HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/21/2001 - CONSIDERATION OF THE APPEAL OF THE JUNE 7, 2001, D AGENDA ITEM SUMMARY ITEM NUMBER: 41
FORT COLLINS CITY COUNCIL DATE: August 21, 2001
FROM: Stephen Olt
SUBJECT:
Consideration of the Appeal of the June 7, 2001, Determination of the Planning and Zoning
Board to Deny the Request for Modification of Standards in Sections 4.4(B)(3)(c)l and
4.4(13)(3)(b) of the Land Use Code for the Brophy Property at 1109 West Harmony Road.
RECOMMENDATION:
Council should consider the appeal based upon the record and relevant provisions of the Code
and Charter, and after consideration, either: (1) remand the matter to the Planning and Zoning
Board; or (2) uphold, overturn, or modify the Board's decision.
EXECUTIVE SUMMARY:
On June 7, 2001, the Planning and Zoning Board denied the request for Modification of
Standards in Sections 4.4(13)(3)(c)l and 4.4(1))(3)(b) of the Land Use Code for the Brophy
Property at 1109 West Harmony Road. The Board's decision was appealed to the Council.
CKGROUND:
The property that is the subject of this appeal is zoned LMN - Low Density Mixed Use
Neighborhood (as of the effective date of March 28, 1997 for the new Land Use Code). The
property is located at the southwest corner of West Harmony Road and South Shields Street.
On June 18, 2001, a Notice of Appeal was received by the City Clerk's office regarding the
decision of the Planning and Zoning Board. In the Notice of Appeal from the Appellant Mark
Brophy, it is alleged that:
1. Relevant laws were not properly interpreted and applied.
2. The Board considered substantially false and grossly misleading evidence.
The procedures for deciding the appeals are described in Chapter 2, Article II, Division 3 of the
City Code.
DATE: August 21, 2001 2 ITEM NUMBER: 41
Following is a summary of the Appellant's Grounds for Appeal.
Introduction
* The 2 requested modifications pertain to separation requirements between Neighborhood
Centers (NC). It was stated to the P&Z Board that these modifications were necessary
because an NC on my property would conflict with the Seneca Center to the west. The
Seneca Center was developed under the Land Development Guidance System (LDGS)
and contains some features similar to an NC, but is not an NC. A former Planning
Director ruled that the separation requirements are violated when an NC is within'/4 mile
of a similar LDGS project.
* The Planning Director does not have the power to enact his own ordinances. The action
of the P&Z Board was arbitrary and without regard to the benefit or harm involved to the
community at large, including all interested parties.
Market Issues
* There is currently a glut of office space (13% vacancy rate) in the City of Fort Collins, so
our property cannot be developed as an office park for 3-5 years when the space is
absorbed. The only use for which it is reasonably adapted today is a mixed use of office
and retail.
* The P&Z Board's decision relied on a report from City staff recommending denial of the
Modification of Standards. We contend that our property is spot zoned because it is the
only LMN zoning at the intersection of major arterials in Fort Collins.
* It is likely that the confusing provisions of the LMN District and Modification of
Standards sections of the Land Use Code caused some misinterpretation of the Code.
Separation Requirements
* Even if the Seneca Center had been developed under the Land Use Code, it still would
not be considered an NC because of many deficiencies enumerated in the Modification to
Standards application.
* Just as our property is located 0.6 mile east of the Seneca Center, the Seneca Center is
located 0.6 mile east of J.J.'s Corner at the intersection of South Taft Hill Road and West
Harmony Road. J.J.'s contains many more of the elements of an NC enumerated in the
Principles and Policies of City Plan than the Seneca Center, but the separation distance
was not considered a problem during the planning process.
* The City's project planner erroneously stated that the reason for the separation
requirements is to prevent the proliferation of NC's on arterials. City Plan Principle
LMN-2 clearly states that all LMN neighborhoods are required to contain an NC, which
implies that many of them will be located on arterials. In denying the Brophy Property
application, the Board denied a required NC for the neighborhood. There has not been a
single NC planned since the Land Use Code was adopted in March, 1997.
DATE: August 21, 2001 3 ITEM NUMBER: 41
Undue Hardship
* The City staff stated that because development on the Brophy Property will attract traffic
from the arterials rather than the neighborhood access at Olt Court (to the south), it could
not be an NC.
* Present access points on West Harmony Road and South Shields Street are about 150 feet
from the intersection and lead to the front door of the Brophy residence. If these streets
are widened, the access points will need to be moved to the edges of the property 500 feet
from the intersection. The new driveways will be substantially longer than the existing
driveways and they will lead to the back yard rather than the front yard, thereby
destroying our enjoyment of the property. A stand of 100 year old, 70 feet tall
Cottonwood trees that act as a visual buffer between the vehicles on the street and our
home will be destroyed. Also, a back-up stand of Colorado Blue Spruce trees behind the
Cottonwood trees will be destroyed.
Neighborhood Issues
* The neighbors oppose development because they believe it will increase traffic on Olt
Court and Westbury Drive, whereas City staff opposes the development because they
believe the majority of the traffic will arrive from West Harmony Road and South Shields
Street.
* The neighbors would like to keep traffic off of Olt Court, but it is a public street that was
placed there as alternate secondary access to the Brophy and Collins properties.
* Both sides of this issue have some truth. City staff is right that the passing traffic will
arrive from West Harmony Road and South Shields Street. The neighbors will use
Westbury Drive and Olt Court by vehicle, foot and bike.
* The Planning and Zoning Board treated the Brophy Property differently than the Seneca
Center because neighbors that attended the public hearing urged the Board to retain the
property as a park at the property owner's expense.
* Based on comments from the neighbors, the Planing and Zoning Board appeared to
prematurely reach the conclusion that our property cannot be developed well as an NC.
There is more than sufficient space for an NC and there is an enormous buffer between
the Brophy Property and the properties to the west on Mariposa Drive.
Conclusion
* Fort Collins has a history of erecting barriers to infill development, and it has an
enormous amount of leapfrog development and urban sprawl. At 47 square miles, Fort
Collins is the same size as Boston and San Francisco, but contains only a fraction of the
population.
DATE: August 21,2001 4 ITEM NUMBER: 41
* City Council is urged to reverse the decision of the Planning and Zoning Board to send a
message that infill development is favored over further sprawl. In the more than 4 years
since the Land Use Code has been enacted, there still has not been a single NC planned.
* City Council is urged not only to reverse the decision of the Planning and Zoning Board,
but also to take actions to remedy the strong anti-infill development bias of the City.
Attachments:
1. Notice of the Council Appeal Hearing on August 21, 2001.
2. Notice of Appeal (dated and received June 18, 2001).
3. Staff response to the appeal.
4. Staff Report, with recommendation, to the Planning and Zoning Board for their June 7,
2001 public hearing.
5. Handouts pertaining to the Modification of Standards in Sections 4.4(B)(3)(c)l and
4.4(13)(3)(b) of the Land Use Code for the Brophy Property at 1109 West Harmony Road
that were presented to the Planning and Zoning Board at the June 7, 2001 public hearing.
6. Verbatim transcript of the June 7, 2001 Planning and Zoning Board discussion of this
issue.
0
ATTACHMENT 1
City Clerk
City of Fort Collins
NOTICE
The City Council of the City of Fort Collins, Colorado, on Tuesday, August 21, 2001 at 6:00 p.m.
or as soon thereafter as the matter may come on for hearing in the Council Chambers in City Hall
at 300 LaPorte Avenue, will hold a public hearing on the attached appeal from the decision of the
Planning and Zoning Board made on June 7,2001 regarding the Modification of Standard--,Brophy
Property, #9-01 filed by Mark Brophy. You may have received previous notice on this item in
connection with hearings held by the Planning and Zoning Board.
If you wish to comment on this matter, you are strongly urged to attend the hearing on this appeal.
If you have any questions or require further information please feel free to contact the City Clerk's
Office (221-6515) or the Planning Department (221-6750).
Section 2-56 of the Code of the City of Fort Collins provides that a member of City Council may
identify in writing any additional issues related to the appeal by August 14, 2001. Agenda materials
provided to the City Council, including City staffs response to the Notice of Appeal, and any
additional issues identified by City Councilmembers, will be available to the public on Thursday,
August 16, after 10:00 a.m. in the City Clerk's Office.
The City of Fort Collins will make reasonable accommodations for access to City services,
programs, and activities and will make special communication arrangements for persons with
disabilities. Please call the City Clerk's Office (221-6515) for assistance.
Wanda M. Krajicek
City Clerk
Date Notice Mailed:
August 10, 2001
cc: City Attorney
Planning Department
Planning and Zoning Board Chair
i Appellant/Applicant
300 LaPorte .Avenue • PO. Box 580 • Fort Collins, CO 80522-0380 • (970) 221-6515 • FAX (970) 221-6295
ATTACHMENT 2
M
p GCEOWE
JUN 18 2001 D Wanda Krajicek, City Clerk
City of Fort Collins
CITY CLERK 300 LaPorte Ave.
Fort Collins, CO
Mark Brophy
1109 W. Harmony Rd.
Fort Collins, CO 80526
June 12, 2001
(970) 229-1929
Dear Mrs. Krajicek:
Please accept this letter as a formal written notice of appeal of the decision by the Planning and
Zoning Board on June 7, 2001 known as "Modification of Standards- Brophy Property", #9-01.
As the applicant, I am the party-in-interest in this matter. I am appealing this decision to deny
Modifications of Standards of Land Use Code sections 4AB3cI and 4.4133b because relevant
laws were not properly interpreted and applied, and the board considered substantially false and
grossly misleading evidence. The Planning and Zoning Board also denied Modification of
Standards for Section 4.4E2i, which I am not appealing. Attached on separate pages are details of
the grounds for this appeal.
Sincerely,
Mark Brophy
Grounds for Appeal
Introduction
I applied for Modifications of Standards in the Land Use Code sections 4.4B3cI and 4.4D3b to
enable my wife and I to develop approximately 75% of our property at the southwest comer of
Harmony and Shields. Simultaneously,the City will develop the remaining 25% for the widening
of the intersection and the addition of 2 left turn lanes on southbound Shields Street.
The 2 modifications pertain to separation requirements between Neighborhood Centers (NCs).
City planner Steve Olt stated to the board that these modifications were necessary because an NC
on my property would conflict with the Seneca Center(SC) to the west. This is false because the
SC was developed under the LDGS and contains some features similar to NCs, but is not an NC.
I applied for these modifications because former Planning Director Bob Blanchard conjured a rule
that stated that the separation requirements are violated when an NC is within'/.mile of a similar
LDGS project.
The Planning Director does not have the power to enact his own ordinances. In endorsing the
recommendation of City star the action of the P&cZ Board is so arbitrary it can be said it was
taken without regard to the benefit or harm involved to the community at large including all
interested parties and was so wide of the mark its unreasonableness lies outside the realm of fair
debate.
Market Issues
There is currently a glut of office space (13%vacancy rate) caused by the construction by Larimer
County and the City of Fort Collins of large new office buildings downtown, so our property
cannot be developed as an office park for 3-5 years when the space is absorbed. The only use for
which it is reasonably adapted today is a mixed use of office and retail. The retail component
would contain neighborhood businesses such as a pharmacy, bank, restaurant, dry cleaner, or
video store. The office component would contain users who could benefit from having in the
neighborhood such as a chiropractor, dentist, or insurance agent.
The Board decision relied on a report from City staff recommending denial of the Modification of
Standards, which omitted crucial comments from the City Attorney. We contend that our
property is spot zoned because it is the only LMN zoning at the intersection of major arterials in
Fort Collins. We will not sell the land necessary to widen Harmony and Shields unless and until
we have a reasonable approved development plan. The staff report contained no comments from
the City Attorney discussing the probability of prevailing in an eminent domain proceeding. If his
input had been solicited, it is likely that his research would have found Golden v. City of Overland
Park, 584 P.2d 130. It was ruled that it is unreasonable to expect a property owner at an
intersection with 32,900 vehicles passing by each day to develop it for use as office space when
there is a massive overbuild of office space. There are 38,000 vehicles passing by our home each
day, and that will increase substantially if the width of Harmony and Shields is doubled. This case
is similar to our situation in so many respects that I have attached a copy for your study.
It is likely that the confusing provisions of the LMN and Modifications of Standards sections of
the Land Use Code caused some of the Board members to misinterpret the Code. For instance,
Glen Colton stated that he would be in favor of retail and restaurant uses that did not include a
drive-in component, but he voted against the Modifications that would make such a development
possible. He has more experience than anyone else on the Board, and lives in the adjacent
neighborhood. It is likely that the less experienced members are even more likely to be confused.
In the prior hearing that night, another application for Modifications of Standards was discussed,
and Dan Bernth admitted that he was confused.
Separation Requirements
Even if the Seneca Center(SC) had been developed under the Land Use Code, it still would not
be considered an NC because of many deficiencies enumerated in the Modification to Standards
application. Probably the most important deficiency is the 2-3 acre size of SC, which is far short
of the 7 acre NC envisioned in Policy 2.2 or the 4-5 acres contained in our property and the
adjacent 1.5 acre Collins property. Other important deficiencies in SC include lack of good access
in all modes of transportation, and lack of quality indoor or outdoor meeting space.
Both the City staff and the Planning and Zoning Board acknowledged the lack of usefulness of the
separation standards when approving the SC in May 2000. Just as our property is located 0.6 mile
east of the SC, the SC is located 0.6 mile east of J.J.'s Comer at the intersection of Taft and
Harmony. J.J.'s contains many more of the elements of an NC enumerated in the Principles and
Policies of City Plan than SC, but the separation distance was not considered a problem or even a
topic worthy of discussion during the planning process.
It is a well established principle of United States zoning law that there is a limitation upon the
exercise of the zoning power that requires that zoning ordinances be enacted for the health,
safety, morals, or general welfare of the community. Separation requirements do not meet the
standard and should be removed from the Land Use Code. Colorado state law clarifies this point
by explicitly making it unlawful to take competitive market factors into account when making land
use decisions. It appears to me that the Current Planning Department and the P&Z Board are well
aware of this fact because even the opponents of the Mulberry Crossings project refrained from
arguing that project should be denied on the grounds that the WalMart would have a detrimental
effect on downtown businesses such as the Safeway and Ace Hardware stores.
Steve Olt of the Current Planning Department erroneously stated that the reason for the
separation requirements is to prevent the proliferation of NCs on arterials. City Plan Principle
LMN-2 clearly states that all LMN neighborhoods are required to contain an NC, which implies
that many of them will be located on arterials. In addition to meeting all the requirements for an
NC enumerated in City Plan and in my application, our property and the 1.5 parcel adjacent to the
south are the only undeveloped and unplanned properties in the neighborhood. So, in denying my
application, the Board also denied a required NC for the neighborhood. There has not been a
single NC planned since the Land Use Code was adopted in March, 1997. The City should view it
as an opportunity to show potential developers that a high quality NC can be planned, and that
Fort Collins is not in the process of becoming an elitist city such as Boulder that eliminates most
development.
Undue Hardship
The City staff justified their recommendation for denial based on an issue that requires the opinion
of the City Attorney. They stated that because development will attract traffic from the arterials
rather than the neighborhood access at Olt Court, it could not be an NC. However, the arterials
can only be widened by using 25% of the property. It is unlikely that a court in an eminent domain
proceeding would allow the involuntary taking of property to provide a convenience to vehicles
passing by it, and at the same time denying those vehicles access to it.
The City Attorney was also not consulted to discuss the"unnecessary hardship" issue. This
regulation in the Land Use Code exists because it is a well-established principle of land use law
that a variance must be granted when an ordinance, in its application to specific properties,
imposes an unnecessary hardship. If the Current Planning Department had consulted the City
Attorney, he should have informed them that"excess dedications" constitute a hardship that
requires a variance; Enterprise Citizens v. Clark Co. Commis, 918 P.2d 305 (1996). Our
property qualifies as an"excess dedication"because 25% of the property will be lost when the
roads are widened.
In addition, access points on Harmony and Shields are today about 150 feet from the intersection
and lead to our front door. If the roads are widened, the access points will need to be moved to
the edges of the property 500 feet from the intersection. This will destroy additional land because
the new driveways will be substantially longer than the existing driveways. The new driveways
will also lead to the back yard rather than the front yard and thereby destroy our enjoyment of the
property. Also, a stand of 100 year old cottonwood trees that are 70 feet tall will be destroyed
that act as a visual buffer between the vehicles on the street and our home. In addition, a backup
stand of Colorado Blue Spruce trees behind the cottonwood stand will be destroyed. The standard
for a 4 lane road at the time the spruces were planted in the 1960's was 100 feet, but that has
been increased to 115 feet.
Neighborhood Issues
The objections of the neighbors are exactly opposite of the City staff. The neighbors oppose
development because they believe it will increase traffic on Olt Court and Westbury Drive,
whereas the staff opposes development because they believe the majority of the traffic will arrive
from Harmony and Shields. The Board has effectively given veto power to both the neighbors and
staff, which renders development impossible.
The neighbors would like to keep traffic off Olt Court, but it is a public street that was placed
there as alternate secondary access to our and the Collins properties. Westbury could easily have
been designed without Olt Court and replaced with additional housing, but it was added to
provide access. It's only 50 feet long, it obviously leads into the comer properties and nothing
else. There is even a"Stop" sign paid for by the Westbury developer, all of which reinforces that
it is intended to be part of a street network.
The neighbors would also like to keep traffic off Westbury Drive, but this street connects
Harmony and Shields and is intended to remove some of the burden from the intersection. Again,
it is obvious that it is not a dead end street and is intended to carry traffic to Harmony Library and
points south. The major arterials in Fort Collins are overburdened with a great deal of congestion,
and arterial bypasses such as Westbury Drive are important network components. If the parts do
not connect, it is not a network! When the properties to the north develop and even more
pressure is placed on Shields, we will be glad the planners had the foresight to add Westbury
Drive.
Both sides of this issue have some truth The City staff is right that the passing traffic will arrive
through Harmony and Shields. The neighbors will use Westbury Drive and Olt Court by vehicle,
foot and bike. This traffic pattern will evolve as Westbury Drive is extended north to Horsetooth.
Our property is 500 feet square, which easily allows for safe traffic movement. The staff is
essentially saying that they wish to develop 25% of the property to provide a more convenient
travel experience for neighbors and other users of the arterials, but they do not want those same
arterial users to enter the remaining 75%.
It was obvious during the hearing why the Planning and Zoning Board treated our property so
differently than the SC. About 25 neighbors attended the hearing and unanimously urged the
Board to retain the property as a park at our expense. Harmony and Shields need to be widened
because of the presence of neighbors and other developments approved in the last 5 years that
have greatly increased traffic. We're being forced out of our home and stand to lose 25% of the
land because of this widening. We should not be subjected to the further indignity of having the
remaining 75% rendered undevelopable to provide a park for neighbors who have not paid for the
property.
I believe the large number of neighbors unanimously opposed to all development, not merely the
Modifications in the application, unduly swayed the board. It is irrelevant how many neighbors
wish our property to remain an undeveloped lush park in the desert. It is the duty of the Board,
which they shirked, to evaluate the application based on whether the Modifications are good for
the City as a whole, not what is good for the neighbors. The arrival of these people in the
neighborhood has increased traffic both here and in the rest of the City. It is their responsibility to
share in the burden of carrying some of the traffic, and they are part of the reason that the roads
need to be widened.
Based on comments from the neighbors, the Board appeared to prematurely reach the conclusion
that our property cannot be developed well as an NC. There is more than sufficient space because
it is 500'x500' and the adjacent Collins property is 125'x500'. In addition, there is an enormous
buffer between our property and the properties to the west on Mariposa Drive, which is
documented in Appendix A: New Home Site and Landscape Buffer.
Conclusion
It is completely irrelevant how many neighbors ignore our property rights. Even if an entire city
votes in a referendum to steal a property, it remains illegal. Unfortunately, Fort Collins has a
history of erecting barriers to infill development, and has an enormous amount of leapfrog
development and urban sprawl. At 47 square miles, Fort Collins is the same size as Boston and
San Francisco, but contains only a fraction of the population.
I urge City Council to reverse the decision of the P&Z board to send a message that irM
development is favored over further sprawl. In the more than 4 years since the Land Use Code
has been enacted, there still has not been a single NC planned. Our property would be a perfect
demonstration project and should not be hindered by unnecessary barriers such as conjured
regulations.
We have encountered substantial resistance from the Current Planning Department to the
development of our property in the last several years. I urge City Council not only to reverse the
decision of the P&Z Board, but also to take actions to remedy the strong anti-infill development
bias of our City.
Donald Golden,Appellee,v. City of Overland Park,Kansas,
Appellant
No. 48,793
Supreme Court of Kansas
224 Kan. 591; 584 P.2d 130; 1978 Kan. I E7QS 382
September 6, 1978,Opinion Filed
PRIOR HISTORY:
[►►►I]
Review from the Corot of Appeals(unpublished opinion,filed September 16,
1977).
DISPOSITION:
Judgment of the Court of Appeals reversed,and that of the trial court
affirmed
SYLLABUS:
SYLLABUS BY THE COURT
1. ZONING--Comprehensive Plan—Legislative Capacity of Commission. A city in
enacting a general zoning ordinance or a planning commission in adopting a
comprehensive plan for development of a city acts in a legislative capacity.
2. ZONING—Change in Zoning--Quasi-judicial Capacity of Commission. When a
board,council,or commission hears an application to change the zoning of a
particular tract of land,its function becomes more quasi-judicial than
legislative.
3. ZONING-- Change in Zoning--Factors to Be Considered by Commission Some of
the factors which should ordinarily be considered by a board,council or
commission when acting upon a request for zoning change are set forth.
4. ZONING—Change in Zoning—Requirements for Recording Decision of
Commission. Zoning bodies should place in their minutes a written order
summarizing the evidence and stating the factors which were considered in
reaching the decision either to deny or to grant[►►►2] a requested zoning
change.
5. ZONING--Change in Zoning--Standard for Review. The standard for review of
an order denying or granting a zoning change is whether the order entered is
reasonable.
6. ZONING--Change in Zoning—Appellate Review. In an appeal by the city from
a judgment of the district court holding that the action of the city in denying
a zoning change was unreasonable,and in ordering the requested change,the
record is examined and the judgment of the trial court is affirmed
COUNSEL:
Helen Mountford,assistant city attorney,argued the cause,and Phillip R
Schuley,assistant city attorney,was with her on the brief for the appellant.
Robert J. Campbell,of Brown,Koralchik&FirWrsh,of Kansas City,Missouri,
argued the cause,and Ray L.Borth,of Ballweg,Borth&Wilson,of Prairie
Village,was with him on the brief for the appellee.
JUDGES:
The opinion of the court was delivered by Miller,J.Fromme,J.,dissenting
OPINIONBY:
MILLER
OPINION:
[*591] [**132]This case comes before us on a petition for review of an
unpublished opinion of the Court of Appeals.The plaintiff,Donald Golden,
commenced this action against the City[***3]of Overland Park,challenging
the reasonableness of the city's refusal to rezone his property from C-O(office
building)to CP-I (planned retail).The trial court,after numerous hearings
and after twice referring the matter back to the city,nded that the city's
denial of rezoning was unreasonable,and ordered the city to[*592]grant the
requested zoning change. The city appealed and the Court of Appeals reversed
The property involved is a tract of about 2.3 acres situated at the southeast
comer of the intersection of 87th Street and Metcalf in Overland Park,Kansas.
Golden purchased the property for$ 100,000 in February, 1966.The property was
then zoned C-O(office building).
Shortly after he acquired the tract,Golden commenced plans to build an
office building on the property. He hired an architect,and the architect's
drawing of the proposed building was published in the Kansas City Star on June
12, 1966. Thereafter,various changes were made in the plans,various studies
were made,and the plaintiff actively sought to secure tenants for the planned
building He was unable to secure sufficient lease commitments,and for this
reason he was unable to secure the[***4] necessary financing
In 1972 plaintiff was approached by a firm desiring to build a car wash on
the property.He negotiated a lease with the car wash firm,subject to securing
a zoning change to permit that use. Application was then filed to change the
zoning;the lease commitment expired before the request for zoning was heard;
the matter was then dropped,and the zoning change was denied
In 1974 plaintiff was approached by the Dubois Company,which was interested
in building a small shopping center on the property. Dubois planned to sublet
to the Tandy Company subsidiaries,Tandy Leather,Radio Shack,Color Tile,
American Handicraft,etc. A purchase option,contingent upon rezoning,was
entered into. Color Tile was the only committed sublessee. An architect was
engaged,and a petition for a zoning change was filed with the City of Overland
Park The requested change was recommended for approval by the planning
commission's professional staff,but on August 12, 1974,the planning commission
denied rezoning The reasons stated for denial were that the original purpose
was to preserve this area as a transition zone; increased traffic problems,
particularly at night and on["'S]weekends,would be generated from a
40 shopping center,and due to the aesthetics of the development and the effect on
the surrounding neighborhood,increased pressure for zoning changes for other
nearby areas could be anticipated
Various changes were then made in the plans and the matter[*593]was
presented to the city commission; it tabled the matter and referred it back to
the planning commission for further study.
The planning commission again recommended denial of the application. The
member of the planning commission who moved for denial expressed concern that
carpet sale signs could be hung up after six months"that aesthetically don't
seem to be the transitional item that we anticipated here between the
developments to the south and the north"
Thereafter,the city council upheld the planning commissiods recommendation
and denied rezoning.The only discussion on the motion was that the architecPs
rendering was not a true portrayal of how the proposed building would appear,
since the rendering portrayed no traffic,very few["133] parked cars, no
traffic tights,utility poles or street lights,and the plantings appeared too
mature.
At each of the planning commission[***6] and city commission meetings,
homeowners who lived north and east of the property appeared in opposition to
the proposal. Primarily,they expressed concern over traffic congestion and
increased litter and noise,problems which had arisen in connection with a small
shopping area on 83rd Street,where there were convenience stores(open all
night)and fast food establishments. These fears were also voiced by members of
both bodies.
Metcalf,for some 10 blocks south of plaintiffs tract,is primarily
commercial. Immediately south of plaintiff is a tract zoned C-2,a more
commercial classification than that sought by plaintiff,on which is situated an
automobile dealership,where new and used motor vehicles are sold and serviced
East of and adjoining both plaintiff and the auto dealership are two-story
apartments. North of plaintiffs property,at the northeast comer of 87th and
Metcalf, is a tract zoned C-1,on which is situated a savings and loan. To the
east and north of the savings and loan are single-family dwellings in what is
known as the White Haven addition. At the northwest comer of the intersection,
and continuing both north and west,are single-family dwellings. [+;•7]
Directly west of plaintiff s tract,on the southwest corner at 87th and Metcalf,
are two-story apartments. Immediately south of these and on the west side of
Metcalf is a huge development,the King Louie bowling,skating and amusement
center.
Trial was held before the court on August 28, 1975. On September[*594]
15, 1975,the court announced its decision. It made over thirty detailed
findings of fact The court concluded that the property was zoned for a use
which cannot be realized;that plaintiffs considerable efforts over a
seven-year period were unsuccessful;but the court concluded that four of the
factors which the city presumably based its decision upon precluded the court
from finding in favor of the plaintiff. The court retained jurisdiction and
continued the matter in order to give the plaintiff an opportunity to correct
these four items and submit proposed changes to the city. These four items
were:
"1. Access on 87th. . . that could influence backup traffic into the
intersection[of 87th and Metcalf];
"2. A greater setback from the north side to make the entrance more
attractive;
"I Upgrading of the landscaping;and
"4. high aesthetics in architecture[***8]to blend in with the surrounding
neighborhood with emphasis on small signs."
The matter was again presented to the city council and the application for a
change was again denied,tins time for two reasons:because the landowner wished
to retain the west entrance on 87th Street and because the landowner would not
agree that logos could not be used as a part of the restricted sign area on the
buildings.
Additional evidence was then presented to the district court and on March 8,
1976,the district court announced its decision. It made additional findings of
fact and recognized its limited jurisdiction,and concluded that the city was
unreasonable in its denial of the use of logos for the reasons that logos are in
use throughout the city of Overland park and other shopping centers;that
plaintiff agreed to make their logos small,to be included in the five per cent
signage on the front of the facade;and that a corporation requesting a lease
insists on the use of logos to display and advertise the named company in the
building where it is doing business. With reference to the access from 87th
Street,the court found that plaintiff had not met his burden to show that the
requirements[***9] of the city were unreasonable;however, in view of the
expense plaintiff had incurred,the court granted him an additional stay of
fourteen days to determine whether or not he would accede to the decision of the
city to limit access to one drive on 87th Street
The plaintiff capitulated to the demands of the city on access,and presented
his application again to the city for reconsideration [*595] [**1341 The
city council again denied plaintiff s request for a zoning change. The matter
was then taken up again by the trial court,additional evidence was presented,
and on July 23, 1976,the court entered its final order. The court reviewed the
course of the lengthy proceeding,noted that plaintiff had completely
capitulated to the demands of the city concerning the four issues,including
that of access;found that the property was zoned for a use which the plaintiff
could not realize;that the city increased the problem by zoning the tract of
land to the south for a more intensive use,or CP-2 zoning for an automobile
dealership,and by zoning the property to the north C-1,for a savings and loan;
that immediately to the rear of the property are garden apartments for a[***10]
transitional type of zoning from residential to more intensive use;that the
property on the west side and across the street is zoned for a large bowling
alley,that the taxes on the property are substantial($2,172.30 in 1974)and
that plaintiff simply cannot develop the property under the present zoning
classification; that the professional staff of the city made a substantial study
of all factors;that plaintiff has completely agreed to all the requested
changes; and that the staff made a finding that the zoning sought is proper for
transitional use of the property and that it in fact will serve the latter
purpose as well on the proposed zoning request as an office building
classification that the city demands that Mr. Golden use the property for. The
court reviewed the case law,was mindful of the limitation of courts in
reviewing the discretionary orders of an administrative body,and acknowledged
the presumption that the city acted fairly and reasonably. The court concluded,
however,that the action of the city was unreasonable,arbitrary and capricious.
The trial court then granted the relief prayed for and ordered the city to grant
the requested zoning change.
The Court[***11]of Appeals correctly stated the Hiles for judicial review
of zoning ordinances. It said-
"In reviewing the trial coures decision we bear in mind lust of all the
restricted role of the entire judiciary in zoning matters,as recently
recapitulated in Highway Oil,Inc.v. City of Lenexa,219 Kan. 129, 132,547
P.2d 330:
"The rules for judicial review of municipal zoning ordinances and
determinations are well established "It must be understood that the governing
body has the right to prescribe zoning,the right to change zoning and the right
to refuse to change zoning" (Arkenberg v. City of Topeka, 197 Kan. 731, 734.735,
421 P.2d 213). The power of the district court,in reviewing zoning
determinations,is[*596] limited to determining(1)the lawfulness of the
action taken,that is,whether procedures in conformity with law were employed,
and(2)the reasonableness of such action. In making the second determination,
the court may not substitute its judgment for that of the governing body and
should not declare the action of the governing body unreasonable unless clearly
compelled to do so by the evidence(Arkenberg v. City of Topeka, supra;Keeney
v. City of[***121 Overland Park,203 Kan. 389,454 P.2d 456;Paul v. City of
Manhattan, 212 Kan 381,511 P.2d 244). "There is a presumption that the
governing body acted reasonably and it is incumbent upon those attacking its
action to show the unreasonableness thereof",by a preponderance of the evidence
(Arkenberg v. City of Topeka,supra,p. 735; Creten v. Board of County
Commissioners,204 Kan 782,466 P.2d 263). The mark of unreasonable action by
zoning authorities is". . . when the action is so arbitrary it can be said it
was taken without regard to the benefit or harm involved to the community at
large including all interested parties and was so wide of the mark its
unreasonableness lies outside the realm of fair debate"(Gaslight Villa,Inc. v.
City of Lansing,213 Kan. 862, Syl. pars 3,518 P.2d 410).'"
"See also,Rickard v. Fundenberger, 1 Kan App. 2d 222, 563 P.2d 1069.
" [**135] Secondly,we must recognize that in reviewing the trial eoures
decision to determine whether it observed those restrictions,an appellate court
must make the same review of the zoning authority's action as did the trial
court. Gaslight Villa,Inc. v. City of Lansing,213 Kan [***13] 862,518
P.2d 410,and cases cited therein;Hukle v. City of Kansas City,212 Kan 627,
512 P.2d 457;Rickard v. Fundenberger,supra That is because the ultimate
question,whether the action of the zoning body was'reasonable'or not,is one
of law and not of fact;otherwise the courts would have no business at all
reviewing an essentially legislative determination such as zoning See e.g.,
Paul v. City of Manhattan,212 Kan. 381,389-90, 511 P.2d 244. Hence a court is
not free to make findings of fact independent of those explicitly or implicitly
found by the city governing body,but is limited to determining whether facts
could reasonably have been found by the zoning body to justify its decision.
'Put another way,courts do not weigh the evidence before the city,and if
the question is fairly debatable,'the court may not substitute its judgment for
that of the city in order to change the decision on the debate.'(Arkenberg v.
City of Topeka, 197 Kan. 731, 738,421 P.2d 213.)"
What has troubled trial and appellate courts alike is: What is"fairly
debatable"and what is"reasonable"?
Where the great bulk of the evidence supports a proposed finding,is it
"fairly[***14]debatable"because there is some evidence to the cormary?Any
proposed change for a more intensive land use can easily be described as"likely
to have a domino effect," "against the public interest,"or as a possible cause
of"traffic problems."Any commercial establishment could be described as a
producer of"noise," "litter," and"traffic."We pause to note that the
intersection in question is not an isolated residential crossroad;according to
the record before us,over 32,900 vehicles passed through that intersection on
the average day in 1974.
[*597]The governing body,as well as the planning commission,in the
several determinations by those bodies,failed to set forth or specify the
factors which either considered in arriving at a decision. Individual members
of the city council,testifying months later,sought to then state the reasons
for their individual votes.
A city,in enacting a general zoning ordinance,or a planning commission,in
exercising its primary and principal function under K S.A. 12-704 in adopting
and in annually reviewing a comprehensive plan for development of a city,is
exercising strictly legislative functions. When,however,the focus[***15]
shifts from the entire city to one specific tract of land for which a zoning
change is urged,the function becomes more quasi-judicial than legislative.
While policy is involved, such a proceeding requires a weighing of the evidence,
a balancing of the equities,an application of Hiles,regulations and ordinances
to facts,and a resolution of specific issues. Kropf v. City of Sterling
Heights,391 Mich. 139,215 N.W.2d 179(1974);Fleming v. City of Tacoma,81
Wash. 2d 292,502 P.2d 327(1972);Fasano v. Washington Co. Comm.,264 Ore. 574,
507 P.2d 23(1973);and see Zoning Amendments—The Product of Judicial or
Quasi-Judicial Action, 33 Ohio State Law Journal 130(1972).
A mere yes or no vote upon a motion to grant or deny leaves a reviewing
court,be it trial or appellate,in a quandary as to why or on what basis the
board took its action. A board,council or commission,in denying or granting a
specific zoning change,should enter a written order,summarizing the evidence
before it and stating the factors which it considered in arriving at its
determination. The trial court here assumed from the record before it that the
city fathers considered and based their[***16]initial rejection of the zoning
change on four matters—access to 87th Street,setback of building from the
north side,landscaping,and architecture and sign age. If in fact the city was
basing its rejection upon other factors,it was incumbent upon the city to
disclose those factors upon the record,while[**136]the matter was yet
before the city council,or,after the matter was raised in the trial courts
initial order,while the matter was before the trial court.
Those four factors are specific ones applicable to the property at hand But
what factors,generally,should a zoning body consider in hearing a request for
change?The trial court enumerated six factors to be considered in determining
whether a zoning[*598] ordinance is invalid because it precludes all
reasonable use of the subject property. These factors are ones which it would be
well for a zoning body to bear in mind when hearing requests for change. They
are:
(1)The character of the neighborhood;
(2)the zoning and uses of properties nearby;
(3)the suitability of the subject property for the uses to which it has been
restricted;
(4)the extent to which removal of the restrictions will detrimentally
[***171 affect nearby property;
(5)the length of time the subject properly has remained vacant as zoned; and
(6)the relative gain to the public health,safety,and welfare by the
destruction of the value of plaintiffs property as compared to the hardship
imposed upon the individual landowner.
To these we would add a consideration of the recommendations of permanent or
professional staff,and the conformance of the requested change to the adopted
or recognized master plan being utilized by the city. Master or comprehensive
plans for the development of both cities and counties are authorized by the
legislature,KS.A. 12-704,KS.A 19-2916a The legislature has stressed the
making of such plans,and we believe they should not be overlooked when changes
in zoning are under consideration.
As to additional factors to be considered in county planning, see K S.A
19-2916a where the legislature has enumerated the factors it considers important
in the formulation of comprehensive plans for county development. Also,the
legislature has listed in K S.A. 12-715 the important factors to be considered
by a board of zoning appeals,when considering variances from or exceptions to
zoning ordinances. [***18] Conditions to be met by the applicant are
enumerated in the latter statute.
Important factors to be considered in determining the validity of zoning
ordinances are set forth by the Supreme Court of Illinois in the case of La
Salle Nat Bank v. County of Cook, 12 111. 2d 40, 145 N.E.2d 65 (1957),where
that court said:
'Even though the validity of each zoning ordinance must be determined on its
own facts and circumstances. . . yet an examination of numerous cases discloses
that among the facts which may be taken into consideration in determining
validity of an ordinance are the following: (1)The existing uses and zoning of
nearby property. . . (2)the extent to which property values are[*599]
diminished by the particular zoning restrictions. . . (3)the extent to which
the destruction of property values of plaintiff promotes the health,safety,
morals or general welfare of the public. . . (4)the relative gain to the
public as compared to the hardship imposed upon the individual property owner.
(5)the suitability of the subject property for the zoned purposes. . . (6)
the length of time the property has been vacant as zoned considered in the
context of land[***19]development in the area in the vicinity of the subject
property. . . .
"No one factor is controlling It is not the mere loss in value alone that
is significant,but the fact that the public welfare does not require the
restriction and resulting loss. When it is shown that no reasonable basis of
public welfare requires the limitation or restriction and resulting loss,the
ordinance fails and the presumption of validity is dissipated . . . The law
does not require that the subject property be totally unsuitable[**1371 for
the purpose classified but it is sufficient that a substantial decrease in value
results from a classification bearing no substantial relation to the public
welfare." (pp. 46-48.)
These factors were again cited with approval in La Salle Nat.Bk. v. City of
Evanston,57111. 2d 415,312 N.132d 625(1974)and Smith v. City of Macomb,40
DI. App.3d 658,352 N.E.2d 697,703(1976).
The factors designated by the Illinois court are similar to the factors
listed by the trial judge in the case at hand We have listed all of these
various factors here not as the exclusive factors to be considered in each
zoning matter,but as suggested factors[***20]which may be important. Other
factors may and no doubt will be of importance in the individual case.
Reasonableness remains the standard for review. K.S.A. 12-712; K.S.A.
19-2913. However,that standard will be more readily,more effectively,and
more uniformly applied if zoning bodies will place in their minutes a written
order delineating the evidence and the factors the board considered in arriving
at its conclusion. Reviewing courts,then,will have a record to review and to
act upon.
As the Court of Appeals noted,the critical finding of the trial court was
that the plaintiff was unable to make any economically feasible use of his
property under the existing zoning Some of the members of the city council
reasoned that 1,700,000 square feet of office space had been built in Overland
Park during the years that plaintiff owned the property without developing it.
Any dilemma now faced by the plaintiff at the present time,they reasoned,he
brought upon himself by not having lowered his sights and having attempted to
place upon his property a more[*600] modest office facility than the
multi-story office building which he originally envisioned This view,it seems
to[***21] us,ignores the finding of the trial court,supported by an
abundance of evidence,that at the time of trial there were many vacant office
buildings in Overland Park,with a present overbuild in the Overland Park area;
that there was a lack of money from mortgage bankers for office development; and
that plaintiffs property was not attractive for office development. These
findings relate to the situation at the time the application for rezoning was
presented The issue is whether zoning for office construction was appropriate
at the time of the hearing,not at some earlier date in Overland Parles history.
Paul v. City of Manhattan,supra A massive overbuild of office space,whether
in large office buildings or in small,leads to the inevitable conclusion that
the demand for additional office space did not exist in Overland Park in 1974.
Plaintiff sought to establish a small shopping center for retail shops which
would not be open on Sundays. Apparently the city places convenience stores and
fast-food service shops under the same classification—CP-I --as it places
all retail establishments. Such broad classifications are not the fault of the
landowner. The protests of[***22] neighborhood residents,voiced at planning
commission and council meetings,were for the most part against the
establishment of convenience stores or fast-food shops—neither of which were
proposed by the plaintiff. Protests,of course,may be considered,but protests
against uses not proposed are not entitled to great weight,as the trial court
held
The trial court carefully considered each of the factors it enumerated When
it found that the city was reasonable in some of its objections to the requested
change,it denied plaintiff relief but granted him an opportunity to conform to
the changes requested by the city. Upon his conformance,the city remained
adamant and refused the change. At that point,after weighing the evidence and
all of the applicable factors,the trial court concluded that the plaintiff
could not utilize his property for the purposes for which it was zoned The
court correctly found that the apartment complexes to the east and west of
plaintiff s land serve as transitional zoning between the single family
residential area and the more intensive commercial zoning Reluctantly,
[**1381 the trial court found the city's denial of the requested change[***231
unreasonable,and ordered the change from C-O to CP-1 zoning The[*601]
finding of unreasonableness by the trial court is amply supported by the
evidence.
The judgment of the Court of Appeals is reversed,and that of the trial court
is affirmed
DISSENTBY:
FROM IE
DISSENT:
Fromme,J.,dissenting
This action in the district court is authorized by K.S.A. 12-712 and the
scope and nature of the review is limited thereby. Under the statute the
district court is given the authority to review the action of a municipality in
a zoning matter. Any person having an interest in property affected may have
the reasonableness of any ordinance or regulation determined in such an action.
If the ordinance or regulation by the municipality is found to be unreasonable
the ordinance or regulation may be set aside. The statute does not authorize a
district court to substitute its judgment for that of the municipality. The
court is not authorized to enter the business of zoning The court merely
determines if the ordinance or regulation is reasonable. The Kansas cases which
support these statements were recognized by the Court of Appeals and applied
These cases are set forth in the majority opinion[***24] and recognized as the
law.
However,after paying lip service to these cases the majority disregards the
principles cited and adopts a new approach to judicial review in zoning actions.
A novel bifurcation of the scope and nature of review under K.S.A 12-712 is
initiated The opinion of the court states that when a city adopts"a
comprehensive plan for development of a city" it acts in a legislative capacity.
(Syl. pars 1.)In such a case review by the courts under the statute is limited
as recognized in our previous case law. On the other hand,when a city is
called on to rezone"a particular tract'the action of the municipality becomes
.more quasi-judicial than legislative."(Syl. para 2.)
The request for rezoning in the present case relates to a particular tract,
so under this new haw judicially declared by the majority the refusal to rezone
this tract becomes more quasi-judicial than legislative,whatever that means.
Now let us consider the procedure followed by the district court in this
case,which procedure is approved by the majority as being within the proper
scope of review provided by KS.A 12-712. The district court heard the
evidence and made over thirty findings[***25]of fact It then concluded that
four factors precluded[*602]it from finding the city had acted unreasonably
in denying the requested zoning change. In other words,the court found the
action of the municipality in refusing to rezone the property was reasonable.
Under our prior case law this should complete the review contemplated by
K S.A. 12-712 and the refusal to rezone should have been approved by the
district court In the present case the district court retained jurisdiction of
the case and gave the plaintiff-landowner an opportunity to take care of the
four changes in planning which the court required These"proposed changes"
were to be agreed to by the landowner and then the new plan was to be
resubmitted to the city for a final decision by that body. These four planning
changes were:
"1. Access on 87th. . . that could influence backup traffic into the
intersection[of 87th and Metcalf];
"I A greater setback from the north side to make the entrance more
attractive;
"I Upgrading of the landscaping;and
"4. High aesthetics in architecture to blend in with the surrounding
neighborhood with emphasis on small signs."
It should be noted that these were all[***26] matters bearing upon plans
for a proposed shopping center.This action by the court presupposes the
property should no longer be zoned C-O(office building)and should be rezoned
CP-I (planned retail). At this stage of the proceedings the district court
entered into the business of zoning
[**139] Apparently,two of the four suggested changes in planning the
shopping center were rejected by the plaintiff-landowner. The plan with two
changes was then presented to the city council. The application for rezoning was
again denied by the city.Thereupon the district court resumed jurisdiction
over the rezoning application in court and held another hearing Additional
evidence was introduced,and the court then ordered the zoning change.
The majority approves this procedure,the effect of which is to give the
district courts of this state complete and final control of the rezoning
process. Hereafter,when a rezoning action by a municipality is considered
"more quasi-judicial than legislative"the district court in reviewing the
action taken by the municipality not only will hear evidence and make findings
but also will order planning changes and control the nature of the facility
[***271 to be constructed.
Such authority is beyond that contemplated and granted by the[*6031
legislature. It violates the separation of povmrs doctrine encompassed by the
constitution. I would affirm the Court of Appeals and reverse the trial court.
Appendix A: New Home Site and Landscape Buffer
This appendix contains photographs of the site on our property where we will build our
new home, an elm stand between the site and Olt Court, and the landscape buffer
between our property and the 5 adjacent properties in Westbury.
..
�K
i
This is a 0.5 acre area at the southwest comer where we will build our new home. The
camera is pointing mostly south and slightly west. The upper left comer is the west edge
of the Collins property(125' x 500') and a town home in Westbury near Olt Court. The
eastern border (not visible) is a large stand of elm trees. The western border contains a
stand of 16 Colorado Blue Spruce trees, most of which are visible.
Our new home will be the closest residence to the Neighborhood Center.
mStand
This elm
y s
.ty��" � _T.." fit. •. Y_� f r- $, �- •��' ^. _ V• � yj S',
� -;fir.~�-. f -\.. ^'S. `�..L •1. . Z� .
r
standisdirectlyeast of our home site and parallel andwestof Olt Court.
CourtOlt east ofthe westernproperty boundary. most • - neighbors
stand,at 4700 Westbury Drive, 4618 Mariposa Court, and 4612 Mariposa Court are buffered by
this elm our newhome, I of IColorado Blue Spruce • • ' 1
our newhome site, andanother 11 1elm trees at the eastern -• • - ofthese Westbury
properties.
1- split rail fencebottom - comer is about 3 feet high1 the elm trees
about 70 feet - previous owners plantedthese 17 • • order to show
the scale 1 thesetrees, it was necessarytosnap the picture from 1 from the western
property boundary.
4700 Westbury Drive
Y X,
This is the southern-most Westbury property adjacent to our new home site. It is the only
house in Westbury adjacent to our new home site that is not completely obscured by the
landscape buffer. It is 36' high and is probably the largest house in Westbury. The fence
was placed by the owner. The landscaping is so dense in the other 4 adjacent properties
that it is likely that this will remain the only one with a fence.
4618 Mariposa Court
Y�� • _ r
Ar
1
Yr
This is the densest landscaping of the 5 Westbury properties adjacent to our property,
which completely obscures the view of 4618 Mariposa Court. We planted these 15'
spruce trees at considerable expense so that we could have a buffer in the winter as well
as summer. The picture is looking mostly west and slightly south. The sandbox in the left
edge belongs to 4700 Westbury Drive. The elm trees are at the eastern edge of Westbury.
4612Mariposa Court
This home is almost as completely obscured by the landscape buffer as his neighbor next
door at 4618 Mariposa Court. The owner spoke for I I minutes at the P&Z Board hearing
opposing all development of our property, so that he could remain adjacent to a private
r
park obscured from his view.
4606 Mariposa Court
1.y!.`• `' 4
.i
t
The landscape buffer also mostly obscures the view of this house. It is the second closest
house on Mariposa Court to Harmony Road. The 40' tall staked spruce tree in the
foreground was moved from our stand on Harmony Road 3 years to block the bright
lights shining in our bedroom window at night, and act as a landscape buffer to the
Neighborhood Center for this home and our new home.
A similar tree moved from the same stand is behind the foreground tree, and the partially
visible spruce at the right was also moved from the same stand. The 2 left spruces
replaced a fir transplanted from the Harmony Marketplace, which we were saddened to
find did not survive. An additional spruce of similar size was moved from the Harmony
Marketplace and is behind the partially visible tree. Each of these 4 trees cost us a
substantial amount to transplant, and required 2 years of watering each tree once each
month for 2 hours, even during winter, to ensure a successful transplant. Our water bills
have been extremely high, it was very difficult to keep the hoses from freezing during the
winter, and it was an unpleasant task to wind and unwind 200' of hose in cold weather.
The tree trunks at the left are a large cottonwood and several elms, which will provide
shade to the garage of our new home.
We consider the spectacular results to have been worth the considerable trouble and
believe it far exceeds the landscape buffer standards in the Land Use Code.
4600 Mariposa Court
�i
This is the northern-most Westbury property adjacent to our property, and it borders
Harmony Road to the north. It is one of the two (the other is 4700 Westbury Drive)
adjacent Westbury homes not completely obscured by the landscape buffer. The tall tree
trunks in the middle are elm trees at the eastern edge of 4600 Mariposa. The ponderosa
pines in the foreground are part of our property.
A photograph from further away would reveal a forest of 10 Ponderosa and Austrian
Pines in the landscape buffer, each of which are 15'-25' high. Some of these trees have
been there for many years. We also transplanted some other trees 3 years ago from other
places in our property, so that the lights from the house did not shine brightly in our
bedroom window when we are trying to sleep. We transplanted the 2 tallest trees from the
Harmony Marketplace.
A cedar fence buffers this house on the Harmony Road side, and we are willing to
continue the fence on our side, since it will be closest to the Harmony Road entrance.
However, we believe it is unlikely the owner will desire a new fence that will obscure the
view of the pine forest.
ATTACHMENT 3
•
Community Planning and Environmental Services
Current Planning
Citv of Fort Collins
MEMORANDUM
TO: Mayor and Members of City Council
FROM: Stephen Olt, City Planner
THRU: Greg Byrne, Director C.P.E.S.
Cameron Gloss, Current Planning Director
DATE: August 21, 2001
RE: Modification of Standards in Sections 4.4(B)(3)(c)(1) and 4.4(D)(3)(b) of
the Land Use Code for the Brophy Property at 1109 West Harmony
Road — Appeal to City Council
The purpose of this memorandum is to respond to an appeal regarding the June 7, 2001
decision of the Planning and Zoning Board to deny the request for Modification of
Standards in Sections 4.4(B)(3)(c)(1) and 4.4(D)(3)(b) of the Land Use Code for the Brophy
Property at 1109 West Harmony Road.
Section 2-48 of the City Code states:
"Except for appeals by members of the City Council, for which no grounds need be stated,
the permissible grounds for appeal shall be limited to allegations that the board or
commission committed one or more of the following errors:
(1) Failure to properly interpret and apply relevant provisions of the Code and
Charter;
(2) Failure to conduct a fair hearing in that:
a. The board, commission or other decision maker exceeded its authority
or jurisdiction as contained in the Code and Charter;
b. The board, commission or other decision maker substantially ignored
its previously established rules of procedure;
1
"RI V'orth Colle;e Avenue • P.O. Box 380 • Fort Collins, CO 811�'_'_-0�8(1 • (970) 221-6750 • FAX (970) 116-2020
C. The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant."
The Appeal:
Appellant Mark Brophy
1109 West Harmony Road
Fort Collins, CO. 80526
Grounds for Appeal:
In the Appellant's written notice of appeal of the Planning and Zoning Board's decision to
deny the Modification of Standards in Sections 4.4(13)(3)(c)(1) and 4.4(D)(3)(b) of the Land
Use Code for the Brophy Property at 1109 West Harmony Road the following allegations
were cited:
1. Relevant laws were not properly interpreted and applied.
2. The Board considered substantially false and grossly misleading evidence.
Additional details of the Grounds for Appeal were offered (below).
Note: Courier Bold Text represents excerpts from the appeal document.
Introduction
I applied for Modifications of Standards in the Land Use Code
sections 4 .4B3cl and 4 .4D3b to enable my wife and I to develop
approximately 75% of our property at the southwest corner of
Harmony and Shields. Simultaneously, the City will develop the
remaining 25% for the widening of the intersection and the
addition of 2 left turn lanes on southbound Shields Street.
The 2 modifications pertain to separation requirements between
Neighborhood Centers (NCs) . City planner Steve Olt stated to the
board that these modifications were necessary because an NC on my
property would conflict with the Seneca Center (SC) to the west.
This is false because the SC was developed under the LDGS and
2
contains some features similar to NCs, but is not an NC. I
applied for these modifications because former Planning Director
Bob Blanchard conjured a rule that stated that the separation
requirements are violated when an NC is within Y. mile of a
similar LDGS project.
The Planning Director does not have the power to enact his own
ordinances. In endorsing the recommendation of City staff, the
action of the P&Z Board is so arbitrary it can be said it was
taken without regard to the benefit or harm involved to the
community at large including all interested parties and was so
wide of the mark its unreasonableness lies outside the realm of
fair debate.
Staff Response:
The Appellant's 2 requested modifications pertaining to the City's separation
requirements between Neighborhood Centers are in reference to Section 4.4(13)(3)(c)l
of the Land Use Code (LUC), stating that:
"Neighborhood centers consisting of one (1) or more of the following uses:
standard and fast food restaurants; artisan and photography studios and
galleries; or convenience retail stores with fuel sales that are at least three-
quarters (3/4) mile from any other such use and from any gasoline station;
provided that such use or uses are combined with at least one (1) other use
listed in Section 4.4(B)(2)(c)3 above.";
also, Section 4.4(D)(3)(b) of the LUC, stating that:
"Location. A neighborhood center shall be planned as an integral part of
surrounding residential development and located where the network of local
streets provides direct access to the center.
Neighborhood centers with retail uses or restaurants located on arterial streets
shall be spaced at least three thousand nine hundred sixty (3,960) feet (three-
quarters [3/4] mile) apart."
The Appellant's argument that the City planes statement to the Planning and Zoning
Board that these modifications were necessary because a Neighborhood Center on the
subject property would conflict with the Seneca Center to the west is false because the
Seneca Center was developed under the Land Development Guidance System (LDGS)
and contains some features similar to Neighborhood Centers, but is not a
3
Neighborhood Center(paraphrased by City staff) is a matter of interpretation. Former
Current Planning Director Bob Blanchard, when requested by Mr. Brophy to interpret
the LUC, as is authorized pursuant to Sections 1.4.1 through 1.4.3 of the LUC, issued
Administrative Interpretation #1-99, a copy of which was included in the staff report to
the Board and which concluded that the separation requirements of the LUC apply to
neighborhood centers approved under the LDGS. Mr. Blanchard issued the
interpretation that a development which fits the definition of a neighborhood center as
contained in the LUC, even though approved under the LDGS, remains a neighborhood
center for spacing requirements. Staff has determined that the approved Seneca
Center is a neighborhood center based on the presence of a focal point/outdoor space
and more than 2 non-residential uses on a site that is less than 5 acres in size. Staff
has also determined that Administrative Interpretation #1-99 is still valid.
Market Issues
There is currently a glut of office space (13% vacancy rate)
caused by the construction by Larimer County and the City of Fort
Collins of large new office buildings downtown, so our property
cannot be developed as an office park for 3-5 years when the
space is absorbed. The only use for which it is reasonably
adapted today is a mixed use of office and retail. The retail
component would contain neighborhood businesses such as a
pharmacy, bank, restaurant, dry cleaner, or video store. The
office component would contain users who could benefit from
having in the neighborhood such as a chiropractor, dentist, or
insurance agent.
The Board decision relied on a report from City staff
recommending denial of the Modification of Standards, which
omitted crucial comments from the City Attorney. We contend that
our property is spot zoned because it is the only LMN zoning at
the intersection of major arterials in Fort Collins . We will not
sell the land necessary to widen Harmony and Shields unless and
until we have a reasonable approved development plan. The staff
report contained no comments from the City Attorney discussing
the probability of prevailing in an eminent domain proceeding. If
his input had been solicited, it is likely that his research
would have found Golden v. City of overland Park; 584 P.2d 130 .
It was ruled that it is unreasonable to expect a property owner
at an intersection with 32, 900 vehicles passing by each day to
develop it for use as office space when there is a massive
overbuild of office space. There are 38, 000 vehicles passing by
4
our home each day, and that will increase substantially if the
width of Harmony and Shields is doubled. This case is similar to
our situation in so many respects that I have attached a copy for
your study.
It is likely that the confusing provisions of the LMN and
Modifications of Standards sections of the Land Use Code caused
some of the Board members to misinterpret the Code. For instance,
Glen Colton stated that he would be in favor of retail and
restaurant uses that did not include a drive-in component, but he
voted against the Modifications that would make such a
development possible. He has more experience than anyone else on
the Board, and lives in the adjacent neighborhood. It is likely
that the less experienced members are even more likely to be
confused. In the prior hearing that night, another application
for Modifications of Standards was discussed, and Dan Bernth
admitted that he was confused.
Staff Response:
The Appellant devotes several paragraphs to discussing market issues, essentially alleging
that the only use for which the property is reasonably adapted today is a mixed use of
office and retail. In this case, the Appellant is not limited to developing his property only as
an office building. A neighborhood center not subject to the 3/4 mile spacing requirements
as contained in the LUC can still be developed by the Appellant for the following uses:
• mixed use dwelling units
• community facilities
• neighborhood support/recreation facilities
• schools
• child care centers
• places of worship or assembly
• offices
• financial services and clinics
• personal or business service shops
• small animal veterinary clinics
• artisan or photography studios or galleries
The spacing requirements do preclude, however, the Appellant from utilizing the
neighborhood center for the development of restaurants, retail uses and fuel sales.
5
Separation Requirements
Even if the Seneca Center (SC) had been developed under the Land
Use Code, it still would not be considered an NC because of many
deficiencies enumerated in the Modification to Standards
application. Probably the most important deficiency is the 2-3
acre size of SC, which is far short of the 7 acre NC envisioned
in Policy 2 .2 or the 4-5 acres contained in our property and the
adjacent 1.5 acre Collins property. Other important deficiencies
in SC include lack of good access in all modes of transportation,
and lack of quality indoor or outdoor meeting space.
Both the City staff and the Planning and Zoning Board
acknowledged the lack of usefulness of the separation standards
when approving the SC in May 2000. Just as our property is
located 0. 6 mile east of the SC, the SC is located 0 . 6 mile east
of J.J. ' s Corner at the intersection of Taft and Harmony. J.J. ' s
contains many more of the elements of an NC enumerated in the
Principles and Policies of City Plan than SC, but the separation
distance was not considered a problem or even a topic worthy of
discussion during the planning process.
It is a well established principle of United States zoning law
that there is a limitation upon the exercise of the zoning power
that requires that zoning ordinances be enacted for the health,
safety, morals, or general welfare of the community. Separation
requirements do not meet the standard and should be removed from
the Land Use Code. Colorado state law clarifies this point by
explicitly making it unlawful to take competitive market factors
into account when making land use decisions . It appears to me
that the Current Planning Department and the P&Z Board are well
aware of this fact because even the opponents of the Mulberry
Crossings project refrained from arguing that project should be
denied on the grounds that the Wal-Mart would have a detrimental
effect on downtown businesses such as the Safeway and Ace
Hardware stores.
Steve Olt of the Current Planning Department erroneously stated
that the reason for the separation requirements is to prevent the
proliferation of NCs on arterials. City Plan Principle LMN-2
clearly states that all LMN neighborhoods are required to contain
an NC, which implies that many of them will be located on
6
arterials. In addition to meeting all the requirements for an NC
enumerated in City Plan and in my application, our property and
the 1.5 parcel adjacent to the south are the only undeveloped and
unplanned properties in the neighborhood. So, in denying my
application, the Board also denied a required NC for the
neighborhood. There has not been a single NC planned since the
Land Use Code was adopted in March, 1997 . The City should view it
as an opportunity to show potential developers that a high
quality NC can be planned, and that Fort Collins is not in the
process of becoming an elitist city such as Boulder that
eliminates most development.
Staff Response:
The Appellant addresses the issue of the separation requirements, which is a topic
discussed in the introduction portion of the appeal. The argument is that the Seneca
Center would not qualify as a neighborhood center principally because the Seneca Center
is 2 to 3 acres in size, which the Appellant argues is far short of the seven acre NC
envisioned in Policy LMN-2.2. The Seneca Center is actually 3.69 acres in size. The
Appellant argues that the Seneca Center lacks good access and lacks indoor or outdoor
meeting spaces. Policy LMN-2.2, referred to by the Appellant in his argument, states as
follows:
"Neighborhood Center. A Neighborhood Center should be planned to
include other neighborhood-serving uses and features in addition to
residential uses. At a minimum, each neighborhood will include a
Neighborhood Center that serves as a year round gathering place accessible
to all residents. A Neighborhood Center will be no larger than 7 acres, and
will include some of the following: recreation facility, school, children's and
adult's day care, place of assembly and worship, small civic facility,
neighborhood-serving market, shops, small professional offices, clinics, or
other small businesses. Any such uses should have limited needs for
signage and limited traffic attraction into or through the neighborhood. The
inclusion of rooms or indoor space for meetings and neighborhood functions
is encouraged, as is a square, plaza, pavilion or other outdoor space
accessible to all residents."
Even though the above-quoted policy provides that a neighborhood center should not
exceed seven acres, the LUC itself, in Division 4.4(D)(3)(c) imposes a maximum size limit
for a neighborhood center of five acres. As can be seen, Policy LMN-2.2 does not require
seven acres, but rather, provides that a neighborhood center shall be no larger than seven
acres. There is a patio and outdoor courtyard area between buildings on Lots 1 and 2 that
7
are accessed by direct pedestrian connections from the surrounding residential
neighborhoods. This area is about 7,500 square feet in size, is adequately landscaped,
and, in combination with the proposed commercial uses in the buildings, does provide the
necessary focal point, outdoor space, and year-round meeting place.
The Appellant argues that the Seneca Center fits within the separation requirements of the
LDGS, Neighborhood Convenience Shopping Center- Point Chart 'J', which requires that
a neighborhood convenience shopping center be located at least 3/4 miles from any
existing or approved neighborhood convenience shopping center or convenience grocery
store. There is a County development known as 'J-J's Corner, located at the northwest
corner of South Taft Hill Road and West Harmony Road, that constituted a neighborhood
convenience shopping center at the time of approval of the Seneca Center. That center is
about 6/10 of a mile from the Seneca Center. However, under the requirements of Point
Chart 'J', Criterion 'e' asks the question "Is the center located at least three-quarters (3/4)
of a mile from any existing or approved Neighborhood Convenience Shopping Center or
convenience grocery store?" Under the LDGS, this is not a "requirement" unless the
applicant wants to receive the applicable points for this "location-based" criterion. In this
case, the applicant received no points for this criterion.
The Appellant alleged that the City's project planner erroneously stated to the Planning and
Zoning Board that the reason for the separation requirement is to prevent the proliferation
of neighborhood centers on arterial streets. Policy LMN-2.2 states:
"A Neighborhood Center will be no larger than 7 acres, and will include some of the
following: recreation facility; school; children's and adult's day care; place of
assembly and worship; small civic facility; neighborhood-serving market, shops,
small professional offices, clinics, or other small businesses. Any such uses should
have limited needs for signage and limited traffic attraction into or through the
neighborhood....."
Section 4.4(D)(3)(b) of the LUC states:
"Location. A neighborhood center shall be planned as an integral part of
surrounding residential development and located where the network of local streets
provides direct access to the center."
The stated policy from the City Plan and the standard from the LUC infer that
neighborhood centers should be located on corners of arterial and collector streets or
collector and local streets, with direct pedestrian connections. Also, as set forth in Section
3.2 — Site Location Policies of the Neighborhood Convenience Shopping Center, Design
Guidelines, Policies, and Criteria, Neighborhood Convenience Centers (translated to
Neighborhood Centers in the LUC) are discouraged from locating within 0.75 miles of an
8
existing or approved Neighborhood Convenience Center or convenience store. This
section further states:
"It is generally not desirable from either an aesthetic or functional point of view to
have a profusion of convenience centers providing duplicate service in residential
neighborhoods. An over-concentration of these centers can have a negative effect
on the character and livability of the residential areas."
The Appellant alleges that the Planning and Zoning Board, in denying his application for
modifications to standards, also denied a required neighborhood center for the
neighborhood. It is important to note that the Board did not deny a neighborhood center,
it just denied the modifications requested by the Appellant for retail uses and restaurants
in the neighborhood center.
Undue Hardship
The City staff justified their recommendation for denial based on
an issue that requires the opinion of the City Attorney. They
stated that because development will attract traffic from the
arterials rather than the neighborhood access at Olt Court, it
could not be an NC. However, the arterials can only be widened by
using 25% of the property. It is unlikely that a court in an
eminent domain proceeding would allow the involuntary taking of
property to provide a convenience to vehicles passing by it, and
at the same time denying those vehicles access to it.
The City Attorney was also not consulted to discuss the
" unnecessary hardship" issue. This regulation in the Land Use
Code exists because it is a well-established principle of land
use law that a variance must be granted when an ordinance, in its
application to specific properties, imposes an unnecessary
hardship. If the Current Planning Department had consulted the
City Attorney, he should have informed them that " excess
dedications" constitute a hardship that requires a variance;
Enterprise Citizens v. Clark Co. Comm'rs, 918 P.2d 305 (1996) .
Our property qualifies as an " excess dedication" because 25% of
the property will be lost when the roads are widened.
In addition, access points on Harmony and Shields are today about
150 feet from the intersection and lead to our front door. If the
roads are widened, the access points will need to be moved to the
edges of the property 500 feet from the intersection. This will
destroy additional land because the new driveways will be
9
substantially longer than the existing driveways. The new
driveways will also lead to the back yard rather than the front
yard and thereby destroy our enjoyment of the property. Also, a
stand of 100-year-old cottonwood trees that are 70 feet tall will
be destroyed that act as a visual buffer between the vehicles on
the street and our home. In addition, a backup stand of Colorado
Blue Spruce trees behind the cottonwood stand will be destroyed.
The standard for a 4-lane road at the time the spruces were
planted in the 1960' s was 100 feet, but that has been increased
to 115 feet.
Staff Response:
The Notice of Appeal discusses the question of undue hardship and appears to raise
only the issue of whether the Planning and Zoning Board failed to properly interpret and
apply the Code. The Appellant alleges that the City will deny him access to the arterial
streets, which is not an issue that was addressed by the Board, nor will the issue be
addressed until the Board considers a project development plan. City staff has not
stated that access from the arterial streets will not be permitted, only that the locations
and nature of any proposed access points are subject to review and evaluation by the
City.
Neighborhood Issues
The objections of the neighbors are exactly opposite of the City
staff. The neighbors oppose development because they believe it
will increase traffic on Olt Court and Westbury Drive, whereas
the staff opposes development because they believe the majority
of the traffic will arrive from Harmony and Shields. The Board
has effectively given veto power to both the neighbors and staff,
which renders development impossible.
The neighbors would like to keep traffic off Olt Court, but it is
a public street that was placed there as alternate secondary
access to our and the Collins properties. Westbury could easily
have been designed without Olt Court and replaced with additional
housing, but it was added to provide access. It' s only 50 feet
long, it obviously leads into the corner properties and nothing
else. There is even a " Stop" sign paid for by the Westbury
developer, all of which reinforces that it is 'intended to be part
of a street network.
10
The neighbors would also like to keep traffic off Westbury Drive,
but this street connects Harmony and Shields and is intended to
remove some of the burden from the intersection. Again, it is
obvious that it is not a dead end street and is intended to carry
traffic to Harmony Library and points south. The major arterials
in Fort Collins are overburdened with a great deal of congestion,
and arterial bypasses such as Westbury Drive are important
network components. If the parts do not connect, it is not a
networkl When the properties to the north develop and even more
pressure is placed on Shields, we will be glad the planners had
the foresight to add Westbury Drive.
Both sides of this issue have some truth. The City staff is right
that the passing traffic will arrive through Harmony and Shields.
The neighbors will use Westbury Drive and Olt Court by vehicle,
foot and bike. This traffic pattern will evolve as Westbury Drive
is extended north to Horsetooth. Our property is 500 feet square,
which easily allows for safe traffic movement. The staff is
essentially saying that they wish to develop 25% of the property
to provide a more convenient travel experience for neighbors and
other users of the arterials, but they do not want those same
arterial users to enter the remaining 75%.
It was obvious during the hearing why the Planning and Zoning
Board treated our property so differently than the SC. About 25
neighbors attended the hearing and unanimously urged the Board to
retain the property as a park at our expense. Harmony and Shields
need to be widened because of the presence of neighbors and other
developments approved in the last 5 years that have greatly
increased traffic. We're being forced out of our home and stand
to lose 25% of the land because of this widening. We should not
be subjected to the further indignity of having the remaining 75%
rendered undevelopable to provide a park for neighbors who have
not paid for the property.
I believe the large number of neighbors unanimously opposed to
all development, not merely the Modifications in the application,
unduly swayed the board. It is irrelevant how many neighbors wish
our property to remain an undeveloped lush park in the desert. It
is the duty of the Board, which they shirked, to evaluate the
application based on whether the Modifications are good for the
City as a whole, not what is good for the neighbors. The arrival
11
of these people in the neighborhood has increased traffic both
here and in the rest of the City. It is their responsibility to
share in the burden of carrying some of the traffic, and they are
part of the reason that the roads need to be widened.
Based on comments from the neighbors, the Board appeared to
prematurely reach the conclusion that our property cannot be
developed well as an NC. There is more than sufficient space
because it is 5001x500' and the adjacent Collins property is
1251x5001 . In addition, there is an enormous buffer between our
property and the properties to the west on Mariposa Drive, which
is documented in Appendix A: Landscape Buffer and New Home Site.
Staff Response:
The Appellant discusses his objections to the comments of neighbors. In this
discussion, no issues are raised with regard to whether the Planning and Zoning Board
failed to properly interpret and apply the LUC or failed to conduct a fair hearing by
receiving substantially false or grossly misleading evidence. The Appellant argues that
the Board shirked its duties to evaluate the application based on whether the
modifications are good for the City as a whole, not what is good for the neighbors. The
duty of the Board is not to decide the modifications based on what is good for the City
as a whole, but rather to decide the modification based on the criteria contained in
Section 2.8.2(H) of the LUC.
Conclusion
It is completely irrelevant how many neighbors ignore our
property rights. Even if an entire city votes in a referendum to
steal a property, it remains illegal. Unfortunately, Fort Collins
has a history of erecting barriers to infill development, and has
an enormous amount of leapfrog development and urban sprawl. At
47 square miles, Fort Collins is the same size as Boston and San
Francisco, but contains only a fraction of the population.
I urge City Council to reverse the decision of the P&Z board to
send a message that infill development is favored over further
sprawl. In the more than 4 years since the Land Use Code has been
enacted, there still has not been a single NC planned. Our
property would be a perfect demonstration project and should not
be hindered by unnecessary barriers such as conjured regulations .
12
We have encountered substantial resistance from the Current
Planning Department to the development of our property in the
last several years. I urge City Council not only to reverse the
decision of the P&Z Board, but also to take actions to remedy the
strong anti-infill development bias of our City.
Staff Response:
The conclusion portion of the Notice of Appeal summarizes the Appellant's position and
alleges that no NC's have been planned since the adoption of the LUC. In fact, there have
been several NC's submitted, reviewed, and approved in this time. Registry Ridge, Second
Filing, Willowbrook, and Sunstone all contain an approved neighborhood center under the
LUC or a neighborhood center in the development review process that is being reviewed
under the LUC.
13
ATTACHMENT 4
ITEM NO._ g
MEETING DATE 6/7/01
STAFF Steve Olt
City of Fort Collins PLANNING AND ZONING BOARD
STAFF REPORT
PROJECT: Modification of Standards in Sections 4.4(13)(3)(c)1, 4.4(D)(3)(b),
and 4.4(E)(2)(i) of the Land Use Code for the Brophy Property at
1109 West Harmony Road -#9-01
APPLICANT: Same As Owner
OWNER: Mark Brophy
1109 West Harmony Road
Fort Collins, CO 80526
PROJECT DESCRIPTION:
This is a request for modifications of Sections 4.4(B)(3)(c)1 — Neighborhood Centers,
4.4(D)(3)(b)— Location of Neighborhood Centers, and 4.4(E)(2)(i)— Drive-in Uses in the
LMN — Low Density Mixed-Use Neighborhood Zoning District of the Land Use Code
(LUC). The property, being 1109 West Harmony Road, is located at the southwest
comer of West Harmony Road and South Shields Street and is in the LMN — Low
Density Mixed-Use Neighborhood Zoning District.
RECOMMENDATION: Denial
EXECUTIVE SUMMARY:
This request is for modifications of Sections 4.4(B)(3)(c)1 — Neighborhood Centers,
4.4(D)(3)(b)— Location of Neighborhood Centers, and 4.4(E)(2)(i) — Drive-in Uses in the
LMN — Low Density Mixed-Use Neighborhood Zoning District of the Land Use Code
(LUC).
• Section 4.4(B)(3)(c)1 of the LUC requires that a convenience retail store with fuel
sales be located at least % mile from any other such use and from any gasoline
station.
• Section 4.4(D)(3)(b) of the LUC requires that neighborhood centers with retail
uses or restaurants located on arterial streets be spaced at least % mile apart.
• Section 4.4(E)(2)(i) of the LUC prohibits drive-in uses in nonresidential and
mixed-use buildings.
t�� - —
COMMUNITY PLANNING AND ENVIRONMENTAL SERVICES 281 N.College Ave. P.O.Box 580 Fort Collins,CO 80522-0580 (970)221.6750
PLANNING DEPARTMENT
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P &Z Meeting
Page 2
COMMENTS
1. BACKGROUND
The surrounding zoning and land uses from the proposed project development plan are
as follows:
N: MMN; Vacant Land
W: RL; Existing single family residential (Westbury PUD)
S: LMN, RL; Existing single family and mufti-family residential (one existing large
lot residence and the Westbury PUD)
E: RL; Existing educational institution (Front Range Community Coliege)
The property was annexed into the City as part of the Ridge Annexation in April, 1989.
The property has not previously been platted or planned.
2. MODIFICATION REQUEST— PERTINENT CODE SECTIONS
This request is for modifications to the following sections of the LUC:
Section 4.4(13)(3)(c)l of the Land Use Code (LUC) states:
Neighborhood centers consisting of one or more of the following uses: standard
and fast food restaurants; artisan and photography studios and galleries, or
convenience retail stores with fuel sales that are at least '/+ mile from any other
such use and from any gasoline station;provided that such use or uses are
combined with at least one other use listed in Section 4.4(B)(2)(c)3 of the LUC.
Section 4.4(D)(3)(b) of the LUC states:
Location. A neighborhood center shall be planned as an integral part of
surrounding residential development and located where the network of local
streets provides direct access to the center.
Neighborhood centers with retail uses or restaurants located on arterial streets
shall be spaced at least X mile apart.
Section 4.4(E)(2)(i) of the LUC states:
Drive-in uses. Drive-in uses shall be prohibited.
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P & Z Meeting
Page 3
As specified in Section 2.8.2 Modification Review Procedures, (H) (Standards), the
Planning and Zoning Board shall review, consider, and approve, approve with
conditions or deny an application for a modification based upon:
"... the granting of the modification would neither be detrimental to the public good
nor impair the intent and purposes of this Land Use Code; and that:
(1) the plan as submitted will advance or protect the public interests and
purposes of the standard for which the modification is requested equally
well or better than would a plan which complies with the standard for
which a modification is requested, or
(2) the granting of a modification from the strict application of any standard
would result in a substantial benefit to the city by reason of the fact that
the proposed project would substantially address an important community
need specifically and expressly defined and described in the city's
Comprehensive Plan, adopted policy, ordinance or resolution (such as, by
way of example only, affordable housing or historic preservation) or would
substantially alleviate an existing, defined and described problem of city-
wide concern (such as, by way of example only, traffic congestion or
urban blight), and the strict application of such a standard would render
the project practically infeasible; or
(3) by reason of exceptional physical conditions or other extraordinary and
exceptional situations, unique to such property, including, but not limited
to, physical conditions such as exceptional narrowness, shallowness or
topography, or physical conditions which hinder the owner's ability to
install a solar energy system, the strict application of the standard sought
to be modified would result in unusual and exceptional practical difficulties,
or exceptional or undue hardship upon the owner of such property,
provided that such difficulties or hardship are not caused by the act or
omission of the applicant."
The applicant has proposed that the modifications meet the requirements of Sections
2.8.2(H)(2) and (3) of the LUC.
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P &Z Meeting
Page 4
3. APPLICANT'S REQUEST
We are requesting a Modification of Standards under Section 2.8 of the Land Use Code.
We request that requirements 4.4(D)(3)(b) and 4.4(B)(3)(c)1 be waived because
development of a Neighborhood Center(NC)on our property will result in a substantial
benefit to the City as expressly defined in City Plan.
We are requesting this modification because the previous Planning Director conjured a
regulation that stated that a development on our property violated these separation
requirements due to a similar LDGS development consisting of a convenience store to
the west (CSW)that was previously approved.
In addition, we request that requirement 4.4(E)(2)(i) be waived because by reason of
exceptional physical conditions. Specifically, ours is the only LMN zoned property in the
City located at the intersection of 2 arterial streets 115 feet wide carrying 4 lanes of
through traffic, and a large portion of our land will be used for improvements.
The following paragraphs explain how various Principles and Policies enumerated in
City Plan favor the development of a NC on our property.
Policy EXN-1.5
Our neighborhood, consisting of the Westbury and the Thayer developments, lacks a
necessary NC as defined in Principle LMN-2. in addition, the adjacent neighborhood to
the east, consisting of the Woodlands and the surrounding single family homes,
Clarendon Hills, and Coventry, also lack a NC. The Ridge also lacks a NC, although it
has a nearby CSW.
Policy T-9.1
The residents of our neighborhood substantially increase the annual rate of growth of
daily vehicles traveled because retail and office developments are located far from our
neighborhood. The development of our property as an NC will help to alleviate this
problem. Policy T-5.2c also reinforces the desirability of placing these uses with safe
and direct connections to the residential areas.
Policy AN-1.2
A NC on our property will be part of an interconnected network in a superior manner to
CSW. Residents of Thayer , Westbury, and the Ridge can approach our site with right
turns. Westbury and Thayer residents can enter and exit our site from Olt Court
because all neighborhood streets converge upon and lead into the property. They can
easily avoid the major arterials, Harmony and Shields. Only Ridge residents will require
a left turn to return home. In contrast, CSW requires residents of Westbury and Thayer
to make dangerous left turns from Westbury Drive onto Harmony Road, and Ridge
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P & Z Meeting
Page 5
residents will be denied access when Harmony is widened to 4 travel lanes with its
required median.
Policy LMN-2.1
A NC on our property is an appropriate size because all the residents of Westbury and
Thayer are '/2 mile or less from our property and more than '/z mile from CSW. Ridge
residents are in a very low density urban estate area and the majority are about %: mile
from our property and CSW.
Policy LMN-2.2
A NC in conjunction with CSW provides about 7 acres of commercial retail and office
uses to our neighborhood and the neighborhood to the west Given the lack of available
services, this is about half of what is needed. We are woefully short of these uses and
must drive 1 —2 miles east to the comer of College and Harmony to meet these needs.
Our property is the only undeveloped land that can be reached by bicyclists and
vehicles in the Westbury and Thayer subdivisions without crossing at least 1 major
arterial. Our property used as a NC provides the only opportunity (other than across the
arterial to reach Front Range Community College)for indoor or outdoor space for
meetings and neighborhood functions for residents of Westbury, Thayer, and the Ridge.
CSW does not provide an indoor or outdoor meeting space. There will be no traffic
attracted into the neighborhood because the NC can be fully served by access points on
Harmony and Shields.
Policy LMN-2.3
Our property is at the edge of the neighborhood, which enables us to develop a NC
without attracting traffic into the neighborhood (Policy LMN-2.2).
Policy LMN-2.4
Our property will be custom designed by a developer.
Policy LMN-2.5
Our property provides better access for pedestrians and bicyclists than CSW because
they will be able to use the right side of the road, rather than use the south side of
Harmony both eastbound and westbound.
Policy LMN-2.6
Not applicable
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P & Z Meeting
Page 6
Policy LMN-2.7
The Thayer development and most of Westbury is located more than % mile from CSW
and has no neighborhood services. The % mile separation distance between NC
contradicts Policy LMN-2.1 and the ALL New Neighborhoods definition of uwalkable"
because the average person can only walk % mile in 10 minutes.
4. ANALYSIS OF MODIFICATION REQUEST
In reviewing the proposed alternative plan for purposes of determining whether it
accomplishes the purposes of this section as required, the Planning and Zoning Board
shall take into account whether the proposed plan demonstrates innovative design and
best meets the intent of the Land Use Code.
Section 2.8.2(H) of the LUC specifies that the Planning and Zoning Board shall only
grant a modification for the following reasons:
a. granting a modification of standard would neither be detrimental to the public
good nor impair the intent and purposes of the Land Use Code; and
b. the modification would result in the project addressing the purposes of the
standard equally well or better than a plan that complies with the standard; or
c. the modification would result in a substantial benefit to the city; or
d. the strict application of the standard sought to be modified would result in
unusual and exceptional practical difficulties or exceptional or undue hardship
upon the owner of the property.
The applicant's Modification of Standards Request for Brophy Property would suggest
that no neighborhood center is permitted in the LMN — Low Density Mixed-Use
Neighborhood. In fact, neighborhood centers are permitted subject to an administrative
(Type 1) review as long as they meet the following criteria:
Neighborhood centers consisting of at least two of the following uses: mixed-use
dwelling units; retail stores with less than 5,000 square feet of gross floor area;
convenience retail stores;personal and business service shops; small animal
veterinary facilities; offices, financial services and clinics containing less than
5,000 square feet of gross floor area; community facilities; neighborhood
support/recreation facilities, schools, child care centers; and places of worship or
assembly.
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P & Z Meeting
Page 7
Based on the information provided in the applicant's request, staff presumes that the
applicant would like to include a convenience retail store with fuel sales, retail uses,
restaurants, and drive-in uses in a development plan. Staff has determined that these
intended uses are not supported by the LUC for the following reasons:
Section 4.4(B)(3)(c)l of the Land Use Code (LUC) states:
Neighborhood centers consisting of one or more of the following uses:
standard and fast food restaurants; artisan and photography studios and
galleries; or convenience retail stores with fuel sales that are at least 9;
mile from any other such use and from any gasoline station,provided that
such use or uses are combined with at least one other use listed in
Section 4.4(B)(2)(c)3 of the LUC.
Section 4.4(D)(3)(b) of the LUC states:
Location. A neighborhood center shall be planned as an integral part of
surrounding residential development and located where the network of
local streets provides direct access to the center.
Neighborhood centers with retail uses or restaurants located on arterial
streets shall be spaced at least Y4 mile apart.
Section 4.4(E)(2)(i) of the LUC states:
Drive-in uses. Drive-in uses shall be prohibited.
There is an approved neighborhood center containing a convenience store with fuel
sales (Seneca Center) that is under construction at the intersection of West Harmony
Road and Seneca Street, approximately 3,200' to the west of the Brophy property. This
is less than the required % mile separation between a facility with fuel sales or a
gasoline station and the subject property. Related to this separation requirement, the
previous Current Planning Director for the City of Fort Collins rendered an
administrative interpretation (#1-99 dated March 24, 1999) pertaining to the separation
requirements for neighborhood centers in the LMN Zoning District. This was specific to
the subject property in response to a request from Mark and Mary Brophy, 1109 West
Harmony Road. The "bottom line" in the Planning Director's interpretation is that any
proposed neighborhood center at the comer of Harmony Road and Shields Street that
proposes retail uses or restaurants would not meet the separation requirements in the
LMN Zoning District in the LUC and would require a modification of standards in order
to develop as such.
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P & Z Meeting
Page 8
Staff has also determined that:
" Granting the requested modifications would be detrimental to the public
good and would impair the intent and purposes of the Land Use Code.
There are no policies that support more frequent spacing of high intensive
vehicular use retail development along arterial streets in and around
neighborhoods. To the contrary, crucial goals and long-standing policies
resist the tendencies for arterial street strip commercial development.
' The proposal as submitted will not advance or protect the public interests and
purposes of the standards for which the modifications are requested equally well
or better than would a plan which complies with the standards for which the
modifications are requested.
A permitted neighborhood center without a convenience store with fuel
sales, retail uses, restaurants, or drive-in uses at this location would not
require modifications to the separation requirement and prohibition of
drive-in uses. Nor would the development of modestly-scaled office,
financial service, or clinic uses.
The point of a neighborhood center is to offer an inviting, pedestrian-
oriented focal point with direct access to and from the surrounding
neighborhoods. Staffs position is that the neighborhood center as
intended by the applicant would tend to orient much more to external,
arterial street traffic.
The strict application of the standards sought to be modified would not result in
unusual and exceptional practical difficulties or exceptional or undue hardship
upon the owner of the property.
No exceptional physical conditions of the property suggest the need for a
drive-in/drive-thru commercial development as opposed to other uses
permitted in a neighborhood center in the LMN district. To the contrary,
the drive-in/drive-thru facilities themselves could create exceptional
difficulty in laying out a site plan, especially on a small, constrained site
like this one. It could tend to tangle circulation and interfere with
pedestrian access and visual quality, compared to a development without
the vehicle-oriented facilities.
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
• June 7, 2001 P & Z Meeting
Page 9
A permitted neighborhood center without a convenience store with fuel
sales, retail uses, restaurants, or drive-in uses at this location would not
require modifications to the separation requirement and prohibition of
drive-in uses. Nor would the development of modestly-scaled office,
financial service, or clinic uses.
5. FINDINGS OF FACT/CONCLUSION:
A. The requested Modifications of Standards in Sections 4.4(B)(3)(c)1, 4.4(D)(3)(b),
and 4.4(E)(2)(i) of the Land Use Code for the Brophy Property at 1109 West
Harmony Road is subject to review by the Planning and Zoning Board.
B. The intended convenience retail store with fuel sales, retail uses, restaurants,
and drive-in uses are not supported by the LUC.
C. Granting the requested modifications would be detrimental to the public
good and would impair the intent and purposes of the Land Use Code.
There are no policies that support more frequent spacing of high intensive
vehicular use retail development along arterial streets in and around
neighborhoods. To the contrary, crucial goals and long-standing policies
resist the tendencies for arterial street strip commercial development.
D. The proposal as submitted will not advance or protect the public interests and
purposes of the standards for which the modifications are requested equally well
or better than would a plan which complies with the standards for which the
modifications are requested.
A permitted neighborhood center without a convenience store with fuel
sales, retail uses, restaurants, or drive-in uses at this location would not
require modifications to the separation requirement and prohibition of
drive-in uses. Nor would the development of modestly-scaled office,
financial service, or clinic uses.
The point of a neighborhood center is to offer an inviting, pedestrian-
oriented focal point with direct access to and from the surrounding
neighborhoods. Staffs position is that the neighborhood center as
intended by the applicant would tend to orient much more to external,
arterial street traffic.
E. The strict application of the standards sought to be modified would not result in
unusual and exceptional practical difficulties or exceptional or undue hardship
upon the owner of the property.
Brophy Property, 1109 W. Harmony Road, Modification of Standards, #9-01
June 7, 2001 P & Z Meeting
Page 10
- No exceptional physical conditions of the property suggest the need for a
drive-in/drive-thru commercial development as opposed to other uses
permitted in a neighborhood center in the LMN district. To the contrary,
the drive-in/drive-thru facilities themselves could create exceptional
difficulty in laying out a site plan, especially on a small, constrained site
like this one. It could tend to tangle circulation and interfere with
pedestrian access and visual quality, compared to a development without
the vehicle-oriented facilities.
- A permitted neighborhood center without a convenience store with fuel
sales, retail uses, restaurants, or drive-in uses at this location would not
require modifications to the separation requirement and prohibition of
drive-in uses. Nor would the development of modestly-scaled office,
financial service, or clinic uses.
6. RECOMMENDATION:
Staff recommends denial of the Modification of Standards in Sections 4.4(B)(3)(c)1,
4.4(13)(3)(b), and 4.4(E)(2)(i) of the Land Use Code for the Brophy Property at 1109
West Harmony Road -#9-01.
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Moditatkm of Standards Request for Brophy Property
We are requesting a Modification of Standards under Section 2.8 ofthe Laid Use Code.
We request that requirements 4.4D3b and 4.4133cl be waived because development of a
Neighborhood Center(NC)on our property will result in a substantial benefit to the city
as expressly defined in City Plan.
We are requesting this modification because the previous planning Director conjured a
regulation that stated that a development on our property violated these separation
requirements due to a similar LDGS development consisting of a convenience store to the
west(CSW)that was previously approved.
In addition,we request that requirement 4.4E2i be waived because by reason of
optional physical cations. Specifically, our is the only I M N zoned property in the
City located at the intersection of 2 arterial streets 115 fed wide carrying 4 Imes of
through traffic,and a large portion of our land will be used fin improvements.
The following paragraphs explain how various Prmciples and Policies enumerated in City
Plan firvor the development of an NC on our property.
Policy EXN 1.5
Our neighborhood consisting of the Westbury and the Thayer developments lacks a
necessary NC as defined in Principle LMN 2. In addition,the adjacent neighborhood to
the east consisting of the Woodlands and surrounding single family homes, Clarendon
Hills, and Coventry also lacks an NC. The Ridge also lacks an NC, although it has a
nearby CSW.
Policy T-9.1
The residents of our neighborhood substantially increase the annual rate of growth of daily
vehicle miles traveled because retail and office developments are located far from our
neighborhood The development of our property as an NC will help to alleviate this
problem Policy T-5.2c also reinforces the desirability ofplacmg these uses with safe and
direct connections to the residential areas.
Policy AN-1.2
A Neighborhood Center on our property will be part of an interconnected network in a
superior manner to CSW. Residents of Thayer,Westbury, and the Ridge can approach our
she with right turns. Westbury and Thayer residents can enter and exit our site from Oh
Court because all neighborhood streets converge upon and lead into the property They
can easily avoid the major arterials, Harmony and Shields. Only Ridge residents Will
require a left turn to return home. In contrast, CSW requires residents of Westbury and
Thayer to make dangerous left turns from Westbury Drive onto Harmony Road, and
Ridge residents will be denied access when Harmony is Widened to 4 travel lanes with its
required median.
Policy LMN-2.1
A Neighborhood Curter on our property is an appropriate size because all the residents of
Westbury and TLaW are Yz mtle or less from our property and more than'/,mile from
CSW. Ridge residents are in a very low density urban estate area and the majority are
about Yz mile from our property and CSW.
Policy LMN-2.2
A Neighborhood Center in c *motion with CSW provides about 7 acres of commercial
retail and office uses to our neighborhood and the neighborhood to the west. Given the
lack of available services,this is about half of what is needed. We are woefully short of
these uses and must drive 1-2 miles east to the comer of College and Harmony to meet
these needs. Our property is the only undeveloped land that can be reached by bicyclists
and vehicles in the Westbury and Thayer subdivisions without crossing at least 1 major
arterial. Our property used as an NC provides the only opportunity(other than across the
arterial to reach FRCC)for indoor or outdoor space for meetings and neighborhood
8mctions for residents of Westbury,Thayer,and the Ridge. CSW does not provide an
indoor or outdoor meeting spat. There will be no traffic attracted into the neighborhood
because the NC can be fully served by access points on Harmony and Shields.
Policy LMN-2.3
Our property is at the edge of the neighborhood,which enables us to develop a
Neighborhood Center without attracting traffic into the neighborhood(Policy LMN-2.2).
Policy LMN 2.4
Our property will be custom designed by a developer.
Policy LMN-2.5
Our property provides better access for pedestrians and bicyclists than CSW because they
will be able to use the rigbt side of the road,rather than use the south side of Harmony
both eastbound and westbound.
Policy LMN-2.6 Not applicable.
Policy LMN-2.7
The Thayer development and most of Westbury is located more than%mule from CSW
and has no neighborhood services. The%mile separation distance between Neighborhood
Centers contradicts Policy LMN-2.1 and the All New Neighborhoods definition of
"walkable"because the average person can only walk Yz mile in 10 minutes.
. March 5, 1999
Mark and Mary Brophy
1109 West Harmony Road
Fort Collins, CO a0526
229-9807
To: Bob Blanchard, Current Planning Director
cc: Steve Olt
RE: Neighborhood Center Separation Requirements
Dear Mr. Blanchard:
We would like to request a formal opinion regarding a section of the City of Fort Collins
Land Use Code. Our request is based on section 1.4 Interpretations.
We would like a clarification of the City's policy regarding the separation requirements
between Neighborhood Centers as defined by Section 4.4(D)(3)(b). Is it possible for an NC
or MMN district to contain a Neighborhood Center that would conflict with a Neighborhood
Center in an LMN district?
Is it possible for a PUD approved under the LDGS to trigger the separation requirement? If
so, does the LDGS PUD need to have 2 compatible uses, an outdoor gathering place, or
both to be granted vested rights to the Neighborhood Center within a% mile radius? If so,
does the convenience store located in the Harmony Ridge PUD at the intersection of New
Harmony Road and Old Harmony Road prevent me from developing my parcel at the
southwest comer of Harmony and Shields as a Neighborhood Center?
Cordially,
Mark and Rfary Brophy
Page 1
Comm•--ity Planning and Environmenta' services
Current anni b ng
sty of Fort Collins
TO: Interested Parties
FROM: Bob Blanchard J '
Current Planning Director
DATE: March 24, 1999
SUBJECT: Administrative Interpretation #1-99 Pertaining To The Separation
Requirements For Neighborhood Centers In The Low Density
Mixed Use Neighborhood (LMN) Zone District
NOTE: Chanres to the Land Use Code made su soquent to ini:>
administrative interpretation may change the validity of finis
interpretation.
BACKGROUND:
The Low Density Mixed Use Neighborhood (LMN) zone district requires that, to
the maximum extent feasible, a neighborhood center must be located within
three quarters (3/4) of a mile of 90% of the dwelling units in a development
project. These neighborhood centers, and the accompanying development
standards, are patterned after the Neighborhood Convenience Shopping Centers
that were allowed under the Land Development Guidance System in that they
are intended to primarily serve the consumer demands of adjacent residential
neighborhoods.
Neighborhood centers are intended to provide for small scale, convenient non-
residential uses in the LMN zone district, which is primarily intended for low-
density residential development. CityPlan and the Land Use Code are written
with the acknowledgement that it is possible to incorporate a limited amount of
retail or restaurant uses into these neighborhoods in a compatible manner. At
the same time, there needs to be a limitation on the scale and frequency of these
centers to avoid a proliferation of them, particularly along higher traffic streets.
281 North College Avenue • P.O. Box 580 o Fort Collins,CO 80522-0580 • (970) 221-6750 • FAX (970)416-2020
i_ y
There are several standards in the LMN zone district that relates ecfical
neighborhood centers: p
• They are expected to be planned as an integral part of surrounding
residential development and locate where the network of local streets
provides direct access to the center;
• If they contain retail uses or restaurants, they can be located no closer
than % mile from any other neighborhood center;
• They are required to include two or more non-residential uses from a
list in the Code;
• They are to be integrated with the surrounding residential areas; and,
• They must provide a public outdoor space such as a park, plaza or
courtyard.
A request has been received to clarify the City's policy regarding the separation
requirements between Neighborhood Centers as defined in Section 4.4(D)(3)(b)
of the LMN Zoning District. Specifically, the following questions have been
asked:
Is it possible for an NC or MMN district to contain a Neighborhood Center
that would conflict with a Neighborhood Center in an LMN district?
Is it possible for a PUD approved under the LDGS to trigger the
separation requirements?
If so, does the LDGS PUD need to have 2 compatible uses, an outdoor
gathering place or both to be granted vested rights to the Neighborhood
Center within a % mile radius?
If so, does the convenience store located in the Harmony Ridge PUD at
the intersection of New Harmony Road and Old Harmony Road prevent
the property at the southwest corner of Harmony and Shields from being
developed as a Neighborhood Center?
INTERPRETATION:
In response to the four questions asked above:
e
�'1ta'�. :<i`
it appears that the center is oons'istent with the requirements of the Land.
Use Code with the exception of convenient, direct access directly from the
Overlook at Woodridge, First Filing to the northwest (although the project
is not integrated into the Overlook development, there is direct access
,from the remaining residential development south of Harmony Road).
Because of this, any proposed neighborhood center at the comer of
Harmony Road and Shields Street that proposes retail uses or restaurants
would not meet the separation requirements and would require a
modification of standards in order to develop.
i
Is it possible for an NC or MMN district to contain a Neighborhood Center that
would conflict with a Neighborhood Center in an LMN district? = ''
:r.:.
It is possible that developments in the Neighborhood Commercial'(NC)
and Medium Density Mixed Use Neighborhood (MMN)'zoning districts
may include uses that duplicate those allowed in the neighborhood center
in the LMN district. However, the NC district is.a non-residential district
and is-expected to develop with a larger retail complex than would occur
in an LMN neighborhood center. When assessing retail development in
the NC and LMN districts, the separation requirements would not be
enforced.
While there is no requirement for a neighborhood center in the MMN
district, it is entirely possible that commercial development that meets the
definition of a neighborhood center may occur. If this were to happen, the
separation requirements would be enforced.
Is it possible for a PUD approved under the LDGS to trigger the separation
requirements?
The separation requirements for neighborhood centers do not differentiate
between those centers approved under the LDGS and those approved
under the Land Use Code. Any new neighborhood center developed in
the LMN zone district must meet the separation requirement from any
other project meeting the neighborhood center definition if they include
retail uses or restaurants. This includes those centers approved under
the LDGS.
if so, does the LDGS PUD need to have 2 compatible uses, an outdoor
gathering place or both to be granted vested rights to the Neighborhood Center
within a Y4 mile radius?
Centers approved under the LDGS must meet all of the neighborhood
center requirements outlined in Section 4.4(D)(3) the LMN district in order
to constitute the type of neighborhood center that would result in the
application of separation requirements.
If so, does the convenience store located in the Harmony Ridge PUD at the
intersection of New Harmony Road and Old Harmony Road prevent the property
at the southwest comer of Harmony and Shields from being developed as a
Neighborhood Center?
In the specific instance of the Overlook Convenience Center at Arapahoe
Farms, which is located in the vicinity of the old and new Harmony Roads,
ATTACHMENT 5
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May 28, 2001
To: The City of Fort Collins Planning and Zoning Board.
P.O. Box 580, 281 North College Avenue, Fort Collins, Colorado 80522-0580
From: Westbury Neighborhood Residents Concerned About Development of Brophy Property
at 1109 West Harmony Road. (File#9-01).
4 This letter is written to provide the City of Fort Collins Planning and Zoning Board with
specific concerns of the adjacent neighborhood to the property requesting the zoning changes. It
= is our hope that the Planning and Zoning Board will recognize the validity of these concerns
W m and act judiciously when considering the information provided herein. As a general statement,
we, the adjacent neighbors to the Brophy property oppose any changes to the current zoning
that would allow for any type of commercial/retail development of this pristine property. We
offer the following specific concerns for your consideration:
1. Destruction of one of the last parcels of pristine wooded property in Fort Collins.
A. This property is heavily wooded and contains many majestic 80-yearold trees.
Commercial/retail development of this property will destroy one of the few remaining
wooded areas left in the city.
B. This property is a local landmark dating back many years. Significant change to the lot
will result in the loss of a significant piece of Fort Collins history.
2. Development will have a devastating affect on the existing wildlife inhabiting the property.
A. Great Horned Owls - A pair of Great Homed Owls established a nest on this property
many years ago, and continue to nest on the property today. The pair currently has at
least three young offspring who live and hunt on the property. Development will surely
destroy their natural habitat, possibly endangering their lives.
B. Birds - Many birds nest on this property. Removal of the trees that house the many
nests will drive them away.
C. Raccoons - There is at least one family of raccoons living on the property.
Development will surely destroy their natural habitat, possibly endangering their lives.
D. Rabbits - Many families of rabbits live on this property. The rabbits are a primary food
source for the owls living on the property.
E. Deer - Deer occasionally inhabit the property, especially during the winter months.
Again, development of the property will significantly interfere with these wildlife species as
well as others we haven't specifically identified.
3. There is no public need for commercial/retail/retail development at this location. There are
substantial commercial/retail properties already in existence and planned for future
development very close to this property, so there is no need for this development.
A. There is already a planned commercial/retail/retail development site approximately 1/4
mile directly north of this property.
B. Another planned commercial/retail/retail development is located approximately th mile
directly to the west of this property.
C. A major commercial/retail shopping district is currently located less than I mile away
to the east of this property.
4. Neighborhood safety.
Building a commercial/retail facility that draws a significant number of people to this area
will expose neighboring residents to additional and unnecessary safety and security threats.
Letter to P&Z about Brophy inning change
1
A. Children's safety -we are very concerned about the safety of our neighborhood
children. Many of the neighborhood residents' properties border the property in
question. Building a commercial/retail development this close to existing homes will
expose our children to greater risk by encouraging substantial numbers of people access
to very close proximity to the children.
B. Neighborhood security - Placing a commercial/retail/retail development this close to
the existing neighboring homes will increase the number and seriousness of incidents of
vandalism, theft, and possible robbery. We are very concerned about a significant
increase in loitering as a result of this proposed development.
5. Increase in traffic.
The intersection of West Harmony and South Shields Streets is already over-loaded due to
the substantial traffic at the intersection. The Westbury neighborhood already suffers from
significant traffic through the neighborhood due to motorists cutting through our
neighborhood to avoid the intersection. Adding a retail development at this location will
cause this problem to get even worse.
6. Increase in noise.
A commercial/retail development on this property will result in significant traffic flow even
closer to the existing homes in the area. This will expose the residents to an increase in
noise. This problem will interfere with our right to peaceful enjoyment of our own
properties.
7. Environmental concerns.
A. An increase in automobiles in the neighborhood will expose neighboring residents to
increases in toxic fumes from automobile exhaust. Oils, gasoline, and other automotive
byproducts will be released onto the ground and could possibly contaminate the ground
and ground water.
B. Fumes and odors from businesses including spoiled food items and commercial/retail
waste may permeate the air interfering with the neighbors' right to peaceful enjoyment
of their property.
8. Excessive lighting.
Residents of Westbury currently enjoy a country-like atmosphere due to the buffer the
Brophy property provides for our neighborhood. Many current residents chose this area to
purchase their homes due to this climate. Building a commercial/retail center this close to
our property will likely result in unwanted lighting pollution of our yards.
Summary:
We have presented several reasons why the City of Fort Collins Planning and Zoning Board
should deny the proposed zoning changes requested for the Brophy property. Any, or all, of
these concerns is reason to consider our needs. The bottom line is this - Nobody needs this
development! The only people who think it's a good idea are those who stand to make a profit
from the development. We have an abundance of commercial/retail/restaurant/gas stations
within a one-mile radius and other retail developments are slated for development even closer
than the existing ones. We request that the proposed zoning changes be denied.
Attachment:
Signatures of those supporting the efforts to stop the proposed changes to current zoning of
Brophy Property, 1109 West Harmony Road (File #9-01)
Letter to P&Z about Brophy zoning change
2
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EXHI
WESTBURY NEIGHBORHOOD
PETITION TO THE CITY COUNCIL
We, the undersigned, are opposed to the request for modifications
(File #9-01) to several sections in the Land Use Code to allow the
development of a Neighborhood Center containing drive-in, retail, and
restaurant uses on the Brophy Property (1109 West Harmony Road) located
at the southwest corner of West Harmony Road and South Shields Street for
the reasons stated below:
1. Due to the existing and planned Neighborhood Centers as close as
'/4 mile away, there is no need for a Neighborhood Center at this
location.
2. A Neighborhood Center would increase traffic at the intersection
of Harmony and Shields, as well as through the neighborhood, by
drivers seeking to avoid the intersection or access the
Neighborhood Center by means of Olt Court as suggested in the
Brophy request.
I A Neighborhood Center would pose a potential threat to
neighborhood safety due to the increased volume of traffic and
people.
4. A Neighborhood Center would cause the destruction of one of the
few remaining wooded properties within city limits that provides a
home for a great deal of wildlife, including a breeding pair of great
horned owls.
5. A Neighborhood Center would create an increase in environmental
damage to the area in the forms of noise, light, and air pollution.
Page 1
WESTBURY NEIGHBORHOOD
PETITION TO THE CITY COUNCIL
Name and Address
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Page 6
Tara Williams-opposition statement Page 1
From: Ellen Wohl <ellenw@cnr.colostate.edu>
To: FCI.CFCPO(TWilliams)
Date: Mon, Jun 4, 2001 11:45 AM
Subject: opposition statement
To Ft. Collins Planning and Zoning Board Members:
As a resident of the Westbury residential development adjacent to the R E C E I V E D
intersection of Harmon and Shields, I would like to express m opposition
Y P Y PP
to the requested modification in the land use code for the Brophy Property NNING
at the SW comer of Harmony and Shields. The development of a commercial CURRENT PLA
neighborhood center would exacerbate the already-severe traffic congestion
at this intersection, and would detract from the residential atmosphere of
the adjacent properties. In addition, I presume that any commercial
development would involve removing some or all of the grove of mature
cottonwood trees at this site. Such a change would be generally contrary to
city policy, as I understand it, and would severely detract from the
esthetic and wildlife amenities provided by these trees.
Thank you.
Ellen Wohl
1257 Belleview Dr.
Ft. Collins, CO 80526
- -
JUN 0 5 2001
ey G/ED
June 4,2001
Mr. Steve Olt,City Planner
City of Fort Collins
P.O. Box 580
Ft.Collins,CO 80522-0580
Dear Mr. Olt:
I would like to take this opportunity to express my objection to possible rezoning of the Brophy Property
(1109 W. Harmony Rd.), File 9-01
Homeowners in the Westbury PUD purchased thew properties with the understanding of the current zoning
status of the above property. Any change in that zoning will not only impact their property values, but also
the quality of life of those residents. A rezoning with a commercial aspect carries with it increased traffic
and noise that I,and others would find undesirable.
Clearly the desires of the neighborhood must be weighed against those of the owner(s)of the Brophy
Property,as well as the needs of this larger section of the city. 'There are already commercial outlets
available near to this intersection,just one mile away surrounding College and Harmony, as well as at the
intersection of Shields and Horsetooth. Area residents do not currently have to travel far for shopping. I
see no great need to add additional commercial properties in this area.
I urge that the request for modification of the zoning status of the 49-01 Brophy Property be denied.
Thank you.
Gary Moody
1206 Mariposa Ct.
Ft.Collins,CO 80526
May 30, 2001 J U N 0 5 2001
;
GrED
Steve Olt BY
City Planner
281 North College Avenue
P. O. Box 580
Fort Collins, Colorado 80522-0580
Re: Proposed project known as Brophy Property (1109 West Harmony Road)
Request For Modification-File #9-01
After receiving your notice to request modifications to several sections in the Land Use
code to allow development of a Neighborhood Center containing drive-in, retail, and
restaurant uses for the property located at the southwest corner of West Harmony Road
and South Shields Street, I would like to share the following concerns:
1. A Neighborhood Center would increase the amount of traffic to a corner which is already
well congested with both cars and trucks
2. A Neighborhood Center would diminish the already limited access to both Harmony
Road And Shields Street from the residential area surrounding the proposed site.
3. A Neighborhood Center would increase accidents to an area which already has a high
incidence of accidents at this intersection.
4. A Neighborhood Center would increase the amount of truck traffic to an area which is
already congested with trucks attempting to navigate the intersection as well as trucks
stopping for layovers along Harmony Road west of Shields Street.
5. A Neighborhood Center would increase the pollution to the area and impact the
residential neighborhood surrounding the proposed site.
6. A Neighborhood Center would significantly impact the raina a in the area and
increase the likelihood of additional flooding to local residences.
7. A Neighborhood Center would significantly impact the wildlife in the area including
raptures and deer.
For these reasons, I do not feel a Neighborhood Center would be an asset to the corner of
Harmony Road and Shields Street.
Sincerely,
Elaine Hay
1174 Belleview Drive
Fort Collins, Colorado 80526
Dean R. & Cheri G. Thompson
4618 Mariposa Ct.
Fort Collins. CO 80526
61une.2001 R E C E I V E D
City of Fort Collins, Community Planning and Environmental Services
281 North College Ave. b;
Fort Collins. CO 80522 CURRENT PANNING
Dear Sir or Madam:
The subject of this letter is the project known as"Brophy Property(1109 W. Harmony Road) Request for
Modifications—File#9-01". We would like to state our opposition to the proposed changes. There are several
reasons for this.
1. The request for change is being made without a specific development proposal.
As we understand them, the planning processes of the city are designed to provide a number of checkpoints
were concerns with proposed developments can be raised. Once a review point has passed, however, it is much
more difficult for either the city or adjacent property owners to raise issues with a proposed development.
Without a specific development proposal in place it is impossible for us to fully evaluate the need for the
change or the impact of that change on the surrounding community. From the information that we do have,
however, it would appear that the changes would potential1% allow developments that we believe would be both
unnecessary and detrimental to the community at large.
2. The environmental impact of classes of development enabled by such changes.
The property in question is quite unique in the area. It is wooded and regularly frequented by wildlife of
various kinds (including deer. fox and various raptors). There are currently a pair of great homed owls nesting
on the property who have returned every year for at least the last 6 years. As we understand it, the classes of
development that would be enabled by the proposed changes are relatively high traffic (drive-in, restaurant, etc.)
which would bring significant activiry into the area well into the evening hours. We believe that such
development is more incompatible with wildlife than ocher. !ess intensive developments allowed by the current
zoning.
3. The classes ofdevelopment enabled b-the changes would he detrimental to the adjacent neighborhood.
As we understand it, the classes of development enabled b% the proposed changes would bring significant
amounts of non-local traffic into the immediate area. The structure of Westbury Drive (connecting Harmony
Road and Shields Street)already brings more non-local traffic into the Westbury neighborhood than is optimal.
We believe that additional traffic in the area would likely significantly increase traffic along Westbury Drive
(especially late night traffic. with attendant problems of noise and vandalism). The classes of development in
question would also significantly increase the amounts of night time noise and light pollution for the residences
immediately adjacent to the property.
4. There appears to be no compelling community interest served by the changes.
As we underrand it,there are currently properties less than ''', m;;e to the north on Shields St. and less than. !;
mile west on Harmony Rd, the land use code and zoning already allow developments of this class. Thus, it is
not at ail clear that the changes are necessary or even desirable from the perspective of the greater community.
We recognize the need for Fort Collins to encourage in-fill development to avoid the pressures on the community
infrastructure and the environment caused by sprawl. Thus,we realize that it is probably inevitable that the property
in question will ultimately be developed in a more intensive way than it currently is. However, it is our belief that
the kinds of changes enabled by these proposed changes are not inevitable, nor desirable, either from the perspective
of the local neighborhood or the community at large. We urge you to deny the request for change.
Regards.
57
Dean Thompson Cheri Thompson
4706 Westbury Drive June 7, 2001
Fort Collins, CO 80526
Planning and Zoning Board of the City of Fort Collins R
E C
281 North College Avenue
P.O. Box 580 Lr'
Fort Collins, CO 80522-0580 %^n
CURRENT P�NN/NG
Dear Planning and Zoning Board of the City of Fort Collins,
Subject: Brophy Property Request for Modifications -File#9-01
The intent of this letter is to formally record our family's opposition to the proposed
action to change the zoning of the Land Use Code of the Brophy property located at 1109
W. Harmony Road. The Brophy Property backs up to the corner of our home, located at
4706 Westbury Drive. It is our belief that a change in the zoning of the Brophy property
to allow the development of a Neighborhood Center is wrong for Fort Collins and the
surrounding residential neighborhoods. Some of our concerns include:
1. Loss of residential property value due to commercial development in a space
adjacent to residential homes. Many homeowners purchased homes because of
the location, which included being in proximity to the Brophy property.
2. Loss of esthetics for Fort Collins and the adjacent neighborhoods
3. Loss of a natural habitat for the owls, foxes, and raccoons that make the Brophy
property home.
4. Creation of commercial property when the need for such property is not evident.
Gas stations, convenience stores, and major restaurants and shopping facilities all
can be accessed within a mile of the Brophy property, rendering the need for
additional commercial businesses moot.
We would like the Board to deny the request for change in zoning for the Brophy
property for the stated reasons.
Sincerely, \yam
Ken an chrader
ATTACHMENT 6
i
1
MEETING OF THE PLANNING AND ZONING COMMISSION
CITY OF FORT COLLINS, COLORADO
Held Thursday, June 27, 2001
At City Council Chambers
300 West Laporte Street
Fort Collins, Colorado
In the matter of a modification of standards
concerning the Brophy property
Mark and Mary Brophy, Applicants
Commission members present:
Jerry Gavaldon, Chair
Glen Colton
Sally Craig
Judy Meyer
Mikal Torgerson
Daniel Bernth
Staff present:
Paul Eckman, City Attorney' s Office
Steve Olt, Planning Department
Ken Waido, Planning Department
Cameron Gloss
Meadors Court Reporting, LLC Phone: (970) 482-1506
140 W. Oak Street, Suite 266 Toll-free (800) 482-1506
Fort Collins, Colorado 86524• Fax: (970) 482-1230
e-mail: meadors@reporterworks.com
2
1 MR. GAVALDON: Next project, please, Number 6,
2 modification of standards, Brophy property.
3 MR. OLT: Okay. This is a request for
4 modifications of standards to three standards in the City' s
5 Land Use Code for the Brophy property located at 1109 West
6 Harmony Road. To put this into context for everyone, the
7 site is located at the southeast corner of the intersection
8 of South Shields Streets and West Harmony Road.
9 This is a -- actually, I 'm not exactly sure
10 exactly how big the property is . Approximately five and a
11 half to six acres in size. It is zoned LMN. Adjacent to
12 this is the Front Range Community College. To the east, as
13 you can see, the Westbury PUD surrounds the property to the
14 south and to the west .
15 I would like to point out that there is a small
16 parcel of land that intervenes Westbury PUD and the Brophy
17 property. It ' s an acre to two acres in size. I 'm not
18 exactly sure. It has one single-family residence that is
19 separate ownership and is not part of this request.
20 The request is for modifications of, again, three
21 sections of the Land Use Code dealing with neighborhood
22 centers, location of neighborhood centers, and drive-in uses
23 in the LMN zoning district .
24 The three sections that we' re dealing with
25 tonight are section 4 . 4 (b) (3) (c) (1) . That states that
3
1 neighborhood centers consisting of one or more of the
2 following uses: Standard and fast food restaurants, artisan
3 and photography studios and galleries, or convenience retail
4 stores with fuel sales that are at least three-quarters of a
5 mile from any other such use and from any gas station, and
6 that three-quarters of a mile is critical.
7 The second section that is being requested to be
8 modified is section 4 . 4 (d) (3) (b) . This states, dealing with
9 the location, a neighborhood center shall be planned as an
10 integral part of surrounding residential development and
11 located with a network of local streets, provide direct
12 access to the center. Neighborhood centers with retail uses
13 or restaurants located on the arterial streets shall be
14 spaced at least three-quarters of a mile apart . Again, that
15 three-quarters of a mile is critical and germane to this
16 discussion.
17 The third section to be modified is Section
18 4 . 4 (e) (2) (i) . I think that should be -- yeah, (e) (2) (i) ,
19 that ' s correct, of the Land Use Code, stating that drive-in
20 uses shall be prohibited in the LMN zoning district .
21 There ' s a couple items that are critical to this.
22 The three-quarters of a mile, as stated, for neighborhood
23 centers that contain restaurants and convenience stores with
24 fuel sales is critical because three quarters of a mile --
25 within three-quarters of a mile to the west of the site,
•
4
1 where Harmony Road, now the new Harmony Road curves upwards
2 to the north and west -- and it ' s not shown on this location
3 map -- there is an approved and currently under development
4 neighborhood center that does have fuel sales and some
5 retail and potentially some restaurant uses .
6 Therefore, this neighborhood center, to allow
7 those type of uses, again, restaurants, fuel sales, you
8 would have to approve a modification to allow that to occur.
9 Under no circumstances are drive-in facilities or drive-in
10 uses permitted in this zoning district.
11 I wanted to point out, too, that this is a
12 request only for modifications to the three standards that I
13 cited. There is no site-specific project development plan
14 for this property at this time. So you' re dealing only with
15 the request for modifications of standards to allow uses
16 that are not permitted in the Land Use Code.
17 Conclude the presentation, in that staff has
18 determined several things .
19 The intended convenience retail store with fuel
20 sales, retail uses, restaurants, and drive-in uses are not
21 supported by the Land Use Code.
22 Granting of the request for modifications would
23 be detrimental to public good and would impair the intent
24 and purposes of the Land Use Code.
25 And that there are no policies that support more
5
1 frequent spacing of high-intensive vehicular use retail
2 development along arterial streets in and around
3 neighborhoods . And in this case, again, we ' re looking at
4 two arterial streets, being Harmony Road to the north and
5 South Shields street to the east .
6 The proposal as submitted will not advance or
7 protect the public interests and purposes of the standards
8 for which the modifications are requested equally well or
9 better, which is one of the tests, then, with a plan which
10 complies with the standards .
11 A permitted neighborhood center without a
12 convenience store with fuel sales, restaurant uses, or
13 drive-ins, would not require modifications . A neighborhood
14 center would be permitted on this site, but it would be a
15 much less-intensive type of neighborhood center with things
16 such as offices, financial uses, personal service shops, and
17 even some retail uses of 5, 000 square feet or less, so very
18 small retail uses . Therefore, that is permitted without
19 requiring a modification.
20 The third item is the strict application of the
21 standards sought to be modified would not result in staff' s
22 determination in unusual exceptional practical difficulties
23 or exceptional or undue hardship upon the owner of the
24 property, in that no exceptional physical conditions of the
25 property suggest the need for a drive-in, drive-through,
6
1 commercial development, as opposed to other uses that are
2 permitted in a neighborhood center in this zoning district.
3 And again, a neighborhood center without
4 convenience store, with fuel sales, without restaurants or
5 drive-in uses would be permitted without requiring
6 modifications to the standards .
7 With that, I 'd actually like to show, briefly
8 show, some site shots, and then I 'd open it up to questions
9 of the board if they have any of me.
10 This first shot is looking -- I 'm standing at the
11 corner of Harmony Road and Shields Street . I 'm looking
12 south along the east property line of the Brophy property,
13 which is to the center and right of this photo.
14 This is looking southwest across the property,
15 again from the intersection of Harmony and Shields . You can
16 see the structures in the houses back here in the trees .
17 I 'm not exactly sure. This might be a garage or some other
18 structure.
19 Looking almost due west along Harmony Road. This
20 would be the Brophy property. The west edge of the property
21 is somewhere in this location.
22 I am looking down the west property line of the
23 Brophy property, Harmony Road, again, in the foreground.
24 This is the Brophy property. This is a residence in the
25 Westbury PUD to the west of this site, looking -- looking --
7
1 now where am I -- I am looking southwest -- or, pardon me,
2 southeast, across the Brophy property from Harmony Road.
3 I am now at the southeast corner of the property.
4 This is the entry into the Brophy site, looking northwest
5 across the property.
6 Looking north on South Shields Street, the
7 intersection of Harmony Road is in this location at the
8 stoplight .
9 Actually, I think -- this is the only street
10 that, in terms of a neighborhood center, really is defined
11 to be integrated into surrounding neighborhoods by virtue of
12 a street network, other than arterial streets . It ' s a local
13 collector street. This, at this point in time, is really
14 the only street outside of the arterial streets to the north
15 and east of the site that would provide access directly into
16 the Brophy property, but you do have, again, the intervening
17 property here. It ' s another -- under other ownership, a
18 single-family residence and pasture in this location.
19 With that, I ' ll turn it back to the Board.
20 MR. GAVALDON: Thank you very much, Steve. Nice
21 street name, by the way.
22 If it ' s okay by the Board, could we go ahead with .
23 the other presentation and citizen input and then
24 consolidate our questions?
25 Okay. At this time, we would invite the
8
1 applicant to come forward and share their presentation with
2 us. You have up to 30 minutes -- less would be preferred --
3 and then we' ll go to citizen input. Please state your name
4 for the record.
5 MR. BROPHY: My name is Mark Brophy. As you can
6 imagine, I was also shocked that Steve wouldn ' t want a nice,
7 long road named after him all over the city.
8 I 'd like to correct something that Steve said.
9 He said that there was a neighborhood center six-tenths of a
10 mile, less than three-quarters of a mile. This was the
11 project that you approved last May. It was something
12 similar to a neighborhood center under LDGS, but it ' s not
13 actually a neighborhood center.
14 And the reason why we ' re asking for these
15 modifications is because the former Planning Director had
16 made an administrative determination that said that you
17 violate the separation requirements if you' re less than
18 three-quarters of a mile from that. I don' t know what it
19 was, in LDGS . I 'm not familiar with that Land Use Code.
20 So those are the first two, are what I -- I don' t
21 even consider them a violation at all. A modification at
22 all . All you have to do is rule that ' s not a neighborhood
23 center and be done with that .
24 The equal-to-or-better issue is also important in
25 that case. There ' s nothing in the City Plan that says what
9
1 the purpose of those separation requirements is . And I
2 asked Steve, and he said, "Well, there is no purpose to,
3 them. It was just something that we brought over previously
4 because it had been part of the LDGS. "
5 But there ' s nothing in the principles and
6 policies that says that there' s a purpose for those
7 separation requirements. So it' s really difficult for me to
8 tell you that -- that I can do equal or better, because I
9 don' t know what the purpose of them in the first place was .
10 The hardship issue, I think, is important in this
11 case. Steve didn' t mention this, but Harmony and Shields
12 are going to be widened. And they' re going to take a lot of
13 my property. There ' s going to be two left turn lanes on
14 Shields Street going onto Harmony Road to the H-P and the
15 rest of the employment centers on East Harmony Road.
16 In order to do that, they' re going to take a very
17 large portion of my property along Shields Street . And
18 also, when they take a portion of my property on Harmony
19 Road, they' re going to take a lot of my trees . I have
20 about seven cottonwood trees that are, oh, well, 60 or 70
21 feet high. They' re a hundred years old. And seven or eight
22 spruce trees . I ' ve moved a couple of our spruce trees, but
23 there ' s still a whole bunch of them left . And all those are
24 going to have to go.
25 When Steve showed that picture of the property,
10
1 you ' ve never seen my house, and that ' s why it ' s livable for
2 me now as a residence. But once the road is widened, it
3 will no longer be useful as a residence. Not only for that
4 reason with all the cars, but those entrances are about 150
5 feet from the intersection.
6 If the road is double the size that it is now,
7 the access points along Harmony and Shields will have to
8 change. They all have to be at the edge of the property,
9 something like 500 feet, which means that my access points
10 won ' t lead to my front door anymore. They' ll lead to my
11 back door, and I can't just turn my house around 180
12 degrees. So when the road is widened, I have to move.
13 So what I ' d like to do is live in a house on the
14 southwest corner of the property, which is also surrounded
15 by trees, and have a mixed use of retail and office uses on
16 the rest of it.
17 Right now, there' s a glut of office space in Fort
18 Collins, and my property has been on the market for about a
19 year and a half. And no one is interested in making a pure
20 office development. It is possible to sell it as a mixed
21 use, because people like insurance agents or chiropractors,
22 dentists, something like that, who can benefit from being in
23 the neighborhood would be interested in being there. But
24 not somebody who just wants to put in offices and make it
25 100 percent office stuff.
11
1 When one convenience store was approved last May,
2 Mr. Colton, you had said it was a good idea because somebody
3 could get a roll of toilet paper without going to South
4 College Avenue and we could reduce the vehicle miles
5 traveled.
6 But typically, in a convenience store, they don' t
7 sell toilet paper, because the store just isn' t large enough
8 to do that . They tend to sell junk food and things like
9 that along with the gas . If you allow a drive-in use on my
10 property, it will be possible to put a pharmacy with a
11 drive-in window there, and pharmacies do tend to sell toilet
12 paper. And the 5, 000 foot limit that Mr. Colton -- that
13 Steve was talking about is too small for those pharmacies.
14 They like to have about 14, 000 feet .
15 So the hardship issue is really, one, my property
16 is spot-zoned. It ' s the only LMN property at the corner of
17 two arterials in the city.
18 Two, they' re taking away my property and making
19 me move. That building you did see in the picture is my
20 office. I have a home-based business, and that would also
21 be disrupted when the facility is -- when the street is
22 widened. And I ' d still be able to get in there, but I
23 wouldn ' t be able to walk to work 50 feet anymore. I ' d have
24 to live somewhere else and drive to it and add some more
25 vehicle miles to it and clog the intersection.
12
1 So I think that ' s about all the issues I have .
2 MR. GAVALDON: Thank you very much.
3 At this time, we would like to open it up to
4 citizen input. If anyone has a comment, please come
5 forward, state your name, and sign in the register. The
6 log, I guess, you call it. And please share your thoughts
7 with us .
8 MR. LEAK: Good evening, ladies and gentlemen.
9 My name is Marty Leak. I 'm a resident of Westbury. My
10 property adjoins the Brophy property directly to the west.
11 I 've been a resident here in Fort Collins for 24 years . Not
12 that that is important, but I think I ' ll wrap up in my
13 summary, talking about some of the things that have happened
14 in Fort Collins over those 24 years.
15 First, before we go further, I ' d like to just
16 show the Board and the Planning and Zoning Department a
17 representation of our neighborhood that has come out in
18 opposition of this change of the zoning. So those that are
19 opposed to this, if you'd just raise your hand for a second
20 and let the Board know that there' s more than two or three
21 of us that are going to talk, but there ' s a significant
22 number of people that have some concerns about this request.
23 To respect your time and to respect the Avs game
24 activity, we ' re going to limit our input to you to just
25 three people, rather than have 30 people come up and address
13
1 you individually and talk about the same things over and
2 over. So in the three people that are going to be speaking,
3 I ' ll start, and then I ' ll turn it over to one of my other
4 neighbors, and then we ' ll wrap up with a third neighbor.
5 What I ' d like to do to you -- with you tonight is
6 review a summary of the concerns and positions of the
7 neighborhood and the families that are represented. So I
8 will talk a little bit about these concerns, and then I ' ll
9 turn it over to Mr. Blank, who will comment on a few
10 additional concerns, specifically on Olt Court . You saw the
11 picture of Olt Court . But he has some issues that he wants
12 to address with that, and then we ' ll wrap up with Mr. Starr
13 talking about the process that the City has gone through and
14 review of this and the findings that have been presented so
15 far this evening.
16 As I sat and tried to think about what I was
17 going to say at this hearing, I don' t know how your lives
18 are, but I don ' t get a chance to sit and think very often.
19 I 'm running kids around or baseball games or whatever.
20 So I found myself at 3: 00 o ' clock in the morning
21 about a week ago not able to sleep, wondering what I was
22 going to say during this five minutes that have I to address .
23 you. And as I was laying in bed, thinking about this, I
24 realized that the two great horned owls that are nesting on
25 that property were hooting back and forth. You' ll have an
14
1 opportunity here in a moment, if you' ll indulge us, to see
2 some pictures and photographs of some wildlife, including
3 the great horned owls.
4 After the great horned owls hooted for a minute,
5 the baby owls started chiming in. They kind of squawk. If
6 you haven' t heard them, it ' s an odd sound, but it ' s kind of
7 neat to listen to while you can't sleep. Eventually, the
8 foxes started chirping.
9 And as I was laying there, it hit me all of a
10 sudden that this issue isn't really about me and my property
11 adjoining the Brophy property. It ' s not about our
12 neighborhood. It ' s about doing the right thing. It ' s a
13 bigger issue than just simply a few neighbors squabbling
14 over whether or not we ' re going to be able to get toilet
15 paper out our back door.
16 There are many issues that affect us, as
17 neighbors and residents of this area, including, and I ' d
18 like to -- I don't know if this is appropriate, so Mr.
19 Chairman, I hope you' ll indulge us, but we have a copy of a
20 letter I ' d like to distribute to the Board, and it has
21 signatures of roughly 40 people who are opposing this zoning
22 change. And with that, a map of the Olt Court area that
23 will be affected. And also some photographs.
24 I apologize. I 'm not a photographer, but if you
25 haven' t seen great horned owls in Fort Collins, there are a
15
1 nesting pair on the Brophy property, and they have three
2 young. Again, I apologize for the photography. I 'm not.
3 very good at that, but I thought it might be interesting to
4 you.
5 It also, some of the photographs show you the
6 back of the property. We were privileged to see some of the
7 shots from the front. But those who adjoin the property are
8 looking at the back of it, and granted, we feel that the
9 back of the property is more attractive than the front of
10 the property.
11 So what I 'd like to do, if you' ll indulge me, is
12 to take you just briefly through the eight items that are
13 identified on this letter that you have in front of you, and
14 I ' ll try to be brief.
15 The first one is, and these aren' t necessarily in
16 order, but we believe this is a piece of pristine property.
17 I think the Brophys are very fortunate to have found this
18 property five -- or less than five years ago when they
19 bought it and they moved in. But it ' s really a beautiful
20 spot.
21 Mark had mentioned there' s some hundred-year-old
22 trees . I estimated they were 80 years old. But regardless
23 of that, the Brophy property was formerly known as the Cress
24 Gallery, some of you may recall, and it ' s really considered
25 a local landmark in Fort Collins by many of the long-time
16
1 residents who have been here, particularly residents who
2 have been here more than the five years that the Brophys
3 have been here.
4 So we ' re concerned about the disruption of that
5 property and the significant changes . I don ' t know how
6 personally -- I 'm not a builder or developer, but I don' t
7 know how you could put a shopping center in there and have
8 that property maintain any character like it has today. So
9 that would be a shame if that were destroyed.
10 The wildlife. I mentioned the great horned owls .
11 Beautiful birds, if you get a chance to see them. They do
12 kind of startle you sometimes if you' re not paying attention
13 and they swoop down by you, but it ' s really kind of nice to
14 watch. There are raccoons that live in the area. There are
15 rabbits . Raccoons and rabbits provide food, obviously, for
16 the owls . Occasional deer, which can sometimes be a menace,
17 but then again on Christmas Eve two years ago when I looked
18 out my back window and saw four bucks standing in the yard,
19 the first thing I thought of was, call the neighbor kids and
20 say, "Hey, look, Rudolph' s out back. Why don' t you take a
21 look out your back window. " Obviously, those kinds of
22 things would be significantly altered if this were to be
23 developed into a neighborhood center.
24 The third thing I want to talk about is there
25 really is no public need. Everybody that we talk to, there
17
1 are two efforts canvassing our neighborhood to address this
2 issue and to get support for it. Absolutely everybody that
3 was confronted with this issue said, "I do not want this in
4 our back yard. " And we have signatures, and you' ll see
5 another petition of another some 40 households that said,
6 "We don' t need toilet paper sales in our back yard. " We
7 didn' t buy our properties less than five years ago to have a
8 convenience store, you know, out our back window.
9 We have, obviously, the Wal-Mart center, the
10 College and Harmony center, is less than a mile away.
11 Anything we need, we can walk to in 10 minutes if we choose
12 to walk, or we can drive there in one minute or less . We
13 don' t see the public need, as mentioned by the Planning
14 Department. There is a development already approved less
15 than three quarters of a mile away, so those of us who can' t
16 walk the mile, we can walk the three-quarters of a mile.
17 There ' s also a property directly north of this property
18 which has been on the market for quite some time, which I
19 don' t know the exact zoning. I apologize. I didn't have
20 time to do that research, but I know it' s being marketed as
21 a commercial property as well.
22 Safety is an issue. The chairman of the Planning
23 and Zoning Board mentioned safety earlier not being a
24 concern next to the low income housing area, but we do
25 believe that next to a shopping center, there are concerns
18
1 of safety with our children and security in our homes .
2 The increase in traffic. I can' t, for the life
3 of me, figure out how people are going to get in and out of
4 this shopping center down Olt Court . That just makes no
5 sense whatsoever. And we already have, as we know, a
6 traffic problem at the corner of Harmony and Shields, and
7 that ' s why the City is going to lay that street out and
8 widen that street, to allow for more traffic. So currently,
9 we have problems with traffic in our neighborhood where
10 people cut through the neighborhood to avoid that
11 intersection.
12 A drive-through restaurant, a drive-through
13 store, will have some sort of mechanical or automated
14 loudspeaker system to communicate with people in their cars .
15 The additional traffic going through that area; we believe
16 that there will be an increase in noise and it will make our
17 properties -- it will devalue -- not necessarily devalue,
18 but it will interfere with our right to enjoy peaceful
19 enjoyment of our property, which I believe is an actual
20 right in the state of Colorado.
21 I ' ve listed some environmental concerns . I won' t
22 go into those in detail, but wherever you have a
23 conglomeration of cars in and out, you' re going to have
24 issues such as exhaust, noise, byproducts, gas, oil, and so
25 on.
19
1 And lighting. I would invite you to come to
2 Westbury, if you haven ' t in the past, and walk through the
3 neighborhood, as most of us do at night, and enjoy the
4 country-like atmosphere that we enjoy because we have a
5 buffer between ourselves and that intersection. If a
6 shopping center were to go in there, even if it were planned
7 to reduce the infringement of lighting, we think that we ' re
8 going to end up being a very well-lit or overly-lit area.
9 So in summary, I will wrap up and turn it over to
10 one of my other neighbors .
11 First, again, I want to thank you for allowing us
12 to come and talk. We heard this earlier with one of the
13 neighbors regarding one of the other issues . I believe the
14 only real motive that the Brophys have in making this change
15 is for profit. If you look at the fact that they paid
16 $620, 00 for this property less than five years ago and
17 they' re currently asking well over a million dollars for the
18 property, even if you take the eight percent increase in
19 real estate values compounded over that five years, they' re
20 looking for a 43 percent bonus on top of that, because what
21 they' re asking -- and I think that ' s the motivation. They
22 want to make that change so they can get that kind of money .
23 for the property. It ' s not worth it. Right now, that
24 property is worth, on the market, about $911, 000 . So
25 they' re asking for a bonus of 43 percent over what the
20
1 current value is .
2 Clearly, this proposal is not compatible with the
3 neighborhood. I think that the Planning and Zoning
4 Department made that clear in their earlier comments.
5 And the last thought I want to share with you is,
6 when you think about what makes Fort Collins great, many of
7 you are long-time residents of Fort Collins, and I have
8 been, too. What really is it that makes this city a great
9 place to be? Is it the climate? Partially. Is it the
10 mountains? Probably, to some degree. Is it the people? I
11 think that has a big impact. Is it the business climate?
12 Maybe .
13 But I think the real thing that makes Fort
14 Collins a great place to be is we tend to do the right
15 things by each other. The City does the right things by its
16 citizens . The citizens do the right things by each other.
17 And when it comes to managing our city and our environment,
18 we can all cite many examples of we, as a community, doing
19 the right things for each other.
20 This request is clearly not the right thing to
21 do. I know it. The City Planning and Zoning Department
22 knows it. And I think you know it as well .
23 At this time, I want to introduce Mr. William
24 Blank, who' s going to talk for just a couple of minutes
25 about the Olt Court issue. Thank you for your time.
21
1 MR. BLANK: Good evening, Mr. Chairman and Board,
2 staff members . My name is Bill Blank, and I 'm the past .
3 president of the Westbury Garden Homeowners Association and
4 a current resident of that area. And if you want to refer
5 to the map that was handed out to you a few moments ago,
6 you' ll notice that the Westbury Garden Homeowners
7 Association is made up of Belleview Drive and Olt Court.
8 This association consists of 25 townhomes and
9 patio homes, and it ' s a high-density residential area.
10 Consequently, we ' re all very concerned about the increased
11 traffic that would be expected from this type of
12 development, along with the noise that would go with it as
13 well .
14 If you notice the numerous petitions that have
15 been signed by virtually everyone that had been talked to, I
16 think you' ll see that there' s consistency among us in terms
17 of our feelings about rejecting this modification to the
18 Brophy property.
19 What I want to talk about specifically is our
20 concern about the modification to use Olt Court as an
21 alternate entrance and exit for this proposed modification,
22 strip mall, neighborhood center, however you want to refer
23 to it .
24 If you ' ll look at the map, you' ll notice how Olt
25 Court is a dead-end off of another dead-end court, and we
22
1 really appreciation the quiet, the calm, that we sense
2 there.
3 As previous speakers have talked about, this
4 project would result in a very dramatic change in the
5 character of our neighborhood, and it would absolutely not
6 befit the neighborhood. And so on behalf of myself, my
7 family, and my neighbors, I behoove you to consider this
8 carefully before agreeing to any type of a modification.
9 MR. STARR: Good evening, Board, Mr. Chairman.
10 My name is Kim Starr. And I also live in the Westbury
11 development, but I 'm also the vice president of the
12 homeowners association. It ' s for that reason that I 'm here.
13 Before I even get started, I 'd like to present to
14 the Board a petition that was developed by the homeowners
15 association, circulated in the neighborhood, containing 58
16 separate homeowners who seasoned it against these
17 modifications, representing 47 different homes .
18 I see the secretary' s not here. May I? Thank
19 you.
20 MR. GAVALDON: Please feel free. And also, the
21 photographs, we ' ll need to retain them for the record in
22 case there ' s an appeal . So if you don' t mind. Thank you.
23 MR. STARR: As Marty expressed, and as Bill also
24 expressed, we do, as a community and a neighborhood, feel
25 very strongly that the staff has, in fact, hit these issues
23
1 as they should be hit, that these modification requests
2 should be denied.
3 As a homeowner and as a board member, we really
4 appreciate the opportunity to be able to come to the Board
5 and speak to you all here tonight. Considering we ' re
6 between periods, I ' ll try to be brief also. But there are a
7 lot of points I really feel compelled to hit.
8 The board of directors of Westbury Homeowners
9 Association went, basically, down to the staff and asked
10 questions and pulled the modification request, pulled the
11 actual -- excuse me, the Land Use Code, as well as the staff
12 report . So we ' ve taken quite a bit of time to try and
13 educate ourselves with actually what ' s being presented here
14 and what the request entails .
15 We ' re against the request, obviously, as I ' ve
16 already stated. And primarily, we ' re very concerned, number
17 one, about traffic. Mr. Colton mentioned earlier, with
18 respect to a modification request, is it out of character of
19 the neighborhood. Well, a strip mall is absolutely out
20 of -- I 'm sorry, a neighborhood center is certainly out of
21 the character of this neighborhood.
22 Now, one of the issues that, as a Board, and I 'm
23 sure you struggle with this all the time, whether you modify
24 the code -- or the code is to determine whether it ' s
25 detrimental to public good. Is what you ' re doing, if it ' s
24
1 modified, going to be actually to the detriment of the
2 neighborhood or the city?
3 We believe strongly this will be. It ' s dangerous
4 from a traffic standpoint. To have a gas station and a
5 drive-up -- and I don' t care if you call it a pharmacy; you
6 may call it a pharmacy -- the applicant may at this point in
7 time, but down the road, who' s to say it ' s not a Taco Bell .
8 Our pristine -- this sound of rustling at night is going to
9 be replaced by the effect of, "May I take your order. "
10 That ' s not what I purchased.
11 Would it be a substantial benefit to the City?
12 No. The only is going to be to the market value of the
13 property. It may open up the ability to go out and market
14 that property. I really don ' t know.
15 Does it substantially address an important
16 community need? We don' t need more commercial development.
17 In the actual modification request, there ' s
18 discussion about, that we really are lacking. It ' s at page
19 2, commercial development in that area. That ' s simply not
20 the case. You go merely eight-tenths of a mile north of
21 this particular intersection. You've got three restaurants .
22 You've got a Volt . You've got a health store, a .bank, a New
23 York Life, a mortgage company, McLeod USA, dry cleaners,
24 real estate, and a liquor store. Across the street from
25 that is a 7-Eleven. You go catercornered, there ' s
25
1 Schrader' s . There ' s an Urgent Care. There ' s also a travel
2 agency. And that ' s not to go west of the new development
3 that Steve talked about earlier. So we have plenty of
4 commercial development in the area. We don' t need more.
5 One of the issues to look at is whether the
6 modification would substantially alleviate an existing
7 problem, and one of the things that this staff -- one of the
8 things that staff so aptly pointed out, in this type of a
9 situation, would be traffic congestion. If you can
10 alleviate that, maybe you can look at the modification.
11 This will be just the opposite. To say that
12 we ' re going to put in this commercial site and not bring in
13 flux of traffic is naive at best. There is no way that you
14 can put in the type of center being suggested and not pull
15 traffic in from outside the area. Otherwise, those
16 businesses won' t stay open. You have to draw in outside
17 traffic, and I ' ll get into that in a little bit . But this
18 is -- what ' s being proposed really would require
19 high-intensive vehicle use.
20 One of the things that I found interesting is in
21 the modification request, there ' s a suggestion that because
22 there ' s no neighborhood center in the Woodlands, there' s not .
23 one in Clarendon Hills and the Coventry lacks one, and with
24 the exception, perhaps, of the development, the commercial
25 development west, that even Clarendon Hills -- or, I 'm
26
1 sorry, even The Ridge lacks a neighborhood center, for that
2 reason, please consider this modification.
3 Well, the bottom line is that, in fact, on the
4 one hand, they' re promoting, "We need a center so that we
5 can cut down on traffic. " But on the other hand, they' re
6 suggesting to you, "Look, we' re going to bring in all of
7 these homes from all these other communities to the corner
8 of Harmony and Shields. " They just fly in the face of each
9 other. Those arguments, they' re totally against one
10 another.
11 In fact, I remember a professor once saying, a
12 Southern professor, that you can put feathers on a
13 groundhog. You can' t make it fly. Well, that would be this
14 proposal. Because to suggest to you all that, "Look, we can
15 put in this strip mall and not bring any additional
16 traffic, " is just ludicrous.
17 And when you look at the site itself, if you have
18 a strip mall in there, traffic, to get back onto Shields and
19 head north, can' t. And Steve, forgive me, but I don' t know
20 what time it was you shot the picture that showed the line
21 of cars coming east on Harmony. But that ' s not unusual,
22 even now. And you add a strip mall, it ' s only going to get
23 far worse.
24 So the only way that that traffic can be diverted
25 and get back the direction it wants to go, say, north on
27
1 Shields or to go west on Harmony, would either be to come
2 back down Shields and then through the Westbury -- on .
3 Westbury Drive, through the neighborhood, or out Olt Court,
4 which then, again, brings all the outside traffic into the
5 neighborhood. It ' s dangerous.
6 One of the things that I think is important and
7 certainly for me, being, I have two small kids, additional
8 neighborhood traffic. And for the reasons I 've just laid
9 out, I think you can't avoid that if these modifications are
10 granted. That ' s going to happen. We ' re already seeing it
11 somewhat . But if you add a strip mall at Shields and
12 Harmony, it ' s going to make it even worse. And the
13 congestion out on Shields and Harmony isn't going to change .
14 It ' s just going to get worse also. Just logic would dictate
15 that.
16 Really, for a modification like this, as I read
17 the Code and what the staff came up with, the requested
18 modifications, as they are, they' re not going to invite a
19 pedestrian-oriented neighborhood focal point at this corner.
20 It just isn 't going to be. Anyone in their right mind is
21 not going to want to go to that corner on foot or bicycle.
22 It just doesn ' t make sense.
23 The additional street traffic will be, again,
24 directly through our neighborhood. I also had a concern
25 with respect to Olt Court, not only, again, for the traffic
28
1 coming through the neighborhood, but interestingly, the
2 modification suggested would require that that parcel of
3 land to the south, which is about two acres -- in fact,
4 Mrs. Bates is here tonight -- that would require the
5 purchase of that land or some type of easement .
6 Now, if, in fact, there ' s an additional two acres
7 to the already existing five, then that ' s in violation of
8 the Code, because that violates 4 . 4 (d) (3) (c) , which says a
9 neighborhood center will not be above five acres . It can't
10 go over five acres . So that ' s also a problem.
11 Again, I think the staff report nails the request
12 with pinpoint accuracy. This is a request, basically, to
13 pave the way for a strip -- commercial development. I 'm
14 sorry. I 've been calling it a strip mall. It ' s probably
15 not politically correct . But the public doesn' t need it .
16 We don' t need a mall at Shields and Harmony.
17 The requested modifications will be detrimental
18 to our neighborhood and really, I think the surrounding
19 neighborhoods, whether it be Clarendon Hills, The Ridge,
20 Woodlands, whatever. These neighborhoods contain a lot of
21 young families with children. The modifications invite
22 higher traffic. The high-intensive vehicle traffic use.
23 It ' s not in the best interests of your families.
24 It ' s not in the best interests of the neighborhood. And
25 we ' re requesting that you deny the request for modifications
29
1 4 . 4 (b) (3) (c) (1) , 4 . 4 (d) (3) (b) , and
2 4 . 4 (e) (2) (i) . Thank you.
3 MR. GAVALDON: Thank you very much. For the
4 interests of the audience, we usually allow organized groups
5 more time, so it was an organized group, so we recognized
6 the three speakers .
7 At this time, we would like to invite any
8 individuals to come up and speak, and your time is limited
9 to three minutes .
10 MS. BATES: Three minutes. I ' ll keep it brief.
11 MR. GAVALDON: Thank you.
12 MS. BATES: Board, Mr. Chairman, my name is
13 Marsha Collins Bates . I live at 4621 South Shields, which
14 is on the map, the property that we 've been talking about
15 and around, which is immediately south of the Brophy
16 property. Steve had some pictures that actually showed my
17 driveway rather than the Brophys ' driveway.
18 Always I said, I ' d like to keep it brief. , I have
19 been kind of following this with interest . I 've read the
20 staff reports and noticed that my property is involved in
21 drainage issues from this property. It ' s involved in access
22 issues, Olt Court, as well as the 500-foot rule from major
23 intersection for right and left turn. And I finally decided
24 I better speak up.
25 The things that I have to say really, if you give
30
1 me a minute here, I ' ll find my notes. I had my notes.
2 Well, anyway. Probably of the people that have
3 spoken, my friends on Westbury, as well as others, my
4 property would be impacted the most by this development . Or
5 this request for modifications that would lead to more
6 extensive development .
7 I 'm concerned, number one, there is no easement
8 across the back of my property for Olt Court to continue to
9 connect to a neighborhood center. At some point in the
10 future, it may be well to consider these two properties that
11 did belong to Mrs . Alice Cress as a unit for development of
12 some kind. Certainly, progress is not going to stop here.
13 But at the moment, my family and I live in a
14 single-family dwelling on the front of this property, facing
15 South Shields. And our property line to the north of this
16 property is exactly at the 500-foot requirement for access
17 to the corner property. So if we -- I guess we think about
18 access . I 'm concerned about what sort of impact
19 modification of access would have on my property.
20 We' re also aware that South Shields is going to
21 be widened. That will include part of my front yard.
22 Hopefully, with the help of you folks, that will .be
23 minimized. We can still live there. But as that goes
24 forward -- and probably, my understanding is, it may be next
25 year -- as that goes forward, then the issue of access to
31
1 these -- both of these properties would have to be
2 reconsidered.
3 I have a driveway that runs along the north
4 side -- is that two minutes? May I please beg your
5 indulgence?
6 MR. GAVALDON: One more minute.
7 MS. BATES: The property line, my north property
8 line, has a driveway that runs the entire length of my
9 property, which is 500 feet long and 125 feet wide. So that
10 any access for the corner property would need to consider
11 that I 'm within probably less than 20 feet of that property
12 line with my house. Okay. So something would have to be
13 considered there.
14 So I guess I 'm not particularly taking sides
15 here, but I think the results of this modification, the
16 three modifications, need to be taken under consideration
17 very carefully, because there are going to be changes in the
18 future. Obviously, Fort Collins is growing and developing
19 at an amazing rate. But for the moment, these are some
20 serious issues. My family and I would not, at the moment,
21 like to have to move somewhere else.
22 So thank you very much. That ' s my three-minute
23 mark.
24 MR. GAVALDON: Thank you very much. Is there
25 anyone else that would like to come up and speak to the
32
1 subject matter?
2 MS . BROPHY: Please correct me if I 'm out of
3 order. I 'm Mary Brophy. Can I speak at this point or not?
4 MR. GAVALDON: As an individual, you can.
5 MS. BROPHY: As an individual, I can? Okay.
6 Thank you. I had three comments I want to make. One is, we
7 aren' t as money-grubbing as I feel like maybe our neighbors
8 think we are. One of the plans that my husband and I have
9 definitely considered with this is moving our house, which
10 we have had a guy come out and take a look at the
11 feasibility of that, or perhaps constructing a new house at
12 the southwest corner of the property, which borders two
13 sides of the residences over here.
14 So we are not thinking in terms of abandoning
15 this area. We are thinking in terms of what also could make
16 the City well. And we know that some of the City' s goals
17 are compact development, making neighborhood access to
18 commercial office space and retail, things like that, and
19 making those, neighborhoods around us, having access to
20 those things. And we -- we had our house there, of course,
21 too. We ' d be thinking along those same lines and providing
22 the same kind of input, hopefully, that our neighbors would
23 in terms of what would make sense for that development .
24 Okay. That ' s point number one.
25 Point number two is, I think we all know that
33
1 there' s progress going on here and more and more intensity
2 of traffic and commercial conveniences that are a natural
3 part, particularly of the south end of the city where we
4 are.
5 If you take a look at Shields, particularly from
6 Horsetooth down, there ' s not a lot going on right now, but
7 if you look at the current zoning plans that the City has
8 already established in those areas, you can see a major
9 grocery store being slated for Shields just north of us and
10 a lot of other types of more intense development that are in
11 the works that have been approved by the City. So we are
12 not really, in the future, impacting the Shields Harmony
13 corridor as much as what it may sound like.
14 And finally, I was also talking to neighbors,
15 people who used to live in the neighborhood where we are
16 right now. And that neighbor has since departed, but she
17 used to use words like, "Yeah, well, the noise has
18 increased. It ' s not as peaceful as it used to be. I can' t
19 walk across Harmony and Shields as much because of the
20 traffic. This used to be very country-like. " And she also
21 used to be able to say that, "I used to have a mountain
22 view. "
23 That person is a prior owner of our property who
24 left because of the increased development, not only on
25 Harmony and Shields, but the fact that Westbury development
34
1 didn' t used to be there and is now there. So I 'm just -- I
2 realize what you have to say about the property and .the --
3 MR. GAVALDON: Ma' am?
4 MS. BROPHY: -- the wildlife --
5 MR. GAVALDON: Ma' am, your comments need to be to
6 us.
7 MS. BROPHY: I 'm sorry. I realize what they have
8 to say about the changing development, but it ' s sort of the
9 nature of the city and what ' s going on. And we would like
10 to minimize impacts, too, but we also know that things need
11 to move forward. Thank you.
12 MR. GAVALDON: Thank you very much. Any other
13 individuals that would like to come before the Board.
14 MR. ECKMAN: Not to change the subject, but it ' s
15 four to nothing and six minutes left .
16 MR. GAVALDON: Thank you, Bob. I was going to
17 ask for the score.
18 MS. ROGERS: Hi, I 'm Sharon Rogers . Our property
19 is the northernmost, bordering on Harmony, on Westbury -- I
20 mean, on Mariposa Court, and I would just like to have you
21 guys visualize, just for a moment, all of Westbury and
22 Mariposa, all of the surrounding people, our back yards, all
23 face that property. And if you can imagine being on your
24 back deck, having a barbecue, and looking at a 7-Eleven
25 or -- an asking for your order, please, imagine it in your
35
1 house, how that would be. It would be devastating for all
2 of our properties . Thanks .
3 MR. GAVALDON: Thank you very much. Anyone else
4 who would like to come up to speak to the Board?
5 Thank you for the score, Paul .
6 MR. INGHAM: Hi. My name is Chris Ingham. I
7 live at 4606 Mariposa Court, and our property actually also
8 borders the back of the Brophy property.
9 I 've lived in Fort Collins now for almost exactly
10 one year. In fact, tomorrow is the anniversary date of our
11 closing, so I feel I don' t have much of a leg to stand on to
12 talk about, you know, when I look objectively at the map
13 here and I look at the intersection and I see two major
14 arteries of Harmony Road and Shields, I 'm kind of actually
15 surprised, just looking at the map, that there ' s not already
16 a gas station at the southwest corner of Shields and
17 Harmony.
18 But the fact is that we made it this far and
19 there still isn' t . It ' s not there. And one of the things
20 that drew me to this area, particularly, what was that stand
21 of trees that ' s at that corner.
22 And I really feel for the Brophys, quite a lot .
23 I think their property is being pretty much destroyed by the
24 widening of those two roads . But if you' ve ever been parked
25 at -- I know there ' s quite a line of cars there, waiting to
36
1 go west, coming from Harmony. But if you've ever been
2 stopped there, and watching Horsetooth and just watching
3 that stand of trees right there, the cottonwoods, it ' s
4 really beautiful.
5 The reason why we bought our house is because our
6 back yard borders the back of the Brophy property and
7 there' s beautiful, lush trees. They've got a gazebo and
8 everything back there. But it ' s not ours. It belongs to
9 them, and they have the right to sell it if they want.
10 But the fact is that the current zoning is for
11 light commercial, and if, you know, there ' s a lot of traffic
12 going through that intersection and if a bank or some small,
13 you know, office building or something wanted to set up
14 there, that would make sense to me. There ' s quite a lot of
15 traffic going through there.
16 But I think just as an -- offering my opinion as
17 an outsider, something that drew me to the area was the
18 beauty of that corner, and I think to choose to put a gas
19 station or drive-in restaurant there would be pretty sad for
20 everyone. Thanks.
21 MR. GAVALDON: Thank you very much.
22 Unless we have anyone else who would like to
23 speak, I 'd like to go ahead and close it. Last call .
24 Okay. We' ll close public input at this time.
25 And Paul, I think we ' re going to need to go surrebuttal for
37
1 five minutes by the applicant, as we have done.
2 So, Mr. Brophy, you have five minutes for any
3 last comments or any rebuttals to the comments made in any
4 presentation to your modification only.
5 MR. BROPHY: There' s been quite a few comments
6 from my neighbors, but I think most of them are basically
7 telling you they don' t want any development at all . They' re
8 not addressing the modification request, although a couple
9 of the people actually did so. If you put offices on my
10 property, you' ll lose the character that it has today. And
11 you don' t need any modifications to do that .
12 One of the two things can happen here. You can
13 deny the modifications . The inventory of office space in
14 Fort Collins will burn off in three to five years . I ' ll put
15 offices there. The entire neighborhood will change.
16 Or you can grant the modification action and
17 it ' ll happen when the road is widened. Which is what makes
18 sense . You develop 25 percent of the property. I develop
19 75 percent .
20 So I ask you not to make me provide a public park
21 at my expense. Thank you.
22 MR. GAVALDON: Thank you very much.
23 At this time, we' ll bring you back to the Board
24 for any questions . But if you want -- if the Board wanted
25 to address any of the comments made by the public, feel free
38
1 to. share them. But it' s open for Board members.
2 MS. CRAIG: Okay. I have questions for staff.
3 MR. GAVALDON: Sure.
4 MS . CRAIG: Okay. Steve might be the one that
5 can help me on this one, since he' s been here the longest .
6 I 'm looking at the zoning map, and all I can figure is the
7 only reason that this piece of property was zoned LMN has to
8 do with the gallery? Is that why it was even zoned LMN?
9 Because it' s a single-family residence all around
10 it, and I 'm looking at other arterials, such as Timberline
11 and Drake, and they were all left as RL. So all I can --
12 the only thing comes to my mind is because the gallery was
13 there?
14 MR. OLT: That ' s conceivable. However, the prior
15 zoning was not RL on this property. It was RLP. Which is
16 low density, planned residential, which allowed other uses
17 through the planned unit development or Land Development
18 Guidance System process. So, therefore, being at the
19 intersection of the two arterials, it certainly was
20 considered and conceivable that, you know, there could be
21 something other than low-density residential.
22 And I think at this point in time, I ' ll turn it
23 over to Ken. He seems to have some thoughts.
24 MS. CRAIG: Okay. Ken, did you hear my
25 question?
39
1 MR. WAIDO: The question is, why is the property
2 zoned LMN?
3 MS. CRAIG: Yes .
4 MR. WAIDO: Okay. In the development of the
5 structure plan, all of the areas, when we were converting
6 the structure plan into a zoning code, all of the areas
7 shown in yellow on the structure plan were initially
8 proposed for LMN uses. Or LMN zoning.
9 When we began to further develop the Code and
10 look at some of the impacts that an LMN zone may have on an
11 existing single-family subdivision, the decision was made to
12 retain all of the existing single-family subdivisions into
13 the RL zone.
14 And so what you have is a major subtraction of
15 LMN zoned areas for any developed single-family subdivision.
16 That left all the yellow areas that were not part of a
17 single-family subdivision in the LMN zone.
18 And so the Brophy property -- I think you also
19 are familiar with the Worthington property further north on
20 Shields Street, and there are a number of those types of
21 small pieces of property in single-family neighborhoods that
22 were retained in the LMN zone to provide the opportunity in
23 some of the cases -- the residents, the single-family
24 neighborhoods, had no sort of convenience services or
25 opportunities for mixed uses, whether it be multifamily
40
1 residential, lower-scale multifamily residential, or office
2 development that would be consistent with the mixed-use
3 characteristics of City Plan. So that ' s why these areas
4 were retained as LMN areas.
5 MS. CRAIG: Okay. I 'm looking at the structure
6 map, and you know, we've got the MMN and the NC just north
7 of this corner on the structure map. So we' ve taken care of
8 multifamily, et cetera. And then, as a matter of fact, this
9 specific corner is green. So obviously, we were looking at
10 trying to buffer something.
11 MR. WAIDO: I believe the green designation there
12 is because of Mayo Creek, which was just an attempt to show
13 that there was a possibility of some type of natural green
14 corridor through the area. I don' t think that the intent of
15 the structure plan was for this to be an open lands area.
16 MS. CRAIG: No, I agree with you there. But
17 obviously, we felt it had enough significance to leave it as
18 a green corridor. So I guess --
19 MR. WAIDO: And that ' s --
20 MS. CRAIG: What my question is, if Mayo Creek is
21 there, it doesn' t quite match that we want to turn it into a
22 neighborhood center.
23 MR. WAIDO: Well, it depends on what -- you need
24 to look at the broad uses of neighborhood centers .
25 Something like along Lemay Avenue, just south of Stuart
41
1 Street, where there' s some professional offices there that
2 integrate into the Stonehenge entryway are the types of
3 things we were looking at providing --
4 MS . CRAIG: So that was kind of what you had in
5 mind and it would complement this Mayo Creek buffer?
6 MR. WAIDO: Recognizing that this area -- and
7 I ' ve heard people talk about the neighborhood shopping
8 center that ' s planned for about a quarter mile north of the
9 intersection. We have a convenience shopping center being
10 built at Seneca and Harmony further west . And there ' s
11 another LMN area where Harmony curves back to the west,
12 Harmony and Taft Hill Road, the southwest quadrant of that,
13 is also zoned LMN, again, because it was not part of a
14 single-family subdivision when we were doing the Land Use
15 Code .
16 MS. CRAIG: Okay. Thank you. I think you were
17 very helpful.
18 MR. WAIDO: You' re welcome .
19 MR. GAVALDON: Any other Board questions?
20 Okay. I have one, if I can jump in. Steve,
21 Mr. Brophy made some statements about distance to the other
22 centers and some of our approvals he made, and it ' s kind of
23 in contradiction to what we presented earlier. Can you shed
24 some light on that?
25 MR. OLT: Well, if I 'm not mistaken, the
i
42
1 references were to, you know, the location of this site to,
2 for instance, the Seneca Center. Which is just under
3 three-quarters of a mile to the west. And in fact, that
4 is -- well, I shouldn't say "in fact . " Mr. Brophy indicated
5 that is not a neighborhood center.
6 1 quite frankly don' t know if it was reviewed and
7 approved under the Land Development Guidance System or the
8 Land Use Code. However, regardless, it was either a
9 neighborhood convenience shopping center under the old
10 system, which, basically, is the same type of center as the
11 neighborhood center in the Land Use Code.
12 We ' re looking at a site that ' s seven acres or
13 less . The nature of the uses are identical . The separation
14 requirements were there. They have obviously been carried
15 over from the Land Development Guidance System for spacing
16 between neighborhood centers so we don' t have a
17 proliferation of neighborhood centers along the arterial
18 streets. It ' s been carried into the Land Use Code for a
19 neighborhood center.
20 Yes, there ' s a property to the north that ' s zoned
21 NC. That ' s neighborhood commercial. That ' s a larger
22 center. That ' s a different anchor base type of facility.
23 But it could have some of the uses also, if that were to
24 develop first and there were a convenience store in there,
25 for instance, that would preclude the ability to have, let ' s
43
s
1 say, a convenience store with fuel sales here, because of
2 the separation requirement.
3 So, really, I don' t think there' s any
4 contradiction of the Code in terms of that separation
5 requirement from this site and the intended uses that have
6 been expressed to us by the applicant to the -- well, what
7 is now existing, because the Seneca Center is under
8 construction. That is existing development or the proposed
9 development to the north.
10 MR. GAVALDON: Thank you for the clarity. I just
11 wanted to make sure we got it on the record. Any other
12 thoughts? Any other Board questions?
13 MR. COLTON: I was just trying to clarify, what
14 are the permitted uses on this court? Because I see on one
15 place, small retail, less than 5, 000 is permitted, but --
16 that ' s in -- whatever -- 2C. 3 --
17 MR. OLT: Well, are we talking about from the LMN
18 zoning district in the Land Use Code?
19 MR. COLTON: Yes .
20 MR. OLT: All the permitted uses, or are we
21 talking, for instance, a neighborhood center?
22 MR. COLTON: Specifically around a neighborhood
23 center. I guess my question comes down to, are -- okay --
24 MR. OLT: Okay. Right out of the Code, a
25 neighborhood center which is permitted in the LMN zoning
44
1 district that would not require a modification would
2 contain -- and I 'm reading this from the Code. Neighborhood
3 centers consisting of at least two of the following uses .
4 Mixed-use dwelling units, which is -- in one building, you' d
5 have a residential unit and some other use, such as retail
6 or office use. Retail stores with less than 5, 000 square
7 feet of gross floor area. So we' re talking about small
8 retail uses. Convenience retail stores . Note, however, it
9 does not say with fuel sales . You can have a convenience
10 retail store, but it cannot have fuel sales associated with
11 it. Personal and business service shops . Small animal
12 veterinary facilities . Offices . Financial services and
13 clinics containing less than 5, 000 square feet of first
14 floor area. Again, those type of uses would have to be very
15 small .
16 And then you can have community facilities,
17 neighborhood support, recreation facilities, schools, child
18 care centers, and churches . Those are permitted in a
19 neighborhood center as, quite frankly, a type 1 use or an
20 administrative review use, without modifications.
21 MR. COLTON: Okay. In section -- well, a couple
22 pages back, page 24, article 4 (3) (b) , Location. It says a
23 neighborhood center shall be planned as an integral part of
24 a surrounding neighborhood, et cetera, et cetera, and it
25 says neighborhood centers with retail uses or restaurants
45
1 located on arterial streets shall be spaced at least
2 3, 000 -- or three-quarters of a mile apart .
3 MR. OLT: Correct.
4 MR. COLTON: So if I read that one, then it seems
5 like it contradicts or it has a location requirement which,
6 if we define this other place as a neighborhood center,
7 would say, we can' t have retail uses on this corner as well?
8 MR. OLT: Right. Of larger than 5, 000 square
9 feet .
10 MR. COLTON: Well, this just says neighborhood
11 centers with retail uses or restaurants .
12 MR. OLT: That ' s the way I interpret it .
13 Obviously, "restaurants" is clear. You can' t have
14 restaurants within three quarters of a mile of one another.
15 MR. COLTON: I think maybe for everyone ' s
16 benefit, we might want to clarify, figure out what really
17 applies here. Because in one place, it sounds like it ' s a
18 permitted use, but given the locational criteria, it sounds
19 like it ' s not a permitted use.
20 MR. GAVALDON: Paul, can you shed some light on
21 this, please?
22 MR. GLOSS: I wanted to make a correction,
23 because I think that was a little bit off. In that
24 neighborhood centers as a type 1 or administrative use, it
25 would include restaurants are acceptable under that type of
46
1 review, if they had a three-quarter mile separation. I
2 think Steve had mentioned that would not be permissible
3 under a type 1 review.
4 MR. GAVALDON: So they' re tied together then?
5 MR. GLOSS: Yeah, actually, retail and
6 restaurants are tied together.
7 MR. GAVALDON: Okay.
8 MR. COLTON: So they aren' t permitted under a
9 type 1 --
10 MR. GLOSS : They still have to be spaced at
11 three-quarter miles, but that would be permitted as a type 1
12 use.
13 MR. COLTON: But not in this particular location.
14 MR. GLOSS: That ' s correct, yes .
15 MR. COLTON: Because we've determined, or at
16 least staff has determined, that this is less than three
17 quarters of a mile --
18 MR. GLOSS: That ' s correct, yes .
19 MR. COLTON: Okay.
20 MR. OLT: Yes, and that interpretation was made.
21 That ' s attached to your staff report. There was an
22 interpretation done two years ago by the previous planning
23 director as previously noted, indicating that, that at that
24 time, the center to the west was only planned. Now it ' s a
25 reality. And at that time, Mr. Blanchard made an
47
1 interpretation that it ' s within three-quarters of a mile.
2 Therefore, a neighborhood center with certain uses on this
3 site would require a modification or modifications .
4 MR. COLTON: Right . Yeah. I was just a little
5 unclear, because I think we specifically stated it wouldn' t
6 allow a convenience store with fuel sales, it wouldn' t allow
7 a restaurant, but it didn' t say it would not allow retail .
8 MR. OLT: Stand corrected.
9 MR. COLTON: None of the three of those would be
10 allowed, given that interpretation.
11 MR. GAVALDON: Anybody got any more questions?
12 Are we getting ready for a motion? Just want to be clear
13 that the recommendation is denial of the modification as
14 noted in our staff reports . So I want to make sure we ' re
15 clear with the direction.
16 MR. COLTON: Well, I just had another question on
17 this issue of the trees and the park-like nature of this .
18 What part of those trees are going to be destroyed by the
19 road alone, even if there isn't any development going on in
20 this property other than that? Is there anyone on staff
21 that can address that? Because I 'm wondering if people are
22 thinking they' re going -- that they' re still going to have
23 this park-like atmosphere and part of it might be destroyed
24 anyway, just because of the road widening.
25 MR. GAVALDON: Ward' s coming down.
i
48
1 Mr. Brophy, you need to come up and speak to the
2 microphone, and we ' ll have Ward chime in.
3 MR. BROPHY: I 've spoken to the streets people,
4 and all the trees on Harmony will be destroyed. There will
5 also be a couple of elm trees that aren' t valuable on
6 Shields destroyed.
7 MR. GAVALDON: Okay. Thank you very much. Ward,
8 can you help out with the answer, please.
9 MR. STANFORD: The drawings I 've seen Eric
10 working on and with Matt Baker, a fair amount of them on
11 Harmony, adjacent to the roadway, would be. "All of them, "
12 I think, is not quite accurate, but a fair amount of them
13 would be.
14 Now with the roundabout possibility that we ' re
15 also looking at, it would take fewer amount of them. The
16 four-lane concept is taking more.
17 MR. COLTON: Okay. It looks like someone from
18 the homeowners association can maybe address which trees
19 they really think are the ones --
20 MR. LEAK: I actually counted them. There are
21 five large cottonwood trees that would be removed as a
22 result of widening the street and the possibility of four,
23 if I remember the trees as well. And I don' t have the exact
24 number of the total number of trees on the property. Maybe
25 Mr. Brophy does, but I would estimate it ' s about 15 percent
49
1 of the trees, the large-growth trees, that are currently on
2 the property.
3 MR. COLTON: So the trees you' re talking about
4 with owls are other trees .
5 MR. LEAK: I 'm sorry?
6 MR. COLTON: The trees you' re talking about with
7 owls and so forth are not the ones along Harmony, then.
8 MR. LEAK: Right. The nests I referred to
9 earlier in my discussion are not in the trees that will be
10 removed as a result of widening this street .
11 MR. GAVALDON: Thank you very much.
12 Ward, I know this is probably off the subject,
13 but it has been brought up about the widening. So right
14 now, we ' re unclear whether we go roundabout or four-lane.
15 So a number of trees will have to be assessed by the City
16 Forester. And I know we made quite creative designs to
17 retain trees as much as we can, like on north on Shields
18 there, past Horsetooth, where they saved the trees and still
19 widened Shields, and I think we've done that in other areas.
20 So the view I share is that we ' re not sure yet, but there
21 will be some impact, but that ' s a separate process . Would
22 that be correct?
23 MR. STANFORD: They will have to look at some of
24 the tree issue, all right. Part of the issue on where it ' s
25 sited is also due to the property that ' s on that northeast
50
1 corner. And it is reasonably close to the intersection. So
2 you' re constrained by that as to how far north you can push
3 the intersection. So that has some of the elements as to
4 how it' s sited and being able to joggle it around a little
5 bit. And the roundabout is one of them that we ' re looking
6 at to try and improve that condition, as well as the
7 mobility.
8 MR. GAVALDON: Thank you very much.
9 Any other questions?
10 Are we getting close to a motion?
11 MS. CRAIG: I ' ll make a stab at it .
12 MR. GAVALDON: Thank you, Sally.
13 MS. CRAIG: I move that we deny the modifications
14 with the findings of facts, conclusions, put down in the
15 staff report as our justification.
16 MR. GAVALDON: Okay.
17 MR. BERNTH: I would second that motion.
18 MR. GAVALDON: The motion is for moving -- the
19 motion and second is for denial of the modifications as
20 noted on the staff report. Discussion? Okay.
21 MR. COLTON: I ' ll be supporting the motion
22 because I think it ' s pretty clear that these uses weren' t
23 intended to be allowed that close to another neighborhood
24 center. And certainly on the drive-ins, however, for the
25 neighbors, I guess, I live fairly close to this area, in
51
1 Clarendon Hills, and frankly, if it could be done well, I
2 would have actually appreciated an area with a small little
3 restaurant, maybe some little walk-in retail type things,
4 where we could go to without driving somewhere.
5 I don' t think it ' s any small deal to get into the
6 car and drive over to Horsetooth and Shields . I think
7 that ' s a big deal, compared to being able to ride your bikes
8 or walk into a place. And I think it would serve your
9 interests to work with the Brophys on what you think should
10 be going in this and what you could work with him to
11 support, because there are a lot of other uses permitted
12 that may do away with this park-like atmosphere anyway.
13 One idea would maybe -- there' s enough of you out
14 there, maybe you should go in and buy that property from him
15 and make it into your own little park or something if you
16 value it that much. Otherwise, there are a lot of other
17 uses that are permitted that you may not like any more than
18 this . Now, certainly, I wouldn' t want to -- with a gas
19 station there, but a restaurant? I don' t know. Depending
20 on what it is. Not a drive-in. But maybe a small little,
21 you know, South China type little restaurant or something
22 which I go to, would have to get in my car to drive to, but
23 not necessarily be a bad idea.
24 So I just want you to, you know, be thinking
25 because probably something is going to happen here, and
52
1 you' ll be better off working with him as opposed to just
2 saying nothing -- or with them and figuring out something
3 that can be both your needs and their needs as well .
4 MR. GAVALDON: I ' d like to add some comments, and
5 that is, one, I thank the neighborhood for a thorough
6 presentation and detailed analysis of the Land Use Code and
7 citing the policies and information. I think that was well
8 done, and I think that makes it very important, to be
9 prepared.
10 However I have to appreciate the lady who has the
11 property, offering her concerns, whether she agreed with the
12 proposal or not, but she ' s going to be impacted. And I
13 think the applicant needs to recognize that there ' s a --
14 what ' s called a partnership, and that ' s with your neighbor
15 to the south and the neighbors in the neighborhood. Because
16 their back yards do back up to it.
17 I ' ve lived here for 46 years. I was born here.
18 So I ' ve watched that area go up and down, and I 've been
19 caught in the traffic, too. So my view I share is that
20 staff' s findings are sound. The policies are clear,
21 concise, and they do link to each other. And I believe that
22 Steve and staff has done a very fine job in recognizing it
23 and the neighborhood has pointed it out very strong but
24 doesn' t say what ' s going to prevent something from happening
25 in there .
53
0
1 But I do agree with Glen. You really need to
2 look at a strong partnership and involve the neighborhood to
3 make it a success . Otherwise, we' ll meet back here again,
4 and I think it ' s important that we have a partnership to
5 work together. And I ' ll be supporting the denial -- the
6 motion for denial as well, because the findings are very
7 sound.
8 Any other thoughts?
9 Vote, please.
10 THE CLERK: Bernth?
11 MR. BERNTH: Yes .
12 THE CLERK: Colton.
13 MR. COLTON: Yes .
14 THE CLERK: Torgerson.
15 MR. TORGERSON: Yes.
16 THE CLERK: Meyer.
17 MS . MEYER: Yes .
18 THE CLERK: Craig.
19 MS. CRAIG: Yes.
20 THE CLERK: Gavaldon.
21 MR. GAVALDON: Yes .
22 Motion passes for denial .
23 (Matter concluded. )
24
25
54
1 STATE OF COLORADO )
2 ) TRANSCRIBER' S CERTIFICATE
3 COUNTY OF LARIMER )
4 I, Jason T. Meadors, a Registered Professional
5 Reporter and Notary Public, State of Colorado, hereby
6 certify that the foregoing proceedings, taken in the matter
7 of the application by Mark and Mary Brophy, and recorded on
8 Thursday, June 27, 2001, 2001, at 300 West Laporte Street,
9 Fort Collins, Colorado, was duly transcribed by me and
10 reduced under my supervision to the foregoing 53 pages; that
11 said transcript is an accurate and complete record of the
12 proceedings so taken.
13 I further certify that I am not related to, employed
14 by, nor of counsel to any of the parties or attorneys herein
15 nor otherwise interested in the outcome of the case.
16 Attested to by me this 5th day of August, 2001 .
17
18
19 R ,. �'C
NEU= ' J on T. K6adors
20 eadors , ourt Reporting, LLC
?�OF,,,,.�Fa/ 140 West Oak Street, Suite 266
21c;,�" Fort Collins, Colorado 80524
(970) 482-1506
22
My commission expires January 6, 2001 .
23
24
25