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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 s 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