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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/19/1999 - RESOLUTION 99-123 MAKING FINDINGS OF FACT AND CONC AGENDA ITEM SUMMARY ITEM NUMBER: 22 DATE: October 19, 1999 0 FORT COLLINS CITY COUNCIL STAFF: Stephen Olt SUBJECT : Resolution 99-123 Making Findings of Fact and Conclusions Regarding the Appeal of a Decision of the Planning and Zoning Board Relating to the Provincetowne PUD, Filing Two - Preliminary. RECOMMENDATION: Staff recommends adoption of the Resolution. EXECUTIVE SUMMARY: On August 16, 1999, an appeal of the August 5, 1999 decision of the Planning and Zoning Board to approve the Provincetowne PUD,Filing Two-Preliminary was filed by the Appellants David G: Evans, Doug Sparks, and Mark Menke. The Appellants filed an amended appeal on September 3, 1999. On October 5, 1999, City Council voted to uphold the decision of the Planning and Zoning Board. In order to complete the record regarding this appeal,the Council should adopt a Resolution making findings of fact and finalizing its decision on the appeal. BACKGROUND: The Appellants notice of appeal was based on the allegations that: I. No hearing jurisdiction conferred on Planning and Zoning Board, in that, execution by the City Manager ofthe Agreement of Purchase and Sale ofReal Property(hereinafter"Purchase Agreement")by and between the City of Fort Collins and Pridemark Development Company, LLC,dated April 2, 1996,was specifically reserved by Section 4 of Ordinance No.41, 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-111(a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. II. No hearing jurisdiction conferred on Planning and Zoning Board, in that, execution by the City Manager, on or about April 12, 1995, of an agreement on behalf of the City of Fort Collins entitled "First Addendum to Agreement of Purchase and Sale of Property" (hereinafter "First Addendum") by and between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the Agreement of Purchase and Sale DATE: October 19, 1999 2 ITEM NUMBER: 22 of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a matter of law, modify an executory agreement. III. No hearing jurisdiction conferred on Planning and Zoning Board,in that,delegation to City Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996,was an improper delegation of legislative discretion which violated the requirements of Section 23-111(a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. IV. No hearing jurisdiction conferred on Planning and Zoning Board, in that, delegation to Pridemark Development Company, LLC of the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First Addendum to Agreement of Purchase and Sale of Real Property,was an improper delegation of legislative discretion which violated the requirements of Section 23-111(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. V. No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29- 526-Land Development Guidance System for Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins. VI. No hearing jurisdiction conferred on Planning and Zoning Board, in that,Applicant nor its predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. - Land Development Guidance System for Planned Unit Developments and Ordinance No. 161, 1996. VII. No hearing jurisdiction conferred on Planning and Zoning Board, in that,Applicant nor its predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29- 526-Land Development Guidance System for Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins. VIII. No hearing jurisdiction conferred on Planning and Zoning Board, in that,the Planning and Zoning Board failed to give timely notice of August 5, 1999, hearing. IX. No hearing jurisdiction conferred on Planning and Zoning Board, in that, the notice of the Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the Planning and Zoning Board. —,77--777777 ., .a, Na. FTF'Mr. ..... _. a DATE: October 19, 1999 3 ITEM NUMBER: 22 X. Planning and Zoning Board failed to make required findings,in that,Section 29-526K of the Land Development Guidance System for Planned Unit Developments requires,"The decision of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board". XI. Applicant failed to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar Orientation Ordinance,in that, Applicant presented no evidence which would demonstrate that the granting of the variance would neither be detrimental to the public good nor impair the intent and purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties with regard to solar orientation or access,and that undue hardship would be caused to the Applicant by the strict application of the provisions of Section 29-526(2)A-1/A-1.1. XII. The Planning andZoning Board considered evidence which was substantially false or grossly misleading& Planning and Zoning Board failed to receive all relevant evidence offered by the Appellants. At the October 5, 1999 hearing on this matter, Council considered the testimony of City staff, the Appellants, and the opponents to the Appeal. In subsequent discussion at this hearing, Council determined that hearing jurisdiction was conferred on the Planning and Zoning Board,the Board did make the required findings and give proper notice,the Board did not consider evidence which was substantially false or grossly misleading, the Board did not fail to receive all relevant evidence offered by the Appellants, and the Board did not fail to properly interpret and adopt the relevant provision of the City Code and Charter. City Council determined to uphold the decision of the Planning and Zoning Board. RESOLUTION 99-123 . OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING FINDINGS OF FACT AND CONCLUSIONS REGARDING THE APPEAL OF A DECISION OF THE PLANNING AND ZONING BOARD RELATING TO THE PROVINCETOWNE PUD, FILING TWO - PRELIMI-NARY WHEREAS,on August 5,1999,the City Planning and Zoning Board(the"Board")approved the Provincetowne PUD, Filing Two - Preliminary (the "Project"); and WHEREAS,on August 16, 1999, a Notice of Appeal of the Board's decision was filed with the City Clerk by David G. Evans, Doug Sparks and Mark Menke (the "Appellants"), and an Amended Notice of Appeal was filed by the Appellants with the City Clerk on September 3, 1999 (the "Amended Notice of Appeal"); and WHEREAS, on October 5, 1999, the City Council, after notice given in accordance with Chapter 2, Article 11, Division 3, of the City Code, considered said appeal,reviewed the record on appeal, heard presentations from the Appellants and other parties in interest and, after discussion, decided to uphold the Board's decision; and WHEREAS,City Code Section 2-56(e)provides that no later than the date of its next regular meeting after the hearing of an appeal, City Council shall adopt, by resolution, findings of fact in • support of its decision on the appeal. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that, pursuant to City Code Section 2-56(e), the Council hereby makes the following findings of fact and conclusions: 1. That the grounds for appeal as stated in the Appellants' Notice of Appeal conform to the requirements of Section 2-48 of the City Code. 2. That the Board did not fail to properly interpret and apply the relevant provisions of the City Code and Charter,specifically the provisions of the City's Land Development Guidance System("the LDGS"), in approving the Project, nor did the Board deny the Appellants a fair hearing. 3. The Council specifically finds that: (a) The Board did not lack jurisdiction to review the Project for any of the reasons stated in Sections I through IX of the Appellants' Amended Notice of Appeal. The Agreement of Purchase and Sale of Real Property by and between the City of Fort Collins and Pridemark Development Company ("Pridemark") dated April 2, 1996. and all addenda thereto, were properly executed by the City Manager and • approved by the City Council in accordance with the relevant provisions of the City Charter and Code, the requirements of Ordinance No.41, 1996,and all other applicable law. Moreover,the applicant for the Project, Pridemark, and its predecessor in interest, Kaufman and Broad of Colorado, Inc. ("Kaufman and Broad"), had sufficient legal and ownership interest in the real property that is the subject of the Project to submit the Project to the City for its review. Said application was complete and was properly determined to be complete by the City's Director of Current Planning for the purposes of submitting the Project to the Board. (b) The notice provided by the City to the Appellants and other parties in interest was adequate in its content to provide the Appellants with reasonable notice of the matters to be considered by the Board at its hearing on the Proj ect August 5, 1999,and information regarding the requested variance was made available to the public, including the Appellants,prior to said hearing and during City staff s presentation at the hearing, prior to public input. Moreover, the notice, though mailed sixteen (16) days rather than twenty-eight (28) days prior to the hearing,still provided Appellants with reasonable advance notice of the hearing,and neither the substance nor the timing of such notice deprived the Appellants of a fair hearing. In addition,the Appellants all attended and testified at the hearing. (c) The findings ofthe Board with regard to the solar orientation variance were properly set forth in writing in the minutes of the meeting of the Board as required by Sec.29-526(k)of the City's Land Development Guidance System ("LDGS") for planned unit developments, and those findings were implicitly adopted by the Board, as set forth in the City staff s report to the Board,upon the Board's approval of the variance by the Board. (d) Kaufman and Broad,as the applicant for the variance,met its burden of demonstrating to the Board that the variance was justified under the criteria of the LDGS, that is, that the variance would neither be detrimental to the public good nor impair the intent and purposes of the LDGS,and that by reason of exceptional conditions or difficulties with the regard to solar orientation or access, a hardship would be caused to Kaufman and Broad by the strict application of the solar orientation ordinance. Based upon the evidence contained in the record ofthe proceedings before the Board,and before the Council on October 5, 1999,these findings are hereby approved and adopted by the Council. 2 4. That the Board did not consider evidence relevant to its findings which was false or grossly misleading with regard to the storm drainage issues related to the Project,nor did it fail to receive all relevant evidence offered by the Appellants with regard to such issues. Any misinformation presented by Kaufman and Broad at the hearing with regard to storm drainage was corrected by City staff during the hearing, and the Council hereby finds that the Board did not fail to properly interpret and apply the provisions of the City Code in determining that the flows coming from the Project would be adequately handled through properly dedicated storm drainage easements. 5. That, for the foregoing reasons, the Council hereby upholds the Board's decision approving the Project. Passed and adopted at a regular meeting of the City Council held this 19th day of October, A.D. 1999. Mayor ATTEST: City Clerk