HomeMy WebLinkAboutMINUTES-11/08/2012-AdjournedNovember 8, 2012
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Adjourned Meeting - 6:00 p.m.
An adjourned meeting of the Council of the City of Fort Collins was held on Thursday, November
8, 2012, at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll call was
answered by the following Councilmembers: Horak, Manvel, Ohlson, Poppaw, Troxell, and
Weitkunat.
Councilmembers Absent: Kottwitz
Staff Members Present: Atteberry, Harris, Eckman.
Consideration of an Appeal of the Planning and Zoning Board's July 19, 2012 Decision
to Approve Regency Lakeview Addition of a Permitted Use for Multi -family
Dwellings at Christ Center Community Church and Project
Development Plan, Planning and Zoning Board Decision Overturned
The following is staff's memorandum for this item.
"EXECUTIVE SUMMARY
In April 2012, Regency Residential Partners submitted a request for an Addition of a Permitted Use
for Multi -Family Dwellings in the Low Density Residential (R-L) zone district and Project
Development Plan for an N-acre parcel located on the east side of the Christ Center Community
Church. The parcel is located at the southeast corner of Drake Road and Lemay Avenue. As
proposed, the project consists of 175 dwelling units divided among eight buildings plus a clubhouse.
On July 19, 2012, the Planning and Zoning Board conducted a public hearing regarding an
application for an Addition of a Permitted Use and for approval of the Regency Lakeview PDP.
After receiving testimony from the applicant, the public and staff, and after deliberation, the Board
voted 4 — 2 to approve the request for an Addition of a Permitted Use for Multi -Family Dwellings,
and then voted 5 — I to approve the Regency Lakeview Project Development Plan.
On August 2, 2012, Andrew Lewis et. al., filed a Notice of Appeal alleging that the Planning and
Zoning Board (])Jailed to properly interpret and apply relevant provisions of the Land Use Code
and (2) failed to conduct a fair hearing.
BACKGROUND/DISCUSSION
The project consists of two components because a request for an Addition of a Permitted Use must
be accompanied by either an Overall Development Plan or a Project Development Plan.
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As mentioned, the project would consist of 175 dwelling units divided among eight buildings plus
a clubhouse on 11 acres. There would be a mix of one, two and three -bedroom units for a total of
275 bedrooms. There would be 292 parking spaces divided among attached garages, detached
garages and surface parking, and 283 bike spaces. Amenities would include a clubhouse, pool and
walkways. There are no four bedroom units. Leases would be by the unit, not the bedroom. The
dwelling units are intended to be leased at the market rate and do not include any public subsidy
for affordable housing purposes. The applicant has indicated that there is no specific targeting of
any one particular demographic group.
The existing stonnwater detention pond at the south end of the parcel would be enlarged and
improved as a two -acre, private pocket park. There would be no new access drives from either
Lemay Avenue or Drake Road. The parcel is presently used as an athletic field as part of the 25-
acre Christ Center Community Church campus.
ACTION OF THE PLANNING AND ZONING BOARD
The Board took two actions:
• Voted 4 — 2 to allow Multi -Family Dwellings in the R-L zone on the subject parcel only and
as specifically depicted on the Regency Lakeview PDP.
• Voted 5 —1 to approve the Regency Lakeview PDP.
THE QUESTIONS COUNCIL NEEDS TO ANSWER
1. Did the Planning and Zoning Board fail to properly interpret and apply relevant provisions
of the Land Use Code?
2. ' Did the Planning and 7_oning Board fail to conduct a fair hearing in that the Board exceeded
its authority or jurisdiction as contained in the Land Use Code or Charter?
3. Did the Planning and Zoning Board fail to conduct a fair hearing in that the Board
substantially ignored its previously established rules of procedure?
4. Did the Planning and Zoning Board fail to conduct a fair hearing in that the Board
considered evidence relevant to its findings which were substantially false or grossly
misleading?
ALLEGATIONS ON APPEAL
A. Failure to Properly Interpret and Apply Relevant Provisions of the Land Use Code
Specifically Section 1.3.4(A)(1).
Land Use Code Section 1.3.4(A)(1) reads as follows:
"Such use is appropriate in the Zone district to which it is added. "
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The appellants assert that Multi -Family Dwellings, as indicated by the Regency Lakeview PDP, are
not appropriate within the R-L zone district because the R-L zone is for low density housing, not
multi family housing.
The Planning and Zoning Board not only considered the underlying zoning but also evaluated the
context of the individual parcel and its relationship to the surrounding area. Given the site's
location within this existing urban context, the addition of Multi -Family Dwellings, at this particular
location, was considered appropriate.
As noted in the transcript (page 59, lines 20 — 23), Boardmember Schmidt commented:
"I was on the Board when the church came for the rezone several years ago, and I
think at that time, 1 supported, actually, the rezoning. I thought the higher density
housing was appropriate in this area because of the two arterials, the City's
commitment to the infit. "
Also as noted in the transcript (page 61, lines 35 — 39), Boardmember Smith commented:
"So, with that said, I still looked at this one as being, you've still got to fit the zone
district. Is this... is it more appropriate for this to be rezoned or is it going to be
acceptable and appropriate to go through the Addition of a Permitted Use process?
And, so, looking at it line by line, it does seem that it does fit all the criteria that's
laid out to be accepted for an addition of a permitted use. "
B. Failure to Properly Interpret and Apply Relevant Provisions of the Land Use Code
Specifically Section 1.3.4(A)(2).
Land Use Code Section 1.3.4(A)(2) reads as follows:
"Such use conforms to the basic characteristics of the zone district and the other
permitted uses in the zone district to which it is added. "
The appellants state that adding Multi -Family Dwellings to the R-L zone does not conform to the
basic characteristics of the zone and other permitted uses.
The Planning and Zoning Board discussed this standard. As noted in the transcript (page 61, lines
40 — 42 and page 62, lines 1 — 2) Boardmember Schmidt commented:
"I just wanted to say quickly, too, I think I had a concern, too, whether the addition
of a permitted use was the right way to go with this, and I think, again, because
we're keeping it residential, which goes with the character of the neighborhood.
You've got a project that has garages, so I think when people, you know, have cars,
these are going to be the kinds of tenants who are going to want to stay and become
a part of the neighborhood. "
Also as noted in the transcript (page 62, lines 10 — 14), Boardmember Smith commented:
"...by and large, the zone districts in the city expect a high degree of mixed -use,
every one of them essentially. And so, when I got into the purpose statement of the
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RL, which, again, it is one sentence. And it talks about predominant single-family
residential areas, located throughout the city which were existing at the time of
adoption of the Land Use Code. This is clearly a hold -over in order to be able to
accommodate some large swaths of land that were going through the process. "
C. Failure to Properly Interpret and Apply Relevant Provisions of the Land Use Code
Specifically Section 1.3.4(A)(3).
Land Use Code Section 1.3.4(A)(3) reads as follows:
"Such use does not create any more offensive noise, vibration, dust, heat, smoke,
odor, glare or other objectionable influences or any more traffic hazards, traffic
generation or attraction, adverse environmental impacts, adverse impacts on public
orquasi-publicfacilities, utilities or services, adverse effect on public health, safety,
morals or aesthetics, or other adverse impacts of development, than the amount
normally resulting from the other permitted uses listed in the zone district to which
it is added. "
The appellants state that the addition of Multi -Family Dwellings as indicated by the Regency
Lakeview PDP would create more adverse impacts than the amount normally resulting from the
other permitted uses in the R-L zone.
The Planting and Zoning Board evaluated this criterion. For example, as noted in the transcript
(page 61, lines 7 — 23), Boardmember Smith commented:
"And so, holding that up against what the criteria for Additions of a Permitted Use
are, I went through each one. I've looked at each one of them. Clearly, it's not a
medical marijuana dispensary, or cultivation facility, not specifically listed as a
permitted use. Went through each one of them, and I think what it boiled down to
me for was that, ultimately, you get into some of these tangible effects, how a
property performs as it's proposed, to whether it's going to, you know... relative to
what would be otherwise approved, if it were to be specifically allowed and
permitted by the Code. Does it create more offensive noise, vibration, dust, heat,
smoke, odor, glare or other objectionable influences, and there's a litany of these,
and 1 think everybody in the room has gone through and seen what these all are.
And, then I think about ... as I think the applicant had said that, you know, the way
that this is set up is that you actually invite that analysis of being able to look at the
project as proposed, relative to something that were to be just explicitly allowed by
the Code, and whether or not it would be excessive as it performs in the
neighborhood beyond what is... a project that would just, by right, approved. 1
could not come up ... I could not be convinced that this project would be creating any
more adverse effects that, say, if the church were to go and fully develop out a
campus, for instance, that had a lot of different uses, including a school. "
In summary, the Board found that the request for Multi-Fanily Dwellings, as proposed on the
subjectparcel and the accompanying PDP, complies with the applicable criteria related to adverse
impacts. The Board found that the project would not create any more offensive or adverse impacts
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or any other objectionable influences than the amount normally resulting from the other permitted
uses listed in the R-L zone.
D. Failure to Properly Interpret and Apply Relevant Provisions of the Land Use Code
Specifically Section 1.3.4(B).
Land Use Code Section 1.3.4(B) reads as follows:
"The Planning and Zoning Board may add a proposed use if the Board specifically
finds that such use would not be detrimental to the public good. "
The appellants assert that by using the Addition of a Permitted Use process is improper because it
is in effect a rezoning.
The Planning and Zoning Board evaluated this criterion. For example, as noted in the transcript
(page 60, lines 7 — 9), Boardtnember Carpenter commented:
"I guess when I look at this, I ... on the question of whether this is detrimental to the
public good, 1 just cannot see that it is. It's city-wide, itfits City Plan, it is what we
wanted to do with City Plan, so 1 really can't see that it is detrimental to the public
good. "
Also as noted in the transcript (page 59, lines 20 — 28), Boardmember Schmidt commented:
"I was on the Board when the church came for the rezone several years ago, and 1
think at that time, 1 supported actually, the rezoning. The members of the Board, I'll
speak for some of them that aren't here anymore, I think had a concern that if you
just rezone, it makes things more unpredictable for the neighborhood, and you could
get commercial, you could get different things. And, so, our direction to the church
at the time was, we'd like to see a specific project and then the neighbors could
weigh in and see how compatible that is. So, I think the church has taken that
direction and tried to move forward with something to actually present and use the
Addition of a Permitted Use process to do that. "
E. Failure to Properly Interpret and Apply Relevant Provisions of the Land Use Code
Specifically Section 1.3.4(A)(4) and 1.3.4(B).
Land Use Code Section 1.3.4(A)(4) reads as follows:
"Such use is compatible with the other listed permitted uses in the zone district to
which it is added. "
Land Use Code Section 1.3.4(B) reads as follows:
"The Planning and Zoning Board may add a proposed use if the Board specifically
finds that such use would be in compliance with the requirements and criteria
contained in Section 3.5.1. "
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Section 3.5.1 of the Land Use Code addresses issues related to project compatibility with the
surrounding area. It is considered in conjunction with the definition of compatibility which is as
follows:
"Compatibility shall mean the characteristics of different uses or activities or design
which allow them to be located near or adjacent to each other in harmony. Some
elements affecting compatibility include height, scale, mass and bulk of structures.
Other characteristics include pedestrian or vehicular traffic, circulation, access and
parking impacts. Other important characteristics that affect compatibility are
landscaping, lighting, noise, odor and architecture. Compatibility does not mean
"the same as." Rather, compatibility refers to the sensitivity of development
proposals in maintaining the character of existing development. "
The appellants assert that Multi -Family Dwellings are not compatible with the existing singlefamily
detached homes by virtue of the fact that the two uses are incongruent. Further, the assertion is
made that Section 3.5.1 only addresses physical and operational characteristics of buildings and
cannot be used in a compatibility, analysis.
The Board evaluated these two criteria. As noted in the transcript (page 60, lines 2 — 5),
Boardmember Schmidt stated:
"So I can see that in all the design work that they've put into this project, they've
tried to make it as compatible as possible to the neighborhood, and have the least
impact on the surrounding neighbors, and 1 really appreciate that. "
Also as noted in the transcript (page 60, lines 20 — 22), Boardmember Campano commented:
"And, frankly, 1 think that the design is very good. I think you've done ... as I put on
my designer hat, I think you've done about everything you can to transition, buffer,
mitigate an existing neighborhood. "
In summary, the Board evaluated the proposed use not in isolation but in conjunction with the
various characteristics as found in the aforementioned definition. Considerable testimony was
provided to the Board regarding how the project would be compatible with the surrounding
neighborhood. For example, the project is designed with a specific objective to buffer the existing
neighborhood to the east with landscaping, building setbacks, one-story garages, architectural
detail and varying building heights. To the south, buffering is achieved by virtue of open space
gained by the stormwater detention pond, approximately, two acres in size, which would be upgraded
to a pocket park. Finally, the traffic impact on surrounding streets was evaluated and determined
to comply with the adopted level of service standards.
F. The Board Failed To Conduct a Fair Hearing By Considering Evidence Relevant To Its
Findings Which Was Substantially False Or Grossly Misleading — Section 3.6.4.
Land Use Code Section 3.6.4 reads as follows:
"All development plans shall adequately provide vehicular, pedestrian and bicycle
facilities necessary to maintain the adopted transportation Level of Service
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standards contained in Part II of the City of Fort Collins Multi -modal
Transportation Level of Service Manual for the.following modes of travel: motor
vehicle, bicycle and pedestrian. The Transit LOS standards contained in Part 1I of
the Multi -modal Transportation Manual will not be applied for the purposes of this
Section. "
This assertion relates to the motion to approve the PDP. The appellants assert that the pedestrian
level of service cannot be achieved because there are no medians in either arterial street which
would act as pedestrian refuge islands. Further, the assertion continues that, as stated by the
applicant's traffic engineering consultant, since the existing sidewalks along both arterials would
not be deconstructed and then reconstructed to feature detached sidewalks separated by parkways,
the pedestrian level of service cannot be achieved. It is asserted that new medians and sidewalks
can indeed be installed as there appears to be sufficient land area in which to retrofit these
improvements.
In addition, the allegation is that traffic information provided to the board did not properly assess
the potential traffic patterns across the existing church parking lot in order to gain access to Lemay
Avenue. Evidence was presented to the Board by the applicant's traffic engineering consultant that
the north access (which aligns with Scotch Pines shopping center) would be used more frequently
than the southern access (which aligns with Strachan Drive) and yet there is no basis for this
assumption. Traffic using the using the southern access will impact the neighbors to the south.
Finally, the allegation is that the traffic delay analysis of traffic leaving the church or neighborhood
onto Lemay Avenue was not properly considered.
With regard to the pedestrian level of service, the applicant's traffic engineering consultant
addressed the Board. This testimony is on page 48, lines 1 - II of the transcript.
In addition, on page 54, lines 35 — 38 of the transcript, there was this exchange:
"Boardmember Kirkpatrick: Just to confirm, where there are no plans to put
medians on Lemay are there?"
"Mr. Stanford (City of Fort Collins Traffic Engineer): None that 1 am aware of. I
think it would be difficult just to find the room to do it with the current build -out
characteristic. "
With regard to the existing attached sidewalks on Drake Road and Lemay Avenue, the following
testimony was provided to the Board by the applicant's traffic engineering consultant (transcript
page 48, lines I — 5):
"In the traffic study, we talked about the fact that under the pedestrian level of
service criteria, that some criteria could not be met. On site, all of the criteria would
be met, but off site, since this is an older area of Fort Collins, standard streets and
sidewalks and so on were built under previous standards, not the Lorimer County
Urban Street Standards. The fact of the matter is you can't meet them."
The Board had no follow-up discussion regarding this matter.
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With regard to traffic patterns across the existing church parking lot, the fundamental design
objective is to minimize traffic from the apartments from traveling along the length of the southern
property line which is separated from the back yards of the existing houses by a six foot high solid
privacy fence. Residents along this shared property line indicated at the neighborhood meetings
a preference for this traffic to be directed away from their backyards. In response, the site plan was
revised such that Regency Lakeview traffic heading west to Lemay Avenue would be directed as far
to the north as possible in order to prioritize the north access (which aligns with Scotch Pines
shopping center).
Consequently westbound drivers will traverse the parking lot at the north edge of the parking lot
away from the houses. While it maybe possible for these drivers to decide to exit at the southern
driveway (which aligns with Strachan Drive on the west side of Lemay Avenue), instead of the north
driveway (which aligns with the shopping center drive), for the most part, this traverse is north of
the existing houses. Diverting this traffic pattern thus accomplishes the essence of the design intent
which is to minimize the impact along the southern property line.
Regarding the church south access, and traffic delay, the City's traffic engineer, Ward Stanford,
states on page 53, lines 12 — 20:
"The development has done efforts to try and move the traffic to the north access,
which we applaud. And, the south access is expected much lower quantities of
traffic. We also don't have an existing accident history therefor that characteristic.
So, I'm assuming that the motorists are pretty, cognitive of it, and will continue to be
able to drive adequately to use it appropriately. At this point, we don't have a
concern with that characteristic. Will it possibly cause a little delay to somebody
exiting when they're trying to consider what the other person may be doing? Yes,
they certainly can. Is it going to be a common, frequent activity? We don't believe
so. If it does become something of an accident quantity, it's also an aspect that we
have a responsibility to address, and at that time, that we will do so. "
Regarding the church north access, the City's traffic engineer, Ward Stanford, states on page 54,
lines 5 — 12:
"Let's see, in ...the north access to the church on Lemay, or ... which will be their
access also (Regency Lakeview), we don't see it as being an exit or entrance
problem, basically, just to the geometric layout, the left turns don't conflict with each
other. And, we do expect... it was at my direction, the basically, the distribution of
traffic. And, we expect that most of the traffic that's going towards Lemay from the
side (site), or using Lemay from the side (site), will either be going north, towards
the higher business area, or to the west, to the also higher business area. And, so,
with that, the right tuns out there is the higher movement anyway than the left turn. "
(Parentheticals added for clarity.)
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G. The Board Failed To Conduct a Fair Hearing By Exceeding Its Authority and Ignoring
Its Previously Established Rules of Procedure
This assertion relates to the motion to approve the PDP. The appellants contend that the Planning
and Zoning Board failed to conduct a fair hearing primarily because they failed to consider that the
level of service for pedestrians falls below the required minimum.
This is the same assertion as in the previous section and is repeated but under a different ground
for appeal. As stated in the preceding section:
With regard to the existing attached sidewalks on Drake Road and Lemay Avenue, the following
testimony was provided to the Board by the applicant's traffic engineering consultant (transcript
page 48, lines I — 5):
"In the traffic study, we talked about the fact that under the pedestrian level of
service criteria, that some criteria could not be met. On site, all of the criteria would
be met, but off site, since this is an older area of Fort Collins, standard streets and
sidewalks and so on were built under previous standards, not the Larimer County
Urban Street Standards. The fact of the matter is you can't meet them. "
The Board had no follow-up discussion regarding this matter. "
Deputy City Attorney Eckman reviewed the appeal procedure and outlined Council's options. He
noted new evidence can only be presented if in response to Councilmember questions or to prove
a falsehood.
Mayor Weitkunat requested procedural objections.
Paul Patterson, 2936 Eindborough, discussed a document provided to Council by Ted Shepard
relating to addition of permitted uses. He requested additional information be added to the record.
Council accepted Mr. Patterson's documents.
Ted Shepard, Chief Planner, discussed the proposed project and the allegations of the appeal.
Mayor Weitkunat requested information from Councilmembers attending a site visit.
Councilmember Troxell replied he attended to the site visit in order to obtain information regarding
the physical site. Councilmember Manvel and Mayor Pro Tem Ohlson also attended the site visit.
APPELLANT PRESENTATION
Andy Lewis, appellant, discussed the issue of pedestrian safety. He stated this proposed project does
not comply with the pedestrian level of service standards for this area. He argued the potential
pedestrian safety issue is detrimental to the public good. Mr. Lewis also argued property values in
the area would decrease should this project move forward and concluded the project is not
compatible with the existing area and the Low -Density Residential (RL) zone district.
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APPLICANT PRESENTATION
Linda Ripley, Ripley Design, Inc., discussed the history and future plans of the church property.
She stated the property would likely have been zoned Medium Density Mixed -Use had the church
opposed its original Low -Density Residential zoning.
Lucia Liley, 300 South Howes, attorney for the applicant, discussed the addition of permitted uses
process and the way in which it was applied by the church and developer for this project. She noted
additional traffic is acceptable if it is comparable to a project with permitted RL uses and argued
pedestrian refuge islands are not a requirement in this case.
APPELLANT REBUTTAL
Mr. Lewis discussed Planning and Zoning Board comments which support less dense housing on
the site. He stated the traffic study should have been completed during peak hours for the existing
use of the church and discussed the ability of the intersection to be widened to allow pedestrian
refuge areas.
Dorothy Martin, 2912 Silverwood Drive, stated the proposed project is not compatible with the
existing neighborhood and requested that Council overturn the approval.
APPLICANT REBUTTAL
Lisa Evans, Regency Residential Partners, applicant, discussed the neighborhood meetings and the
changes made to the project by Regency to aid in alleviating neighborhood concerns.
Ms. Liley argued the addition of permitted process is site and project dependent and is an
appropriate process for this site.
COUNCIL DISCUSSION
Deputy City Attorney Eckman addressed Council regarding the manner in which it should proceed.
He suggested addressing the fair hearing aspect first.
Mr. Lewis stated due process was skipped by accepting a project for review that does not comply
with level of service standards. He suggested Council should remand the hearing based on those
issues.
Ms. Liley noted the APU must be approved prior to the PDP. She stated the fair hearing issues, the
pedestrian level of service and PDP transportation analysis, are both related to the PDP.
Mr. Lewis disagreed and stated two specific findings must be met for the APU to be approved: no
additional adverse effects and no detriment to the public good. He argued there has yet to be a
hearing regarding the level of service and safety issues.
Deputy City Attorney Eckman suggested deciding on the APU question with regard to a fair hearing
first, then the APU issue with regard to whether or not the Code was property interpreted.
Following those decisions, the PDP issue can be discussed.
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Mayor Weitkunat stated the APU process is part of the Code and the question is not whether the
applicant should have used that process, but whether the applicant followed the proper criteria.
Mayor Weitkunat made a motion, seconded by Councilmember Horak, that the Planning and Zoning
Board did not fail to conduct a fair hearing regarding the approval of the addition of a permitted use.
Councilmember Manvel requested input regarding the claim that there was not a fair hearing
because there was no determination of the levelof service standards by the Board. Aaron Iverson,
Transportation Planning, replied the project was found to have met the level of service standards
from the 2011 adopted standards.
The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Troxell, Ohlson, Poppaw, and
Horak. Nays: none.
THE MOTION CARRIED.
Mayor Pro Tem Ohlson requested the definition of the RL zone. Shepard replied the purpose
statement for the zone is as follows "the RL, Low -Density Residential District designation is
intended for predominantly single-family residential areas located throughout the city which were
existing at the time of the adoption of the Land Use Code".
Mayor Pro Tem Ohlson requested information regarding the estimated 2.8% increase in traffic.
Ward Stanford, Traffic Operations, replied that number was provided by the applicant and is likely
an increase over the existing traffic.
Mayor Pro Tem Ohlson requested information regarding why this intersection is considered to be
a constrained corridor. Stanford replied the policy language provides areas that may be difficult to
improve in a reasonable fashion.
Mayor Pro Tem Ohlson asked how the City organization reached the conclusion it is a constrained
corridor. Iverson replied the intent of the pedestrian level of service is related to how well the
system supports the new project. There is a robust pedestrian system in -this area and the constrained
corridor issue relates to how to rebuild the intersection given the lake and existing development.
There is a question as to whether or not the auspice would be on this development to rebuild the
entire intersection.
CouncilmemberTroxell requested information regarding the site specific nature of the APU process.
Shepard replied the other means by which a use could be added, which is a rezoning and a text
amendment, are not as site specific as is the addition of a permitted use. A submittal process for a
real plan must accompany an APU application.
Councilmember Manvel asked if the APU process could be used to apply for construction of a
duplex in the RL zone. Shepard replied in the affirmative.
Councilmember Manvel questioned whether this project would impact the neighborhood more than
a much less dense single-family development. Stanford replied a single-family home generates
more peak hour trips per day than does a multi -family unit, by about four trips per day. For
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example, a forty -home single-family development would generate more peak hour trips than would
this proposed multi -family project.
Mayor. Pro Tern Ohlson asked Mr. Patterson about the data he submitted. Mr. Patterson replied he
is attempting to show this APU process has never occurred in the RL zone and most of the
applications for an APU have occurred for existing buildings.
Councilmember Manvel stated this project is generally a good design and the developer has worked
to lessen the impacts of the project; however, he is unsure the APU process is intended for this major
of a change.
Councilmember Horak asked if the site plan should be taken into consideration regarding the APU
question. Deputy City Attorney Eckman replied Council should now be considering whether or not
the Planning and Zoning Board correctly applied and interpreted Section 1.3.4 when it added this
use in the zone district for this property.
Mayor Weitkunat stated the Board did properly interpret and apply the criteria written in the Land
Use Code, specifically regarding uses.
Councilmember Poppaw requested that staff read the applicable Code section.
Councilmember Manvel expressed appreciation to the developer for efforts to work with the
neighborhood. He asked if the project could potentially be brought more into scale by making the
buildings garden level, wherein they would be two and a half stories high rather than three. Ms.
Evans replied the water table on the site prevents the buildings from being garden level and garden
level apartments have become less acceptable to renters.
Mayor Weitkunat made a motion, seconded by Councilmember Troxell, that the Planning and
Zoning Board properly applied and interpreted the Land Use Code in approving the Addition of a
Permitted Use.
Mayor Weitkunat stated the use is compatible with the existing area.
Mayor Pro Tern Ohlson stated this change is a stretch for the APU process and as he is undecided,
he would opt for the existing residents and therefore oppose the motion.
Councilmember Manvel asked what additional process would be required to seek a rezoning.
Shepard replied the rezoning process has different criteria. First, a recommendation would be made
by the Planning and Zoning Board followed by two readings before Council. The process is less
detailed as there is no site plan requirement. Should the rezoning be successful, any of the permitted
uses in that zone district would be permitted. The total time in process would likely be three to five
months.
Mayor Weitkunat reiterated that the APU process is an acceptable procedure in the Land Use Code.
The question is not whether the process should have been used, but whether the Board properly
applied and interpreted the criteria.
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Councilmember Poppaw noted that is an important distinction; however, she stated the project is
physically incompatible given its size and scale.
Councilmember Troxell agreed with Mayor Weitkunat and noted the ability of the project to be
physically compatible.
Councilmember Manvel stated the APU process has strong requirements for a reason but stated the
density is too high for the area.
The vote on the motion was as follows: Yeas: Weitkunat,add',Troxell. Nays: Ohlson, Horak,
Poppaw and Manvel.
THE MOTION FAILED. A
Councilmember Manvel made a motion, seconded;by Counciiniember Poppaw, to overturn the
decision of the Planning and Zoning Board approving the Addition of a Permitted Use because the
project fails to satisfy the requirements of appropriate neighborhood character.
Councilmember Troxell stated he has not heard appropriate arguments as to how the Board failed
to property interpret and apply the Land Use Code.
Councilmember Manvel stated neighborhood character and appropriateness are not clear concepts
and are up to opinion.
Councilmember Troxell argued it is not Council's job to deem appropriateness, but rather to judge
whether or not the Board appropriately applied the provisions of the APU process.
The vote on the motion was as follows: Yeas: Manvel, Ohlson, Horak and Poppaw. Nays:
Weitkunat and Troxell.
THE MOTION CARRIED.
Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to overturn the
decision of the Planning and Zoning Board approving the Project Development Plan because the
APU was improperly awarded.
Councilmember Troxell asked about the relationship of the APU to the PDP. Deputy City Attorney
Eckman replied the PDP fails as it was dependent upon the use being permitted.
The vote on the motion was as follows: Yeas: Horak, Poppaw, Troxell, Manvel, Ohlson and
Weitkunat. Nays: none.
THE MOTION CARRIED.
Adiournment
Mayor Pro Tent Ohlson made a motion, seconded by Councilmember Poppaw, to adjourn to 6:00
p.m. on November 13, 2012, so that the Council may consider going into an Executive Session for
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the purpose of conducting the annual performance reviews of the City Manager, City Attorney, and
Municipal Judge, and for the purpose of discussing potential and pending litigations. Yeas:
Weitkunat, Manvel, Troxell, Marvel, Ohlson, Weitkunat, and Horak. Nays: none.
THE MOTION CARRIED.
The meeting adjourned at 8:25 p.m.
City Clerk
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M yor
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