HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/01/2003 - CONSIDERATION OF THE APPEAL OF THE APRIL 24, 2003, AGENDA ITEM SUMMARY ITEM NUMBER: 20
FORT COLLINS CITY COUNCIL DATE: July 1, 2003FROM
Stephen Oli
SUBJECT:
Consideration of the Appeal of the April 24, 2003, Determination of the Administrative Hearin;;
Officer to Approve the Bella Vista,PDP.
RECOMMENDATION:
Council should consider the appeal based upon the record and relevant provisions of the Cade
and Charter, and after consideration, either: (1) remand the matter to the Administrative Hearing
Officer; or (2) uphold, overturn, or modify the Hearing Officer's decision.
EXECUTIVE SUMMARY:
On April 10, 2003, an administrative public hearing was conducted to receive presentations and
testimony on the Bella Vista, Project Development Plan (PDP), a mixed-use (residential and
commercial) project on 3.0 acres. There would be a total of 81 residential dwelling units in the
proposed three buildings and 16,000 square feet of non-residential uses on the lower two floors
of the building right at the intersection of East Horsetooth Road and Stanford Road. On April
24, 2003, the Administrative Hearing Officer approved the Bella Vista, PDP.
The property is zoned MMN - Medium Density Mixed-Use Neighborhood (as of the effective I
date of March 28, 1997 for the new Land Use Code). The property is located at the northeast
corner of East Horsetooth Road and Stanford Road, east of South College Avenue, and west of
South Lemay Avenue.
On May 7, 2003, a Notice of Appeal was received by the City Clerk's office regarding the
decision of the Administrative Hearing Officer.
Attachments:
Notice of Appeal (dated and received May 7, 2003)
• City staff response to the appeal
Staff Report, with recommendation, to the Administrative Hearing Officer for the April
10, 2003 administrative public hearing
• Handouts pertaining to the Bella Vista, PDP development proposal that were presentee to
the Administrative Hearing Officer at the April 10, 2003 administrative public heave ing
• Minutes of the meeting before the Administrative Hearing Officer, held Thursday, Apl
10, 2003
N
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9
• 4ECEi�
• -%p�3 f 539 Spindrift Ct
Fort Collins, CO 80535
May 7, 2003
City Clerk
City of Fort Collins
300 Laporte Ave
Fort Collins, CO 80521
Notice of Appeal--Bella Vista, Project Development Plan--Case No. 45-01 A, Administrative
Hearing Officer Decision of April 24, 2003 of Approval
Appellants:
Name Address Telephone Signature 1. Paul Thomas Kitze 539 Spindrift Ct 226-6651 � ����A*_
Party-in-interest: Immediate Neighborhood Resident
Landings Community Association Designated Representative or Bella Vista
(Designated to receive any notice of defects in the a eal n e) %
2. Jeff Emmel 543 Spindrift Ct 223-5430 ►1 J/'
Party-in-interest: Immediate Neighborhood R sid //' /
(Alternate to receive any notice of defects in the pea lice)
3. David and Cindy Leary 555 Spindrift Ct 223-9027 ��" 2
1
Party-in-interest: Immediate Neighborhood Resident
4. Shawki Ibrahim 571 Spindrift Ct 223-0141 �—
Also owns 579 Spindrift Ct
Party-in-interest: Immediate Neighborhood Resident
5. Lynn Carlisle 559 Spindrift Ct 226-3754
Party-in-interest: Immediate Neighborhood Resid 4
t �r
6. Philip and Dorothy White 519 Spindrift Ct 226-4817
Party-in-interest: Immediate Neighborhood Resident "`
Grounds for Appeal:
1. Errors in interpretation and application of the Land Use Code by the City and by the Hearing
Officer.
a. Section 3.8.17 (A)(3) "contextual height" requires adjacency of lots.
The key error is saying that the project lot and the Marriott lot are adjacent. They are not.
Webster's Third New International Dictionary clearly states that when the word adjacent is
"Applied to things of the same type, it indicates either side-by-side proximity or lack of
anything of the same nature intervening." This meaning coincides with how most of us
understand what adjacent means. When applied to things usually of a differing nature (see
examples in Webster), adjacent "is sometimes merely a synonym for near or close to". If
Section 3.8.17(A)(3) said that the subject lots be "nearby" or "in the neighborhood of
each other, then this project would qualify for the "contextual height" exception. It does
not. The conclusion of Ms. Michow that our interpretation would defeat the purposes of Section
3.8.17 and Section 3.5.1(G) is patently incorrect. 3.8.17(A)(3) was originally written with more
restrictions, and for a comer lot, required that contextual height be judged by an abutting lot. If
this project were proposed for the adjacent vacant lot immediately to the east of the Marriott lot,
then contextual height would be appropriate. Because of the use of the word adjacent instead of
nearby, and proper interpretation of the code, leap-frogging of high-rise buildings into our
neighborhoods is prevented by the code.
The argument that most of the lots on the block on which the Marriott is located
are all Lot 3 of an existing subdivision certainly creates a loophole for attaining
adjacency. But each time Lot 3 was divided by parceling off lots such as the Marriott lot,
those parcels qualify as lots by the definition of the LUC. The Zoning Map clearly shows
the lots that exist today on that block. According to Section 1.4.3(C) of the Land Use Code, the
Zoning Map is to be used along with the LUC for interpretations. Reference to Lot 3 in the legal
descriptions of these lots is for reference only to help in location of the boundaries of those lots.
b. Interpretation #2-02--Errors by Planning Director
The interpretation request asked for a specific application of the code to the Bella Vista
project. The interpretation issued was general in nature and did not specify how the code would
be applied to this specific project. When asked to reissue the interpretation to correct this error,
the City staff refused.
The definition of adjacent by the Planning Director is flawed as explained above.
The explanation of Section 4 height limits versus Section 3 height limits uses Section 1.7.2
which is not applicable because such a comparison is excepted by 1.7.2.
Interpreting the code to say that granting application of 3.8.17(A)(3)to height eliminates
the compatibility requirements of Section 3.5.1(C)flies in the face of City Plan policy (Policy
EXN-1.4) for infill development to existing city neighborhoods.
2. Failure of the Hearing Officer to receive and acknowledge all relevant evidence offered.
a. 3.5.1 The Hearing Officer report states that there was no testimony or evidence presented to
contradict the staff report on Building and Project Compatibility. This is untrue. The packet of
information given by Mr. Kitze to the Hearing Officer contains a section showing that the project
is not compatible and not in context with the neighborhood. Ms. Numair also talked to this issue
at the hearing.
b. 3.5.1(G) The Hearing Officer erroneously states that Mr. Kitze provided material that shows
that the only views affected from Aspen Leaf Apartments by the Project are those from the
recreation area and parking lots. While these views may be most significant, Mr. Kitze did not
say that these were the only views lost from the Aspen Leaf Apartments. There was testimony
also presented that views from Cove Island, views from Horsetooth Road traveling west, and
views from across Warren Lake would also be impacted. The City and the Hearing Officer fail to
acknowledge that this testimony was presented. There was also testimony given that privacy
would be lost by the fact that persons in upper stories of Bella Vista could look down into
neighboring bedrooms and front yard areas. The residents of Cove Island disagree with City staff
that only 2 or 3 townhouses are adversely affected by the proposed buildings in the Bella Vista
Project; all are affected.
When discussing neighborhood scale, the Hearing Officer states that the evidence reflects
that the surrounding buildings vary in height from 40' to 60.5'. This is in error as testimony in
opposition shows that the site is immediately surrounded by 2-3 story buildings of less than 35'.
The Marriott Hotel is over a city block away at 60.5'. The 40'building referred to by the City and
the hearing officer appears to be the office building on the NE comer of Horsetooth Road and
JFK Parkway, again not in the immediate vicinity of the Project site. The immediately
surrounding buildings represent context for this project, but that fact seems to have escaped both
the City and the Hearing Officer.
c. The City failed to deliver all pertinent emails from and to Mr. Kitze regarding the Project to
the hearing officer. Mr. Olt had told Mr. Kitze that all pertinent emails from and to the City
would be submitted. Mr. Kitze and Mr. Olt met after the hearing, reviewed the submissions made
by the City, and at Mr. Kitze's request, Mr. Olt sent copies of additional emails to the Hearing
Officer, but these were not accepted.
In summary, the City and the Hearing Officer have made errors in the interpretation and
application of the Land Use Code in approving the Bella Vista Project. In addition, the evidence
used by the Hearing Officer in reaching her conclusions is at least misleading, and sometimes false
as shown by testimony of the opponents of this Project. Proper interpretation and application of
the LUC by the City will result in denial of this Project. We respectfully ask the City Council to
overturn the decision of the Hearing Officer on the Project: Bell Vista, Project Development Plan
Case No. 45-01A.
•
City Attorney
City of Fort Collins
MEMORANDUM
DATE: May 7, 2003
TO: Wanda Krajicek, City Clerk
FROM: W. Paul Eckman, Deputy City Attomeyk
RE: Notice of Appeal of the Bella Vista Project Development Plan
by Paul Thomas Kitze, et al
You have forwarded to me a copy of the above referenced Notice of Appeal for my review pursuant
to Section 2-50 of the City Code. I have reviewed the Notice of Appeal and have not found any
obvious defects in form or substance. The Notice of Appeal is signed by all of the Appellants and
complies with the appeals provisions of the City Code. Section 2-49(3) requires, among other
things, that the Appellants indicate their"relationship" to the subject of the action of the decision
maker. In this appeal, each appellant is indicated to be a "party in interest" by reason of being an
immediate neighborhood resident. The term"immediate neighborhood resident'is not found in the
definition of"party in interest' contained in Section 2-46 of the Code, however, persons who are
mailed notice of the hearing do qualify as parties in interest. Beyond that, persons who actually
appeared before the Hearing Officer qualify as parties in interest as well as do persons who sent
written comments to the Hearing Officer. In this case,the record reflects that Paul Kitze,Jeff Emmel
and Lynn Carlisle spoke to the Hearing Officer at the hearing while the other appellants sent written
comments. Accordingly, I believe that the Notice of Appeal does not need to be amended to state
with greater particularity how each of the appellants is a"party in interest," since the record shows
that they are.
I would recommend that you proceed to schedule the hearing in accordance with Section 2-54 of the
Code.
WPE:mas
300 LaPorte Avenue • P.O. 3ar 380 • Fort Collins, CO 80522-0580 • (970) 221-6520 • FAX(970) 221-6327
City Clerk
City of Fort Collins
NOTICE
The City Council of the City of Fort Collins, Colorado,on Tuesday, July 1, 2003, 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
Administrative Hearing Officer made on April 24, 2003 regarding the Bella Vista, Project
Development Plan —Case No. 45001A filed by Paul Thomas Kitze, et al. 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 June 24, 2003. 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,
June 26, 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.
%", .y"', l
Wanda M. Krajicek
City Clerk
Date Notice Mailed:
June 10, 2003
cc: City Attorney
Planning Department
Planning and Zoning Board Chair
Appellant/Applicant
is
300 LaPorte Avenue • PO.Box 580 • Fort Collins,CO 80522-0580 • (970)221-6515 • FAX(970)221-6295
Community Planning and Environmental Services
Current Planning
City of Fort Collins
MEMORANDUM
TO: Mayor and Members of City Council
FROM: Stephen Olt, City Planner�ec
THRU: Greg Byrne, Director C.P.E.S.
Cameron Gloss, Current Planning Director
DATE: June 25, 2003
RE: BELLA VISTA, Project Development Plan (PDP) —
Appeal to City Council
The purpose of this memorandum is to respond to an appeal regarding the April 24, 2003
decision of the Administrative Hearing Officer to approve the Bella Vista, PDP.
Section 2-48 of the City Code states:
"Except for appeals by members of the City Council, the permissible grounds for appeal
shall be limited to allegations that the board, commission or other decision maker
committed one (1) 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 or Charter;
b. The board, commission or other decision maker substantially ignored
its previously established rules of procedure;
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."
1
281 '.North College Avenue • PO. Box 580 • Fort Collins, CO 80522-0580 • (U70) 221-6750 • FAX (970) 416-2020
The Appeal:
Appellants Paul Thomas Kitze
539 Spindrift Court
Fort Collins, CO. 80525
Jeff Emmel
543 Spindrift Court
Fort Collins, CO. 80525
David and Cindy Leary
555 Spindrift Court
Fort Collins, CO. 80525
Shawki Ibrahim
571 Spindrift Court
Fort Collins, CO. 80525
Lynn Carlisle
559 Spindrift Court
Fort Collins, CO. 80525
Philip and Dorothy White
519 Spindrift Court
Fort Collins, CO. 80525
Grounds for Appeal:
(Note: Bold text represents excerpts from the appeal document. The numbers used in
this response correspond to the numbering used in the Appellants Notice of Appeal)
1. Errors in interpretation and application of the Land Use Code by the City and
by the Hearing Officer.
a. Section 3.8.17(A)(3) "contextual height" requires adjacency of lots.
The key error is saying that the project lot and the Marriott lot are
adjacent. They are not. Webster's Third New International Dictionary
clearly states that when the word adjacent is "Applied to things of
the same type, it indicates either side-by-side proximity or lack of
anything of the same nature intervening." This meaning coincides
with how most of us understand what adjacent means. When
applied to things usually of a differing nature (see examples in
Webster), adjacent "is sometimes merely a synonym for near or
2
• close to". If Section 3.8.17(A)(3) said that the subject lots be "nearby"
or "in the neighborhood of each other, then this project would
qualify for the "contextual height" exception. It does not. The
conclusion of Ms. Michow that our interpretation would defeat the
purposes of Section 3.8.17 and Section 3.5.1(G) is patently incorrect.
3.8.17(A)(3) was originally written with more restrictions, and for a
corner lot, required that contextual height be judged by an abutting
lot. If this project were proposed for the adjacent vacant lot
immediately to the east of the Marriott lot, then contextual height
would be appropriate. Because of the use of the word adjacent
instead of nearby, and proper interpretation of the code,
leap-frogging of high-rise buildings into our neighborhoods is
prevented by the code.
The argument that most of the lots on the block on which the
Marriott is located are all Lot 3 of an existing subdivision certainly
creates a loophole for attaining adjacency. But each time Lot 3 was
divided by parceling off lots such as the Marriott lot, those parcels
qualify as lots by the definition of the LUC. The Zoning Map clearly
shows the lots that exist today on that block. According to Section
1.4.3(C) of the Land Use Code, the Zoning Map is to be used along
with the LUC for interpretations. Reference to Lot 3 in the legal
descriptions of these lots is for reference only to help in location of
the boundaries of those lots.
Staff Response
During the development review of the Bella Vista, PDP, City staff determined that
the subject site is considered to be adjacent to Lot 3 of the Strachan Subdivision,
Third Filing on the west side of Stanford Road. Lot 3 contains the Marriott Hotel and
several office buildings. The definition of Lot in the City of Fort Collins LUC is as
follows:
"Lot shall mean a designated parcel, tract or area of land established by plat,
subdivision or otherwise permitted by law to be used, occupied or designed
to be occupied by one (1) or more buildings, structures or uses, and which
abuts a dedicated right-of-way, private street or private drive, any of which
is at least twenty (20) feet wide at all points."
The Strachan Subdivision, Third Filing is divided into 3 separate lots, with Lot 3
abutting the dedicated Stanford Road street right-of-way directly across the street
from the Bella Vista, PDP site. Only the street right-of-way separates the property
that would contain the Bella Vista, PDP project and Lot 3 of the Strachan
3
Subdivision, Third Filing that contains the Marriott Hotel and several other office
buildings. There are no other intervening platted properties. The parcels referenced
in the Appellants Notice of Appeal have been created by the Larimer County Tax
Assessor's office for the purpose of assessing property taxes on each of the
separate buildings on Lot 3. They do not qualify individually as "lots" by the
definition in the City's LUC because they have not been established by plat or
subdivision. Also, they are not always shown on the City's Zoning Map when
updated versions are printed.
b. Interpretation #2-02 -- Errors by Planning Director. The interpretation
request asked for a specific application of the code to the Bella Vista
project. The interpretation issued was general in nature and did not
specify how the code would be applied to this specific project. When
asked to reissue the interpretation to correct this error, the City staff
refused.
Staff Response
The primary question in Paul T. Kitze's interpretation request centers around
Section 3.8.17(A)(3) - Contextual Height of the LUC, which states:
"Regardless of the maximum building height limit imposed by the zone
district standards of this Land Use Code, applicants shall be allowed to use
a "contextual" height limit. The allowed "contextual" height may fall at any
point between the zone district maximum height limit and the height of a
building that exists on a lot that is adjacent to the subject lot. This provision
shall not be interpreted as requiring greater minimum heights or lower
maximum heights than imposed by the underlying zone district."
The Current Planning Director did issue Administrative Interpretation #2-02, dated
April 12, 2002, in response to Mr. Kitze's Request for Interpretation of the Land Use
Code as Applied to The Bella Vista Project at the NE Corner of Horsetooth Road
and Stanford Road, dated March 1, 2002. The responses in the INTERPRETATION
section did directly address Mr. Kitze's questions.
On April 30, 2002, Mr. Kitze sent an e-mail message to the Current Planning
Director indicating that the administrative interpretation was not sufficient to answer
his request because there was no specific application of the parts of the LUC that
related to the Bella Vista project. Mr. Kitze did state that he expected a re-issuance
of the interpretation to address how it applied to the Bella Vista project. On May 20,
2002, the Current Planning Director responded to Mr. Kitze via e-mail. In his e-mail
the Director stated that his position expressed in Administrative Interpretation #2-02
4
remained unchanged. The appropriate determination of whether the Bella Vista,
PDP complied with the contextual height limits lies with the decision maker (either
an Administrative Hearing Officer or the Planning and Zoning Board, dependent
upon the last plan submittal). A copy of the administrative interpretation is attached
to this memorandum.
xx+xxxxx+xxxx++xxxx++xxxxxxxxxx+xxxxxxxxxx+xxx++++xxxxx+xxxx+++++xxxxx+++xxxxxxxxx+xxxxxx+x+xxx
The definition of adjacent by the Planning Director is flawed as
explained above. The explanation of Section 4 height limits versus
Section 3 height limits uses Section 1.7.2 which is not applicable
because such a comparison is excepted by 1.7.2. Interpreting the
code to say that granting application of 3.8.17(A)(3) to height
eliminates the compatibility requirements of Section 3.5.1(C) flies in
the face of City Plan policy (Policy EXN-1.4) for infill development to
existing city neighborhoods.
Staff Response
The Current Planning Director, in the Administrative Interpretation #2-02 dated April
12, 2002, did restate Paul T. Kitze's questions stated in his Request for
Interpretation of the Land Use Code as Applied to The Bella Vista Project at the NE
Corner of Horsetooth Road and Stanford Road, dated March 1, 2002. The Director
categorically responded to Mr. Kitze's questions in the INTERPRETATION section
of Administrative Interpretation #2-02, dealing with each cited LUC section and its
relativity to other cited sections, as applicable. As previously stated, a copy of the
administrative interpretation is attached to this memorandum.
x+,t+xxxx+:r+x+x++xxxx+xx+xxxx#++xxxxx#x++++x+x++x+��+++++xxxx+x,t+xxxx+x++xxxxx##x++++x++x+xxx+x+x
2. Failure of the Hearing Officer to receive and acknowledge all relevant evidence
offered.
a. 3.5.1 The Hearing Officer reports states that there was no testimony
or evidence presented to contradict the staff report on Building and
Project Compatibility. This is untrue. The packet of information
given by Mr. Kitze to the Hearing Officer contains a section showing
that the project is not compatible and not in context with the
neighborhood. Ms. Numair also talked to this issue at the hearing.
s
Staff Response
A packet of information titled Issues from the Landings for Bella Vista Project was
submitted to the hearing officer by Paul T. Kitze at the administrative public hearing
on April 10, 2003. Included in the packet was a letter from the Landings Community
Association, Inc. (dated February 15, 2002) that contained discussion on several
issues related to the Bella Vista, PDP. One specific issue dealt with Division 3.5.1
- Building and Project Compatibility in the LUC and how the Bella Vista, PDP was
not compatible with the surrounding neighborhood. Also, at the administrative public
hearing several members of the public gave testimony regarding the perceived
incompatibility of the project and buildings as proposed.
b. 3.5.1(G) The Hearing Officer erroneously states that Mr. Kitze
provided material that shows that the only views affected from
Aspen Leaf Apartments by the Project are those from the recreation
area and parking lots. While these views may be most significant, Mr.
Kitze did not say that these were the only views lost from the Aspen
Leaf Apartments. There was testimony also presented that views
from Cove Island, views from Horsetooth Road traveling west, and
views from across Warren Lake would also be impacted. The City
and the Hearing Officer fail to acknowledge that this testimony was
presented. There was also testimony given that privacy would be lost
by the fact that persons in upper stories of Bella Vista could look
down into neighboring bedrooms and front yard areas. The residents
of Cove Island disagree with City staff that only 2 or 3 townhouses
are adversely affected by the proposed buildings in the Bella Vista
Project; all are affected.
Staff Response
In the packet of information titled Issues from the Landings for Bella Vista Project
that was submitted to the hearing officer by Paul T. Kitze at the administrative
public hearing on April 10, 2003, there was a section titled Effect of Bella Vista
on Views and Privacy. Included was an outline, with several photographs from
different locations in the area, that was meant to define the potential visual
impacts of the Bella Vista project on the surrounding neighborhoods.
As stated by City staff in the Staff Report to the hearing officer for the
administrative public hearing, because of the significant earthen berm and dense
mature landscaping in front of the Cove Island homes on the south side of East
Horsetooth Road, views for only 2 or 3 homes will be adversely affected by the
6
• new 4 to 6 story high buildings in the Bella Vista project. The 2 or 3 homes
referenced are at the east end of Cove Island and will have uninterrupted views
of the proposed new buildings. Also, the Staff Report goes on to say that the
views from several dwelling units in the Aspen Leaf Apartments will be affected.
However, because of grade and horizontal distance separations and existing
large mature trees between the two projects, interruption of the views should be
minimal.
When discussing neighborhood scale, the Hearing Officer states that
the evidence reflects that the surrounding buildings vary in height
from 40' to 60.5'. This is in error as testimony in opposition shows
that the site is immediately surrounded by 2-3 story buildings of less
than 35'. The Marriott Hotel is over a city block away at 60.5'. The
40' building referred to by the City and the hearing officer appears to
be the office building on the NE corner of Horsetooth Road and JFK
Parkway, again not in the immediate vicinity of the Project site. The
immediately surrounding buildings represent context for this project,
but that fact seems to have escaped both the City and the Hearing
Officer.
. Staff Response
The Staff Report by City staff that was provided to the hearing officer for the
administrative public hearing states, in the discussion about Section 3.8.17 -
Building Height, that there are 2-story, 3-story, and 6-story buildings in the
surrounding area, ranging from approximately 30'-0" to 60'-6" in height. The
surrounding area, and how it relates to neighborhood scale, does include the
properties and office/commercial buildings in a cluster to the west (of Stanford
Road) that share parking and driveways. They are ail on Lot 3 of the Strachan
Subdivision, Third Filing and are in a "block" defined by East Horsetooth Road to
the south, JFK Parkway to the west, Stanford Road to the east, and East Monroe
Drive to the north. The Marriott Hotel is 6 stories and 60'-6" in height and is 500'
west of the subject property. There is a 3-story building that is about 40' high and
is 400' west of the subject property. These buildings visually relate to the Bella
Vista, PDP site and the surrounding neighborhoods.
++**++++***+++++++***++*+++++**+#++++++++++++*#**##+++**#+++++****#+++*****************+++++++++
C. The City failed to deliver all pertinent a-mails from and to Mr. Kitze
regarding the project to the Hearing Officer. Mr. Olt had told Mr. Kitze
that all pertinent emails from and to the City would be submitted. Mr.
Kitze and Mr. Olt met after the hearing, reviewed the submissions
made by the City, and at Mr. Kitze's request, Mr. Olt sent copies of
additional emails to the Hearing Officer, but these were not accepted.
Staff Response
The a-mails referred to by Mr. Kitze contain rebuttals regarding the Current Planning
Director's administrative interpretation on "contextual" height, a question about
whether or not to appeal the administrative interpretation to the Planning and Zoning
Board, questions about two recent changes to Sections 3.8.17(A)(3) and
3.5.1(G)(1)(a)4 of the LUC, a question about City staffs interpretation of the
definition of"lot" in the LUC and how it relates to "adjacency", and a question about
the actual height of the Marriott Hotel (which has since been verified by 3 parties to
everyone's satisfaction). These a-mails were considered to not be germane to the
hearing officer's review of and decision on the Bella Vista, PDP.
There are 49 a-mails and letters from citizens expressing concerns and opposition
to the Bella Vista project and 24 a-mails and letters from citizens in support of the
Bella Vista project that were provided to the hearing officer prior to the
administrative public hearing on April 10, 2003.
In summary, the City and the Hearing Officer have made errors in the
interpretation and application of the Land Use Code in approving the Bella
Vista Project. In addition, the evidence used by the Hearing Officer in
reaching her conclusions is at least misleading, and sometimes false as
shown by testimony of the opponents of this Project. Proper interpretation
and application of the LUC by the City will result in denial of this Project.
We respectfully ask the City Council to overturn the decision of the Hearing
Officer on the Project: Bella Vista, Project Development Plan - Case No.
45-01 A.
Staff Response
This is a summary of the Appellants allegations cited in the Notice of Appeal, their
position on the interpretation and application of the LUC as it relates to the Bella
Vista, PDP, and their request for City Council to overturn the administrative decision
on the development proposal. No response from City staff is necessary.
8
r±
City of F,)- `el".ns
TO: Interested Parties
FROM: Cameron Gloss
Current Planning Director
DATE: April 12, 2002
SUBJECT: Administrative Interpretation #2-02 regarding the application of
Section 3.8.17(A)(3), Contextual Height standards, of the Land Use
Code
BACKGROUND:
Section 3.8.17(A)(3) of the Land Use Code, Contextual Height standards, permits
• the use of a "contextual building height" falling between the zone district
maximum height and the height of a building that exists on adjacent lots. The
term "adjacent" is not further defined under this section or within Article 5-Terms
and Definitions. The sole code reference is found in the wildlife habitat protection
standards of Section 3.4.1(F)(2). Under the context of these habitat regulations,
adjacent means "in the region immediately round about" the development site.
Section 5.1.1 gives the Director the authority to interpret words, terms and
phrases not defined in Article 5.
A request has been received to interpret several interrelated sections of the Land
Use Code regarding the use of the contextual building height provisions. The
following four questions have been posed for interpretation:
How is the term "adjacent' defined when it is being applied toward
determining contextual building height limits?
Does the 3-story height limit found in Section 4.5(E)(1)(d) prevail over the
contextual height standards in Section 3.8.17(A)(3)?
Do the Building Size, Height, Bulk, Mass, Scale Standards of Section
3.5.1(C) still apply to a development application if the justification for
additional building height is based upon the contextual building height
provisions of Section 3.8.17(A)(3)?
1N1 `,oIth College avenue • CO. Box SRO • Fort C, Hin,, CC} �..-',i, -=U -----
Are other parts of the Land Use Code pertinent in application of Section
3.8.17(A)(3)?
INTERPRETATION:
In response to the questions asked above:
How is the term "adjacent"defined when it is being applied toward contextual
building height limits?
Two secondary sources of information, Black's Law Dictionary and
Webster's Third New International, have been consulted in an attempt to
further define "adjacent". Both definitions share one thing in common:
something "adjacent" is located nearby, but is not necessarily physically
touching.
Black's Law Dictionary
"Lying near or close to, but not necessarily touching"
Webster's Third New International Dictionary
"Not distant or far off"; "Nearby but not touching"
Like the land use regulations in many jurisdictions, the City's Land Use
Code does not provide a specific definition of what constitutes an
.,adjacent" lot or building when evaluating the compatibility of proposed
buildings within their context. To adopt a more specific definition, such as
within 400 feet as suggested in the interpretation request, would be
arbitrary given the myriad of physical factors that can come into play when
determining the appropriate height and spatial relationship between
buildings. Other factors, beyond the sheer horizontal distance between
nearby buildings, may influence whether a proposal is perceived to be
adjacent, such as:
• Topography;
• Existence of large trees;
• Width of adjacent streets; and
• Angles of vision predominately used in observing the building(s);
Based on this interpretation, evaluation of requests to use a "contextual"
height limit, rather than the height limit specified under the zoning district,
will be conducted on a case-by-case basis using these physical factors as
well as those deemed relevant by the City at the time of review.
Does the 3-story height limit found in Section 4.5(E)(1)(d) prevail over the
contextual height standards in Section 3.8.17(A)(3)?
While it is true that the general provisions of Section 3.1.2 specify that
Article 4 Standards prevail over those contained in Article 3, in the event
of a conflict between the requirements, more specific text found in Section
3.8.17(A)(3) overrides the general provisions. The first phrase found in this
Section, "regardless of the maximum building height limit imposed by the
zone district standards of this Land Use Code", clearly states that
applicant's have the right to pursue approval for building heights greater
than the maximum prescribed under Article 4. Section 1.7.2 specifies that
the more specific standard shall govern or prevail in cases where the code
provisions are conflicting.
Do the Building Size, Height, Bulk, Mass, Scale Standards of Section 3.5.1(C)
apply to this development application if the justification for a building taller than
the maximum permitted within the zoning district is based upon the contextual
building height provisions of Section 3.8. 17(A)(3)?
No. The stated Purpose of Section 3.5.1 is that the standards "should be
read in conjunction with the more specific building standards contained in
this Division 3.5 and the zone district standards of Article 4". Similar to the
response to the previous question, Section 3.5.1(G)(1)(c) is more specific
than the general standard of 3.5.1(C); therefore, it would prevail under
Section 1.7.2. Section 3.5.1(G)(1)(c) permits the decisionmaker the
authority to increase or decrease the height limits for specific purposes
listed under that section.
Are other parts of the Land Use Code pertinent in application of Section
3.8.17(A)(3)?
Yes. 3.5.1(B) would also apply. However, it would be considered as
having an equal degree of specificity as 3.5.1(C) and would also not
prevail over Section 3.8.17(A)(3).
CC: Steve Olt
Paul Eckman
Greg Byrne
Planning&Zoning Board
. 539 Spindrift Court
Fort Collins, CO 80525-3134
226-6651, paulkitze@yahoo.com
March 1, 2002
Cameron Gloss
Current Planning Director
City of Fort Collins
281 N. College Ave
Fort Collins, CO 80521
Subject Request for Interpretation of the Land Use Code as Applied to The Bella Vista Project at
the NE Corner of Horsetooth Road and Stanford Road
I was asked by the Landings Community Association Board of Directors to investigate
this project because it seriously impacts our neighborhood. In reading parts of the Land Use
Code, there appear to be diverse interpretations that can be made. We are, of course, most
concerned about the height of the buildings in this project. Last week, we supported rezoning of
the Bella Vista lot from T to MMN, but raised the question of height at the Planning and Zoning
Board meeting of February 21, 2002. For this request, we will assume that NUvIN is the zoning of
this property. It seems prudent that we obtain the City's interpretation and will follow the
procedures of 1.4.3 of the Land Use Code as we understand them.
Of greatest controversy is the application of 3.8.17 (A)(3) to this site and project. We ask
for the City's interpretation of the application of this code:
"Contextual Height. Regardless of the maximum building height limit imposed by the zone
district standards of this Land Use Code, applicants shall be allowed to use a "contextual" height
limit. The allowed "contextual" height may fall at any point between the zone district maximum
height limit and the height of a building that exists on a lot that is adjacent to the subject lot. This
provision shall not be interpreted as requiring greater minimum heights or lower maximum heights
than imposed by the underlying zone limits." V
The applicant has asked for a contextual height in excess of the M]\/IN zone limit of 3 stories as
specified by 4.5 (E)(I)(d). His context point is the Marriot Hotel, which is in a different zone and
on a different block. The Zoning Map shows each lot (see 5.1.2 Definitions) created by platting
and sudividing that exists today on the block that the Marriot occupies. The Marriot lot, by any
reasonable definition of adjacent, is not adjacent to the applicant's lot. It is, in fact, over the
distance of a city block (400 feet) away. The only definition of adjacent that I saw in the Land
Use Code was suggested by Assistant City Attorney Eckman, in 3.4.1 (F)(2): "meaning in the
region immediately round about". A city block away is not immediate.
Are other parts of the Land Use Code pertinent to application of 3.8.17 (A)(3)?
3.1.2 "In the event of a conflict between a standard or requirement contained in Article 3
and Article 4, the standard of Article 4 shall prevail."
This would appear to make application of 3.8.17 (A)(3) moot.
1.4 (A) Paragraph 2, sentences 2 and 3: "Where any provision of the Land Use Code
imposes greater restrictions upon the subject matter than another provision of the Land Use Code,
the provision imposing the greater restriction or regulation shall be deemed controlling. In other
words, the more stringent controls over the less stringent."
If the subject matter is comparison of heights, 3.5.1 (C) requires comparison to buildings "on the
same block, or if no buildings exist thereon, then on adjoining blocks". Why should 3.8.17
(A)(3) not be subjected to the same restrictions?
Thank you for your consideration in this matter. I hope this letter meets your
requirements for requesting an interpretation and I look forward to hearing your response. Please
don't hesitate to call or email me if I need to change or clarify any points made in this letter.
Paul T. Kitze