Theaters on the corner of Foothills Parkway Drive and Mathews Street. This complex is two blocks long and includes the Goodyear Store, Person to Person Finance, Safec•ay, Skaggs, The Twin Theaters and many other shops in between. It contains only approximately 96,000 square feet'. The new Plaza Shops being built north of Foothills Parkway and east of Majestic Savings and Loan will contain 53,000 square feet. Century hall is only 196,035 square feet. 5 Mr. Robert Burnham, Chairman Fort Collins P&ning & Zoning Board Page 2 We can also appreciate the need for satellite shopping centers to relieve traffic on South College Avenue. Our neighborhood is within 14 miles of three major existing supermarkets - King Soopers, Steele's and Safeway - plus the finest shopping in Northern Colorado. Residents of this neighborhood don't have to travel College Avenue to have access to the supermarkets, shopping centers or the downm-m area. Access to the Foothills Plaza Mall and surrounding shopping is via Lemay Avenue and Swallow Avenue into the rear of the Plaza. Traffic to the Downtown Area utilizes Lemay Avenue and Riverside Avenue, which is the most direct route. The proposed major shopping center would complicate an already congested traffic situation. The intersection of Lemay Avenue and Drake Road serves the fastest growing residential section of the city and one of the city's major industries, Woodward -Governor, which is currently expanding. As it is now, during rush hours it is very difficult to gain access onto Lemay Avenue from either Parkwood Drive or Kirkwood Drive. Since the proposed shopping center will require parking for over 600 cars, the present conjestion would be intensified. In addition, when Lemay Avenue is extended north across the Cache La Poudre River, it will be a direct access from the residential areas northeast of the city to the proposed shopping center. This will not only increase the traffic congestion even more, but it will also divert more shoppers from the downtown area. Another very serious problem with the proposed shopping center is water retention. Parkwood Lake is used as a storm drainage retention pond for the area east from South Mason Street. During heavy rains, the houses along Parkwood Lake have experienced flooding in the past. It will be difficult to control the additional runoff created by 100,000 square feet of roof and the additional 600 parking spaces. The City Planning staff and the Planning and Zoning Board have analyzed this site previously and have approved the zoning of enough land to build 40,000 square feet of commercial development. No circumstances have changed since your last analysis to justify an increase in the amount of land zoned for commercial uses. The Parkwood Homeowner's Board originally considered a mass petition campaign and a mass show of people opposing the Scotch Pines Village Shops at the March 6, 1978, Planning and Zoning Meeting. After reconsideration, our owners trusted the Planning and Zoning Board to honor their former commitment to zone enough land to build a maximum of 40,000 square feet of commercial development on this site. Mr. Robe* Burnham, Chairman • Fort Collins Planning & Zoning Board Page 3 If the initial commitment to the neighborhood is not reaffirmed, we are prepared and will make an indepth pre- sentation to the City Council regarding this issue. Your consideration for the neighborhood is sincerely sought. Respectfully submitted, Richard Niles, President Parkwood Homeowners Association E :arch 6, 197E 1 embers of the City Pianninc, and Zoning Board: It is the _position of the Fort Collins IrnheeDers Assoc- iation tha-� the City and -toning Board deny the request of the Colorado State University ilesCarch Foundation m to rezone the 'OrOpa:.: y CII �i. L'Ltos ect :i::., the 7 aC-CS 1G..�...,ated .. on the south side of the street, west of the Colorado Division of Wildlife office at 317 Ti. Fropspect St., to B-P - Planner: Business District. Based upon the facts that previous requests for simil?a= _owning for similia_ projects in the same area .have been de-,nied._on the grou_as of andac traffic conjestion On adjacent streets, and Prospect St. is already Under: strain from the present traffic load. 2.1so, it is our opinion that this rezoning request is not just a ccurtesy, that in -fact it is a necessity, as this land is very raucih Subject to the zo:'iinC_.,' ordinances and Sul - Sequent building codes, as the prope_'cy is owned by CSuR? and not the State of Colorado. We also believe that a large hotel -hotel center at this location C1oi,':ld ua det_'il:ental to the dox-,*ntOS'dn area and the alrear'•.i7 conjeS:;ed area beer ccn P:..ospecl= St. and malls to the. south, by throiTi L:C ii:o::e pCo^le and t:-a.Hic into that area. l until ::e :LL's-.`.: also `v_O.CS.= t}?e fact that enC1Gi•ierl, an u enr_oGwcc "funds are _"'.Gi2?r used to p<ocidc land for private T7 C a.e�l7rlsC, 1ih O'::"i. the Ctitri (� ilt sale ofSL1C',^. laird. to p;=1 ✓ato enterprlso. Such lane: should 3:.,c sold to private ente.':prisc r. at its filar}Let pal C, to _: C:1GsC the Clo",:C.' O:_ by the Colorado State University :coca- 'n =oundation and it should be caged at a fair a:�p_-aiccri value. ^there '4Tas also mention. of a "lone,—tc.mll lease. We WCAld li'.ce to hnOi7 C:cactly v?riaG constit-ateS a "lor. J-term" lea ri.c 1 a._s, per. years, 20 30 0 50 years? .:lso, vhat happens to ' hie hotel -mote! center at the L"CXIhi II- a.:!o-n of ::ha:; lease? There are +moan tly. four (6) motols within :calking distance of the rni : or .i t °, University i_ to inn, Part:F.'ay, and t'--e L Gr'i'.[ CO%li lir :_._:CLOd_:C, an-1 t}he _:Os':_ are accessible 'Dy 7U:: Than"-. Vo:.., Da 112 3;. BEFORE THE PLANNING AND ZONING BOARD, CITY OF FORT COLLINS, STATE OF COLORADO IN RE THE PETITION OF ) RALPH J. KOTICH and SUSAN L. ) SPOOR TO REZONE APPROXIMATELY ) HEARING BRIEF 3.54 ACRES FROM HB-BP ZONING ) DISTRICT TO RMP ZONING DISTRICT. ) COMES NOW W. E. FRANZ, SR., the owner of the property which is the subject of the above -captioned rezoning Petition, by and through his attorneys, LAW OFFICES OF TIMOTIIY W. HASLER, by James A. Martell, and respectfully submits the following Memorandum of Law in opposi- tion to the rezoning Petition: RALPH J. KOTICH, whose address is 212 Dartmouth Trail, Fort Collins, Colorado, and SUSAN L. SPOOR, whose address is 2215 Mathews Street, Fort Collins, Colorado, have petitioned the City Council of the City of Fort Collins to down -zone approximately 3.54 acres of real property located at the northwest corner of Mathe%..s Street and Dartmouth Trail in the City of Fort Collins (hereinafter referred to as "the Property"), from H--B, Highway Business District, and B-P, Planned Business District, to R-M-P, Medium Density Planned Residential District. UMMARY OF ARGUMENTS Petitioners lack, the requisite standing to initiate a Petition to down -zone the Property; a down -zoning of the Property would constitute illegal spot -zoning; Petitioners have not demonstrated that there has been a substantial change in the character of the neighborhood surrounding the Property which would justify a dc.rn- zoning of the Property. I. PETITIONERS LACK STANDING TO INITIATE THIS D0:4N-ZONING The Code of the City of Fort Collins does not specify who r;,ay initiate an amendment to the Zoning District Map; nor have the Colorado Courts considered the problem. However, the Colorado Supreme Court has considered the issue of who has standing to challenge a City Council's decision to rezone property. The Courts' decisions on this issue may be looked to for guidance in determining whether these Petitioners should be permitted to ini- tiate a zoning amendment. ' In Westwood Meat Market, Inc. v. McLucas, 146 Colo. 435, 361 P.2d 776 (1961), the Colorado Supreme Court held that property .owners who did not own property within, or adjacent to, the area being rezoned did not have standing to challenge the rezoning or- dinance. Similarly, in Kolwicz v. the City of Boulder, 36 Colo. App. 142, 538 P.2d 482 (1975), the Court held that an individual citizen of Boulder could not challenge the City Council's failure to implement regulations requiring preparation of zoning maps delineating a flood plain district. The Court explained: "Nothing in the record shows that [the Petitioner] has herself been aggrieved, wronged, or had any of her rights impaired or threatened as a result of the City Council's failure to implement its regulations. . . .In the Complaint it was alleged merely that she is a resident of Boulder, but, from the record, she has no special interest in the subject matter of this law suit which is different from a general interest theoretically shared by the tens of thousands of other residents of Boulder. Under such circumstances, she has no standing to bring this action." See also Clark v. 'city of Colorado Springs, 162 Colo. 593, 428 P.2d 359 (1967) (the Court held that owners of property outside the City .limits do not have standing to challenge the annexation and zoning of adjacent property). In this case, Petitioners have not demonstrated any special interest in the Property different from a genera]. interest theo- retically shared by all of the property owners in the City of Fort Collins. They do not hold any interest in the Property, nor do -2- they own adjacent property. Petitioners would have no standing to challenge the City Council's decision on the zoning of this Prop- erty, and thus, should not be permitted to initiate this rezoning petition. The owners or purchasers of the Property, adjacent land- owners, or the Planning and Zoning Board might initiate such a rezoning petition. A citizen of Fort Collins could petition the City Council requesting that it initiate a rezoning petition. Permitting any citizen to petition to rezone someone else's prop- erty, however, is unfair to the property owner and would seriously interfere with the comprehensive nature of the zoning process. II. DOWN -ZONING OF THE PROPERTY WOULD CONSTITUTE ILLEGAL SPOT - ,ZONING. Under Colo. Rev. Stat. section 31-23-301 (1) (as amended, 1975), a municipality has the power to zone "for the purpose of promoting health, safety, morals, or the general welfare of the community." Spot -zoning is the zoning of a particular parcel of property for the benefit of the individual landowner or adjacent landowners rather than for the benefit of the community as a whole. Spot -zoning is, thus, illegal because it is ultra vires; it does not promote the health, safety, or welfare of the community as a whole. In addition, Colo. Rev. Stat. section 31-23-302 (as amended, 1975) authorizes the governing body of a municipality to divide the municipality into districts to carry out the purposes of its zoning legislation. However, under section 31-23-302, all regula- tions must be uniform within each district. Thus, spot -zoning is also illegal as a violation of the requirement of district uni- formity. Finally, a municipality's power to zone is based upon its general police power as delegated to home rule municipalities by the State. The zoning power is subject to the usual limitations applicable to the exercise of the police power. The exercise of the police power must be reasonable and will be considered un- constitutional if not subsLanti.ally related to the public hcal.th, safety, morals, or welfare of the comniiuni ty. See Board of County -3- • 'J Commissioners v. Mountain Air Ranch, Colo. , 563 P.2d 341 (1977); Snyder v. City of Lakewood, Colo. , 542 P.2d 371 (1975); Stroud v. City of Aspen, 188 Colo. 1, 532 P.2d 720 (1975); ford Leasing Development Company v. Board of County Commissioners, 186 Colo. 418, 528 P.2d 237 (1974); Wright V. City of Littleton, 174 Colo. 318, 483 P.2d 953 (1971). Spot -zoning is, thus, an unconstitutional exercise of the police power since it does not promote the public health, safety, morals, or welfare of the a community as a whole. The Colorado Supreme Court has defined spot -zoning as follows: "In determining whether spot -zoning is involved, the test is whether the change in question was made with the purpose of furthering a comprehensive zoning plan or de- signed merely to relieve the particular property from the restrictions of the zoning regulations." King's Mill Homeowner's Association v. City of Westminster, Colo. , 557 P.2d 1186 (1976); Clark v. City of Boulder, 146 Colo. 526, 362 P.2d 160 (1961); Cooper v. City and County of Denver, 36 Colo. App. 118, 536 P.2d 874 (1975). See also R. M. Anderson, American Law of Zoning 242 (1968) ("[the definition of spot -zoning) describes an amendment which reclassifies a small parcel in a man- ner inconsistent with existing zoning patterns for the benefit of the owner and to the detriment of the community, or without any substantial, public purpose."). The spot -zoning issue usually arises when the "spot" is zoned less restrictive than the surrounding area. However, the doctrine is not limited to such cases and the creation of a more restrictive zone within a less restrictive zone may also be. considered spot - zoning; see 82 Ain. Ju.r.2d, Zoning and Planning, section 78; 51 A.L.R.2d 263, section 17(a), particularly when the rezoning is de- signed to prevent an otherwise legal use of the property. For example, in Commercial Properties, Inc. v: Peternr_l, 211 A.2d 514 (PA. 1965) the Court bald that the rezoning of a ten acre tract proposed for development of a shopping center was an unconstitu- -4- tional spot -zoning since the purpose of: the rezoning was to prevent an otherwise legal use of the property and was not for the purpose of promoting the health, safety, or general welfare of the commu-- . nity. The Court explained: "The action of the Township Commissioners in intro- ducing the Rezoning Ordinance was not in good faith, but was contrived for the sole purpose of preventing the legal use by plaintiffs of their property, and therefore constituted 'arbitrary and unreasonable intermeddling with the private ownership of property' . . .it is impossible to escape the conclusion that the Rezoning Ordinance here involved was 'special legislation, unjustly discriminatory, arbitrary, un- reasonable, and confiscatory in its application, in that it was aimed at this particular piece of property."' See also Shapiro v. City of Cambridge, 166 N.E.2d 208 (Mass. 1960) (the Court held that the rezoning of a small parcel of land from heavy to light industry when surrounded by heavy industry was invalid where the reason for such change could be equally applic- able to the entire heavy industry zone); Kissinger v. Los Angeles, 327 P.2d 10 (Cal. App. 1958) (the Court held that rezoning of a parcel of property from multiple residence area'to single family residence area simply because the City contemplated condemning the property for airport purposes was illegal spot -zoning); Trust Company of Chicago v. City of Chicago, 96 N.E.2d 499 (Ill. 1951) (the Court held that rezoning of one-half block of property within an area zoned for apartment use to single family residence use constituted illegal spot -zoning where there was no evidence that the rezoning was reasonably related to the public health, safety, or welfare of the community); Wolpe v. Poretsky, 154 P.2d 330 (D. C. Cir. 1946) (the Court held that the rezoning of a parcel of property to prevent the owner from erecting apartment houses which were permitted within the original. zoning of his property con- stituted an illegal spot -zoning). In this case, Petitioners are attempting to down -zone a small portion of property within the H-P,, Highway Business District and B-P Planned Business District. The down -zoning of the Property will not promote the health, safety, or vel.fare of the co.ununi.ty a -5-- a whole, does not further a comprehensive zoning plan for the City of Fort Collins, and is intended to prohibit a proposed use which is permissable within the present II-B, Highway Business_, and B-P, Planned Business zoning. Down -zoning of the Property would, thus, constitute an illegal and unconstitutional spot -zoning. III. THERE HAS BEEN NO SUBSTANTIAL CHANGE IN THE SURROUNDING NEIGIIBORHOOD SUFFICIENT TO JUSTIFY DO;<N-7,ONING OF THE PROPERTY. A zoning ordinance represents a legislative determination and judgment and enjoys a strong presumption of validity. See 82 Am. Jur.2d, Zoning and Planning, section 24. Those advocating a change in the zoning ordinance must overcome this presumption of validity 'and have the burden of proving that the original ordinance is invalid. See 82 Am. Jur.2d, Zoning and Planning, section 27. In Roosevelt v. City of Englewood, 176 Colo. 576, 492 P.2d 65, 68 (1971), the Colorado Supreme Court explained that "[property owners) have the right to rely on existing zoning regulations when there has been no material change in the character of the, neigh- borhood which may require rezoning in the public interest." If there is, in fact, no evidence to support and justify a zoning amendment, a decision to down -zone will be considered arbitrary, capricious, and an abuse of discretion by the Colorado Courts. See Clark v. City of Boulder, 146 Colo. 526, 362 P.2d 160 (1961); Bear Valley Drive -In Theatre Corp. v. Board of County Commissioners, 173 Colo. 57, 476 P.2d 48 (1970). The purpose of the rule that a zoning ordinance is presumed valid and cannot be amended without a material change in the character of the neighborhood is to maintain "stability in zoning and the resulting conservation of property values." Norpo v. Town of Cherry -Hills Village, 180 Colo. 217, 504 P.2d 344, 349 (1972). See also Clark v. City of Boulder, 146 Colo. 526, 362 P.2d 160 (1.961). In 11ol1.y Development, Inc_v. Hoard of County Cor:_.is- sioners, 1.40 Colo. 95, 342 P.2d 1032 (1959), the Colorado Supreme Court quoted from decisions by the Oregon and Illinois Supremo Courts to emphasize the need f.oi. reasonable stability in zon.in -6- "Amendments to zoning ordinances should be made with caution and only when changing conditions clearly require amendment. . .if a general zoning ordinance is passed and persons buy property in a certain district, they have a right to rely upon the rule of law that the classification made in the general ordinance will not be changed unless the change is required for the public good. . .The power to iunend is not arbitrary, it cannot be exercised merely because certain individuals want it done or think it ought to be done. The change must be necessary for the public good. . .by amending the Arapahoe County Zoning Resolution, as it did, [the Board of County Commissioners] failed to take into consideration the need for reasonable stability in zoning regulations. . . .It abused its discretion, acted arbitrarily, and exceeded its jurisdiction." See also McQuillan, Municipal Corporations, zoning, section 25.68 ("Since the purpose of zoning is stabilization of existing con- ditions subject to an orderly development and improvement of a zoned area and since property may be purchased in reliance on an existing zoning ordinance, any amendatory, subsequent, or repealing zoning ordinance must clearly be related to the accomplishment of a proper purpose. . . .Amendments should be made with utmost caution and only when required by changing conditions; otherwise, the very purpose of zoning will be destroyed."). Thus, the law is well established in Colorado that property owners have the right to rely upon the classifications made in the general zoning ordinance and can be assured that such classifica- tions will not be changed unless the change is required for the public good, unless there was 'a mistake in the original zoning, or unless there has been a substantial change in the neighborhood requiring a change in the zoning ordinance. There is no evidence that this property was ever zoned residential. It has been zoned commercial for at least the pant fifteen (15) years. The Petitioners cannot in good faith claim that there was a mistake in the original zoning of this Property commercial, and that now, fifteen (15) years later, they have discovered that mistake and are seeking to correct it. There was no mistake in the original zoning of this Property commercial. The Property is adjacent to College Avenue which has always been a commercial area. -7- Petitioners can only justify their request for an amendment of the zoning ordinance based upon a change in the surrounding neigh- borhood since the Property was originally zoned commercial, H-B, Highway Business District:, or B-P, Planned Business District. Under Colorado law, it is not enough to show that there has been a change in the surrounding neighborhood. Those advocating a re -- zoning must establish that there has been a substantial change in the surrounding neighborhood to justify the rezoning. See Huneke v. Glaspy, 155 Colo. 593, 396 P.2d 453 (1964). In Clark v. City of Boulder, 146 Colo. 526, 362 P.2d 160, 163 (1961), the Colorado Supreme Court explained: "The development and growth of a compre- hensively zoned area in accordance with the uses permitted under the plan, does not permit emasculation -of such plan under the guise of 'changed conditions."' See also McQuillin, Municipal Corpora- tions, Zoning, section 25.69 ("an amendment should not be based upon insignificant or unimportant new development"). In this case, there is no evidence of a substantial change in the surrounding area sufficient to justify this down -zoning. Seven (7) years ago, when this Property was zoned H-B, Highway Business, and even fifteen (15) years ago, when this Property was zoned com- . mercial, the surrounding area was fully developed substantially as it is today. The residential area to the north of the Property was fully developed fifteen (15) years ago as was South College Heights Subdivision to the south of the Property. Fifteen (15) years ago, the South College Heights Subdivision was primarily single family residential housing. Since that time, some low density multi- family housing has been constructed immediately to the south of the Property, between the Property and the single family residential neighborhoods of the South College Heights Subdivision.. The con- struction of such low density multi -family dwellings acts as an appropriate buffer between the single family residential neigh- borhoods of South College Heights Subdivision and the businesses -8- 0 which may be constructed in a I1-B, liighv y Business zoning dis- trict. Thus, the "change" in the surrounding neighborhood attrib- utable to the construction of low density multi -family dwellings to the south of the Property indicates that the neighborhood has been developed in accordance with the comprehensive zoning plan for this area and in anticipation of business development on the Property. The presence of these low density multi -family dwellings cannot be used to justify a rezoning but actually supports the continuation of the present zoning. The Property is adjacent to College Avenue on the west which has always been a commercial area. Ten (10) years ago this Prop- erty was a used car lot and the businesses surrounding the Property were substantially as they are today. The property to the north was a drive-in restaurant and the property to the south was occupied by the same lumber company that is there today. It cannot be argued that there has been any change in the development along College Avenue which would necessitate this down -zoning. Finally, Petitioners argue that the development of a park to the east of the Property is a change in the surrounding neighbor- hood which necessitates the down -zoning of this Property. However, as discussed above, Colorado law requires that there be a sub- stantial change in the neighborhood to justify a rezoning. Since the remainder of the neighborhood is exactly as it was fifteen (15) years ago, it cannot be argued that.the development of a park to the east is such a substantial change in the neighborhood as to justify this down -zoning. Any rezoning based upon the development of a park to the east should have been done at the time the park was developed as part of a comprehensive rezoning of this entire area. Petitioners simply cannot establish that there has been any substantial change in the. neighborhood surrounding this Property since it was originally zoned commercial, since it was zoned 11-B, 11jghv,ay Business, or since the development of a. perk to the east, -9- • which would be sufficient to justify the down -zoning of this Property. CONCLUSION It is clear that this Petition to down -zone the Property located at the corner of Mathews Street and Dartmouth Trail was filed in response to a proposal by the purchasers of the Property that it be developed as a planned business. Down -zoning is an inappropriate response to a proposed planned unit development. It is clear that the Property is correctly zoned and has been for over . fifteen (15) years. The focus of attention should be directed to •the proposal for development of the Property as a planned unit development not to whether the Property is correctly zoned. The Board of Commissioners of Larimer County recently down -zoned a parcel of property to the northeast of Fort Collins in response to a proposal that the property be developed as a residential planned unit development. The District Court in and for the County of Larimer., State of Colorado reversed the Board of Commissioners' decision and held that their decision was arbitrary, capricious and an abuse of discretion. See Globe Enterprises, Inc. v. Board of Commissioners of the County of. Larimer, civil action number C-77-313 (decided December 27, 1977). other state Courts have also recognized that such practices are unfair and that property cannot be down -zoned in response to an application for a building permit or an application•to develop the property as a planned unit devel- opment. See Hagman, Larson, and Martin, California Zoning Prac- tice, section 5.57 (1969). Petitioners have not established a substantial change in the neighborhood surrounding this Property sufficient to justify down -zoning nor have they established that there was a mistake in the original commercial zoning of this Property. In addition, a down -zoning of the Property would be an illegal spot -zoning. - J. 0 -- :T r 0 The Petition to rezone this Property should be denied. Dated this 6th day of March, 1978. Respectfully submitted, LAW OFFICES OF TIMOTHY W. HASLER C+DAMES A. MARTELL Attorney for Owner of the Property Registration Number 8390 Post Office Box 2023 Fort Collins, Colorado 80522 Telephone: 493-5070 -Il-