HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/01/2003 - CONSIDERATION OF THE APPEAL OF THE FEBRUARY 13, 20 AGENDA ITEM SUMMARY ITEM NUMBER: 29
DATE: April 1, 2003
FORT COLLINS CITY COUNCIL FROM: Peter Barnes/
Cameron Gloss
SUBJECT :
Consideration of the Appeal of the February 13, 2003 Decision of the Zoning Board of Appeals
(Appeal #2408) to Unanimously Uphold the Administrative Interpretation of the Current
Planning Director Regarding the Definition of"Neighborhood".
RECOMMENDATION:
Council should consider the appeal based upon the record and relevant provisions of the Code
and Charter, and after consideration uphold, overturn, or modify the Board's decision.
EXECUTIVE SUMMARY:
On February 13, 2003, the Zoning Board of Appeals, by a vote of 7-0, upheld written
administrative interpretation #5-02, issued by Current Planning Director Cameron Gloss. The
Director's interpretation was for the purpose of determining the "neighborhood" in which the
property at 1109 West Harmony Road is located. This interpretation was rendered in response to
Mark Brophy's request for an interpretation of elements of the City's Land Use Code.
Specifically, Mr. Brophy requested an answer to the following question in regards to clarifying
whether or not there is a conflict between the definition and use of the term "neighborhood", as
applied in the Land Use Code, and specific City Plan Principles and Policies relating to
Transportation Corridors:
"If the Harmony Road improvement project removes barriers to pedestrians as stated in City
Plan Policies TC-2.2, TC-3.1, and TC-4.3 and there are no major .physical features such as
railroad tracks, irrigation ditches, or drainage ways acting as a barrier to pedestrians, does the
area of the neighborhood in which my property is situated change to the area bounded by a five-
minute walking radius (about a quarter-mile) of a public space of highest pedestrian use, the
Harmony Library, that is less than or equal to a ten-minute walking distance (about a half-mile)
from my property at 1109 West Harmony Road?"
Mr. Gloss, in his written interpretation, concluded that the area of Mr. Brophy's neighborhood,
as defined by a five-minute walking radius, from the neighborhood center to the edge, will
remain as presently configured (meaning that Shields Street would remain as the eastern edge of
Mr. Brophy's neighborhood, rather than the edge being extended east across Shields Street to
include Front Range Community College and the Harmony Library).
The property is zoned LMN—Low Density, Mixed-Use Neighborhood.
On February 14, 2003, a Notice of Appeal was received by the City Clerk's office regarding the
decision of the Zoning Board of Appeals. In the Notice of Appeal, from the Appellant Mark
Brophy, it is alleged that the Zoning Board of Appeals failed to properly interpret and apply the
DATE: ITEM NUMBER:
relevant provisions of the Code, and that the decision failed to resolve conflicts in the definition
of"neighborhood" between City Plan and the Land Use Code.
The attached documents include:
1. City Clerk's Notice of Appeal Hearing.
2. Original Notice Of Appeal.
3. Staff response to the Original Notice of Appeal.
4. Agenda materials provided to the Zoning Board of Appeals, including documents and
handouts received by member's in their pre-meeting packets or distributed at the
meeting.
5. Verbatim Minutes of the Meeting before the Zoning Board of Appeals, held February 13,
2003, including the Board's Findings, Conclusions and Decision.
The procedures for deciding appeals are described in Chapter 2, Article 11, Division 3 of the City
Code.
ATTACHMENT 1
City Clerk's Notice of Appeal Hearing
City Clerk
ja
City of Fort Collins
NOTICE
The City Council of the City of Fort Collins, Colorado, on Tuesday, April 1, 2003 at 6:00 p.m. or
as soon thereafter as the matter may come on for hearing in the Council Chambers in the City Hall
at 300 LaPorte Avenue,will hold a public hearing on the attached appeal from the February 13,2003
decision of the Zoning Board of Appeals,pertaining to the Administrative Interpretation#5-02 of
the Planning Director which was referred to as "Appeal 2408" on the Zoning Board of Appeals
agenda. You may have received previous notice on this item in connection with hearings held by
the Zoning Board of Appeals.
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 Zoning Board of Appeals (221-6760).
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 March 25. Agenda materials
• provided to the City Council, including City staff's response to the Notice of Appeal, and any
additional issues identified by City Councilmembers, will be available to the public on Thursday,
March 27, 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.
4,.t,.L &
Wanda M. Krajicek
City Clerk
Date Notice Mailed:
March 10, 2003
cc: City Attorney
Building and Zoning Department
Zoning Board of Appeals Chair
Appellant/Applicant
300 LaPorte Avenue • P.O.Box 580 • Fort Collins,CO 80522-0580 • (970)221-6515 • FAX(970)221-6295
. ATTACHMENT 2
Original Notice of Appeal
_ City Council
City of Fort Collins
281 N. College Ave.
l 20Q3 D Fort Collins, CO
Cli`Y CLERK
Mark Brophy
1109 W. Harmony Rd.
Fort Collins, CO 80526
Feb. 14, 2003
(970) 229-1929
Dear Council Members:
Please accept this letter as a formal written notice of appeal of Zoning Board of Appeals (ZBA)
Appeal 2408, in which the ZBA upheld Administrative Interpretation#5-02 of the Planning
Director. I requested the Appeal and am the party-in-interest in this matter. I am appealing this
decision because it fails to resolve conflicts in the definition of"neighborhood" between City
Plan and the Land Use Code. Attached on separate pages are details of the grounds for this
appeal.
Sincerely,
Mark Brophy
• City Council Appeal of ZBA Appeal 2408
We request this hearing to appeal ZBA Appeal 2408 of February 13,2003, in which the ZBA upheld
Administrative Interpretation#5-02,which was issued by the Planning Director of the Current Planning
Department. The ZBA normally deals with micro issues such as whether to permit a hot tub to be located
11 feet from the rear lot line, and does not normally deal with macro questions pertaining to City Plan.
We believe a City Council hearing is a better forum to decide these issues. The ZBA made many
mistakes and failed to properly interpret City Plan and the Land Use Code for the reasons stated below.
First, some of the ZBA members based their decision on the proposition that their decision changes the
permissible use of our property located at 1109 West Harmony Road. Any decision pertaining to use
changes must be made by the P&Z Board. The ZBA was informed of this fact by Peter Barnes, Cameron
Goss, Mark Brophy, and the City Attorney.Nevertheless,the ZBA ignored all of us and repeatedly
asked the same question, and despite receiving the same answer from all of us,the ZBA based their
decision on the belief that rejecting Administration Interpretation#05-02 of the Planning Director would
be tantamount to changing the permitted uses of our property. The ZBA-does not have the authority to
usurp a decision of the P&Z Board.
Second, the ZBA based their decision on the idea that the area of greatest activity in the vicinity of my
property is the Westbury subdivision. On the contrary, Westbury is the area of lowest activity because it
is a low density subdivision,whereas the Woodlands apartment complex has triple the residential
density. Front Range Community College and the Harmony Library have even more activity than the
Woodlands, and a transit stop is included at the library.
Third, some of the ZBA members arbitrarily decided that Shields Street constitutes a physical barrier
between my property and the Harmony Library. Decisions cannot be made arbitrarily after the City has
gone to great expense to develop objective standards. The Fort Collins Pedestrian Plan is an element of
City Plan and is the objective standard for determining whether a street constitutes a physical barrier to
pedestrian street crossings.
The Pedestrian Plan clearly states that the existing level of service(LOS) at the intersection of Harmony
and Shields is D, which is unacceptable because the minimum acceptable threshold LOS for street
crossings is C. The Pedestrian Plan also concludes that after the improvements are made,the LOS for
street crossings will improve to B, which is more than necessary to be considered acceptable. Clearly,
from an objective standpoint, Shields and Harmony are minor impediments to pedestrian use,but do not
constitute a physical barrier.
The Planning Director used The New Book of Development Definitions,which enumerated several types
of physical barriers such as rivers and major highways, but did not mention streets. So, it should be
assumed that streets are not physical barriers. In addition,the Current Planning Department faced this
issue before in the Seneca Center project and determined that Harmony Road did not constitute a
physical barrier that would prevent the awarding of performance points necessary for project approval.
All this objective evidence leads to the conclusion that Shields Street and Harmony Road are not
physical barriers, and some of the ZBA members conceded this point. I also spoke to Kathleen Reavis,
the Pedestrian Coordinator responsible for implementing the Pedestrian Plan,and she stated that the
• planned street improvements will not create physical barriers.
Fourth,the ZBA based their decision on a document presented by the Planning Director that is not part of
City Plan, nor was it referred in Administrative Interpretation#05-02. The Planning Director conceded
that he was showing an early draft in color of a conceptual illustration that later appeared in City Plan,
but the ZBA chairman stated that it was substantially different from the final black and white.version the
ZBA received.
The illustration showed a single way of many possibilities that a set of neighborhoods could be
implemented, but it was labelled a"concept",not a specification. There are many other possible ways
neighborhoods can and have be implemented under City Plan. The illustration showed the maximum
number of residences located along noisy arterial streets surrounding a Neighborhood Center(NC)
located away from arterial streets. Such a configuration clearly would maximize the traffic attracted to
the NC from the arterials through the residential streets. This contravenes City Plan policies stating that
NCs should minimize traffic attracted through residential streets. Also, it contravenes City Plan policies
promoting economic development because it would be practically impossible for an NC to survive
without the visibility of an arterial that it needs to be economically viable. In other words,the illustration
is the worst imaginable configuration for residences and NCs,which seems the likely reason it was
rejected and not included in City Plan. For these reasons, all existing and approved NCs are located on
arterials,and none are configured similar to the illustration.
The illustration also omitted the locations of transit stops, which are required in all neighborhoods, as
stated on page 145 of City Plan in the Principles and Policies-Neighborhoods section. Transit stops
must be located on arterials and serve the highest pedestrian activity areas because transit must attract
high ridership to be viable. Buses should not be driven through narrow residential streets to pick up
riders in NCs away from arterials. Pursuing that course would increase bus commuting time, thereby
reducing ridership, and quickly destroy residential streets.
The ZBA should have disregarded the illustration in their deliberations.
Fifth, the ZBA did not understand the purpose of the proceeding because they repeatedly referred to the
"expansion" of the neighborhood. We, the applicants and the Planning Director agree on the size of the
neighborhood and no "expansion" was requested. The disagreement pertains to the location of the
neighborhood after the street improvements are completed. We agree with page 145 of City Plan that a
neighborhood evolves from a public space of high pedestrian use and includes a transit stop. In contrast,
the Planning Director believes that neighborhoods remain static entities that do not evolve, and need not
contain any public space and need not include a transit stop.
Even though City Plan describes a vision for an inorganic entity, it recognizes that in a way similar to
organic creatures, our City must evolve by adapting to changed conditions such as the Harmony and
Shields improvements. A short time ago, southwest Fort Collins was vacant land with few residences and
a small community college.Now, houses cover most of the land,the college has doubled in size, and
includes a 30,000 sq. ft. public library building patronized mainly by City residents who do not attend the
college. Objective standards have been developed at great expense to guide us in the evolution of our
City and should not be discarded in favor of arbitrary decision making.
We ask the City Council to rule that after the street improvements are made, the neighborhood in which
our property is situated is the area bounded by a 5 minute walking radius(1/4 mile)of the Harmony
Library.
. ATTACHMENT 3
Staff Response to the Original Notice of Appeal
Community Planning and Environmental Services
Building and Zoning Department
City of Fort Collins
MEMORANDUM
TO: Mayor and Members of City Council
FROM: Peter Barnes, Zoning Administrator
Cameron Gloss, Current Planning Director
THRU: John Fischbach, City Manag¢f'
Greg Byrne, Director C.P.E.S'
DATE: March 19, 2003
RE: Staff Response to 1109 W. Harmony Road Zoning Board of Appeals
Decision —Appeal to City Council
• The purpose of this memorandum is to respond to an appeal regarding the February 13,
2003 decision of the Zoning Board of Appeals to uphold the administrative interpretation of
the Current Planning Department Director regarding the definition of"neighborhood". The
Director's interpretation was for the purpose of determining the"neighborhood" in which the
property at 1109 W. Harmony Road is located. (ZBA Appeal #2408).
Section 2-48(b) of the City Code states:
"Except for appeals by members of the City Council,for which no grounds need be stated,
the permissible grounds for appeal shall be limited to allegations that the board or
commission committed one or more of the following errors:
(1) Failure to properly interpret and apply relevant provisions of the Code and
Charter;
(2) Failure to conduct a fair hearing in that:
a. The board, commission or other decision maker exceeded its
authority or jurisdiction as contained in the Code and Charter;
b. The board, commission or other decision maker substantially ignored
its previously established rules of procedure;
1
281 North College Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970) 221-6760 • FAX (970) 224-6134
C. The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant."
The Appeal:
Appellant: Mark Brophy
1109 W. Harmony Road
Fort Collins, CO 80526
Grounds for Appeal:
In the Appellant's written notice of appeal of the Zoning Board of Appeals(ZBA)decision to
uphold the Director's interpretation of "neighborhood", the following allegation was cited:
1. The Zoning Board of Appeals failed to properly interpret and apply relevant
provisions of the Land Use Code.
Additional details of the Grounds for Appeal were offered (below).
Note: Courier Bold Text represents excerpts from the appeal document submitted
by Mr. Brophy.
1. Some of the ZBA members based their decision on the proposition that their
decision changes the permissible use of the Brophy property.
Any decision pertaining to use changes must be made by the P&Z
Board. The ZBA was informed of this fact by Peter Barnes,
Cameron Gloss, Mark Brophy, and the City Attorney. Nevertheless,
the ZBA ignored all of us and repeatedly asked the same question,
and despite receiving the same answer from all of us, the ZBA
based their decision on the belief that rejecting Administrative
Interpretation #05-02 of the Planning Director would be
tantamount to changing the permitted uses of our property. The
ZBA does not have the authority to usurp a decision of the P&Z
Board.
2
Staff Response:
The Appellant correctly states that the Board did spend time discussing what affect the
boundaries of the neighborhood would have on the type of development that could
occur on Mr. Brophy's property. At the ZBA meeting the question was asked of staff as
to how the definition of neighborhood would specifically impact the subject property.
This was an appropriate question to ask in terms of understanding the concept of
"neighborhood". Staff responded by explaining that the decision to uphold or overturn
the Planning Director's interpretation could strengthen or weaken the Appellant's case
to develop the property with the types of commercial uses that were the subject of the
previous modifications considered by the Planning and Zoning Board. However, staff
.does not find evidence in the record to support the notion that `the ZBA based their
decision on the belief that rejecting Administrative Interpretation #05-02 of the Planning
Director would be tantamount to changing the permitted uses of our property' or that
the Board was usurping a decision of the Planning and Zoning Board.
Board member Miscio appears to have voiced the most concern about the types of
uses that may occur if the interpretation were to be overturned. However, in response
to an answer given by Mr. Gloss to a question that was asked by Mr. Miscio regarding
• potential uses that could occur, Mr. Miscio did express an understanding that the
Planning and Zoning Board would still be the appropriate Board to deal with the
question of land use. (Page 19 of the verbatim minutes). Additionally, in response to
the question of land use, Board member Lingle stated that it is the purview of the
Planning and Zoning Board to weigh the development proposal that might come before
them in terms of it appropriateness for the property, and that what the ZBA is focused
on doing is just whether or not the arterial streets of Harmony and Shields form an edge
to the neighborhood in which the Brophy property lies. (Page 19 of verbatim minutes).
Chairperson Remington also stated that the issue that the ZBA was dealing with was
the issue of what a neighborhood edge is and what constitutes a neighborhood in the
LMN zone. (Page 20 of verbatim minutes). The motion for a vote that was presented
to the Board made absolutely no mention of the discussion regarding potential uses.
Rather, the motion centered entirely on the issue of what defines a neighborhood
boundary. The motion was passed unanimously, without any additional comments by
any of the board members.
2. The ZBA based their decision on the idea that the area of greatest activity in the
vicinity of the Appellant's property is the Westbury subdivision.
On the contrary, Westbury is the area of lowest activity because it
is a low density subdivision, whereas the Woodlands apartment
complex has triple the residential density. Front Range Coammnity
3
College and the Harmony Library have even more activity than the
Woodlands, and a transit stop is included at the library.
Staff Response:
Staff can find no mention of this in the minutes and can find no evidence to support this
allegation in the record.
3. Some of the ZBA members arbitrarily decided that Shields Street constitutes a
Physical barrier between the Appellant's property and the Harmony Library.
Decisions cannot be made arbitrarily after the City has gone to
great expense to develop objective standards. The Fort Collins
Pedestrian Plan is an element of City Plan and is the objective
standard for determining whether a street constitutes a physical
barrier to pedestrian crossings.
The Pedestrian Plan clearly states that the existing level of
service (LOS) at the intersection of Harmony and Shields is D,
which is unacceptable because the minimum acceptable threshold
LOS for street crossings is C. The Pedestrian Plan also
concludes that after the improvements are made, the LOS for
street crossing will improve to B, which is more than necessary
to be considered acceptable. Clearly, from an objective
standpoint, Shields and Harmony are minor impediments to
pedestrian use, but do not constitute a physical barrier.
The Planning Director used The New Book of Development
Definitions, which enumerated several types of physical barriers
such as rivers and major highways, but did not mention streets.
So it should be assumed that streets are not physical barriers.
All this objective evidence leads to the conclusion that Shields
Street and Harmony Road are not physical barriers, and some of
the ZBA members conceded this point.
Staff Response:
Section 4.4(A) of the Land Use Code was referred to numerous times by the Appellant
and by City Staff. This section sets forth the purpose statement of the LMN zoning
district. Within the purpose statement is a description of what an LMN neighborhood is.
An LMN neighborhood "shall be considered to consist of approximately eighty (80) to
4
• one hundred sixty (160) acres, with its edges typically consisting of major streets,
drainageways, irrigation ditches, railroad tracks and other major physical features". A
major street as defined in the Larimer County Urban Area Street Standards is a major
collector street or an arterial street. Shields Street and Harmony Road are both
designated as arterial streets, and are therefore major streets. So according to Section
4.4(A) of the Land Use Code, Shields and Harmony can be considered to define the
edge of a neighborhood.
The record shows that board members referred to Shields Street as a "boundary" or
"edge", not a "barrier". Board member Lingle expressed the opinion that the Board is to
focus on "Mr. Gloss'interpretation of those two arterials forming an edge to the
neighborhood". He further explains that if there were ever an edge to a neighborhood
created by a physical boundary, that (referring to arterial street intersections) would be
one of them (Page 19 of verbatim minutes). Board member Miscio does refer to the
trees as being a barrier (Page 22 of verbatim minutes), but-does not refer to the arterial
streets as barriers. Chairperson Remington asked staff for examples of where arterial
streets have been used to define neighborhoods, where the streets were not
considered to be highways such as East Harmony and East Mulberry. Mr. Gloss used
Drake and Timberline as an example (Page 21 of verbatim minutes). Chairperson
Remington then referred to the City Plan illustration that depicted the neighborhood
center concept and expressed his belief that even though he thought that people will
. cross the arterial street, the intent was to "stop neighborhood definitions at some of
these arterials...that there was some definite thought around stopping these at these
arterials...". Board member Hall stated that he agreed with Remington's comments
(Page 21 of the verbatim minutes). Chairperson Remington then went on to restate in
his motion what he discerned to be the intent of the Code and City Plan. Therefore
staff believes that the Board members did not arbitrarily decide that Shields Street
constitutes a physical barrier. Rather, they decided based on the documentation before
them and by applying the "reasonable person rule" as described to them by Deputy City
Attorney Eckman (page 5 verbatim minutes) that Shields Street constitutes a
neighborhood boundary as described in Section 4.4(A) of the Land Use Code.
4. The ZBA based their decision on a document presented by the Planning Director
that is not part of City Plan, nor was it referred to in Administrative Interpretation
#05-02.
The illustration showed a single way of many possibilities that a
set of neighborhoods could be implemented, but it was labeled a
"concept" , not a specification. There are many other possible
ways neighborhoods can and have been implemented under City Plan.
The illustration showed the maximum number of residences located
along noisy arterial streets surrounding a Neighborhood Center
5
(NC) located away from arterial streets. Such a configuration
clearly would maximize the traffic attracted to the NC from
arterials through the residential streets. This contravenes City
Plan policies stating that NCs should minimize traffic attracted
through residential streets. In other words, the illustration is
the worst imaginable configuration for residences and NCs, which
seems the likely reason it was rejected and not included in City
Plan. For these reasons, all existing and approved We are
located on arterials, and none are configured similar to the
illustration.
The illustration also omitted the locations of transit stops,
,which are required in all neighborhoods, as stated on page 145 of
City Plan in the Principles and Policies - Neighborhoods section.
The ZBA should have disregarded the illustration in their
deliberations.
Staff Response:
Since the Appellant's appeal does not allege fair hearing issues regarding the
consideration of evidence which was substantially false or misleading, staff is unclear of
the intent of the Appellant's argument that the illustration should have been
disregarded. (Fair hearing issues result in a remand of the decision to the ZBA. The
Appellant's opening paragraph of his appeal seems to indicate he would not desire that
the ZBA hear this again since he is of the opinion that City Council is the proper forum
for deciding this type of issue).
The illustration that Mr. Brophy refers to was a PowerPoint slide that was included with
numerous other slides in the presentation before the ZBA. As Mr. Gloss began his
presentation to the ZBA, a hard copy illustration was distributed'to the members of the
Board. This handout was a copy of the illustration that actually appears in City Plan. It
was explained that the PowerPoint slide was of an earlier version that was modified
prior to inclusion in the final City Plan document, and that the handout was the adopted
illustration. It is true that a board member pointed out the differences in the two
illustrations. Even though the illustrations differ, that doesn't necessarily mean that the
earlier version should have been disregarded. Rather, both illustrations together show
the evolution of thought that occurred, resulting in a clarification of intent represented by
the final concept plan that was adopted. Nonetheless, the members discerned that the
adopted illustration clearly shows neighborhood boundaries ending at arterial streets
rather than crossing arterial streets. Therefore staff believes that the ZBA properly
interpreted Figure RDA of City Plan Principles and Policies, and that the earlier
illustration aided the Board in clarifying the intent of the neighborhood center concept.
6
5. The ZBA did not understand the purpose of the proceeding because they repeatedly
referred to the "expansion" of the neighborhood.
We, the applicants and the Planning Director agree on the size of
the neighborhood and no "expansion" was requested. The
disagreement pertains to the location of the neighborhood after
the street improvements are completed. We agree with page 145 of
City Plan that a neighborhood evolves from a public space of high
pedestrian use and includes a transit stop. In contrast, the
Planning Director believes that neighborhoods remain static
entities that do not evolve, and need not contain any public
space and need not include a transit stop.
Even though City Plan describes a vision for an inorganic entity,
it recognizes that in a way similar to organic creatures, our
City must evolve by adapting to changed conditions such as the
Harmony and Shields improvements. ...Objective standards have been
developed at great expense to guide us in the evolution of our
City and should not be discarded in favor of arbitrary decision
making.
Staff Response:
Staff is unable to find in the record that members of the Board repeatedly referred to
the "expansion" of the neighborhood. The word "expansion" does not appear in the
verbatim minutes. With regards to discussion by the members, the word "expand"
appears once, as does the word "expanded" and the word "expanding". These 3 words
were used once by the same board member. Staff used the word "expanded" once in
reference to the edge of the neighborhood, not to the size of the neighborhood. It is
unreasonable to conclude from the use of 4 words, contained in 22 pages of verbatim
minutes, that the `ZBA did not understand the purpose of the proceeding".
Staff believes that the Board clearly understood that the purpose of hearing this appeal
was to review, consider, and uphold, modify or overturn the interpretation of the
Planning Director (Section 2.11.2(G) Step 7(A) of the Land Use Code). The Director, in
Administrative Interpretation #05-02, had concluded that even though proposed street
improvements at the Harmony/Shields intersection would result in "greater physical
comfort and safety of the pedestrians", the area of the neighborhood will remain as
presently configured with Harmony Road and Shields Street continuing to form an edge
to the neighborhood. Early in the meeting, Chairperson Remington requested a
clarifying explanation of the purpose and process of the proceeding in order to keep the
Board focused "...on where we need to be heading"(pages 4 and 5 of the verbatim
• 7
minutes). After reviewing and considering the Planning Director's interpretation, the
Board concluded that it is appropriate for arterial roads to be used to define
neighborhood boundaries. Thus, the ZBA upheld the Director's interpretation.
Conclusions:
Staff contends that the Zoning Board of Appeals properly applied and interpreted
relevant laws.
1. Staff does not find evidence in the record to support the notion that 1) the ZBA
based its decision on the belief that rejecting the Planning Director's interpretation
would be tantamount to changing the permitted uses or 2) the ZBA was usurping a
decision of the Planning and Zoning Board
2. Staff does not find evidence in the record that the ZBA based its decision on the
idea that the greatest activity in the vicinity of the Appellant's property is the
Westbury Subdivision.
3. Board members did not arbitrarily decide that Shields Street constitutes a physical
barrier between the Appellant's property and the Harmony Library.
4. The ZBA did not base their decision on a document presented by the Planning
Director that is not part of City Plan.
5. The ZBA did understand that the purpose of the meeting was to review, consider,
and uphold, modify or overturn the interpretation of the Planning Director regarding
the neighborhood boundaries of the Appellant's property.
8
ATTACHMENT 4
Agenda Materials Provided to the Zoning Board of Appeals,
Including documents and handouts received by member's in their
pre-meeting packets or distributed at the meeting.
STAFF REPORT PRESENTED TO ZBA FEBRUARY 13, 2003
Address: 1109 West Harmony Road
Petitioner: Mark Brophy
Zone: LMN
Section: 2.11
Background:
The petitioner is appealing the written administrative interpretation (#5-02, issued by the Current
Planning Director Cameron Gloss) regarding the definition of "Neighborhood" as found in
Sections 4.4(A) and 5.1.1 of the Land Use Code and as mentioned in City Plan. The
interpretation is for the purpose of determining the "neighborhood" in which the property at 1109
West Harmony Road is located.
Staff Comments:
On Dec. 24, 2002, Cameron Gloss, the Director of Current Planning rendered a written
interpretation regarding the petitioner's earlier request for an interpretation of elements of the
City's Land Use Code. Specifically, the petitioner, Mark Brophy, requested an answer to the
following question in regards to clarifying whether or not there is a conflict between the
definition and use of the term "neighborhood", as applied in the Land Use Code, and specific
City Plan Principles and Policies relating to Transportation Corridors:
"If the Harmony Road improvement project removes barriers to pedestrians as stated in City Plan
Policies TC-2.2, TC-3.1, and TC-4.3 and there are no major physical features such as railroad
tracks, irrigation ditches, or drainage ways acting as a barrier to pedestrians, does the area of the
neighborhood in which my property is situated change to the area bounded by a five-minute
walking radius (about a quarter-mile) of a public space of highest pedestrian use, the Harmony
Library, that is less than or equal to a ten-minute walking distance (about a half-mile) from my
property at 1109 West Harmony Road?"
Mr. Gloss, in his written interpretation, concluded that the area of Mr. Brophy's neighborhood, as
defined by a five-minute walking radius, from the neighborhood center to the edge, will remain
as presently configured. Mr. Brophy is appealing this interpretation to the ZBA on the grounds
that it fails to resolve conflicts in the definition of "neighborhood" between City Plan and the
Land Use Code.
The applicant had previously attempted to receive Land Use Modifications from the Planning
and Zoning Board in order to allow the property to be developed with commercial uses. Those
modification requests were denied. Two of the modifications pertained to the separation
• requirements between Neighborhood Centers. If the ZBA agrees with the applicant and finds
that Shields Street and Harmony Road don't present barriers to pedestrian and bike access, the
February 13, 2003 Staff Report to ZBA
Page 2
applicant could have a stronger case that a Neighborhood Center on his site meets the intent of
certain sections of City Plan. If the ZBA agrees with the staff interpretation presented by Mr.
Gloss, then it will be difficult for the applicant to develop the property with the types of
commercial uses that were the subject of the previous modifications considered by the Planning
and Zoning Board.
-T 3-Y OK"
I U I (,/
Zoning Board of Appeals
. City of Fort Collins
281 N. College Ave.
Fort Collins, CO
Mark Brophy
1109 W. Harmony Rd.
Fort Collins, CO 80526
Jan. 3,2003
(970)229-1929
Dear Board Members:
Please accept this letter as a formal written notice of appeal of Administrativ am the e Interpretation
this 45-
02 on December ape g this decision because i002. 1 requested the Interpretation
fails ooresolve conflicts the definition of
matter. I am appealing
"neighborhood" between City Plan and the Land Use Code. Attached on separate pages are
etation#5-02, and the relevant portions of City Plan
details of the grounds for this appeal,Interpr
(pages 78 and 145), and an APO list within 500 feet.
Sincerely,
Mark Brophy
�G♦' '�'�0„ev s g ro"Jz {vLm!ni
Appeal of Administrative Interpretation #5-02
We request this hearing to appeal Administrative Interpretation#5-02, in which the Planning
Director ruled that Shields and West Harmony Road are major highways, and that these so-called
"major highways" are the boundaries of our Neighborhood. This contradicts the definition in
City Plan Principles and Policies:Neighborhoods, which states that Neighborhoods "evolve to be
a part of the broader community" from"public spaces" such as Harmony Library and the"5
minute walking radius" of such"shared facilities." In addition, the ruling is inconsistent with the
definition of a neighborhood in The New Illustrated Book of Development Definitions referred to
in Section 5.1.1 of the Land Use Code (LUC) and a previous Current Planning department
administrative interpretation. The error the Planning Director made was to equate a major arterial
with a major highway. These concepts are radically different and should not be treated the same.
A major highway such as I-25 cannot be used by pedestrians and is regulated by CDOT, a state
agency, and the federal government. It is similar to a river or a railroad track being used by a
train, because it cannot be traversed by walking. Major highways prohibit pedestrian and bicycle
use.
A major arterial is regulated by City government without state funding or involvement, and is
used regularly by pedestrians and bicyclists, even though speeds and traffic volumes are an
• impediment to pedestrian comfort. If it were a physical barrier to pedestrian use, the button on
the poles holding the signals could not be pressed, resulting in a flashing icon of a pedestrian
when it is safe for a pedestrian to cross the arterial. In contrast, a major highway is a.physical
barrier because is not intended for pedestrian and does not produce a flashing pedestrian icon,
nor does it include sidewalks, median pedestrian refuges, and enhanced crosswalks.
An urban highway such as South College Ave., East Harmony between College and I-25, and
Mulberry between Lemay and I-25, is managed jointly by the City and CDOT. A pedestrian or
bicyclist can use it, but few do so because an urban highway is 6 lanes wide and/or contains a
frontage road, and does not contain pedestrian median refuges or enhanced crosswalks.
Some major arterials in Fort Collins do not contain pedestrian design features and function as
urban highways. City Plan Policies TC-2.2,TC-3.1, and TC-4.3 clearly state that the West
Harmony Road improvement project will transform Harmony and Shields from a major arterial
without complete sidewalks, median pedestrian refuges, and enhanced crosswalks into a fully
operational intersection for all transportation modes, including pedestrians and bicyclists.
Interpretation#5-02 implies that the neighborhood in which our property resides is the 160 acre
quarter section southwest of the intersection of West Harmony and Shields. The Neighborhoods
section of City Plan Principles and Policies states that a neighborhood is defined by a 5 minute
walking radius of a public space. There are no parks, outdoor spaces, schools, places of worship,
or any other shared facilities in that quarter section, so the interpretation implies that our property
• resides in an Urban Estate Neighborhood of low density and large lot housing. In addition, there
- 1
is no Neighborhood Center in the quarter section, which is required in an L-M-N Neighborhood
by City Plan Policies LMN-2.2, EXN-1.4, and EXN-1.5.
Our property is zoned L-M-N, not U-E, so the Interpretation#5-02 is a clearly erroneous
degradation of our property. There is only a single U-E property within a 5 minute walking
radius of our property, and that property has only 12,000 vehicles passing by each day, compared
to 38,000 passing by our property. There are more than 50 properties zoned R-L, L-M-N, M-M-
N, or N-C within 5 minutes walking radius. In addition, our property is directly across the street
from FRCC, a major employer,which would be zoned in the E(Employment)district under city
jurisdiction, since it is similar to Woodward Governor at the intersection of Drake and
Horsetooth, Poudre Valley Hospital at the intersection of Harmony and Timberline, and Fort
Collins High School near the intersection of Horsetooth and Timberline.
It is absurd to treat a property directly across the street from a major employer at a major
intersection with 38,000 vehicles passing by each day as an UrbanEstate. We ask the City
Council to reject this decision and order the Planning Director to prepare a new interpretation
using the definition of neighborhood in The New Illustrated Book of Development Definitions
referred to in Section 5.1.1 of the Land Use Code (LUC), which does not equate a major arterial
to a major highway.
Harmony Library is the major shared public space within a 5 minute walking distance of our
property, and is the center of our neighborhood. It is used for civic uses and is the major
pedestrian gathering area of the neighborhood. For example, Mr. Glenn Colton, a member of the
Planning and Zoning Board and a neighborhood resident, recently set up a table in the Harmony
Library to lobby for the passage of a tax increase. Due to his efforts and similar efforts in other
neighborhoods, it passed by 30 percentage points in the same election when another tax increase
to fund the Harmony-Shields intersection and other improvements narrowly failed.
The reason we know Mr. Colton lobbied at the library is because we walked across Shields and
saw him. It was a minor inconvenience because there is no enhanced crosswalk or median
pedestrian refuge,but it was faster and more convenient than driving our car, emitted no
pollutants into the air, and strengthened our legs. The west side of Shields does not include
continuous sidewalks, so we walk across the street to the continuous sidewalks of the east side at
least once each day to access the library, or to walk or skate for exercise in the Cathy Fromme
Prairie or Clarendon Hills subdivision. We would be unable to do so if the street were a physical
barrier.
The Planning Department has previously interpreted the LUC to declare that a major arterial does
not constitute a physical barrier. During the planning of the Seneca Center(SC), points were
awarded in a performance-based system to the project proposal for being located at the
intersection of a collector and an arterial. SC is located on the south side of the intersection of
Seneca and West Harmony, but the south side of Seneca is a local street,not a collector street. I
asked the planner for the project, Ted Shepard, why the points were awarded, and he replied that
the arterial was unimportant and that the north side of Seneca is a collector street.
. Our neighborhood was in an Urban Estate Neighborhood prior to the approval in the mid 90's of
the Westbury and Cottonwood Ridge subdivisions, Woodlands apartments, the Harmony
Library, and the FRCC expansion. These development projects transformed our neighborhood
into a Low Density, Mixed-Use Neighborhood. Like an organic structure in Darwin's world,
Neighborhoods must evolve to survive, as stated in the Neighborhoods section of the City
Structure Plan:
The goal is to work towards more "complete" neighborhoods over time, so
more of our daily needs are met at home. This will reduce our dependence on
driving, as well as avoid further degradation of our city's air quality. Travel
routes and land uses will link and connect individual neighborhoods. The
reality, however, is that because of what's already here, the City Structure Plan
can have only a limited effect on existing neighborhoods and subdivisions. In
other words, not all of our existing neighborhoods will meet this ideal. The most
opportunity for change is in the undeveloped, new growth areas, with change
occurring in existing neighborhoods over time, as opportunity allows.
The development projects of the mid 90's have radically changed the character of our
neighborhood, so now it is our turn to redevelop our property. Our neighborhood is unlikely ever
to be ideal because there is no undeveloped site large enough to contain an elementary school or
a neighborhood park with soccer and baseball fields. The Current Planning department has
determined that the residents of the quarter section at the southwest comer of Harmony and
• Shields can cross an arterial to access these facilities at McGraw Elementary and McGraw Park.
However, there is an opportunity to fill an unmet need for a Neighborhood Center within '/<mile
of Harmony Library on the 7 acres of land owned by us and Marcia Collins.
Our property is located within the Front Range Community College (FRCC) Campus District. A
district is an area of multiple contiguous properties. There is a single undeveloped property to the
southeast of Harmony and Shields, and it does not constitute the entire District. The District
consists of that property, the 7 acres consisting of our property and Marcia Collins', the
Woodlands apartment complex on the northeast corner of the intersection,townhouses on
Harmony adjacent to the Woodlands, and the undeveloped lands on the northwest comer.
Interpretation#5-02 is inconsistent with the City Plan Neighborhoods Principles and Policies
definition of a Low Density Mixed-Use Neighborhood and the definition in The New Illustrated
Book of Development Definitions referred to in LUC Section 5.1.1. In addition, a major arterial
that was unimportant in the administration of Seneca Center is being treated as an impermeable
pedestrian barrier. We request that the Council direct the Planning Director to write a new
interpretation stating that our property is in the FRCC Campus District and the Neighborhood in
which it is situated is the area within a ''/, mile 5 minute walking radius of Harmony Library.
Neighborhoods
As the dominant and most important areas within our city, neighborhoods will serve as
the primary building blocks. Neighborhoods will be walkable and connected, and will
include a mix of housing types. Neighborhoods will include destinations within
walking distance, such as schools, parks, neighborhood and convenience shopping, and
civic uses.
The goal is to work towards more "complete" neighborhoods over time, so more of our
daily needs are met closer to home. This will reduce our dependence on driving, as
well as help avoid further degradation of our city's air quality. Travel routes and land
uses will link and connect individual neighborhoods. The reality, however, is that
because of what's already here, the City Structure Plan can have only a limited effect on
existing neighborhoods and subdivisions. In other words, not all of our existing
neighborhoods will meet this ideal. The most opportunity for change is in the
undeveloped, new growth areas, with change occurring in existing neighborhoods over
time, as opportunity allows.
Most of our city's new housing will occur in the new growth areas, either in Low
Density Mixed-Use Neighborhoods or Medium Density Mixed-Use Neighborhoods.
Low Density Mixed-Use Neighborhoods, which will be the predominant form of new
development, will develop at approximately five dwelling units per acre overall. These
neighborhoods will consist of a mix of detached homes on small and average size lots,
townhomes, duplex units, and manufactured housing.
Medium Density Mixed-Use Neigbborboods will develop at approximately 12 dwelling
units per acre, and will include a mix of small-lot single-family homes, duplexes,
townhomes, and multi-family housing. These neighborhoods will be located in close
proximity to Neighborhood Commercial Centers, Community Commercial Districts,
and transit routes.
Urban Estate Neighborhoods are for low
density and large-lot housing, in order to
acknowledge the presence of the many
existing County subdivisions which
function as part of the community, and
to provide, in some cases, a physical
transition between urban development
and rural or open lands.
Urban Estate Neighborhood
City Structure Plan 'lopes of Places
February 18, 1997 78
i
pA4,Or4*t ,
❖ All New Neighborhoods (AN)
❖ New Low Density Mixed-Use Neighborhoods (LMN)
❖ New Medium Density Mixed-Use Neighborhoods (MMN)
••• Existing Neighborhoods (EXN)
A neighborhood is more than just a housing development by itself. It's about 100 to
160 acres in size - large enough to support services and amenities which meet some of
the needs of daily life, but small enough to be defined by pedestrian comfort and
interest. This general size range is based on a five-minute walking distance (about a
quarter-mile) from the edge to the center and a ten-minute walk (about a half-mile)
edge to edge.
Each neighborhood may have an identity that evolves from its public spaces -- streets,
parks and outdoor spaces, schools, places of worship, and other shared facilities.
Human scale and visual interest are the standards for proportions in buildings and
places.
Forms of housing are mixed, so that people of different ages and incomes have
opportunities to live in various areas in the city. Automobiles do not take precedence
over human needs, including aesthetic needs. A neighborhood has a public transit
stop, and many ways of getting to, through, and between it and other neighborhoods
by driving,walking and bicycling.
These City Plan Principles and Policies for neighborhoods primarily apply to new
development. They may have relevance to an existing neighborhood if there is an
opportunity to infill, update and/or improve a particular situation.
Most new residential development will occur in two kinds of neighborhoods: "Low
Density Mixed-Use Neighborhoods" and "Medium Density Mixed-Use Neighborhoods."
The intent is for residential developments to form neighborhoods that evolve to be part
of the broader community, avoiding separate subdivisions or freestanding individual
icomplexes attached to the community mainly by an entrance for auto traffic.
City Plan Principles and Policies 14$ Neighborhoods
February 18, 1997
FRCC Campus District
Starflower Drive East Entrance
LMN
Townhouses
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Woodlands
o Undeveloped
MMN I a Harmony T Church
Library 0 Property
South Shields Street
Undeveloped Brophy Collins
{� Property Property
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• I hereby request an administrative interpretation of the Land Use Code
because there is a conflict between the definitions of"neighborhood" in the
"Principles and Policies: Neighborhoods" section of City Plan and Sections
4.4(A) and 5.1.1 of the Land Use Code.
If the Harmony Road improvement project removes barriers to pedestrians as
stated in City Plan Policies TC-2.2, TC-3.1, and TC-4.3 and there are no
major physical features such as railroad tracks, irrigation ditches, or
drainageways acting as a barrier to pedestrians, does the area of the
neighborhood in which my property is situated change to the area bounded by
a five-minute walking radius (about a quarter-mile)of a public space of
highest pedestrian use, the Harmony Library,that is less than or equal to a
ten-minute walking distance (about a half-mile) from my property at 1109
West Harmony Road?
Thank you for your consideration.
Mark Brophy
Community Planning and Environmental Services
Current Planning Sfa i „�w ��r`���;•'�
6I �' O;L V �I
City of Fort Collins
TO: Interested Parties
FROM: Cameron Gloss
Current Planning Dire for
DATE: December 24, 2002
SUBJECT: Administrative Interpretation #5-02 of Sections 4.4 (A) and 5.1.1 of
the Land Use Code regarding the definition of "Neighborhood".
REQUEST:
A request has been received to interpret related sections of the Land Use Code
regarding the definition and application of the term "neighborhood". Two specific
LUC Sections have been referenced in the applicant's written statement: Section
4.4 (A), which outlines the purpose of the Low Density Mixed-Use Neighborhood
(LMN) district, and Section 5.1.2, Definitions. The request asks for clarification
on whether there is a conflict between the definition and use of the term
"neighborhood", as applied in the LUC, and specific Comprehensive Plan (City
Plan) Principles and Policies relating to Transportation Corridors.
The following question has been posed for interpretation as it relates to the
property located at the southwest corner of W. Harmony Road and S. Shields
Street:
If the Harmony Road improvement project removes barriers to pedestrians
as stated in City Plan Policies TC-2.2, TC-3.1, and TC-4.3 and there are
no major physical features such as railroad tracks, irrigation ditches or
drainageways acting as a barrier to pedestrians, does the area of the
neighborhood in which the subject property (1109 W. Harmony Road) is
situated change to the area bounded by a five-minute walking radius
(about a quarter-mile) of a public space of highest pedestrian use, the
Harmony Library, that is less than or equal to a ten-minute walking
distance (about a half-mile) from the property?
281 North College Avenue " P.O.Box 580 " Fort Collins,CO 80522-0580 " (970)221-6750 • FAX(970)416-2020
BACKGROUND:
For communities in many western states, the neighborhood idea is rooted in the
one-mile square land "section" system that originated in the Midwest.
Neighborhoods were based on quarter-sections (160 acres), with major streets
bounding neighborhoods one-half mile apart, and focused on a "walk-in"
elementary school in the center.
In the Fort Collins LUC, there is no formal definition of "neighborhood" listed
under Section 5.1.2, Definitions; however, other sections of the LUC help provide
more clarity on what could be considered a "neighborhood", in terms of both size
and structure. Under Section 4.4(A), "a neighborhood shall be considered to
consist of approximately eighty (80) to one hundred sixty (160) acres, with its
edges typically consisting of major streets, drainageways, irrigation ditches,
railroad tracks and other major physical features". Low Density Neighborhood
structure is further defined within this section as "clustered around and integral
with a Medium Density Mixed-Use Neighborhood with a Neighborhood
Commercial Center at its core".
The term "neighborhood" is very generally defined within City Plan, under the
Glossary of Planning Terms, as "the focus of residential uses, but also includes a
mixture of activities that people need to live life. A neighborhood may include a
diversity of housing types, schools, parks, shopping and jobs (frequently service-
type)".
The applicant's request cites future, anticipated improvements to Harmony Road.
The City's Capital Improvement Plan identifies a partially-funded capital project
that includes a variety of improvements on Harmony Road, between Seneca
Street and the Burlington Northern Railroad crossing. The intent of the project is
to complete this section of Harmony Road by widening the street to arterial
standards; including curb, gutter, and sidewalk improvements. The project is part
of the Master Street Plan and the Transportation Master Plan:
The following City Plan Transportation Corridor policies were stated in the
interpretation request as relevant to the discussion:
Policy TC-2.2 Automobile Congestion. When automobile congestion
decreases the composite LOS of a Transportation Corridor, it will be a trigger so
that the City will strengthen and direct efforts towards ensuring an increase in
LOS that gives priority to alternative modes within the Corridor, possibly including
the use of dedicated right-of-way for future transit.
Policy TC-3.1 Pedestrian Plan. The safety and security of the pedestrian will
be a fundamental consideration in the design of a Transportation Corridor. The
five principles of the City's adopted Pedestrian Plan—directness, continuity,
street crossings, visual interest and amenity, and security—as well as the
standards, policies and regulations of the Plan, will be implemented in
Transportation Corridors.
Policy TC-4.3 Transportation Corridor Improvement. Strategic improvements
to existing facilities, such as the addition of bike lanes, increased transit service
and pedestrian access, will be implemented to respond to existing deficiencies
and to maintain adopted level of service standards.
INTERPRETATION:
*Arterial streets have historically been used to define the edge of a
neiahborhood. Although arterial streets don't provide an insurmountable physical
barrier, high traffic volumes and speeds tend to sever walking connections
between the two sides of the street.
Under Section 4.4(A), "... *neighborhood ... edges typically consisting of
major streets, drainageways, irrigation ditches, railroad tracks and other
major physical features".
Neighborhood "An area of a community with characteristics that
distinguish it from other areas and that may include distinct ethnic or
economic characteristics, housing types, schools, or *boundaries defined
. by physical barriers, such as major highways and railroads or natural
features, such as rivers".
From The New Illustrated Book of Development Definitions, by Harvey S.
Moskowitz and Carl G. Lindbloom.
It is acknowledged that proposed street improvements at the Harmony/Shields
intersection, including sidewalks, medians, and enhanced crosswalks, will result
in greater physical comfort and safety of the pedestrian, but such improvements
will be offset by other qualities detrimental to the pedestrian environment:
additional street width and greater traffic volumes. Both streets will be widened to
four travel lanes with dedicated intersection turn lanes—including double left turn
lanes southbound on Shields to Harmony Rd. Therefore, the area of the
neighborhood, as defined by a five-minute walking radius, from the neighborhood
center to the edge, will remain as presently configured. With this barrier in place,
proximity of the property to the Harmony Library has no direct bearing on the
neighborhood boundary.
CC: stele
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Paul Eckman
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Fort Collins Mixed-Use
Neighborhood Concept
(Figure RD-1)
Policy RD-1.5 Whole District Planning and Phasing. The City encourages and will
participate in coordinated design and planning efforts among property owners in
Residential Districts. Such efforts should identify locations for connecting streets,
schools, parks, and civic buildings, edges, and other shared facilities and spaces.
City Plan Principles and Policies Residential Districts
February 18, 1997 168
SeL C�) of La t,vC. Us e Coo( �
Division 4.4, Lom,Density Mixed-Use Neighborhood District Division 4.4
DIVISION 4.4 Low DENSITY MLYED-USE NEIGHBORHOOD DISTRICT(L-M-N)
(A) Purpose. The Low Density Mixed-Use Neighborhood District is
intended to be a setting for a predominance of low density housing
combined with complementary and supporting land uses that serve a
neighborhood and are developed and operated in harmony with the
residential characteristics of a neighborhood. The main purpose of the
District is to meet a wide range of needs of everyday living in
neighborhoods that include a variety of housing choices, that invite
walking to gathering places,services and conveniences,and that are fully
integrated into the larger community by the pattern of streets,blocks,and
other linkages. A neighborhood center provides a focal point, and
attractive walking and biking paths invite residents to enjoy the center as
well as the small neighborhood parks. Any new development in this
District shall be arranged to form part of an individual neighborhood.
Typically, Low Density Neighborhoods will be clustered around and
integral with a Medium Density Mixed-Use Neighborhood with a
Neighborhood Commercial Center at its core. For the purposes of this
Division, a neighborhood shall be considered to consist of approximately
eighty (80) to one hundred sixty (160) acres, with its edges typically
consisting of major streets, drainageways, irrigation ditches, railroad
tr%A-Q anA nthr.r main nhvaical fe..atures.
* a4o� .
February 2, 2003
To: The City of Fort Collins
Planning and Zoning Appeal Board
Subject: Request for zoning variance and special consideration regarding
property located at 1109 W. Harmony Road.
From: Marty Leeke
Adjacent Property Owner
Dear City of Fort Collins Representatives,
My name is Marty Leeke and 1 am urging this board to reject the applicant's
request for the city to grant a hardship variance for the zoning of the property in
question. I own property directly adjacent to the property in question on its
western border. Granting the petitioner's request could lead to a variance to the
current zoning that would allow for development of the property in a manner that
is not in the best interest of the adjacent neighborhood, or the residents of Fort
Collins. On May 28, 2001 1 presented a petition signed by 40 neighbors who live
adjacent to the Brophy property accompanied by a formal response to the
Planning and Zoning Board describing why changing the zoning of the property
should be rejected. Since I have provided copy of that material for your reference
and out of respect for your time, I will not reiterate those points other than to ask
that you carefully review that material before making your decision.
As you would expect, this issue has been addressed with high emotions at
previous hearings and reviews. Clearly it is an important issue to those affected
by the outcome of this and previous reviews. But, it's time for us to get past the
emotional response and deal with the realities and the facts.
The petitioners admittedly purchased this property on the basis that it would be a
wise investment, and that over time they would make a sizable return on their
investment. In other words, part of their decision to purchase the land was
speculative. My wife and I invest a portion of our income as well. Over the years
we have invested in numerous ways. In 1999 we were very pleased in the
performance of the stock market. It looked as though we had made wise
decisions and that our retirement income would grow nicely. Well, we all know
what happened in the stock market since then. Did I know that investment in the
stock market came with risks? Of course I did. Every piece of literature, every
piece of advice offered by investment professionals, even every advertisement
had warning statements citing that investments cant' some risk. It's common
knowledge. Land speculation is no different.
• The property owners knew that speculation in land investments carried some risk
that they might not make as much money as they had hoped for when they
decided to develop it or sell it. Prior to the Brophy's purchasing their property it
was obvious that road widening at that intersection was inevitable because the
roads approaching the property line on the west side, the north side, and the
south side had already been widened! The fads are that the petitioners probably
won't get the return that they had hoped for and they want the City of Fort Collins
to make up the difference by granting their wish.
Let's address the issue of the hardship waiver that is being requested. Without
doubt, when the intersection on Harmony and Shield is widened some of the
property belonging to the petitioners will be consumed. Should there be some
consideration for their loss? Of course there.should. The key here is that the
consideration should be reasonable and should impose as little negative impact
on the surrounding area as possible. The petitioners now state that they are not
part of the neighborhood. Interestingly, they took just the opposite position during
earlier reviews when they claimed that building a convenience store on the site
would directly benefit their neighbors. I believe we all want to do what is
reasonable for everyone concerned. The city should make a reasonable effort to
reimburse the property owner at the current fair market value plus financial
accommodation required for changes in access, etc. for the impact to the
property when it is altered as part of road construction.
In an earlier session the petitioners stated that because of the impacts of the
pending road widening, and the excess of available commercial property on the
market, the commercial development market value of their property had suffered.
That may be true. However, there are many factors that make-up the market
value equation for property on the market. If you ask any Real Estate
professional, they will tell you the first and most important element in selling a
property is "curb appeal.' If you view the property in question you will find that it
has fallen into a state of disrepair and is generally poorly maintained. There are
broken fences, fallen trees whose limbs have lain on the ground for years, trash
and litter along the roadside, and grass that grows waist high. If fault is to be cast
on the lack of desirability of the property, it goes to the owners, not the city.
The difference between the Brophy's approach and a reasonable approach to the
issue is that they want the City of Fort Collins and its residents to make-up the
difference between what they had hoped for in a return on their investment and
what they might actually receive. They want you to grant special consideration
that could lead to a change in the zoning of the property so that it will become
more valuable to them — not the residents of Fort Collins. The key here is that by
granting their request, the potential use of property changes to allow undesirable
uses of the property.
It is not the role of the city government to make up the difference between a.
desired financial return on a private investment and the current market value of
that investment, any more so than it is Intel's, or Kroger Stores' responsibility to
make up the difference in what I lost by investing in their companies' stock. It is
not in the best interest of the adjacent neighborhood, or the City of Fort Collins to
grant the petitioners request for additional variances or special considerations in
this matter. Therefore, 1 strongly urge the city representatives to reject the
petitioner's request.
Respectfully stub-miffed,
-f, �z CCz
Mafty Leeke
4612 Mariposa Court
Fort Collins, Colorado 80526
226-5997
May 28, 2001
To: The City of Fort Collins Planning and Zoning Board.
• P.O. Box 580, 281 North College Avenue, Fort Collins, Colorado 80522-0580
From: Westbury Neighborhood Residents Concerned About Development of Brophy Property
at 1109 West Harmony Road. (File119-01).
This letter is written to provide the City of Fort Collins Planning and Zoning Board with
specific concerns of the adjacent neighborhood to the property requesting the zoning changes. It
is our hope that the Planning and Zoning Board will recognize the validity of these concerns
and act judiciously when considering the information provided herein. As a general statement,
we, the adjacent neighbors to the Brophy property oppose any changes to the current zoning
that would allow for any type of commercial/retail development of this pristine property. We
offer the following specific concerns for your consideration:
1. Destruction of one of the last parcels of pristine wooded property in Fort Collins.
A. This property is heavily wooded and contains many majestic 80-year-old trees.
Commercial/retail development of this property will destroy one of the few remaining
wooded areas left in the city.
B. This property is a local landmark dating back many years. Significant change to the lot
will result in the loss of a significant piece of Fort Collins history.
2. Development will have a devastating affect on the existing wildlife inhabiting the property.
A. Great Homed Owls -A pair of Great Homed Owls established a nest on this property
many years ago, and continue to nest on the property today. The pair currently has at
• least three young offspring who live and hunt on the property. Development will surely
destroy their natural habitat, possibly endangering their lives.
B. Birds - Many birds nest on this property. Removal of the trees that house the many
nests will drive them away.
C. Raccoons - There is at least one family of raccoons living on the property.
Development will surely destroy their natural habitat, possibly endangering their lives.
D. Rabbits - Many families of rabbits live on this property. The rabbits are a primary food
source for the owls living on the property.
E. Deer - Deer occasionally inhabit the property, especially during the winter months.
Again, development of the property will significantly interfere with these wildlife species as
well as others we haven't specifically identified.
3. There is no public need for commercial/retail/retail development at this location. There are
substantial commercial/retail properties already in existence and planned for future
development very close to this property, so there is no need for this development.
A. There is already a planned commercial/retail/retail development site approximately 1/4
mile directly north of this property.
B. Another planned commercial/retail/retail development is located approximately 'h mile
directly to the west of this property.
C. A major commercial/retail shopping district is currently located less than 1 mile away
to the east of this property.
. 4. Neighborhood safety.
Building a commercial/retail facility that draws a significant number of people to this area
will expose neighboring residents to additional and unnecessary safety and security threats.
Lauer to P&Z about Brophy zoning chaW
1
A. Children's safety - we are very concerned about the safety of our neighborhood
children. Many of the neighborhood residents' properties border the property in
question. Building a commercial/retail development this close to existing homes will
expose our children to greater risk by encouraging substantial numbers of people access
to very close proximity to the children.
B. Neighborhood security - Placing a commercial/retail/retail development this close to
the existing neighboring homes will increase the number and seriousness of incidents of
vandalism, theft, and possible robbery. We are very concerned about a significant
increase in loitering as a result of this proposed development.
5. Increase in traffic.
The intersection of West Harmony and South Shields Streets is already over-loaded due to
the substantial traffic at the intersection. The Westbury neighborhood already suffers from
significant traffic through the neighborhood due to motorists cutting through our
neighborhood to avoid the intersection. Adding a retail development at this location will
cause this problem to get even worse.
6. Increase in noise.
A commercial/retail development on this property will result in significant traffic flow even
closer to the existing homes in the area. This will expose the residents to an increase in
noise. This problem will interfere with our right to peaceful enjoyment of our own
properties.
7. Environmental concerns.
A. An increase in automobiles in the neighborhood will expose neighboring residents to
increases in toxic fumes from automobile exhaust. Oils, gasoline, and other automotive
byproducts will be released onto the ground and could possibly contaminate the ground
and ground water.
B. Fumes and odors from businesses including spoiled food items and commercial/retail
waste may permeate the air interfering with the neighbors' right to peaceful enjoyment
of their property.
8. Excessive lighting.
Residents of Westbury currently enjoy a country-like atmosphere due to the buffer the
Brophy property provides for our neighborhood. Many current residents chose this area to
purchase their homes due to this climate. Building a commercial/retail center this close to
our property will likely result in unwanted lighting pollution of our yards.
Summary:
We have presented several reasons why the City of Fort Collins Planning and Zoning Board
should deny the proposed zoning changes requested for the Brophy property. Any, or all, of
these concerns is reason to consider our needs. The bottom line is this - Nobody needs this
development! The only people who think it's a good idea are those who stand to make a profit
from the development. We have an abundance of commercial/retail/restaurant/gas stations
within a one-mile radius and other retail developments are slated for development even closer
than the existing ones. We request that the proposed zoning changes be denied.
Attachment:
Signatures of those supporting the efforts to stop the proposed changes to current zoning of
Brophy Property, 1109 West Harmony Road (File q9-01)
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• ATTACHMENT 5
Verbatim Minutes of the Meeting before the Zoning Board of
Appeals, held February 13, 2003.
1.f d
5'.
c. 1
Council Liaison Karen Weitkunat Staff Liaison: Peter Barnes(221-6760)
Chairperson: Steve Remington Phone: (H) 223-7138
VERBATIM MINUTES OF APPEAL NUMBER 2408 HEARD BY THE ZONING
BOARD OF APPEALS ON FEBRUARY 13,2003
1. APPEAL NO. 2408 —Upheld.
Address: 1109 West Harmony Road
Petitioner: Mark Brophy
Zone: LMN
Section: 2.11
Back round:
The petitioner is appealing the written administrative interpretation (#5-02, issued by the Current
Planning Director Cameron Gloss) regarding the definition of "Neighborhood" as found in
Sections 4.4(A) and 5.1.1 of the Land Use Code and as mentioned in City Plan. The
interpretation is for the purpose of determining the"neighborhood" in which the property at 1109
West Harmony Road is located.
Petitioner's Statement of Hardship:
Staff Comments:
On Dec. 24, 2002, Cameron Gloss, the Director of Current Planning rendered a written
interpretation regarding the petitioner's earlier request for an interpretation of elements of the
City's Land Use Code. Specifically, the petitioner, Mark Brophy, requested an answer to the
following question in regards to clarifying whether or not there is a conflict between the
definition and use of the term "neighborhood", as applied in the Land Use Code, and specific
City Plan Principles and Policies relating to Transportation Corridors:
"If the Harmony Road improvement project removes barriers to pedestrians as stated in City Plan
Policies TC-2.2, TC-3.1, and TC-4.3 and there are no major physical features such as railroad
tracks, irrigation ditches, or drainage ways acting as a barrier to pedestrians, does the area of the
neighborhood in which my property is situated change to the area bounded by a five-minute
walking radius (about a quarter-mile) of a public space of highest pedestrian use, the Harmony
Library, that is less than or equal to a ten-minute walking distance (about a half-mile) from my
property at 1109 West Harmony Road?"
ZBA February 13,2003
Page 2
Mr. Gloss, in his written interpretation, concluded that the area of Mr. Brophy's neighborhood, as
defined by a five-minute walking radius, from the neighborhood center to the edge, will remain
as presently configured. Mr. Brophy is appealing this interpretation to the ZBA on the grounds
that it fails to resolve conflicts in the definition of "neighborhood" between City Plan and the
Land Use Code.
The applicant had previously attempted to receive Land Use Modifications from the Planning
and Zoning Board in order to allow the property to be developed with commercial uses. Those
modification requests were denied. Two of the modifications pertained to the separation
requirements between Neighborhood Centers. If the ZBA agrees with the applicant and finds
that Shields Street and Harmony Road don't present barriers to pedestrian and bike access, the
applicant could have a stronger case that a Neighborhood Center on his site meets the intent of
certain sections of City Plan. If the ZBA agrees with the staff interpretation presented by Mr.
Gloss, then it will be difficult for the applicant to develop the property with the types of
commercial uses that were the subject of the previous modifications considered by the Planning
and Zoning Board.
Soriano Appeal number 2408, address 1109 West Harmony Road, Petitioner Mark
Brophy, Zoning District, LMN. The petitioner is appealing the written
administrative interpretation (#5-02, issued by the Current Planning Director
Cameron Gloss) regarding the definition of "Neighborhood" as found in
Sections 4.4 (A) and 5.1.1 of the Land Use Code and as mentioned in City
Plan. The interpretation is for the purpose of determining the "neighborhood"
in which the property at 1109 West Harmony Road is located. Please see the
Petitioner's letter for the statement of hardship.
Bames This particular appeal is uh different than the types of appeals that the Board
normally considers. This is an appeal of an administrative City staff
interpretation. Uh, Section 2.11, or Chapter 2.11 of the Land Use Code, uh,
sets forth a procedure for someone to appeal decisions uh regarding the Land
Use Code, and there are ten different triggers that allow someone to do that.
One is um, someone can appeal the issuance of a written administrative
interpretation of a section of the Land Use Code. And that's the uh specific
type of appeal that is being presented to the Board today. Um, I'm in a minute
going to go through the slides and then um, the Current Planning Director,
Cameron Gloss, uh will be making a presentation uh regarding uh, his
interpretation regarding the issues, and then Mr. Brophy, the Applicant, will be
making a presentation as well. And they will be able to get more involved into
the specific issues. I'm not gonna try and get into that, but I will just give you
an overview.
In your packet, uh you received the letter to the Zoning Board of Appeals from
Mr. Brophy, in which he is requesting uh that, he's appealing the decision,
which is administrative interpretation #5-02, which was issued by Mr. Gloss
on December 24, 2002. He's appealing this decision because Mr. Brophy
believes it fails to resolve conflicts in the definition of neighborhood between
ZBA February 13,2003
Page 3
City Plan and the Land Use Code. Uh, Mr. Brophy, then attached uh different
uh sections of various codes, and in that you have the petitioner's ground for
appeal, that's all in your packet. That's Mr. Brophy's grounds for the appeal.
He's included some information on neighborhoods that were taken out of City
Plan, and then you have the staff interpretation, #5-02, which was rendered by
Cameron Gloss on December 2e. And after that you have the petitioner's
original request for interpretation. This is what Mr. Brophy submitted to um,
Cameron Gloss requesting an interpretation of the issues. And then you have
lastly, Section 4.4.(A) of the Land Use Code, which is the Low Density Mixed
Use Neighborhood district, LMN District, and the purpose statement of that
zone.
So Mr. Brophy in summary then requested an answer to the following question
in regards to clarifying whether or not there is a conflict between the definition
and use of the term `neighborhood," as applied in the Land Use Code, and
specific City Plan principles and policies relating to transportation corridors.
The question he posed to Mr. Gloss was "if the Harmony Road
improvement project removes barriers to pedestrians as stated in City
Plan policies TC-2.2, TC-3.1, and TC-4.3 (those are all included in Mr.
Brophy's package) and there are no major physical features such as
railroad tracks, irrigation ditches, or drainage ways acting as a barrier to
pedestrians, does the area of the neighborhood in which my property is
• situated (and his property is 1109 West Harmony) does the area in the
neighborhood in which my property is situated change to the area
bounded by a five-minute walking radius (about a quarter mile) of a
public space of highest pedestrian use, in this case the Harmony Library,
that is less than or equal to a ten minutes walking distance (which is about
'/: a mile) from my property at 1109 West Harmony Road?"—that was the
question. Then Mr. Gloss in his written interpretation, which you have,
concluded that the area of Mr. Brophy's neighborhood as defined by a five-
minute walking radius from the neighborhood center to the edge will remain as
presently configured. Mr. Brophy is appealing this interpretation to the ZBA
on the grounds that it fails to resolve the conflicts that he had citied. If the
ZBA agrees with the Applicant, and finds that Shields Street and Harmony
Road don't present barriers to pedestrian and bike access, the Applicant could
have a stronger case that a neighborhood center on his site meets the intent of
certain sections of City Plan. If the Zoning Board agrees with the staff
interpretation presented by Mr. Gloss then it could possibly be difficult for the
Applicant to develop the property with the types of commercial uses that he
had previously presented to the Planning and Zoning Board for modification
requests. So let me go through the slides real quick and then I'll turn it over to
Mr. Gloss and Mr. Brophy.
• This is a vicinity map of the area, and this is Mr. Brophy's property right here,
this yellow area. Uh, this is Shields Street, Harmony Road, over here is Front
Range Community College, um, you have Westbury PUD, which consists of
ZBA February 13,2003
Page 4
single-family detached homes and then an area right in here, which is more of
an attached patio home type of development. Uh, across the street on
Harmony is vacant, undeveloped land at this time. Over here on this comer of
Shields and Harmony you have an apartment complex, and then again the
College. This is a Fort Collins mixed-use neighborhood concept, um, and uh,
Cameron Gloss will be going over this and explaining this concept to you in
just a few minutes. This is an aerial similar to the vicinity map, uh, again, the
property in question, the developed residential area, undeveloped here, and the
College campus over here. Uh, this was, this right here is Harmony Road, this
is looking south along Shields. Uh, the Brophy property is back in here. It's a
site that has a lot of trees. Again, this is Harmony Road looking back toward
Mr. Brophy's property which is back, his house, I believe is back in here—I
think. Well, I'm not sure which is the house and which isn't. Uh, this is
looking West along Harmony Road, uh again these trees are on the perimeter
of Mr. Brophy's property. This is an asphalt walk along uh, the north side of
Harmony Road. And this is looking on Harmony Road, looking south, uh, this
is the west property line of Mr. Brophy's property, so his uh property is back
in here, and this is part of the Westbury PUD. Similar picture looking a little
bit more to the east. This is on Shields Street, there is a drive entry here off of
Shields Street. The property sits back in here again. This is on Shields
looking to the north. This is uh Mariposa Court, which is in Westbury, these
homes here back up to the west boundary of Mr. Brophy's property. This is
uh, a property here that abuts uh, the south along the south-side of Mr.
Brophy's property. And this, that property I just showed you, which is right
here, Mr. Brophy's is here, the Westbury PUD development has a street that
stubs out—it is called Olt Court. It stubs out um, to that intervening property
between Mr. Brophy's and Westbury PUD. As they say in Colorado, if you
don't like the weather, wait a day, so um, those other pictures were taken last
year. This was just taken a week or two ago, uh, similar pictures. This is the
undeveloped field on the north of the property, on the north side of Harmony.
That's all that undeveloped property. Uh, this is uh Shields Street here and
Front Range Community College. I've included some other pictures in here
just in case the conversation goes to the issue of distances between
neighborhood centers. Um, Mr. Brophy's property is to the right—off of the
screen, and this is Harmony Road here, and the new Harmony Road curves
around to intersect at Taft. At this location here, is the overlook Seneca PUD,
which is a neighborhood center. Uh, it was constructed last year. Again,
here's Mr. Brophy's property here, Harmony starts to curve and here is that
overlook Seneca Center—neighborhood center. That's all I have at this time if
the Board doesn't have any questions of me I'll turn it over to Mr. Gloss.
Remington I've got one question, um, which I guess is actually for Paul before we get too
far into this. I guess I want to understand the motion when we get to the end of
this, since this is something kind of different than what were used to. So as
we're going through I need to think about where we need to be heading, so at
the end of this we need to do what? We need to have a motion . . .
Eckman I Well, the uh, information that I gave you before which uh as to do with how to
ZBA February 13,2003
Page 5
make motions pertaining to the equal to or better than test or the hardship test
or whatever, and I might add that, that last motion was very on target as far as
that advice I gave you was concerned. Those don't apply now, and the uh
Land Use Code simply provides, well in Division 2.11, which is the division
you are working under now regarding appeals from Administrative decisions,
but Step 7, require that you shall review, consider, and uphold, modify or
overturn the administrative decision of Mr. Gloss. Either uphold it, modify it,
or overturn it. And then if you look at Step 8, which is the standards that
you're to use that doesn't give you much help. It says that an appeal from an
administrative decision shall be determined based upon the same standards,
which apply to the underlying administrative decision. The same standards
that Mr. Gloss was under when he made his decision. So I, uh, had to go to
Division 1.4 of the Land Use Code, to see if it gave him some guidance on
how to render his interpretation. And 1.4.3(C) is entitled, "Rendering of
Interpretation", and again it leaves us, it leaves you in a position almost of a
court, at this point. To try to ascertain the intent of the legislation, of the
ordinance of the Land Use Code in this case because it says the director shall
review, and evaluate the request of Mr. Brophy in light of the terms and
provisions of this Land Use Code. Goes on and says that he can ask for advice
from the City Attorney or from other City Departments that might be involved
before rendering his interpretation. So, so I view his duty as being to apply the
language of the Land Use Code pertaining to neighborhoods, and
. neighborhood centers and so on and try to figure what would a reasonable
person think those words meant. What was the intent of the City Council in
passing this law based upon the words on the page as a reasonable man test or
reasonable woman test, just what must it have meant. So you're now in a
position just like so many judges are to try and ascertain that without much
more in the way of criteria than just apply the reasonable person rule.
Remington So then, okay so then, at the end we'll need a motion to either uphold the
decision as it was made um
Eckman Overturn it
Remington Modify it
Eckman Or modify it
Remington We could modify it—a motion that would modify the decision to something
else. Or a motion that would overturn
Eckman That's right
Remington And then with that motion some explanation, I Eess, of
Eckman It'd be nice if you could explain your thinking, your logic on why you came to
that conclusion, but were kind of off the board as far as the ideas that I gave
you regarding the hardship variances, and the other types of variances now
Remington Right. Thanks that helps. Kind of think through where were headed so . . .any
other questions for staff?
Gloss Good morning Mr. Chairmen and members of the board. As Mr. Eckman
stated the Applicant has the ability to request an interpretation of the City's
Land Use Code and those interpretations can be general in nature. In this case,
that would apply, and that the Applicant has asked about the definition of
ZBA February 13, 2003
Page 6
neighborhood, but also can be more specific as it applies to a particular piece
of property and that is also the case here. Mr. Brophy has asked how that
definition, that I'm making this interpretation on, would relate specifically to
his property at Harmony and Shields. The Appellants, or excuse me, Mr.
Brophy's request specifically asks some questions, which Mr. Barnes has
stated into the record. One of those requests was about the definition of
neighborhood as it appears in the Land Use Code. Actually when you go to
the Land Use Code, and you go to Section 5.2.1, which is where we list
definitions. There is no formal definition of neighborhood. So we have to go
to other sections and they relate specifically to uh section 4.4.(A) and the City
Plan, which is the City's comprehensive planning document that has several
elements to it, there are principles and policies, and then that is implemented
through a map, that you've probably seen called the structure plan. There are
several exhibits in City Plan, and I've got one shown here, I would also like to
get copies passed out to you, they're 8 '/z x 11, so maybe it's a little easier for
you to read than this color version that's projected on the screen. I thought it
would be helpful to show this graphic, kind of take a step back, and talk about
the structure of the City as it relates to neighborhoods and what the intention of
City Plan was when it was created in 1997. And I think it's pretty telling if
you go to that definition that is um, under Section 4.4.(A), when we talk a little
bit about neighborhood and what's considered to be a neighborhood and then
this particular graphic. You'll see a series of arcs on this diagram. And you'll
notice that you've got the streets here at, are one mile sections, and that's very
typical and uh much of the United States the Jeffersonian grid is 640 acres, a
square mile, and often times they were developed with rural roads, farm roads
that developed into arterial streets-and that's pretty much the pattern you see
in Fort Collins. You'll notice then these arcs and what they represent is a
quarter mile distance. So from the center to the edge, that's a quarter of a mile
and about a five-minute walk. You turn to section 4.4(A) of the Land Use
Code and it says a neighborhood shall be considered to consist of
approximately 80 to 160 acres. Here's a 160 acres. With edges typically
consisting of major streets, well here's an arterial street, that would provide an
edge. A drainage way, irrigation ditch, railroad tracks or other major physical
features. So let's just say for example, that this is South Shields Street going
north/south on this graphic, and this Harmony Road, and this is the subject
property, and that's about the size of it. How might that fit in as being part of a
neighborhood? Well, you can see these arcs, how in all the cases on this
graphic, they terminate at the edge of an arterial street—that this is a barrier,
and edge of a neighborhood. If it wasn't this arc could then swing out over
here and it's, I think, even more telling when you have a circumstance uh, like
uh, really like uh actually shown on all of these graphics you don't see
situations were these arcs cross over an arterial street. Um, Mr. Brophy's case
is that we have uh the Community College and the Harmony Library located
adjacent to the site, and that, that is an area of high pedestrian use, which is
true, and that this arterial street because of some street improvements that are
anticipated but not completely funded would then allow, essentially this arc to
ZBA February 13,2003
Page 7
• cross over onto the site and be served by the neighborhood—by what is
perceived, he perceives to be the neighborhood. I don't agree with that. Uh,
my perspective is that the arterial street does provide the barrier and the edge
to the neighborhood. I think this graphic is telling, and it's demonstrated in
City Plan that this is one of the structural elements that uh these neighborhoods
are combined together to make the community, and they have definite edges to
them. There's been a lot of discussion, the Applicants submittal about the
street improvements at Harmony/Shields. And as the photographs indicated,
and if any of you have been to that intersection at peak hour, it's quite
congested. It's one of the most congested intersections in the City, and one
that we have as a priority item to improve. And there are series of
improvements, that are as I said, partially funded and they would include
sidewalks, medians, enhanced cross walks, but also double left turn lanes. The
width of the street will actually be widened, even with those pedestrian
enhancements. From my perspective they still create a significant barrier and
continue to form an edge to that neighborhood as opposed to allowing
pedestrian activity to readily flow back and forth. And so for all of those
reasons I rendered my interpretation uh to say that Mr. Brophy's request
basically stating that the new street improvements at the Harmony/Shields
intersection would not be a barrier was problematic, and that I thought it was
very clear in the Land Use Code what the interpretation should be for a
neighborhood and that's stated, I think, very clearly in the interpretation. So
• with that, that concludes my presentation, and I would welcome any comments
thatyou've got.
Remington I've got one question, I guess, right off the top. The graphic we have here
doesn't match what's on the slide.
Gloss There's a little bit of difference.
Remin on This one actually
ctuall has the radius crossingthe streets that you're talkin about.
Gloss I believe the graphic that you have um shows the arcs still terminating, not
crossing over in all cases.
Remin ton Okay, I see what you're saying. It goes halfway
Gloss It goes halfway, and you'll notice that it doesn't come completely over. It
terminates in all cases at the arterial street, does not cross over.
Remin on Okay, I see what you're sa 'n . Oka thank you.
Eckman I think we ought to try to establish some procedure, and I gather, to me it's up
to the chair to decide, but now that you've heard Mr. Gloss, and you are now
going to hear Mr. Brophy uh whether or not there should be rebuttal time for
Mr. Gloss to respond to issues that Mr. Brophy raises and then some limited,
you have to keep getting this down narrower and narrower, but should then Mr.
Brophy have a chance to respond to Mr. Gloss' response. How far do you
want to go with this and how do you want to set that up?
Remington Okay, good point. I guess what I would suggest is that staffs done the
presentation and we would ask whatever questions we have of staff specific to
their presentation. And I would suggest we hear from the uh, Mr. Brophy, the
Applicant, the Appellant, I don't know what the right term is, but hear from
Mr. Brophy and ask any questions that we have, um directly related to his
ZBA February 13,2003
Page 8
presentation. Um,
Eckman We have to include the public input.
Remington .Right, um, now do we want the public input, I guess, before or after we do the
rebuttals? Um
Stockover Can we see a show of hands of how many people want to comment?
Remington Yeah, I guess for just to help us for planning. Can I just see a show of hands of
people that are either interested in speaking for or against this proposal? Do
we have, so just a couple, okay.
Eckman Perhaps we should uh, if we're gonna have rebuttal times for each side, we
should have that dialogue go on first before the public.
Remington Before the public. Okay, so I would recommend that we get staff, ask
questions, hear from Mr. Brophy, ask questions, and maybe give each side five
minutes um for a rebuttal, and then um hear input from the public, and then
board discussion. Does that seem reasonable to folks? Okay. So let's, are
there any other questions then for staff. Yeah
Lingle Yeah, I've got one. Uh Cameron you just mentioned that this graphic that we
have shows those neighborhoods terminating at an arterial street, and
essentially creating a half arc or half-circle
Gloss That's correct, yes.
Lingle Neighborhood, could it not also then if the neighborhood center were on a
corner, like what I understand as being proposed, that the neighborhood would
then be a quarter arc?
Gloss That's correct, yes.
Lingle Not qualify or
Gloss That's true. In all cases, if you look at both policy and the graphics and City
Plan, it would indicate though that there's still a barrier. I mean it's
conceivable that you could have uh, um, some kind of commercial use on a
corner. Uh, we haven't given preferential treatment to um commercial centers
being on an arterial intersection for serving neighborhoods. Uh, because what
you're doing is you're lessening the ability for people within that five minute
walk to get to that center. You want to maximize the number of people that
live in close proximity to the center. By pushing it further to the edge of the
neighborhood uh it makes it difficult to do that. But it is conceivable, you're
right.
Lingle Okay.
Remington Are there any other questions for staff?
Miscio Uh, yes Cameron are there blended things where you have one circle
overlapping another? Where, you know, sometimes it's very difficult to
arbitrarily say this is where the neighborhood stops, and this is where another
one begins. And there's time when you have this blended thing where you
have your residential, then your multi-family, then your commercial, and you
know all of that can conceivably have some sort of overlapping as to what is
construed as a neighborhood.
Gloss I see your point, but if you look at the structure that we set up within the City's
Plan. We actually draw some relatively tight lines, and use that five minute
walk as the basis for that structure of the neighborhood. So, ou know, I
ZBA February 13,2003
Page 9
. guess, probably the short answer is no. No we don't really show that overlap
within the plan. We do encourage a mixture of uses, and it does get down to
the details sometime of how do you create the right mixture? And that's
certainly something that we struggle with all of the time. Uh, but if you look at
the City structure plan it's very clear where the neighborhood centers are
located, it's very clear how we define neighborhood, I think from the graphic
we just showed as well as the policies.
Miscio Well,you know I was thinking about what comprised of a neighborhood and I
don't know that there's any specific set of criteria that delineates one
neighborhood from another. Some are based on the physical characteristics,
some are based on the image, some is based on the ethnic composition, some is
based on economics, so I mean, in my mind, having this concrete definite thing
there are times when that is appropriate, and then there's times where from a
practical perspective you look at a neighborhood and say hey I don't care
where your line is, that's part of the neighborhood. And so, I lean towards
trying to understand the practical aspect of what we're doing here with
neighborhoods, and I look at the guidelines that you're imposing but also
there's something, a more practical nature beyond that in my jud ent.
Gloss I guess I'd like to offer that Mr. Brophy's comment relates really to where's
the edge of the neighborhood, and does the arterial street, in this case there are
two, do they create really a barrier—an edge to the neighborhood? And
whether you, you know, I think you've said that you can define neighborhood
in different ways, but where's the edge and is this truly, this arterial street truly
rovide a barrier and create that edge, and from our perspective it does.
Remington Any other questions for staff? (tope turns over)
Lin le What's the tie in to Harmon Libra in this articular case?
Gloss That was an argument made by Mr. Brophy and it maybe best for him to try to
ex lain that. Thank you.
Lin le Oh, oka .
Remington Any other questions for staff? Um, I've got one, and I apologize, I don't
remember exactly where in the, in the reading it was stated, but I remember
from in the reading there was an argument or a point'made by um, the City that
they've used in defining these arterials as boundaries I think the point was
made that it's been used before. Um, to define boundaries, can you, can you
give some specific examples of where these arterial roads have been used to
define neighborhoods in previous,,is that . . .
Gloss Well, I could probably point to section line roads, like Shields and Harmony
and Timberline. Uh, and Mulberry that create those edges to neighborhoods.
You could vea clearly
Remington Those being used for other development proposals to define those boundaries.
Gloss Yes, that's correct.
Remington Okay. All right. Any other questions for staff. One other one I've got, I'm
sorry, but I'm trying to understand. So this definition of neighborhood, I guess
I'm trying to understand how does that specifically impact um, this subject
vroverty in terms of what can be developed there or not?
Gloss I think as Mr. Barnes stated in his presentation and his last few comments to
ZBA February 13,2003
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summarize that it's possible that if, I think you agree with the Applicant, that
his case uh is correct. That it's certainly not the edge of the neighborhood, that
Shields and Harmony doesn't present a real barrier to pedestrian bike access.
He can probably make a stronger case that a neighborhood center meets the
intent of City Plan. Uh, Mr. Brophy had requested . . .
Remington The neighborhood center is what allows the commercial development?
Gloss That's correct. There's a lot of detail to it that I don't, that's not appropriate to
get into at this time, but Mr. Brophy had requested a modification of standards
for the separation requirements for neighborhood centers um back in uh 2001,
and that was reviewed by the Planning and Zoning Board and denied on June
7`h. And then it was appealed to the City Council, which was then uh Council
upheld the decision of the Planning and Zoning Board.
Remington Okay thanks. Any other questions for staff?
Eckman May I ask one?
Remington Yeah.
Eckman Is that because uh the neighborhood center is not to be at the edge, but rather
Gloss No, it was a different argument. And I'm only bringing this up because the
questions was asked. Uh, that related specifically to some separation
requirements in the Land Use Code.
Eckman But now this argument. This, this request to re uh, have another look at your
interpretation is it because that this site is not at the edge, then it might
possibly be a candidate for
Gloss I think it would make a stronger argument for the Applicant to come back and
request a modification.
Eckman But if it is at the edge it's a harder ar ment to make?
Gloss Yeah, from, in my opinion yes.
Remington Okay, thanks, that helps clarify that. Any other questions for staff. Okay,
thank you. Mr. Brophy, if you'd like uh come forward and if you could state
our name and address for the record and . . .
Brophy My name is Mark Brophy, I live at 1109 West Harmony Road. Um, there's a
couple of problems with the interpretation um, one is the one that you just
mentioned uh Mr. Miscio about uh these things can be um defined pretty
arbitrarily if you live a little bit to the east of the Harmony Library you would
be within a short walking distance of two public spaces one McGraw
Elementary and the Harmony Library, so you could draw a circle around
McGraw Elementary or you could draw it around um the Harmony Library and
have two different definitions of a neighborhood. However, that's not the case
here there's only one public space. Um, the definition of a neighborhood is on
page 145 of City Plan, and it says that each neighborhood has an identity that
evolves from its public places. And the public place within a ten minute walk
of my property is the Harmony Library and the Front Range Community
College. So the only way that you can satisfy that is to draw a circle around
the Harmony Library. Um, it also says in Mr. Gloss' interpretation that the
neighborhood, term neighborhood is very generally defined within City Plan,
ZBA February 13,2003
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it's not as defined quite specifically on page 145. I, it says a neighborhood is
more than a housing development, 100 to 160 acres in size, um, this general
size range is based on a five minute walking distance, a quarter of a mile from
the edge to the center, and a 10 minute walk from edge to edge. On the second
paragraph says it evolves from a public space, the third says that it includes a
transit stop. Harmony Library includes a transit stop, but it's at the Harmony
Library, but there is no transit stop in the neighborhood as defined by Mr.
Gloss. Um, so you don't have a public space, and you don't have a transit
stop. The only that um matches his definition of a neighborhood with mine is
we agree on the size. Um, second his interpretation on the next page, it says
that um, it is acknowledged that the proposed street improvements will result
in. greater physical comfort and safety for the pedestrians, but such
improvements will be offset by other qualities detrimental to the pedestrian
environment. Um, and then he comes to the conclusion that um, those um,
things that make it easier for pedestrians are offset. Um, that's arbitrary and
the way to figure that out objectively is to look "at the Fort Collins pedestrian
plan. The Fort Collins Pedestrian Plan states uh, if you look at it, that currently
um, the intersections of Harmony and Shields have a level service D, and once
the improvements are made that will rise to B. Um, it also states that the
acceptable level of service is C that implies that there is no barrier here. The
pedestrian plan was developed at great expense to uh make sure that streets
aren't barriers, and clearly states what you need to do to figure out whether it's
• a barrier or not. And after these improvements are made the change will be
made from a barrier to uh something that's not a barrier. It's a minor
inconvenience, but it's not a physical barrier like a river, or a major highway,
or a drainage ditch or something like that. Um, third, this um, this question has
already been answered before by the Planning Department and uh previous
case. The Seneca Center at the comer of Seneca and Harmony um, was um,
under a points based system and under that system points were awarded if a
neighborhood center was at the intersection of a collector's street, and an
arterial street. Seneca Street is a collector's street uh, north of Harmony, and
it's a local street south of Harmony. The um, the Seneca Center is on the south
side of Harmony Street, so if this code had been interpreted strictly they would
not have been given any points for being at the intersection of a um, collector
and arterial because it's at the intersection of a local and arterial. The planner
for the project decided that the arterial was not a barrier, it wasn't very
important so the points were awarded for being at the intersection of a collector
and an arterial. If that um, those points had not been um awarded that project
would not have gone through. So, it seems to me that this question has already
been answered. Thank you very much.
Remington Excuse me, Mr. Brophy, are there any questions for Mr. Bro h ?
Brophy Oh, I'm sorry
Remington That's all right, any questions for . . .I guess I've got one in that, that the uh the
comments you were just making about the Seneca Center, um, where that was
. uh, deemed a center of a neighborhood, in that definition was that a um, I don't
know whether that was uh, you know, was that a quarter arc or a half arc or a
ZBA February 13,2003
Page 12
full arc in terms of like the diagram that we saw um where you've got centers
um defined and the arcs stops at an arterial was the case of Seneca was that one
where um, the center was defined there but the arc stopped around the arterial
or was that whole neighborhood defined.
Brophy Uh, no the arc went around the arterial because it was decided that there was a
lot of population um on all sides of um, of the Seneca Center because actually
most of it was on the collectors side. Uh, there's an elementary school, or a
junior high, there's something there. There's a large park there and a large
center of population. On the north side, uh Kathy Fromme Prairie uh prevents
it from having as large uh, uh population center. So that's why ideally that
center would have been on the other side of the street. And that's why it was a
local street.
Remington So it's your understanding that it was a full circle, a frill arc or whatever.
Brophy Yes, essentially it was a full arc, yes.
Remington Around the corner. Okay. Any other questions for Mr. Brophy? Um
Miscio I have one, Mark. I'm trying to understand, and I don't get things real fast, but
when I do I'm okay. What is the neighborhood that you're trying to say that
your vart of?
Brophy Uh, my neighborhood, my property is in the Front Range Community College
District, and it's, my neighborhood is bound by um a quarter of a mile walking
radius, five minute walking radius around the Harmony Library, which is the
area of the highest pedestrian use within a ten minute walking distance of my
property.
Miscio And by saying that you're included in that neighborhood how does that benefit
you.
Brophy Uh, that's an argument for another day, but it uh will help me in my
modifications request. It's a very complex thing.
Miscio Okay, thank you.
Remington But your feeling is the neighborhood center would be the Harmony Library.
Brophy Yes, that's right.
Remington Any other questions for Mr. Bro h ?
Barnes I do just want to clarify that the Seneca Center while it was constructed last
year, was constructed under the Land Development Guidance System, and was
not regulated by the terms of the Land Use Code with respect to having to
comply with any other requirements of the Land Use Code. Um,just so you
understand that. Uh, the fact that it's there and classified as a neighborhood
center has some impact on like uses being certain distances from that center
and everything. Um, so just some background information regarding the
Seneca Center, not thatyou're confused with how that project was approved.
Remington Okay.
Bames And I don't know if Mr. Brophy had anything to say regarding what I just said
or not.
Brophy I think that when they were approving the Seneca Center they uh, had the same
question answered that you did with the previous applicant, was it equal to or
better. And the intent of the Land, the Development Guidance System was the
same as it is under City Plan, and so they had to decide whether to award
ZBA February 13,2003
Page 13
points for being at the intersection of a collector Ea ,
erial uh based on
how well it fit the policies of the City. So that particision was decided
based on City Plan, even though, the entire project ed under the Land
Development Guidance System.
Remington Okay. I guess one other question I've got is there'se of public or what
I guess what I would deem public places around th 's a church on thenorth side of Harmony, there's McGraw as you md, what in, in yourarguments what makes the Harmony Library theversus the, I don'tknow, the church or the school or some of those iend there?
Brophy Um, I go to McGraw Elementary sometimes, but it's more than a five minute
walk, so it's not, it's a half a mile away, not a quarter of a mile away. Uh, the
church is within that distance, however it's a private church, it's not a public
place. When people go to a public place within a ten minute walking distance
of my place, they always go to the Harmony Library. Um, I spoke before of
the hypothetical case of somebody who lives slightly to the east of the
Harmony Library, so it's not actually a hypothetical case, Glen Colten on the
Planning and Zoning Board lives there, when he wanted to reach a civic place
he didn't go to the McGraw Elementary School. He wanted to get people to
vote for his ballot and issues, so he went to the Harmony Library instead. And
uh, I think that there's a certain minority of the population that goes to that
church, but I wouldn't call it a publir. space.
Remin on Oka , thanks. Any other questions for Mr. Brophy. Yeah
Lingle If your neighborhood was bounded by Harmony and Shields, and you were
part of that southwest quadrant that would comply with the neighborhood
according to City Plan. Is that entirely developed out, that it would not allow
the neighborhood center to be somewhere interior to that, that would be in
compliance with this or do you see what I mean? Is
Brophy Um, my property and the small property of Marsha Collins adjacent to mine
are the only ones that are undeveloped.
Lin le And ever him else is residential?
Bro by That's ri2bt.
Lingle Okay, and so therefore if, if your definition of where your neighborhood is
would not be upheld, your property would more than likely need to be
developed residentially?
Brophy Uh, no it could be used for office use uh and it would also um, this will clarify
the thinking of the Planning and Zoning Board when they um decide on a
modification request, but it's not in any way of uh what actually might happen.
Lin le Oka , thank A,,
Remington Are there any otherquestions?
Barnes Mr. Chairmen, I do want to clarify one issue. You asked the question about
the church, um, and then the issue came up of whether or not that's a public
space. Uh, Mr. Brophy referred early to page 145 out of Principles and
Policies and um, Mr. Brophy indicated that that was a private church and not a
public space, but the second paragraph on that page states each neighborhood
may have an identity that evolves from its public spaces, and then it defines
what, for example, streets, Parks and outdoors aces, schools, places of
ZBA February 13,2003
Page 14
worship and other shared facilities uh so from that, I just want to clarify that uh
according to City Plan Principles and Policies a church can be considered a
public space even thou it's a private church.
Remington Okay thanks. Any other questions for Mr. Brophy? Okay, thank you. I think
if I remember right we said we'd give a five minute rebuttal to each side, and
then do public input. So
Gloss I'd just like to make a few points of clarification. Uh, Mr. Chairmen you had
asked about the Seneca Center, and uh Mr. Barnes had responded that it was
actually approved under the former code the LDGS or Land Development
Guidance System. But it was also approved under the City's previous
comprehensive plan. So, there's a little bit of difference in terms of the policy
basis that would be applied. Uh, secondly on the Seneca Center being at an
arterial/collector intersection the traffic volumes are significantly lower uh as
most of you know having gone thorough this intersection this is a heavily used,
the public improvements that we'd be talking about at Shields and West
Harmony would result in a very wide intersection, uh cross-section, of the
roadway and you'd be talking about double left turn lanes. So you'd be
crossing six lanes of traffic in order to get across the street. And that's one of
the points I was trying to make is that you've got through movements, right
turn movements, and double left turn movements. And those are significant, if
you've spent any time crossing streets of that width, uh, I think you'll note (as
from my own personal experience) how difficult that is and what a barrier is
actually created by it. So those are really the only points that I wanted to bring
up. I think everything else is been very clearly stated. Thanks
Remington Any questions for? Okay, um
Barnes Are we going to ask Mr. Brophy if he had anything to respond to what Mr.
Gloss just asked?
Remington Right, yeah. If we can get you to come up to the microphone, so it's on the
record we'd appreciate it.
Brophy Uh, the two left turn lanes that Mr. Gloss refers to are uh you don't have to
cross those left turn lanes from my property. They're on the other side of the
street, on the uh north side of um Harmony Road: If you cross Harmony
there's uh a single left turn lane, and that's what is planned—no right turn lane.
And on uh, Shields on my side, there will be a single left turn lane, not a
double. Thank you.
Eckman Mr. Brophy, Mr. Brophy, may I, may I ask aquestion?
Brophy Sure
Eckman Just to try to clarify the issues. You mentioned in response to Mr. Miscio's
question that was very complicated, but that uh, I'm trying to see if I can help
to focus what the Board is being asked to look at. Is it fair to say that the
question that the Board needs to decide is what is a neighborhood, and also
whether or not that college campus is in your neighborhood then?
Bro h Yes, that's right.
Eckman Just the boundary, and the reason for that is I think, and I didn't get a clear
answer from either Mr. Gloss, and I hope to get one from you that if your on
the edge of the neighborhood that presents a problem for development. But if
ZBA February 13,2003
Page 15
• you're further into the neighborhood, it makes it easier for development in
our mind.
Bro h Uh, es. I think Mr. Bames summarized it uh well in his paragraph one.
Remington So I guess maybe the question I've got to ask you then, maybe give City a
chance to respond, but I think the comment was made earlier when we were
looking at this map that defined arcs and neighborhoods and all that you could
have uh, a quarter circle arc um, around a comer. So it seems to me that
there's a lot of, you know, developments on comers and all so I guess can you
have um, a neighborhood center defined on a corner with uh, with uh quarter
arc around it. I mean could this, could this property be its own neighborhood
center on the comer with uh, am I making sense in what I'm asking.
Gloss I think you'll notice, I understand your point. You'll notice in the graphic that
you, you don't see them on corners. You see them on collector/arterial
intersections, not at arterial/arterial intersections.
Remin on Okay, oka do ou have an comments on that?
Brophy Well, if you restrict me to a quarter than means 75% of the City doesn't exist.
And, when you decide these things you have to decide about the uh health and
welfare of the entire City, not a minority of 25%. It can be approached from
all four directions. And the questions is, is are they arterials barriers and I
think that pedestrian plan clearly states that they are now and they won't be
after the improvements are made. And that's why we call them improvements.
Remin ton
• Bro h Wh would we s end all that mone , if it's not going to improve an hin ?
Remington Okay, any other questions for Mr. Brophy? Okay, thank you. Okay I don't
know uh how to take the public input in terms of the order of events here. Um,
so I think we had two people. I'll let you go in whatever order you want to go.
I think this gentlemen raised his hand. If you'd like to come up state your
name and address for the record, and any comments you like to add.
Leeke Good morning, my name is Marty Leeke, I live at 4012 Mariposa Court, which
is directly adjacent to the property in question on the western side, uh, in the
Westbury PUD. Um, I have um, some prepared remarks that I'd like to share
with ou and if appropriate can I provide you copies of what I'm presentinE.
Remin on Sure.
Leeke In addition to the remarks there are some support materials that are relevant
from previous hearings with Planning and Zoning and the City Council.
Before I start my prepared remarks I'd like to share a couple of general
comments. Um, I think it helps, at least it helps me when looking at these
kinds of issues to understand the whole picture of what's happening with this
particular property, and the potential plans for the property. The item that's
brought before you today is one small piece in a series of actions and activities
that have occurred so far today. Um, I don't know if it's appropriate, if not
please feel free to stop me, but I want to share with you uh, my prepared
comments are in the context of the whole issue associated with the
• development of this property, and not just the definition of the neighborhood or
the hardship request that's being asked to be made regarding the definition of
the word neighborhood.
ZBA February 13, 2003
Page 16
Remington Okay, the only, only comment that I'd throw in, is that I'd ask you to keep
your remarks um, tied in or relevant to. I mean the issue we have to decide
today is on this neighborhood definition it's not a development issue around
the property, if you will, so if you can just keep your remarks focused on how
it relates to what we have to decide that would be great.
Leeke Okay, I will do that. In that case, I won't read the prepared remarks that I
have, that I have presented to you, but I would call your attention that your
deliberation if you want to peruse those I think it might help in the general
context, but I will keep my remarks directly to the issue of the definition of
neighborhood. At previous reviews, and at the City Council, um, meeting
where the City Council is asked to either uphold or overturn the request
associated with the development it was made apparent in the presentations and
the arguments by the uh, by the Brophys that they actually were part of the
Westbury PUD neighborhood, and in fact a large part of their argument was
centered around the fact that the development that they are proposing benefits
directly the Westbury PUD, and no mention was ever made of the
neighborhood being the Front Range Community College campus or the
Harmony Library. Um, so I find it interesting that now the definition of
neighborhood is reversed, and Mr. Brophy is asking you to expect that the
neighborhood that he belongs to is the Front Range Community College
neighborhood and not the property owners adjacent to his property. So, in that
regard I'm not sure why now the only reason I can conclude that, that this
particular request is being made is for the benefit of the applicant in the
development of the property um, which the argument is directly contradictory
to the argument that was made previously to Planning and Zoning so that `s
one area, that I think is, is somewhat misleading is stating that this
neighborhood that the Brophy property is in, is not Front Range Community
College, it is in fact that Westbury PUD, and if we use Mr. Miscio's
description of what makes a neighborhood uh is generally made up of the
population and the activity directly surrounding adjacent to and part of that
neighborhood and not something that is arbitrarily uh asked to become all of
the sudden the center of the neighborhood which is um, not directly adjacent to
the property in questions. So, um I will leave my remarks at that um again I
did present you some materials that are not directly in line with the definition
of neighborhood, I apologize if that makes things confusing, but um you'll
notice in the material I presented to you a petition signed by 45 residents in the
Westbury PUD regarding the action associated with the Brophys request for
variance and development and I think that information is self-explanatory.
Can I answer any questions?
Remington The uh, I've got on the petition you're referring to is that, is that signing the
um, sigiung an agreement to the letter
Leeke The letter attached, immediately preceding the signature sheets, which was the
letter that was presented to the PlarmiLig and Zoning Board, review Board.
Remington Okay, I've got it.
Leeke based on the original request for variance of the LMN code.
Remin on Okay. Any questions for? Okay thank you.
ZBA February 13,2003
Page 17
Leeke Thank you.
Remington I think there was someone else that wants to speak on this item as well, if you
could come up and state your name and address for the record, and any
comments that you'd like to, relative to the decision we have around the
definition of a neighborhood.
Collins Hi, uh, good morning Board. My name is Marsha Collins, I own the property
that um, on the site map, you see the yellow block and then the little white strip
that runs on the south border, that's the property. It's at um, 4621 South
Shields Street. It's uh, presently zoned the same way, LMN, and it's also
undeveloped as is the comer property. And it's completely surrounded by
Westbury PUD. Um, more or less, I mean, the comments this morning have
been uh really pretty comprehensive on definitions of neighborhoods and what
is and isn't, and so on. I don't envy your task, in a way. But um, the point I
would like to bring up is, deals more with access to this property than anything
else. Um, Peter would you mind going to the slide, uh,
Bames Will this one work or the one that shows Olt Court?
Collins The one that shows the front of the property with the entry way, I think it's,
right there. Where it's labeled entry, that's actually my driveway. Okay that's
not on Brophy property. And if you see that small yellow sign to the right, that
is uh, right on the boundary line or just immediately left of it, and that fence
constitutes 500 feet from the center of the intersection of Harmony and
Shields. Um, uh, could you . . .
Remington I apologize for the construction noise that seems to be going on in the building.
Collins If you looked along the um, southern border of my property, which goes back
into Westbury PUD, that's where Olt Court is stubbed into the-back of my
field. Okay, this property is 125 feet wide, and it's 500 feet deep. And Olt
Court is in the very back portion, I'd say about 300 feet back. And stubbed
into that Olt Court are the sewer facilities, that I think, the City anticipated
having connected to um, there it is thank you. Anticipated having connect uh
to the Brophy property on development. As my understanding that there's no
um, sewer facility in Harmony, along Harmony there or along um, Shields as
well. So, I guess um, maybe in a way I'm raising another question here, and I
don't mean to do that except that the question of access to this property is key
to developing it. Um, one way or another, whether it's offices or whatever is
decided. So are there any questions?
Remington Any questions? So, I've got one, I guess, I'm trying to understand and
apologize, if I'm not quite getting it, but are you arguing in favor of upholding
the Cit 's definition of neighborhood or overturning that. What's your, your
Collins I was hoping you wouldn't ask that. Um, I guess, I guess I would say, I'm
really on the side of uh fairing, favoring uh the definition of neighborhood that
was described by Mr. Brophy with the consideration of access to that property,
to both properties actually to be developed. One, being the issue of 500 feet
from the intersection, and the other being Olt Court having uh sewer facilit .
Remington Okay, thank you. Any other questions? Okay, thank you. I think that brings
us to Board discussion. I guess um, I don't know how everyone else is feeling,
I, frankly I'd like to take about three or four minutes and read th ugli this
ZBA February 13,2003
Page 18
information we were handed,but I don't know where everybody else is at.
Stockover That's fine with me.
Remington Is that all right? Bear with us, it might take just a minute to read through this.
Board reads the information that was given to them.
Remington Okay
Miscio Can I, Peter, I have a question by redefining a neighborhood does that facilitate
changes of use in that neighborhood?
Barnes Well, it won't change the zoning. The zoning of Mr. Brophy's property will
still be LMN. The zoning of all of the other properties around will remain the
same uh as we indicated earlier, if um, the edge of the neighborhood is
expanded to include um, the Harmony Library, and maybe that becomes, Front
Range Community College becomes the edge, then that could make it, could
give Mr. Brophy some additional arguments on his behalf when he proposes a
development plan for a neighborhood center consisting of possible commercial
uses.
Miscio I guess that's the part I'm not understanding real well, is what difference does
it make if we change the center of the neighborhood regarding the impact that
this site will have on the surrounding area.
Bames It would have an impact on the types of uses that might be allowed through a
proposed development plan.
Eckman I want to invite Cameron to respond to this to, but I'm thinking that, that the uh
map you had earlier showing the circles and correct me, anyone, if I'm wrong.
But I think that the idea that I saw from that was the goal was in mind was to
move these neighborhood centers into the, as much as possible, into the centers
of quarter sections. If you see those 160 acre spots and then you tend to see
these neighborhood centers, not always just as a bulls eye, but moving them
into the centers of quarter mile sections of, of sections, of square miles. And
we're on a square mile grid in Fort Collins. So many of our intersections of
arterial streets are developed under the prior law in commercial ways, and my
observation is at least you tend to see those on the corners of arterial streets as
developed under the prior law. Now so Cameron, I'm asking you to carefully
consider this. If Mr. Brophy's argument is that the neighborhood is bigger,
and includes that campus area, and the way the principles and policies reads
churches to be included as public spaces then it would move it off to the north,
where the LDS church is, you could have a scenario where his site almost gets
to be in the middle of a neighborhood, where a neighborhood center would be
ideal under that thinking. While 'if these arterial streets create the boundaries
of neighborhoods then he's off onto the comer of the neighborhood rather than
in the middle, is that fair?
Gloss That is fair. Mr. Brophy would have a stronger case that he would meet the
policies of the City's Land, uh, the City's Plan as well as the Land Use Code,
and may have stronger grounds of modification of standards. I don't know that
it's relevant to go into all the uses that are permitted within the neighborhood
center, but I think one of the key issues for Mr. Brophy was how other types of
uses, like convenience store, with fuel sales, how that might be incorporated
into the design, and that was somethin that couldn't be accommodated under
ZBA February 13,2003
Page 19
the present code.
Miscio But by changing the definition of neighborhood or modifying for this case, it
include that?
Gloss Just by this decision, this action of the Board, it would not. But it would make
a stronger case for a modification to be granted by the Planning and Zoning
Board.
Miscio But the Planning and Zoning Board could still stop it from happening, if it's
inappropriate for the area.
Gloss That's correct.
Remin on I ess I've gM, oka o ahead.
Lingle I guess, and some of my questions were directed at trying to get to the
underlying motivation of why we are hearing this today, but at the same time
and I understand what you're asking questions about, Andy, but in my opinion
um, that's really the purview of the Planning and Zoning Board to weigh the
development um, uh proposal that might come before them in terms of its
appropriateness for that land. And what we're really focused on today is just
whether or not we support Mr. Gloss' interpretation of those two arterials
forming an edge to the neighborhood in which his property lies. I guess in my
opinion, that, that they do. Uh, I've walked many arterial intersections
Harmony, Lemay, and Harmony/Timberline is probably the worst where
you're trying to get across six to eight lanes of traffic, and if there were ever an
edge to a neighborhood created by physical boundary like that, that would be
• one of them.
Miscio And I agree with that, as far as the physical part. I see those arterials as being
a real issue with it. But you know from where I'm coming from_being in real
estate, sometimes the circles is right in the middle of that intersection and the
neighborhood goes around where you have each comer as a commercial use,
and so it becomes a commercial center, not just one corners commercial center,
but you tend to have an intersection. And I'm not saying it's appropriate in
this case, but in general neighborhoods for commercial centers start, in dead
center, in the heart of that intersection in the middle of that street. And so, you
know there's some of that, that I'm wrestling with on this, and I'm trying to uh
. . .if the use on this corner would be the same regardless whether we expanded
the definition of neighborhood or not, I'm not having as much a problem
expanding, but if the uses change then I am. Because I agree with you about,
anyway, that's where I'm coming from. I'm not sure I totally agree with what
Planning says is that you have a dot in the middle of a piece of ground, and
you drew a circle around it, and says that's a neighborhood, cause I've seen the
ovoosite.
Remington I guess I've got a couple of questions, go ahead
Barnes I just want to add something to what Andy has said. hi this particular zone, we
do have in the LMN zone we do have a purpose statement that talks about the
uh, where is it, low density neighborhoods,will be clustered. That's what were
• talking about is this zoning district, your correct in other zones that are more
commercial in nature, you don't have these issues of what constitutes a
neighborhood edge, and stuff like that. But in this particular zone, low density
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Page 20
neighborhoods will be clustered around and integral with the medium density
mixed use neighborhood for the purposes of this division a neighborhood shall
be considered to consist of approximately 80 to 160 acres with its edges
typically consisting of major streets, drainage ways, irrigation ditches, railroad
tracks, and other major physical features. So, those are the things, that in the
purpose statement of the LMN zone, which is the zoning district of this
property, it is saying that you have this 80 to 160 acres defined by edges, and
then uh, it list some things. And Mr. Brophy has indicated that he doesn't
believe Harmony Road is the type of barrier uh that constitutes an edge, um, so
what your talking about, yeah there are instances where you can, I guess put
your dot in the middle of the intersection and create a circle, but those are
different zoning districts. Here we're dealing with the purpose and intent of
the LMN zone and the issue of what a neighborhood edge is, and what
constitutes a neighborhood in that particular zoning district.
Miscio Thank you.
Remington Well, good. I've got a couple of questions I'd like to get clarified, I guess for
the record. One is they uh, the map that we have here is different, than what's
up there
Gloss Yes, there's some changes.
Remington And in my mind there's some significant differences. Is the map that we have,
is this
Gloss That is directly out of the plan.
Remington This is an approved City Plan ma
Gloss Um-huh, yes.
Remington Where was this map from?
Gloss This is a previous iteration that was done during the creation of plans, a color
copy that we had available.
Remington Okay.
Stockover And what is the time frame difference?
Gloss Uh, I would have to uh probably do some research to find out when exactly
when that was done. It was uh, I see the mark of the uh consultant team and
the City uh in the lower right-hand comer,but I don't have the exact date.
Stockover But this one is '97, so it's been around for awhile.
Gloss That's correct. That is the adopted City Plan document that you have in front
of you, and it has not changed since its adoption.
Stockover Okay, thank you.
Remington I guess the other question I've got one, I asked earlier about other arterials
being used as um, definitions of neighborhoods in City Plan for other projects,
and I think you mentioned Harmony and Mulberry urn, have, and I think from
what I read in some of the material that, that Mr. Brophy provided that he
would argue that those are both highways, um, at least on the east-side of town,
it's partly maintained by C-DOT, and all. So, I'm wondering if you have other
um, are there other cases of where arterials that could not be defined as
highways, I mean
Gloss Well, certainly Timberline Road is a good example.
Remington Pardon me.
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Page 21
. Gloss Timberline Road is a good example. It's a street that's being widened, has
been widened recently and will uh, be coming to a full lane, six-lane cross
section eventually. That is a major arterial street, it has many of the same
physical characteristics of the roadway that we're talking about in question,
actually both at this intersection. So you can go to uh, point to uh most recent
one would be at uh Drake and Timberline
Remin on Oka
Gloss Where the Ri den Farm develo ment is, as an example
Remin on Oka , thank ou. Oka an other board discussion?
Stockover Um, I just have one questions for Peter or Paul,what is Mr. Brophy's course of
action if we uphold this? Will he be able to appeal it at another level?
Eckman He could appeal that decision to the CityCouncil.
Stockover And at what point does the, does it really come into play as to what he is
Tannin on puttingon theproperty? When does that becomes relevant?
Eckman Well, he would have to file an application for development, which would most
likely depending on the nature of the application, imagine it would be
considered b the Planningand ZoningBoard.
Stockover So he could come,just go to City Council and hear that what we did or take a
complete plan forward and ask for an a eal?
Eckman Yes.
Stockover So he still has two more options.
Eckman Yes.
Stockover Oka .
Remington Any other Board discussion? I guess my, my feelings or concerns are that um,
if I look at, I don't know, I think that there's a couple of specific um, items
here. One is if the, the map that was shown up there, if that is an earlier
version of what we have, and what was finally approved, I think there are some
significant differences. One is um, what was finally approved does show a
number of half arcs stopping at arterials, and I think that you could argue that
the arc stops there but so does the diagram, you know, is the intent to go
around it or what. But I, when I look at the upper right part of this you have an
arc that stops, and you have a new one that starts, that would clearly be in
conflict, and so to me when you go from that version to what (tape turns over)
if that's being done under City Plan at Timberline with Rigden Farms um, you
know I guess, I'm leaning towards um, upholding the City's interpretation if, if
when I look at this I think the intent was to stop neighborhood definitions at
some of these arterials. Even though I think the argument is true that people
will cross the street um, and I don't deny that. I think that will happen, but I
don't when I look at what went from that revision to this revision it seems to
me that there was some definite thought around stopping these at these
arterials,but that's my input.
Hall I would agree with that and, uh, Peter on that last slide that you had with the
overview. To me what's so poignant there is the number of residential lots that
are joining the side versus the Front Range Community College, to me that's
clearly a part of that residential area versus jumping across and saying well
that's just one small aspect of it, and that the arterials really do define it for me
ZBA February 13, 2003
Page 22
to a large extent.
Remington Any other Board input? Discussion?
Miscio Yeah, I, I, have to go along with what you guys are saying. I think that site is
more compatible with the uh residential nature of the neighborhood and the
definition of the neighborhood is more, I think those trees are really a barrier.
I'm also aware of that fact that you do have little convenience centers that are
on corners that are also compatible with what's around it. And so, uh, you
know, in reading the letter that Marty gave us, I was impressed with it, I am
very much a profit oriented guy, and I think we are here on this earth in the
United States of America to make money, and I have no problem with that, but
I also feel like you don't, I think we want to be consistent with a neighborhood
concept that does not impede or infringe upon uh, the quality of life that is
around it and in this case I think definition of neighborhood in my mind is
fairly accurate for this, especially with the two arterials, and that the access
issue is also something else that bothered me. If you're going to have, if you
expand the definition of a neighborhood to allow some other kind of uses in
there I'm, I'm struggling with that.
Remington Okay. I'll take a stab at this, I guess. See where we're at. Um, I'll make a
motion that we uphold the Planning Department's interpretation um, as
referenced in appeal number 2408 um, the findings around that I think would
be that when you look at what's in City Plan there are some definitions of
neighborhoods that um, uh, are within arterial boundaries but there are some,
in some cases, as drawn in City Plan, there are some neighborhoods that appear
to be defined by um, ending at arterial boundaries um, and I think given that
this was a revision of a previous draft that specifically didn't show that I think
it was the intent of City Plan to use some of these arterials and in some cases
it's appropriate to use them um, as defining neighborhood boundaries, so I
think I would agree with the, uphold the decision of the Planning Department.
Hall I'll second.
Donahue I'll second.
Remington Is there any other discussion? Can we have a roll call, lease?
Soriano Miscio
Miscio Yes.
Soriano Dickson
Dickson Yes.
Soriano Donahue
Donahue Yes.
Soriano Remington
Remington Yes.
Soriano Hall
Hall Yes.
Soriano Lingle
Lin le Yes.
Soriano Stockover
Stockover Yes.
Remington All right, appeal 2408 has been resolved, decided, I guess, I don't know, upheld, I
guess is the right,right term for this.