HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 06/03/2014 - CONSIDERATION OF THE APPEAL OF THE PLANNING AND ZOAgenda Item 24
Item # 24 Page 1
AGENDA ITEM SUMMARY June 3, 2014
City Council
STAFF
Pete Wray, Senior City Planner
SUBJECT
Consideration of the Appeal of the Planning and Zoning Board Hearing Decision to Approve the Bella Vira,
Final Plan, Extension of Vested Rights.
EXECUTIVE SUMMARY
The purpose of this item is to consider the appeal of the Planning and Zoning Board Hearing Decision to
Approve the Bella Vira, Final Plan, Extension of Vested Rights requested by Richmond American Homes.
On April 24, 2014 an appeal was filed concerning the Planning and Zoning Board Hearing decision regarding a
request for extension of vested rights to the Bella Vira, Final Plan, located at the southwest corner of South
Overland Trail and West Elizabeth Street. An amended appeal was filed on May 14, 2014.
The Amended Appeal asserts that the Planning and Zoning Board failed to properly interpret and apply
relevant provisions of the Land use Code, and failed to conduct a fair hearing.
BACKGROUND / DISCUSSION
The Bella Vira, Final Plan, Extension of Vested Rights is the subject of this appeal. The original Bella Vira,
Final Plan was approved in 2008. The Final Plan was approved for 60 single family detached dwellings, and
25 multi-family dwelling units on 34.7 acres.
On April 10, 2014 the Planning and Zoning Board issued a decision to approve the request by Richmond
American Homes for extension of vested rights for the Bella Vira, Final Plan for a one year extension to April
29, 2015.
AMENDED APPEAL SUMMARY
The Amended Appeal asserts that the Planning and Zoning Board failed to properly interpret and apply
relevant provisions of the City Code, the Land Use Code (LUC) and Charter including LUC Sections 2.2.11 (D)
(3) (4), LUC 3.6.1, LUC 3.6.2, and Larimer County Urban Area Street Standards, Chapters 1, 7, 16, 17, and
Appendix H. In addition, the Planning and Zoning Board failed to conduct a fair hearing, in that the board
considered evidence relative to its findings which was substantially false or grossly misleading.
ASSERTIONS OF APPEAL
1. The Appellant asserts that the Planning and Zoning Board failed to properly interpret and apply
relevant provisions of the Land Use Code.
The Appellant states:
“Vested rights for the Bella Vira Final Development Plan did lapse on or prior to January 3rd, 2013.”
Agenda Item 24
Item # 24 Page 2
The verbatim transcript from the Hearing of the Planning and Zoning Board (page 20) contains:
BOARDMEMBER HART:
“I think that in terms of process, you know, there may have been some glitches in the process, but the bottom
line to me is that they have followed the process based upon their best knowledge.”
BOARDMEMBER HEINZ:
“But, I think that what we have before us is a basic matter of extension…”
VICE CHAIR KIRKPATRICK:
“I also think that the request for extension absolutely falls within the requirements in which we have to
make…to grant such a request.”
BOARDMEMBER HOBBS:
“I would like to make a motion, but I would like to get…oh, your information is back up there, it wasn’t in
our…so, I can read it off there. So I would move that the Board approve the Bella Vira Final Plan Extension of
Vested Rights, MIS 140002, for a one year term of vested rights to April 29, 2015, provided that the City
Council determines that the extension of the plan granted by the Planning and Zoning Board on May 16, 2013
is valid and binding upon the City.”
More information can be found in the record on:
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 4 - 10)
The Staff Report (page 1, 2, and 7)
The Appellant states:
“The Bella Vira …. Final Development Plan did not comply with the Fort Collins Land Use Code prior to lapse or
prior to the extension under appeal in that an added component of the intersection at Elizabeth and Overland Trail
does not meet safety requirements or existing standards of street improvements per the LUC or as exists in the
area.”
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 20 and 21)
contains:
BOARDMEMBER HART:
“Well, I’ve looked at this. I think it’s really good that Mr. Sutherland, some of the neighbors, have raised the
issues, but based upon what we’ve heard from the applicant and staff, it appears that the transportation
system is functioning adequately and will function adequately until the time comes when improvements have to
be undertaken. But none of those are relevant to this particular project. They just are relevant to the natural
growth…growth associated with traffic moving back and forth in that area.”
BOARDMEMBER HOBBS:
“…it is our responsibility to look at this, make sure that there aren’t…I think what you said were section three,
sort of, changes that may have happened since the original approval of this. I don’t believe that we have heard
or seen any of those that justify either revisiting this more or refusing it.”
Agenda Item 24
Item # 24 Page 3
BOARDMEMBER HEINZ:
“It seems like with the traffic and the streets, that it’s just based on standards, and you know, it’s not just an
arbitrary situation.”
VICE CHAIR KIRKPATRICK:
“I think that the plan complies with all of the relevant and applicable standards in our Land Use Code, and I
also think that the request for extension absolutely falls within the requirements in which we have to make…to
grant such a request. I consider myself a bike and pedestrian advocate and I think that Fort Collins has really
rigorous standards compared to most places. And I think that we are very scientific and prescriptive in the way
in which we handle our transportation system, and I think that we are doing as we are supposed to.”
More information can be found in the record on:
The Staff Report (page 6)
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 5-15, 16)
The Appellant states:
“The Bella Vira…Final Development Plan did not comply with the Fort Collins Land Use Code prior to lapse in that
pedestrian access and facilities do not meet applicable standards.”
See response above.
More information can be found in the record on:
The Staff Report (page 6)
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 5-15, 16)
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 20 and 21)
2. The Appellant asserts that the Planning and Zoning Board failed to conduct a fair hearing in
that: The board…considered evidence relative to its findings which was substantially false or
grossly misleading.
The Appellant states:
“Applicant's Attorney misstated the facts pertaining to the limited term of vested rights.”
See response above on vested rights assertion.
More information can be found in the record on:
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 7, 8, and 20)
The Appellant states:
“Applicant's Attorney ignored the inability of the P & Z Board to extend vested rights in 2013 due to deficiency of
conditions necessary for extension - i.e. no due diligence and no hardship unique to property.”
See response above on vested rights assertion.
More information can be found in the record on:
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 7, 8, and 20)
Agenda Item 24
Item # 24 Page 4
The Appellant states:
“City Staff made false representations regarding the conformance of public infrastructure with
applicable standards.”
See response above on response to assertion that the Final Plan did not comply with the Land Use
Code.
More information can be found in the record on:
The Staff Report (page 6)
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 5-15, 16, 20, and
21)
ATTACHMENTS
1. City Clerk's Notice of Hearing and Site Inspection (PDF)
2. Amended Notice of Appeal-Eric Sutherland (PDF)
3. Staff Report (with attachments) to the Planning & Zoning Board (PDF)
4. Material provided to the Planning & Zoning Board, April 10, 2014 (PDF)
5. Applicant Materials presented at Hearing (PDF)
6. Verbatim transcript (PDF)
7. Staff powerpoint presentation to Council (PDF)
ATTACHMENT 1
City Clerk’s
Public Hearing Notice
and
Notice of Site Visit
ATTACHMENT 2
Amended Notice of Appeal
-Amended Notice of Appeal
filed by Eric Sutherland,
May 14, 2014
ATTACHMENT 3
Staff Report
(with attachments)
Provided to the Planning and
Zoning Board
Hearing held April 10, 2014
Planning
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Bella Vira, Filing 1, Final Plan Extension of Vested Rights #MIS140002
Planning & Zoning Hearing 04/10/2014
Page 2
On March 23, 2012, the term of vested right was extended for the second time
administratively by the CDNS Director for one additional year. Section 2.2.11(D) (4)
allows for only two successive administrative extensions.
On May 16, 2013, the term of vested right was extended for the third time by the
Planning and Zoning Board for one additional year. This extension requires all
engineering improvements in accordance with the approved utility plans must be
completed no later than April 29, 2014. At that time staff recommended the May 16
date to the Board in error. The correct extension date is April 29, 2014.
There are now two owners for Bella Vira. Phase 1 was sold to Richmond American
Homes. Phase 2 continues to be owned by OFP Development Company (John
Minatta). Prior to the April 29, 2014 expiration date, the applicant representing Bella
Vira Phase 1 forwarded a letter to City Staff, requesting a fourth one-year extension.
According to the applicant, they are working diligently to complete development of the
sites, and a majority of the grading is complete and they are beginning to install utilities.
However, the public improvements will not be fully completed in time.
In the request letter from Richmond American Homes of Colorado, Inc., the applicant for
Phase 1 states that all of the required public improvements will be completed by the
summer of 2014 and now seeks a one-year extension from the Planning and Zoning
Board.
The project continues to comply with Article Three – General Development Standards
and Article Four, Division 4.2 –Residential Foothills, and Division 4.5 - Low Density
Mixed-Use Neighborhood District.
A vicinity map is included on the next page that shows project context in the area.
Bella Vira
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Bella Vira, Filing 1, Final Plan Extension of Vested Rights #MIS140002
Planning & Zoning Hearing 04/10/2014
Page 4
The property was annexed as the Minatta Annexation in November, 2005.
Current surrounding zoning and land uses are as follows:
Direction Zone District Existing Land Uses
North Larimer County (FA-1) Colorado State University Foothills Campus
South Low Density Residential (RL)
Residential Foothills (RF)
Existing Single-family Residential (Ponds)
East Low Density Mixed-use
Neighborhoods (LMN)
Low Density Residential (RL)
Existing Single-family and Multi-family
Residential
West Low Density Residential (RL)
Residential Foothills (RF)
Existing Single-family Residential (Ponds)
2. ARTICLE 2 - ADMINISTRATION
Section 2.2.11(D) (4) Extensions (Notes and emphasis added.)
Extensions for two (2) successive periods of one (1) year each may be granted by the
Director, upon a finding that the plan complies with all general development standards
as contained in Article 3 and Zone District Standards as contained in Article 4 at the
time of the application for the extension. (Administrative extensions have been
exhausted.)
Any additional one-year extensions shall be approved, if at all, only by the Planning and
Zoning Board, upon a finding that the plan complies with all applicable general
development standards as contained in Article Three and the Zone District Standards
as contained in Article Four at the time of the application for the extension, and that (a)
the applicant has been diligent in constructing the engineering improvements required
pursuant to paragraph (3) above, though such improvements have not been fully
constructed, or (b) due to other extraordinary and exceptional situations unique to the
property, completing all engineering improvements would result in unusual and
exceptional practical difficulties or undue hardship upon the applicant, and granting the
extension would not be detrimental to the public good.
The applicant for Phase 1, as stated in the letter:
Bella Vira, Filing 1, Final Plan Extension of Vested Rights #MIS140002
Planning & Zoning Hearing 04/10/2014
Page 5
Public improvements for the site are not able to be fully completed by May 16, 2014 for
several reasons including: closing of property in September, 2013, winter weather
delays, extensive grading to mitigate expansive soils on site, excess cut and fill and
removal of excess dirt, and mitigation of high water table.
Extending the vested right for the Final Plan for one additional year is not detrimental to
the public good. This is because the project continues to comply with the L-M-N
standard related to the mix of housing types. Further, the Final Plan continues to meet
all aspects of the Land Use Code.
A request for an extension of the term of vested right under this Section must be
submitted to the Director in writing at least thirty (30) days prior to the date of expiration.
The request for an extension of vested rights for Phase 1 was made on March 20, 2014.
The request was submitted to the City more than 30 days prior to the date of expiration
of April 29, 2014. A letter from OFP Development Company, owner of Bella Vira Phase
Two, supports the Applicant’s request for an extension of vested rights for Bella Vira
Final Plan, which includes both Phases (see attachment No. 2).
In compliance with Section 2.2.11 (D) (4) (a), the Applicant has been diligent in
constructing the engineering improvements this year, although all required engineering
improvements will not be complete by the expiration date. A major portion of the site
excavation and grading has occurred. As stated in the Applicant’s letter, by the April 29,
2014 deadline, they expect to have Overland Trail paved and widened, a portion of the
wet utilities complete, a portion of the curb and gutter complete, and a portion of the
subgrade preparation for internal streets complete.
In compliance with Section 2.2.11 (D) (4) (b), the Applicant has also stated due to other
extraordinary and exceptional situations unique to the property, completing all
engineering improvements would result in unusual and exceptional practical difficulties
or undue hardship upon the applicant, and granting the extension would not be
detrimental to the public good. The site needed extensive over-excavation work to
mitigate expansive soils for both the home foundations and public improvements. The
site had excess dirt and removal of the excess dirt to an offsite location was required.
And due to high water table at the site, the developer needed to design and will be
constructing an interceptor drain on a portion of the site to mitigate water intrusion into
the newly excavated soils.
Finally, the project continues to represent a pattern of land use that complies with the
Structure Plan Map.
Bella Vira, Filing 1, Final Plan Extension of Vested Rights #MIS140002
Planning & Zoning Hearing 04/10/2014
Page 6
3. ARTICLE 3 - GENERAL DEVELOPMENT STANDARDS
The Bella Vira, Final Plan proposal complies with the following applicable requirements /
standards of the Land Use Code (LUC), more specifically:
Standards located in Division 3.2 - Site Planning and Design Standards, Division 3.3 –
Engineering Standards, Division 3.4 - Environmental, Natural Area, Recreational and
Cultural Resource Protection Standards, Division 3.5 - Building Standards, and Division
3.6 - Transportation and Circulation of ARTICLE 3 - GENERAL DEVELOPMENT
STANDARDS.
4. ARTICLE 4 - DISTRICTS
A. Division 4.2 – Residential Foothills
The proposal satisfies the applicable development standards in the RF District,
including a Modification of Standard for Section 4.2(E) (2) Site Design for Residential
Cluster Development, subsection (b), which states:
Minimum lot sizes may be waived by the Planning and Zoning Board, provided
that the overall density of the cluster development is not greater than one (1) unit
per gross acre, and the units are clustered together in the portion of the property
designated on the plan for residential use at a density of three (3) to five (5) units
per gross acre.
The Final Plan includes a total of 20 single-family detached dwelling units (lots) on
15.13 acres in the RF District. This results in a gross residential density of 1.32 dwelling
units per acre. Also, the development plan preserves 8.22 acres of private open space
and clusters the 20 lots on 6.91 acres, resulting in a net residential density of 2.89
dwelling units per acre.
B. Division 4.5 - Low Density Mixed-Use Neighborhood (LMN)
This proposal complies with the purpose of the LMN District as it is a project that
provides 40 single-family detached dwellings and 25 multi-family dwellings on 15.8
acres. The resulting gross residential density is 3.32 dwelling units per acre, and a net
residential density of 4.10 dwelling units per acre. The property that is surrounded by
developed properties containing residential and institutional uses. There is existing
single-family and multi-family residential to the east. There is existing single-family
residential to the west and south. Property to the north is owned by Colorado State
University and is partially developed.
Bella Vira, Filing 1, Final Plan Extension of Vested Rights #MIS140002
Planning & Zoning Hearing 04/10/2014
Page 7
5. Neighborhood Meeting:
The LUC requires a neighborhood meeting be held for development proposals that are
subject to a Planning and Zoning Board (Type 2) review. The proposed request is not a
development plan, but rather an extension of vested rights for a previously approved
Final Plan, and as a result, a neighborhood meeting is not required. Therefore, a City-
sponsored and facilitated neighborhood information meeting was not held for this
project.
6. FINDINGS OF FACT/CONCLUSION:
A. Bella Vira, Final Plan continues to comply with Division 4.2 RF and Division 4.5
LMN standards in Article Four Districts.
B. Bella Vira, Final Plan continues to comply with the applicable General
Development Standards of Article Three.
C. The request for extension of vested rights satisfies Section 2.2.11(D) (4),
including (a) diligence in constructing engineering improvements, although not
complete, and/or (b) due to other extraordinary and exceptional situations unique
to the property, completing all engineering improvements would result in unusual
and exceptional practical difficulties and undue hardship upon the applicant.
Furthermore, the granting the extension would not be detrimental to the public
good.
D. The request for extension of vested rights was made at least 30 days prior to the
date of expiration of the approval.
RECOMMENDATION:
Staff recommends approval of Bella Vira, Final Plan Extension of Vested Rights #
MIS140002, for a One Year Term of Vested Rights to April 29, 2015, provided that the
City Council determines that the extension of the Plan granted by the Planning and
Zoning Board on May 16, 2013, is valid and binding upon the City.
LIST OF ATTACHMENTS:
1. Applicant Extension Request Letter (Phase 1), dated March 20, 2014.
2. Letter of support for extension from OFP Development Company, dated April
2, 2014.
1
Planning And Zoning Board Hearing
April 10, 2014
Bella Vira, Final Plan Extension of Vested Rights
#MIS140002
2
Bella Vira, Final Plan Extension of Vested Rights
Project Background:
• Original PDP approved in 2006, and Final Plan
approved on April 29, 2008
• Two Administrative Extensions were approved
in 2011 and 2012
• Term of vested rights extended to April 29, 2014
by the Planning and Zoning Board
• Bella Vira Final Plan includes Phase One and
Two now under separate ownership and
development agreements
• New request for extension until April 29, 2015
3
Bella Vira, Final Plan Extension of Vested Rights
Context Map
4
Existing
Zoning
Bella Vira, Final Plan Extension of Vested Rights
5
Bella Vira, Final Plan Extension of Vested Rights
Changes Since 2013 Extension Request:
• Phase 1 purchased by Richmond American Homes, Inc.
• (September, 2013)
• New Annexation Agreement (September, 2013)
• Construction operation began late 2013 (Phase 1)
• Initial grading and site work in 2014 (Phase 2)
• Phase 2, Major Amendment and Replat approved by
Board on Mach 13, 2014 – Pending Appeal
6
Bella Vira, Final Plan Extension of Vested Rights
Article Four Districts:
Division 4.2 - Residential Foothills (RF)
• Single-family detached dwellings /Residential cluster
developments are permitted uses in RF District
• 20 SF detached dwelling units (lots) on 15.3 acres, clustered
on 6.91 acres – preserving 8.22 acres as open space
• Resulting in net density of 2.89 dwellings units per acre
• Modification of Standard for Section 4.2 (E) (2) approved in
2006 (Minimum lot size)
7
Bella Vira, Final Plan Extension of Vested Rights
Article Four Districts:
Division 4.5 – Low Density Mixed-use Neighborhoods (LMN)
• Single-family detached/Multi-family dwellings permitted in
LMN District
• Provides single-family/multi-family dwellings on property
surrounded by existing residential and institutional uses
• 40 SF detached dwellings (Phase One), and 25 multi-family
dwellings (Phase Two) on 15.8 acres
• Resulting in a net residential density of 4.27 dwelling units
per acre
8
Bella Vira, Final Plan Extension of Vested Rights
Article Three – General Development Standards:
• Division 3.2 - Site Planning and Design Standards
• Division 3.3 – Engineering Standards
• Division 3.4 - Environmental, Natural Area, Recreational and
Cultural Resource Protection Standards
• Division 3.5 - Building Standards
• Division 3.6 - Transportation and Circulation
9
Bella Vira, Final Plan Extension of Vested Rights
Richmond American Homes, Inc. Progress to Date:
• Completed majority of grading, over excavation
• Completed majority of sanitary sewer and box
culvert work, adjusted dry utility locations
• Site needed over excavation to mitigate expansive
soils and add interceptor drain
• Exporting Approx. 40,000 CU YDS off-site
10
Bella Vira, Final Plan Extension of Vested Rights
11
Bella Vira, Final Plan Extension of Vested Rights
12
Bella Vira, Final Plan Extension of Vested Rights
Staff Findings:
A. Complies with Division 4.2 Residential Foothills and
Division 4.5 Low Density Mixed-use Neighborhoods
Standards
B. Complies with General Development Standards of Article
Three
C. Satisfies Section 2.2.11 (D) (4)
- (a) diligence in constructing improvements, and/or
- (b) Unusual and exceptional practical difficulties and
undue hardship
- Granting extension not detrimental to the public good
D. Request made at least 30 days prior to expiration date
13
Staff Recommendation:
Approval of the Bella Vira, Final Plan Extension of
Vested Rights #MIS140002, for a One Year Term of
Vested Rights to April 29, 2015, provided that the City
Council determines that the extension of the Plan
granted by the Planning and Zoning Board on May 16,
2013, is valid and binding upon the City.
14
Planning And Zoning Board Hearing
April 10, 2014
Bella Vira, Final Plan Extension of Vested Rights
#MIS140002
15
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Signing & Striping Plan
16
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Subdivision Plat
17
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Subdivision Plat
18
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Subdivision Plat
19
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Site Plan
20
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Site Plan
21
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Site Plan
22
Bella Vira, Final Plan Extension of Vested Rights
Final Plan – Site Plan
ATTACHMENT 4
Materials in the Read Before
Packet provided to the
Planning and Zoning Board
April 10, 2014
From: Matt Nesbitt [mailto:mnesbitt@thegroupinc.com]
Sent: Thursday, April 10, 2014 3:25 PM
To: Pete Wray
Subject: Bella Vira
HelloPete,
IliveinThePonds(3515GoldenCurrantBlvd)andIdon'twanttoseeanydelayswiththeBellaViraProject.
IsupportthisprojectandIwouldliketoseeitfinishedassoonaspossible.Ihaveseveralfriendsandfamily
membersthatwouldlovetoliveinthearea.Anydelaysmaybeahugedetrimenttothesuccessofthe
neighborhood.Becausethemarketishotandthereisverylittleinventory(especiallyontheWestside),the
timingisperfectforthisprojecttobeahugesuccess.
WiththesuccessofBellaVirawillcomerisingpricesfortheneighboringcommunitiesandanopportunityfor
manybuyerstoexperiencenewhomesinalocationthatisnotonlynestledatthebaseofthefoothills,but
alsonearCSU,OldTown,andclosetoallthehiking,biking,fishing,etc.FortCollinshastooffer.
FortCollinsisoneofthebestplacestolive,oneofthemostbikefriendlytowns,andagreatplacetoretire.I
amsureyouhaveseenalloftherankingsinvariouspublications.
Itissillythatonepersoncanhavesuchanimpactonagreatopportunityforsomanypotentialbuyers.
Pleasecontactmewithanyquestions.
Best,
MatthewW.Nesbitt
BrokerAssociate/Partner
TheGroup,Inc.
401W.MulberrySt.
FortCollins,CO80521
970Ͳ221Ͳ0700(office)
970Ͳ419Ͳ2327(officedirect)
970Ͳ690Ͳ7155(cell)
Mnesbitt@thegroupinc.com
MattNesbitt.com
From: Eric Sutherland [mailto:sutherix@yahoo.com]
Sent: Thursday, April 10, 2014 4:21 PM
To: Wanda Nelson; Laurie Kadrich; Paul Eckman; Pete Wray
Subject: Sutherland, person in interest, # MIS140002
1) Eric Sutherland is a person in interest in Bella Vira, Final Plan Extension of Vested
Rights # MIS140002
- attendance at the P& Z work session held on this matter on April 4, 2014.
- uncertainty exists regarding how this item will be dispensed with at public hearing,
4/10/2014. One member of P & Z was recused at work session, yet item remains on
consent.
- written comments to the P&Z that follow here represent good faith effort to identify
apparent deficiencies prior to or at public hearing.
2) Vested rights for the Bella Vira Final Development Plan did lapse on or prior to
January 3rd, 2013.
- a redevelopment agreement was executed on that date acknowledging the
approval of the Final Development Plan.
- conflicting information regarding April 29th, 2013 as date of lapse exists,
- such date, April 29th appears to be connected with file of plat dated April 18th,
2008
- file of plat necessarily follows on approval of Final Design Plan.
- file of Final Design Plan
- application for 1 year extension by P & Z suubmitted April 2nd.
- even if 2013 application for extension had been timely filed, conditions required for P
& Z extension did not exist. i.e. no due diligence toward engineering improvements and
no hardship unique to property existed.
- Citations of Land Use Code apply.
3) The Bella Vira Project Development Plan and Final Development Plan did not
comply with the Fort Collins Land Use Code prior to lapse of in that: an added
component of the intersection at Elizabeth and Overland Trail does not meet safety
requirements or existing standards of street improvements per the LUC or as exists
in the area.
- absence of right hand turn lane despite ample unobstructed right of way in which
to construct one.
- abrupt change in lane characteristics treated only with "Type III Barricade".
- potential visibility concerns related to installation of monument to sheild vault
- offset of segments of Elizabeth on opposite sides of OT. Designed offset has
been minimized by eliminating sidewalk on North side of Elizabeth west of Overland
Trail. See also 4) below.
- existing levels of bicycle traffic crossing path of additional intersection component
are extremely high and all deficiencies greatly reduce bicycle traffic safety,
enjoyment and function.
- all deficiencies will diminish the smooth, safe flow of traffic through the
intersection.
- citations of Land Use Code apply.
4) The Bella Vira Project Development Plan and Final Development Plan did not comply
with the Fort Collins Land Use Code prior to lapse of in that: pedestrian access and
facilities does not meet applicable standards.
- no sidewalk on the North side of new section of Elizabeth.
- no facilities or amenities to aid pedestrian crossing of Overland Trail at intersection.
- only one pedestrian crossing exists across Overland Trail over the span of 2 miles of
arterial. Said crossing locatd at Prospect.
- nearest transit (Transfort) connections to Bella Vira are on opposite side of Overland
Trail requiring pedestrian crossing at the intersection.
- citations of Land Use Code apply.
5) The Bella Vira Project Development Plan and Final Development Plan did not comply
with the Fort Collins Land Use Code prior to lapse of in that: transportation connections
to adjacent property are deficient.
- Land Use Code is silent on whether requirements for connectivity exclude
consideration of adjacent property outside of City Limits or Growth Management
area. The presumption shall be that the intent to create connectivity is a basic principle
of the LUC, regardless of a particular development's proximity to current bundaries.
- Property to the North of Bella Vira is developed/developable property.
- No interconnection to the North is evident in the Final Design Plan.
- Development in Bella Vira functions as a barrier to interconnectivity with adjacent
developable property.
- Citations of the Land Use Code apply.
6) The Land Use Code requires determination by P & Z that all applicable standards
of the LUC are met by the design plan prior to approving an extension of vested
rights.
- 3) through 5) above represent deficiencies of the lapsed development plan and,
therefor, an approval for an extension of the lapsed plan, even if allowable, is a
misuse of discretion.
- Citations of Land Use Code apply.
7) Extension of vested rights for a Final Development Plan that has lapsed is a
misuse of discretion.
Argument
The defacto standard for intersections on Overland Trail is to have a right hand turn
lane at every street intersection. There are 12 street intersections between Laporte and
Drake on OT, not counting Laporte and Drake. This stretch of road is approximately 2.3
miles long. Only one of these street intersections, Mulberry, does not have a right hand
turn lane. This is ironic because Mulberry is an arterial. However, owing to the age of
this intersection and several natural limitations of space, this intersection has not been
improved to the standards of all other intersections. This intersection is a bottleneck to
traffic flow and can be very difficult to navigate safely.
The only reason that a compliant intersection is not planned for the development,
presumably, is because such an improvement as a right hand turn land on southbound
OT would be adjacent to CSU's property to the North, not Bella Vira. Since CSU is not
developing its property, Bella Vira could not be asked to pay for the additional
pavement. In other words, if the intersection were not placed on the property boundary,
the developer would have been required to include the right hand turn lane, just like
Golden Currant was constructed for the Ponds years earlier. Instead the improvements
are not being required.
Such an argument, if presented, based upon economics is not convincing. The Bella
Vira project benefits significantly from previous improvements associated with previous
development. In particular, interconnectivity and access to compliant, acceptable
intersections at Golden Currant and Prospect are not only beneficial, they are essential
to the compliance of the PDP with the code. It is impractical to consider a sub-par
intersection being added to this street network when those costs borne by adjacent
development have been paid.
The need for a right hand turn lane at this location is increased because this will now be
an unsignaled 4-way intersection. OT is an arterial in the Master Street plan. Although
currently a 2 lane arterial, the Master Street plan does show it to be a 4 lane
arterial. Elizabeth going East is a 2 lane arterial. Only the new component of the
intersection, Elizabeth on the West of OT, is a sub-arterial street.
It should be noted that Prospect and Overland Trail, to the South of the development is
a fully signaled 4-way intersection. This intersection is identical in its composition of
arterial and sub-arterial connecting streets.
There are no provisions for pedestrian crossing at the intersection in any direction
besides ramps on the curbs. There is no sidewalk on the north side of Elizabeth shown
on the only print that I have. If there were to be a sidewalk, then the west side of
Elizabeth would be even more offset from the eastside than it already is. The need for
pedestrian facilities is evidenced by current use and will only be more prevalent with the
addition of the development brought in by Bella Vira. A large Natural Area is
accessable by bicycle or on foot through the Bella Vira project by connecting to trails
through the development to the south.
I was told that a monument/sign for Bella Vira would be placed at the intersection and
that a rendering of the sign would be available. Presumably, this monument would be
used to sheild the vault that protrudes above grade on the Northwest corner (the source
of the offset and an obstacle to the non-existent sidewalk). Such a sign at such a
location would limit visibility at the intersection. The public has no way of knowing the
height of this monument.
Summary
Given:
- the extraordinary amount of bicycle traffic on Overland Trail,
- the absence of a right hand turn lane on southbound Overland Trail,
- the absence of any pedestrian crossings anywhere except Prospect on over two miles
of a major arterial
- the absence of a sidewalk in the plans for the north side of Elizabeth on the West side
of Overland Trail,
- the access to transit that is only available in this area on the East side of Overland
Trail,
- the recreation and natural areas trails on the west side of Overland Trail that are
frequently accessed by foot, bike and car from the East side of Overland Trail
- the lack of any physical limitation to the construction of a right hand turn lane at this
intersection
- the fact that Bella Vira is the recipient of multiple pay-it-forward advantages from
infrastructure that was built into the Ponds
- the uncertainty that any development at the Equine Center will occur in the short or
long term, thus delivering improvements to Overland Trail north of the intersection to
include a right hand turn lane.
... I'd say that the plan does not meet the Code, never did, and that the P &Z should, by
virtue of the Land Use Code, decline to approve the extension without guarantees that
the deficiencies will be corrected.
Eric Sutherland
(970) 224 4509
From: jimskico@yahoo.com [mailto:jimskico@yahoo.com]
Sent: Thursday, April 10, 2014 4:31 PM
To: Eric Sutherland
Cc: Wanda Nelson; Laurie Kadrich; Paul Eckman; Pete Wray
Subject: Re: Sutherland, person in interest, # MIS140002
I support the findings and goal of Eric Sutherland in his attempt to have this project re evaluated
for safety of all users.
Jim Muller
1251 Buffalo berry ct
Fort Collins, CO 80521
970-443-5140
Sent from my iPhone
ATTACHMENT 5
Applicant Materials presented
at the Planning and Zoning
Board Hearing
April 10, 2014
ATTACHMENT 6
Verbatim Transcript of the
Planning and Zoning Board
Hearing
April 10, 2014
1
HEARING OF THE PLANNING AND ZONING BOARD
CITY OF FORT COLLINS
Held Thursday, April 10, 2014
City Council Chambers
200 West Laporte Street
Fort Collins, Colorado
In the Matter of:
Bella Vira, Final Plan Extension of Vested Rights, #140002
Meeting time: 6:00 p.m., April 10, 2014
BOARD MEMBERS PRESENT: STAFF MEMBERS PRESENT:
Kristin Kirkpatrick, Vice Chair Paul Eckman, Deputy City Attorney
Jeffrey Schneider Pete Wray, Senior City Planner
Michael Hobbs Laurie Kadrich, CDNS Director
Emily Heinz Ward Stanford, Traffic Operations
Gerald Hart Tyler Siegmund, Engineering
Jeff Hanson Cindy Cosmas, Administrative Assistant
BOARD MEMBERS ABSENT:
Jennifer Carpenter
2
1 DEPUTY CITY ATTORNEY PAUL ECKMAN: Madam Chair? I’d like to speak to you a little
2 bit about the Bella Vira matter that you approved on consent. After your approval on consent, which
3 went rather rapidly this evening, the applicants were about to leave, and I was rather relieved that we…it
4 looked like we were having a short meeting. But, when I mentioned to them that it might not be over
5 yet…I went out to the foyer and mentioned that there could be an appeal. And they expressed concern
6 about how that could happen, and I said that’s because you did receive some written comments…no one
7 was here to speak to you orally, but you did receive some written comments from Mr. Eric Sutherland.
8 That makes Mr. Sutherland a party-in-interest who could appeal. So then their next question to me was,
9 well then could we raise our…could we make our argument at the time of the appeal and present evidence
10 into the record then to perhaps counter what you had received in your record tonight. And I said, no, it is
11 an on the record appeal. There are no new facts that can be admitted in an appeal hearing, which of
12 course made them more concerned. And, since they’re still here, I’m suspecting that they’re going to
13 request something of you, like a reconsideration or a rescission or something like that. Now that might be
14 further justified because, after you made your vote on the consent matter, Mr. Sutherland appeared and he
15 may also have desire to speak to you, or not, I don’t know…but didn’t have a chance at lease because we
16 went through the consent so rapidly. And, at that, I will leave it to whom so ever comes to the podium
17 and wants to request something of the Board.
18 MR. JAKE SCHROEDER: Good evening esteemed members of the Board, and thank you for
19 your time. And I profusely apologize for…
20 DEPUTY CITY ATTORNEY ECKMAN: Maybe I can interrupt for a second…one of the
21 Boardmembers is leaving, can you tell us why?
22 BOARDMEMBER JEFFREY SCHNEIDER: Conflict of interest.
23 DEPUTY CITY ATTORNEY ECKMAN: Have you filled out the form? Thank you.
24 MR. SCHROEDER: So, I apologize, I’ve been to several of these and I apologize in advance for
25 making this motion; however, I think that we are here as the applicant in good faith and we were here to
26 present our case, and through a tactical maneuver, to attempt to later on appeal something that would then
27 be, I believe materially prejudicial and patently unfair to an applicant who is here and unable to make a
28 record while having submitted something that will be on the record. And even though the person is here,
29 I think would be grossly unfair to the applicant who was here. So, I respectfully ask that you move to
30 reconsider and reopen the Bella Vira Extension of Vested Rights. And I am a co-applicant here, so I
31 would also like to allow Mr. Charles Cuypers to join in.
32 MR. CHARLES CUYPERS: Good evening, my name is Charles Cuypers, I’m an attorney here in
33 Fort Collins and I’m here representing Bella Vira Townhomes, Inc. and OFP Development Company.
34 I’ve represented the OFP since before the final plan was approved…going back to 2007. I note that
35 the…the description of the items on the consent agenda are those with no known opposition. It appears
36 there was in fact known opposition and that this matter should not be on the consent agenda and I do
37 request that a motion for reconsideration be made so that we can present our record. Thank you.
38 DEPUTY CITY ATTORNEY ECKMAN: A motion for reconsideration requires…in this case,
39 you’d need to have four votes in favor. A motion to rescind does not…it doesn’t matter, you can get there
3
1 either way. I don’t think it would be unreasonable to grant that motion because, as far as I know the
2 applicants here for this extension didn’t receive any copy of Mr. Sutherland’s report ahead of the hearing.
3 I didn’t give them any copy and…until after…and I don’t think the staff did either, so they were kind of
4 at a disadvantage in not knowing that that had happened. Those…that document came in about 4:30 this
5 afternoon and frankly we just didn’t get it to the applicants.
6 VICE CHAIR KRISTIN KIRKPATRICK: I think that absolutely seems fair and I have a feeling
7 my fellow Boardmembers would agree. Would somebody like to make a motion?
8 BOARDMEMBER GERALD HART: Is the motion to reconsider or…I would make a motion
9 to…
10 DEPUTY CITY ATTORNEY ECKMAN: Make two motions, one to reconsider and then the
11 other to put the extension back on the table and consider it.
12 BOARDMEMBER HART: I’d make a motion to reconsider.
13 BOARDMEMBER JEFF HANSON: I’ll second that.
14 VICE CHAIR KIRKPATRICK: We have a first and a second. Roll call please?
15 SECRETARY CINDY COSMAS: Heinz? Not here, sorry. Hobbs?
16 BOARDMEMBER MICHAEL HOBBS: Yes.
17 MS. COSMAS: Hart?
18 BOARDMEMBER HART: Yes.
19 MS. COSMAS: Hanson?
20 BOARDMEMBER HANSON: Yes.
21 MS. COSMAS: Heinz? That was a yes?
22 BOARDMEMBER EMILY HEINZ: Yes.
23 MS. COSMAS: And Kirkpatrick?
24 VICE CHAIR KIRKPATRICK: Yes. And so now we need to make a motion…
25 DEPUTY CITY ATTORNEY ECKMAN: Well now you can take the matter up again, the
26 extension, directly, and have discussion on it.
27 VICE CHAIR KIRKPATRICK: So we would like to take the matter up, but let’s have a ten
28 minute break first and reconvene at eight P.M.
29 (**Secretary’s note: The Board took a brief recess at this point in the meeting.)
4
1 VICE CHAIR KIRKPATRICK: We are here to resume the April 10, 2014 hearing of the City of
2 Fort Collins Planning and Zoning Board. At this time we will discuss Bella Vira Final Plan Extension of
3 Vested Rights, number 140002. May we start with the…well I guess first we need to discuss; have we
4 received any new information about this item?
5 MS. COSMAS: We have…today we received a letter from Eric Sutherland with concerns about
6 the Bella Vira project…a lengthy letter, and an email from Jim Muller supporting the findings and goals
7 of Eric Sutherland.
8 VICE CHAIR KIRKPATRICK: Perfect, can we have a staff overview please?
9 SENIOR PLANNER PETE WRAY: Alright, thank you Chair Pro Tem and Members of the
10 Board, Pete Wray from Planning Services. And the item that we have before us is Bella Vira Final Plan
11 Extension of Vested Rights and the project background includes, the original Project Development Plan
12 was approved in 2006 and the Final Plan was approved on April 29, 2008. There were two administrative
13 extensions approved in 2011 and 2012 and the term of vested rights was extended a third time to April 29,
14 2014 as a corrected date by the Planning and Zoning Board last May. The Bella Vira plan includes phase
15 one and two now under separate ownership and development agreements. And so this new request for
16 extension until April 29, 2015. The final plan for Bella Vira includes, at this point still, phase one and
17 phase two. Phase one is the single-family detached lots on the majority of the western part of Bella Vira,
18 and phase two is the multi-family project adjacent to Overland Trail on the southwest corner of West
19 Elizabeth and Overland Trail. To the south is the existing Ponds development and to the north is the CSU
20 Foothills Campus, outside of our Growth Management boundary. The existing zoning on Bella Vira
21 Final Plan on the western portion of phase one is Residential Foothills and on the eastern more than half
22 of phase one is Low-Density Mixed-Use Neighborhoods and for phase two, it is also Low-Density
23 Mixed-Use Neighborhood zoning.
24 The changes that have occurred since the extension last May, for phase one, was purchased by
25 Richmond American homes this last September. There was a new annexation agreement and
26 development construction permit issued in October and construction operations began soon thereafter and
27 towards the end of the year through the winter for phase one and the initial grading and site work was also
28 performed on phase two earlier this year. Phase two, there was a major amendment and replat approved
29 by the Board on March 13th, pending an appeal. And the Final Plan continues to comply with the Article
30 Four district standards, Division 4.2, the Residential Foothills, phase one includes single-family detached
31 dwellings and also residential cluster developments on the western portion of phase one that I mentioned
32 previously. And there’s also twenty single-family detached dwelling units or lots on 15.3 acres clustered
33 on a little less than seven acres, and also preserving 8.22 acres of open space. The resulting net density is
34 2.89 dwelling units per acre. There was a modification of standards for Section 4.2(e)(2) approved in
35 2006 as part of the original Project Development Plan pertaining to minimum lot size.
36 And the Final Plan continues to comply with Division 4.5, the Low-Density Mixed-Use
37 Neighborhood standards. Single-family detached and multi-family dwellings are permitted in the Low-
38 Density Mixed Use district. The Final Plan provides single-family and multi-family dwellings on
39 property surrounded by existing residential and institutional uses to the north. There’s forty single-family
40 detached dwellings in phase one and twenty-five multi-family dwellings in phase two on 15.8 acres
41 resulting in a net residential density of 4.27 dwelling units per acre complying with these standards.
5
1 The Final Plan continues to comply with the Article Three general development standards.
2 Highlighting Division 3.2, the site planning and design standards, 3.21 the landscaping and tree protection
3 standards. For phase one, the landscaping plan provided the streetscape design for West Elizabeth Street
4 and the local streets within phase one and the frontage of the intersection of West Overland Trail…South
5 Overland Trail and West Elizabeth Streets. Division 3.22, the parking standards…again for phase one,
6 this is really a design for the individual lots and parking would be provided for future residential
7 individual homeowners on their lot. There’s certainly parking allowed on the…within the local streets.
8 For the multi-family in phase two, there’s two parking spaces provided for each dwelling unit within the
9 multi-family buildings and twelve parking spaces along the private drive. Additional parking can also be
10 provided, again, on West Elizabeth Street.
11 CABLE 14 OPERATOR: I can’t hear that, do I need to?
12 BOARDMEMBER HART: Are we talking about…that helps….are we talking about….didn’t we
13 approve single-family attached buildings….dwellings?
14 MR. WRAY: That’s right, but just to clarify, this Final Plan extension request is for Bella Vira
15 Final Plan. And at this stage, at this time, phase one and phase two are still included and since the major
16 amendment and replat hasn’t received final plan approval, which is pending the appeal, it’s still part of
17 the final plan previously which was multi-family.
18 BOARDMEMBER HART: Okay, thank you, thank you.
19 MR. WRAY: It also complies with the engineering standards, 3.31, the plat standards and again,
20 phase two got initial approval by the Board for a replat, pending the appeal. As far as the engineering
21 design standards, it continues to comply with…for the street standards per the Larimer County Urban
22 Area Street Standards including the intersection of West Elizabeth Street and South Overland Trail. It
23 continues to comply with Section 3.4, the environmental, natural area, recreational and cultural resource
24 protection standards, 3.5, the building standard for phase two multi-family buildings, and 3.6, the
25 transportation and circulation standards. I want to speak to Section 3.63(f) for our street connectivity
26 standards. There has been questions about providing street connections to the north, and per the Code
27 section…that is correct that under normal circumstances where we have developable properties adjacent
28 to a project, we need to provide stub-outs and street connections every 660 feet, which we do to the south
29 for the existing Ponds subdivision and the appropriate access on to South Overland Trail. But to the
30 north, there wasn’t street connections provided back in 2006 with the project development plan because
31 that is under CSU jurisdiction. It’s the Center for Disease Control property, it’s outside of our Growth
32 Management boundary, and again, we don’t have jurisdiction for development outside of our Growth
33 Management boundary for providing those street connections. CSU has actually provided a berm buffer
34 separation to separate the Center for Disease Control and this residential to the south. There is an
35 opportunity for a street connection to CSU closer to the main intersection of West Elizabeth Street and
36 South Overland Trail. When we were coordinating the intersection improvements at that time…there is
37 right-of-way and it…West Elizabeth Street, as it goes into Bella Vira…the northern portion is within
38 CSU property, and even though they didn’t participate in…with these street intersection improvements as
39 part of the Bella Vira Final Plan…and I think our Engineering staff can provide more information if you
40 have questions on this, but there is the opportunity to coordinate with CSU…as an example, if they want
41 to have a new street connection into their equestrian facility area…right now that area is fenced off,
6
1 but…so there is an opportunity for street connections closer to the main intersection at some point in the
2 future.
3 And finally that, based on the traffic study for the Project Development Plan in…that was
4 approved in 2006, the Final Plan continues to comply with the Section 3.64, the transportation level of
5 service standards, including this intersection, as approved back then.
6 The…I want to briefly talk about…and the applicants can certainly expand upon this, to show
7 what has been done since the property was acquired in September and the construction permit was issued
8 in October. There’s actually been quite a bit of activity. They completed a majority of the grading and
9 over excavation work on site, completed a majority of the sanitary sewer and box culvert work and
10 adjusted dry utility locations. The site needed over excavation to mitigate expansive soils and added new
11 drainage facilities as a result of that, that was unanticipated. And also unanticipated because of that, they
12 had to export approximately 40,000 cubic yards off-site.
13 So I…this is a photo prior to construction and I took these photos last Thursday, about a week
14 ago, showing recent depictions of the construction activity and it includes…upper left, this is
15 going…coming from the entrance of off South Overland, looking back at phase one. A lot of site grading
16 work, excavation and the beginnings of utility installations, drain lines, exporting of fill material off-site.
17 So, with that, the staff findings for this extension request…again, it complies with Division 4.2,
18 the Residential Foothills and 4.5, Low-Density Mixed-Use Neighborhood standards. It continues to
19 comply with the general development standards in Article Three and it satisfies Section
20 2.2.11(d)(4)…staff found that there is diligence in constructing the engineering improvements to date,
21 although they’re not complete. We feel that the owners and applicants that are doing a majority of
22 this…of the engineering improvements, would have been much further along without these unanticipated
23 issues on site. And also, we believe, it’s or…but staff found that we believe there is unusual, exceptional
24 practical difficulties and undue hardship because of those unanticipated conditions on site that delayed
25 further engineering improvements over the past, you know, several months. And granting the extension
26 is not detrimental to the public good. This request was made at least thirty days prior to the expiration
27 date. So, with that, the staff recommendation is approval of the Bella Vira Final Plan Extension of Vested
28 Rights, number 140002, for one year term of vested rights to April 29th, 2015, provided that the City
29 Council determines that the extension of the plan granted by the Planning and Zoning Board on May 16th,
30 2013, is valid and binding upon the City. That concludes my presentation and we have staff here to help
31 answer any further questions. Thank you.
32 DEPUTY CITY ATTORNEY ECKMAN: Madam Chairman? I’d like to add just a little bit…the
33 criteria for the granting of an extension is found in the Code at Section 2.2.11(d)(4) and it is in your staff
34 report…in the new staff report that you got, at the bottom of page four. So that spells out the criteria that
35 you need to consider in granting an extension. Of course important in those criteria are the two
36 provisions that require you to deal with Article Three and whether it complies with that, and the zone
37 district standards also. And then of course you have the diligence and/or hardship thing to think about,
38 plus the not detrimental to the public good thing to think about. But, Mr. Sutherland in his report to you,
39 has raised some issues concerning the traffic and so forth…those are Article Three issues for the most
40 part. I think that you have an obligation to look at those issues and see if the plan does comply…and just
41 because at P and Z Board in what, 2008, said they complied, doesn’t necessarily mean that you can’t look
7
1 at that again, I think you can. And this condition up here…after the year 2015, that’s my stuff, and I
2 thought it was a good idea at the time…I’m not wedded to it one way or the other at this point.
3 VICE CHAIR KIRKPATRICK: Thank you. Any Board questions for staff before we ask for an
4 applicant presentation? Alright, we’d love to hear from the applicant please.
5 BOARDMEMBER HART: Madam Chair, there was another communication received from Mr.
6 Nesbitt, and that was also in our packet. I don’t think we mentioned that earlier. And I guess while I’ve
7 got the mic, I need to state that I live in the Ponds subdivision but do not believe I have a conflict of
8 interest. I was not in the notice area and I have participated in the previous hearings.
9 VICE CHAIR KIRKPATRICK: Thank you.
10 MR. CUYPERS: How much time do I have?
11 VICE CHAIR KIRKPATRICK: We do not restrict the time of applicants.
12 MR. CUYPERS: Alright, thank you. My name is Charles Cuypers, I’m an attorney here in Fort
13 Collins with Wolf, Van Ackern, and Cuypers, and as I said earlier, we represent Bella Vira Townhomes,
14 Inc. and OFP Development Company and have done so since 2007. And I have with me here…brought
15 with me here today, seven copies of an affidavit and exhibits in support of the extension of the Bella Vira
16 Final Plan. The affidavit is signed by John Minatta as president of Bella Vira Townhomes, Inc. and
17 general partner of OFP Development Company, which is a Colorado general partnership. The affidavit
18 has a number of statements concerning the due diligence, the timeliness of the request for extension, and
19 has attached as exhibits…exhibit A is the original development agreement dated January 3, 2008. Exhibit
20 B is a second development agreement, which is identical except for the legal description involved and the
21 description of the improvements to that which was signed by Richmond Homes…the one that OFP signed
22 is dated September 13, 2013. Exhibit C is the development construction permit, number 13-32, issued on
23 December 10, 2013, for Bella Vira Townhomes. And then we get to the interesting part of the
24 exhibits…exhibit D, E, and F are copies of the request for extension submitted by OFP and the extensions
25 issued, the first two administratively, and the third one issued by the Planning and Zoning Board at its
26 meeting of May 16, 2013. Exhibit G is a summary of the work of OFP and Bella Vira, a general
27 description of the work done in furtherance of this project, specifically the construction of the public
28 improvements from 2008 through 2013. And then finally, exhibit H is a list of the development
29 expenditures of OFP and Bella Vira…those two companies currently have a total investment in this
30 project of $915,645. I would offer this affidavit and exhibits as exhibit number one into the record, and I
31 do have a sufficient number of copies for each person on the Board. Where do you want the exhibit
32 delivered?
33 I do not propose to go through the entire affidavit and each of the exhibits in detail, but there are
34 several exhibits that I do want to talk about. And I direct your attention to exhibit D, which is not very
35 many pages from the back of the document. You’ll find exhibit D on the bottom of the page. Now…the
36 PowerPoint here reflected that the approval date for Bella Vira was originally April 29, 2008. And that’s
37 what…that’s what John and Al Minatta thought it was too, initially. When they reached the point where
38 they needed to file a request for an extension, they filed that on February 9 of 2011, and that’s the back
39 side of Exhibit D. They received the letter, signed by Stephen Disch, dated March 3, 2011, which said, in
8
1 the first sentence, that the approval date, rather than it being April 29th, 2008, was in fact May 13th. Al
2 and John did not go down to the City Planning and Zoning Department and look at the file for the final
3 use plan, but they assumed that the gentleman who signed the letter knew what that meant, and the City
4 Code is that a final use plan is approved when it’s...when it’s approved by the decision maker. And it
5 turns out that there is no particular document which goes into the file that says…that’s signed by the
6 decision maker that said this is the date that it’s approved. Apparently what the City does is it looks at the
7 last signed document that’s in the file where you have…in that case Cameron Gloss signing it, and that
8 becomes the approval date. Well, the approval date in that case then was in fact April 29, 2008.
9 Nonetheless, Steve and Al thought the approval date was May 13th. Nonetheless, their submittal, the
10 request for the extension was timely no matter what the approval date was.
11 The next year, on exhibit E, they again sent a letter to the City on March 21, and a letter is then
12 returned, signed by Laurie Kadrich, dated March 23, which again says that the approval date was May 13,
13 2008. The request was more than 20 days prior to the expiration of the vested property rights, and it was
14 timely under any circumstance. I fully expect what you’re going to hear from Mr. Sutherland later this
15 evening is going to be that this development agreement, this final plan, was dead last year before you
16 folks authorized the extension that is in here as exhibit F, because the request for extension was dated
17 April 2nd, twenty-seven days before April 29th. Al and Steve…Al and John were operating on the premise
18 that the date they were looking at was supposed to be May 13th. The Board took up that extension and the
19 letter following the Board’s decision was to approve the extension to May 16, 2014, more than thirty days
20 after April 2nd. But you’re going to hear a good deal of argument from Mr. Sutherland that this final use
21 plan and the vested rights thereto were expired, and I suggest to you that, under principles of estoppel,
22 and also under the principles which go to describe vested rights, under 2.13.10 of the City Code, that this
23 error in getting the letter in on April 2nd is…shouldn’t cause any harm to Mr….to John or Al. The error
24 was, it appears, an authorized act of the City, your action last year was authorized, the decisions of the
25 staff were authorized in the preceding years. Bella Vira relied, in good faith, on those acts and any
26 decision to the contrary that somehow we didn’t get the request for extension in at least thirty days prior
27 to the deadline would be a harmful matter and take away property rights that the applicant has.
28 Going to exhibit G, we have a general recap there of acts on the part of Bella Vira and OFP
29 toward the construction and completion of the development agreement and the final use plan. You know,
30 a lot of this…what was taken up during these years were efforts to obtain financing, financing after 2008
31 was difficult to get. Al and John put in enormous amount of effort trying to find development partners for
32 this project because they could not get financing. They went to six banks, went through at least two
33 letters of intent, they went to seventeen regional and national home builders, they had continual work.
34 And now last year when they sold the single-family home part of the project to Richmond Homes, as you
35 can see, the construction is well under way. Matter of fact, the bulk of the infrastructure is already in and
36 it certainly seems that, so far as this extension is concerned, that there has been a good deal of appropriate
37 due diligence on the part of the applicants, both Bella Vira as well as…as well as Richmond Homes.
38 Thank you.
39 VICE CHAIR KIRKPATRICK: Thank you, does that end the applicants’ presentation? Alright.
9
1 MR. SCHROEDER: No, I’m sorry, unfortunately, and I’ll apologize again. My name is Jake
2 Schroeder, I’m here on behalf of the applicant, Richmond American Homes. Do you want my address for
3 the record?
4 VICE CHAIR KIRKPATRICK: Sure.
5 MR. SCHROEDER: 4350 South Monaco Street, Denver, Colorado, 80237. However, I will tell
6 you that I grew up in this fine city. Mr. Cuypers has done a good job of chronicling what has happened
7 with the property prior to the date that Richmond American Homes acquired the property. Richmond
8 acquired the property September 13th, 2013 and very quickly afterwards filed for and was granted the
9 development construction permit 13-29, which was issued on 10/21/13. I’m going to provide you with
10 copies of both that as well as a summary of the costs expended to date on this project by Richmond
11 Homes, since that date, up through April 2nd, as well as a construction timeline. How many copies do you
12 want?
13 DEPUTY CITY ATTORNEY ECKMAN: It’d be nice to have…do you have seven or eight?
14 MR. SCHROEDER: I do. I’ll just give you…I’ll give you nine. I’m a little bit shy on the
15 development construction permit, so my apologies. However, it is…here I’ll give you this one. And I’ll
16 be brief, but I’d like to start off by stating that we have a…we also have filed for an application for
17 determination of vested rights in this project and also believe that we have additional rights under the
18 development construction permit that was granted to us October 21st, 2013. And by no means by my
19 giving you a presentation tonight do we waive any of the rights under those other actions and documents
20 that we have, and certainly we reserve all of those rights.
21 I believe the action before you tonight is a…is a particular task, and that is under Section
22 2.2.11(d)(4) of the Land Use Code of the City of Fort Collins, is to determine whether or not you should
23 grant an extension for the vested rights for the Bella Vira development. If there’s other testimony or other
24 action that would be done, I believe that there’s been an appeal that’s been filed, and I believe the correct
25 forum to entertain those arguments is with the City Council and under that separate action, and I don’t
26 believe that these are intertwined. Having said that, I think the elements under 2.2.11(d)(4) are rather
27 clear, and that is, is that any additional one-year extension shall be approved, if at all, only by the
28 Planning and Zoning Board upon a finding that the plan complies with the applicable general
29 development standards as contained in Article Three, and zone district standards as contained in Article
30 Four, at the time of the application for extension, and that A) the applicant has been diligent in
31 construction, constructing the engineering improvements required pursuant to paragraph three above,
32 though such improvements have not been fully constructed, or B) due to the extraordinary and
33 exceptional situations unique to the property, completing all engineering improvements would result in
34 unusual and exceptional practical difficulties or undue hardship upon the applicant, and granting the
35 extension would not be detrimental to the public good.
36 I won’t profess to be an engineer, so certainly the staff’s recommendation that the plan still
37 complies with the engineering criteria in this, I will defer to City staff. Certainly I don’t believe there’s
38 been any change in zoning so I can’t imagine that there’s a problem under Article Four. Which brings us
39 to really the two operable, I believe at least from Richmond’s standpoint, the two operable requirements
40 under the Code, which are…that the applicant has been diligent in the application for…diligent in the
10
1 construction of the engineering improvements. As you can see from both the summary of expenditures to
2 date as well as the construction schedule that you have in front of you, since October 13th…since October
3 21st, excuse me, of last year, Richmond has expended just shy of $3.4 million on the construction of
4 improvements on this site. And if you look at the timeline for the improvement schedule, you can see on
5 the dotted line that goes vertical, under quarter two 2014, you can see that we’re approximately 70%
6 complete with those horizontal developments on the property. I don’t think there’s any question as to
7 whether or not we’ve been diligent in pursuing the development of the site.
8 As far as…and I believe we also satisfy the second prong, which is the unique characteristics of
9 the site. And for a moment I’d like to just allow Matt Hengel, who is land acquisition specialist for this
10 project, as well as has greater knowledge on the particularities of this site than I do…I’m going to allow
11 him just to give you a brief run-down of what is unique to this site, and then I’ll follow up that will just a
12 summary.
13 MR. MATT HENGEL: Thank you. Like you said, Matt Hengel with Richmond American
14 Homes. There were some exceptional development features of this site, you know, one of which was the
15 expansive soils on the site. We had to over excavate under existing grade, seventeen feet in some
16 instances, so obviously that takes a lot of time and effort. We had to remove excess dirt off the site, to the
17 tune of 40,000 cubic yards. And due to the expansive nature, there’s been significant testing that’s been
18 required through geotechnical consultants, so obviously more time there. And due to the high water table,
19 as we were over excavating the site, we’ve had to design an interceptor drain that we’ve had into the City
20 and has recently been approved to mitigate that water intrusion.
21 MR. SCHROEDER: Thank you Matt. So in summary, I’d like to say that clearly, is our position,
22 that under the required elements under the Code, that Richmond is entitled to an extension of the vested
23 rights for the Bella Vira development. And, as you are aware, we are phase one of this development and
24 Charlie Cuypers represents phase two of that, but we believe that, as far as this proceeding, that the
25 extension requirements have been met for both portions of that development. Thank you very much for
26 your time and I apologize for keeping you late tonight.
27 VICE CHAIR KIRKPATRICK: Do any members of our Board have questions for the applicant
28 at this time? Seeing none, we’ll turn it over to public testimony. And if no one is opposed, Mr.
29 Sutherland, we didn’t receive your letter until quite close to this hearing. Would anybody be opposed to
30 allowing Mr. Sutherland additional time to go through the contents of his letter? Would ten minutes be
31 sufficient?
32 MR. ERIC SUTHERLAND: I’ll get signed in here after I’m done. Eric Sutherland, citizen of
33 Fort Collins. I live up there on…in arid obstructionist avenue I guess. And quite honestly, I do take some
34 exception with the references to the fact that I might be employing tactics here, not the case. I think I’m
35 really doing my best for my neighbors in this particular situation, and have been since I…had some
36 concerns about this project to begin with.
37 Let me explain a little bit more clearly, or a little bit more accurately…how I’ve approached this,
38 this process. I mean I walked into this…this room this evening, you know I thought I was in the wrong
39 meeting. You know, here’s two groups of people just saying, well we worked through the process. This
40 has been something that I’ve been asking for from this process for years now. The type of collaboration
11
1 that drives outcomes to their optimum level, that is how I approached this whole situation. I had two
2 conversations with Mr. Schroeder on the phone where I made this very clear, that I was not interested in
3 delaying their project one day or providing them any more inconvenience than would be necessary to
4 build the infrastructure in that area to the standards to which the citizens of Fort Collins have been told
5 they have the expectation to receive. We are frequently in receipt of communications regarding high-
6 minded ideals that we wish to bring into our development review process, such that the city that we leave
7 behind is better. And people are just astonishingly on board with this, even though there’s costs involved.
8 People look forward to the benefit of transportation amenities that comport with these concepts of New
9 Urbanism that formed our Land Use Code as it was adopted back in the ‘90’s and has tended to push it as
10 it evolves, although I think it’s evolving rather too slow for the times…just my opinion.
11 And along those lines, along that philosophy, I did see some concerns down here, and it wasn’t
12 just me. As you know the last time you had a meeting, there were two other gentlemen sat through a
13 lengthy presentation so that they could express to you their concerns about the intersection at Elizabeth
14 and Overland Trail. There was another one of our neighbors that wrote to you, there were other people
15 that had communicated with us as we…coming into this saying, look, we really need that intersection
16 work well, because right now it’s not the best, it’s not the best right now. And you add a four-way
17 intersection where there used to be a three, you really do add you know, something like fifty, seventy-five
18 percent to the complexity of negotiating that type of intersection. And so it’s…it’s a natural course of
19 events that people who live there, people who are invested in the situation would wish to have some
20 consideration given to that. And the bare minimum, the bare minimum in that circumstance, would be for
21 somebody to haul out the prints, take a look at it, make sure it really is looking like what we would
22 expect, what we’d want, okay, it’s a beautiful area out there.
23 Part of the main concern that I’m invested in this process and invested in seeing improvements
24 made is because you’ll never find any place in Fort Collins where more bicycles travel on the street than
25 north and south on Overland Trail, it’s a nearly constant flow of bicycles that are out there...and it’s…it’s
26 easy to understand why, beautiful location, fantastic, you know, roadway to ride upon with great bike
27 lanes and every single street intersection, northbound and southbound on Overland Trail between Laporte
28 Avenue and Drake Road, with the exception of Mulberry, and that’s ironic, has a right hand turn lane.
29 The intersection that is contemplated to be added as part of this development would not. Now, right of
30 the bat, that makes is an anomaly in terms of what we have built out in there in the way of infrastructure.
31 It’d be an exception. And then we have to ask…well is it acceptable…it’s not acceptable. It’s not
32 acceptable, that right hand turn lane, when you have significant amount of bicycle traffic, is essential to
33 the free and smooth flow of traffic. It’s essential for the safety of the cyclists that are much more exposed
34 than the people riding in the car. And so to think that we have contemplated an intersection that does not
35 comport with the standards that are evident out there, that is unsafe, that clearly provides some, you
36 know, significant concern, and yet we get from staff this…oh, well, that was…been there, done that, it
37 was planned a long time ago, we don’t need to go back there, let’s not worry about it, that’s not
38 acceptable. It’s really not acceptable from a public policy perspective.
39 Forget about what Eric Sutherland says, you know I’m kind of who I am at this point in time. But
40 when other people are down here, when they’re taking their time to explore these options, they should be
41 heard, they should be listened to. And so I approached this entire project with a very open mind. If we
42 can get what we should expect in this situation, everything should just fly on right by. There’s probably
12
1 something went [sic] wrong in the process that delivered unto us an intersection that is poorly designed.
2 Now we could add on to that…I mean that’s the big thing, the lack of that right hand turn lane on
3 that…off that street. We could add on to that the fact that, you know, there’s really only one pedestrian
4 crossing between Drake and Laporte on Overland Trail, and that’s down at Prospect where there’s another
5 four-way intersection where two arterials meet along with the local street. And, you know, that’s not
6 sufficient. We should not be building a city that is absent pedestrian crossings across arterials. We’ve got
7 a lot of that in this town right now. I really don’t want it out there in that very special place of Fort
8 Collins where countless numbers of my fellow town folk are out walking and bicycling all the time. To
9 get from the Bella Vira to the nearest transit location, you’re going to have to cross Overland Trail. Why
10 don’t we have any forethought given to how pedestrians will cross Overland at that location? So, I do
11 believe we have some trouble here. I do believe that we are not in compliance with the Land Use Code,
12 and because I did not include it in my memo, let me also state that…that we’re having problems with the
13 LCUASS as well in terms of how this intersection is being conceived and developed.
14 And then I have to look at perhaps, you know, where’s the objection, where’s the obstacles to
15 collaboration, where’s the obstacle to positive outcomes coming from this whole situation? Just my
16 understanding, and I’m being very presumptuous here, that the reason that we’re not seeing the
17 improvements that we want at that intersection is because, well, they do not front the property that Bella
18 Vira is developing right now. They’re fronting CSU’s property immediately to the north, which may or
19 may not ever see additional intensity going on, may or may not ever need to pay the impact fees necessary
20 to get that stretch of Overland Trail improved to the standards that we would see to the south of there.
21 And…well, is that the way things ought to be? I don’t think so, not in this real estate market anyways,
22 not as we’re looking at things now. So there’s additional costs associated with building that intersection
23 to the way it ought to be built; they need to be borne.
24 And so you do see me up here this evening, you do understand that I have filed an appeal, you
25 saw me at the worksession last Friday. There can be no misunderstanding; there could have been no
26 misunderstanding that this was not a subject of no known controversy. That has been communicated.
27 There’s significant difficulties right now with the City staff in the way they wish to communicate with the
28 citizens who come forward with concerns. But, to me this is what that whole process is about. Let’s take
29 peoples’ ideas and let’s make them the best…get the best product that we can. And so, you know, to the
30 extent that there’s problems in here, people are not seeing that, it’s because there’s been a lack of effort
31 on other parties besides my own I believe, to collaborate and see what can be done in this situation.
32 There’s been a naked, clear cut evidence of seeing if they can possible slip away from the expense
33 necessary to get that intersection to the standards of the other twelve street intersections between Laporte
34 and Drake Avenue at this point in time.
35 And, yeah, and so I…my position, you just got to claw where you got some traction [sic]. You
36 know, the appeals process does grant parties in interest significant amounts of…perhaps too much, you
37 know. I’ve actually been one of the people that have argued for reforming the way we do appeals
38 processes because of the ease of which people might file appeals. But…that’s what you got, that’s what
39 you take, that’s what you use. I’ve been asked, I’ve been asked by one of the applicants…it was more of
40 like an in your face sort of way, whether or not I’m doing this to make myself feel good. Not really. I’m
41 doing this because if I don’t do it, I’ll feel really bad if an intersection gets built and it’s got a big safety
42 problem as evidenced on the only piece of documentation that I have that shows how that intersection is
13
1 going to be constructed…with a barricade that bicyclists are going to have to run into if somebody is
2 errantly taking a right turn because there’s no right hand turn lane. So, I really think that, you know,
3 there’s always room for improvement and certainly the problems more than anything else, drive those
4 improvements. It really was a benefit to me to watch the earlier proceeding, and I think we should be
5 working towards that, and I think we should take a look at what elements made that happen that weren’t
6 available here and see if we can’t make that universal in the future. Thanks.
7 VICE CHAIR KIRKPATRICK: Thank you. At this time, we are going…I guess, do we have
8 anybody else in the audience who would like to address the Board at this time? Seeing none, we will go
9 ahead and give the applicant a chance to respond to public input.
10 MR. SCHROEDER: Jake Schroeder…once again I’d probably just want to bring up a couple of
11 points. One of the founding principles of the United States, as you all know, is property rights. And
12 certainly we can only control our own property and we have no right to do any improvements on anybody
13 else’s property, nor do we…does anybody have the right to come to my house and make me do
14 improvements. From what I understand, and certainly Matt or the staff could also speak to this, but the
15 road and the intersection that we’re talking about has been pushed as far north as it possibly can, and
16 that’s really only been possible through CSU graciously granting an easement to be able to put that road
17 as far north as we possibly can. So, there’s really no other way that we can accomplish anything more
18 than what’s already been done. And I’d like to point out that, although I hear general dissent in the
19 engineering of the intersection, I didn’t hear a single specific deficiency in engineering that was pointed
20 towards that intersection. Thank you once again for your consideration.
21 VICE CHAIR KIRKPATRICK: Thank you. Does that end the applicant’s response?
22 MR. JOHN MINATTA: I’ll try to be quick. I guess everybody says that and then we’re here late,
23 right, so… My name is John Minatta, I am owner of the Bella Vira…Bella Vira Townhomes multi-family
24 portion. So, in Eric Sutherland’s comment, he
25 CABLE 14 OPERATOR: Could you pull the mic towards you please?
26 MR. MINATTA: Oh, I’m sorry. Can you hear me?
27 CABLE 14 OPERATOR: Thank you.
28 MR. MINATTA: Okay, so in his comments he mentioned…seemed to focus on a right turn lane
29 and safety, and throughout the sheet…you’ve had a chance to go through it, he did not mention quite a
30 few other things that he brings up in here. But, just to give you a brief history, I’ve been working on this
31 since about 2005…Pete, do we have a picture of the site available? Yeah, the site plan with the lots
32 platted. So in 2004 time period, the City approached us about…said they needed a portion of our land for
33 stormwater detention for different standards, and they were going to take that and we worked out a deal
34 with those folks at that time. So, that portion right there is the regional detention pond…it ties into the
35 Ponds existing pond, so when they adjusted their standards, they worked out this amount. They wanted a
36 little more, but that’s what we worked out, and the City bought that from us. We worked out a deal in
37 2005, and at that time, we started working on a development plan so that the construction of that pond
38 wouldn’t preclude us from our ability to develop this property. So that worked out pretty well, City was
39 good to work with.
14
1 And at that time, we also contacted the University about acquiring right-of-way to make that
2 intersection work. That was a complicated process. CSU was a difficult challenge to get through…we
3 did well though, and they did, as Jake stated, graciously accommodate that. At the time, the offer was out
4 there to join in on it and link up the equine campus to that road from any direction over there, and they
5 declined. He mentions…Eric Sutherland mentions in here lack of interconnectivity, but there is no
6 opportunity for interconnectivity. That property is…it’s not…and the other issue regarding sidewalks,
7 same issue. He says there’s no sidewalk on that side of West Elizabeth per this plan, but it’s not a
8 pedestrian accessible site. It’s fenced off, it’s not developed or designed, it’s subject to new
9 improvements whenever they decide to do it. So, that’s why there is no sidewalk on the north side of
10 Elizabeth. And, the site…prior to this statement he had submitted, he often used the term misaligned.
11 You don’t see that in this statement now, and you haven’t heard him say that today. So as he gathers
12 more information, I guess, he becomes more aware of what the facts are, and it is not misaligned, it lines
13 up just fine. It is…it’d be nice to have a right turn lane. It’s not true that there’s right turn lanes all
14 through there, in fact if we go just a little ways to the north, to CSU’s parking lot for their equine…for
15 their equine campus, there are neither…there’s no right turn lanes into that facility. In fact as we go down
16 Prospect east from the site, from Overland Trail, we’ll go past many streets and there are no right turn
17 lanes into those intersections and they have higher volumes of traffic. This is eighty-five total units, so
18 the traffic counts do dictate a lot of the standards. Of course City staff can explain some of that.
19 Bicycle safety’s going to be a lot better just because we’re improving it and we’re adding the bike
20 lanes. Pedestrian access will be much better in front of this because now Overland Trail, which is really
21 wide street, I guess designed ultimately to…four lane arterial, now has plenty of room with the lane in the
22 middle, street lanes going both ways…and a six foot bike lane and an eight foot break down lane, which
23 is just kind of extra land right now, that would someday be used up if they had more lanes. The other
24 thing mentioned was the lack of consideration to the public on this. Of course, we had mailed out notice
25 to 409 residents when we had the P and Z session…that is now, that P and Z decision you made March
26 13th that’s under appeal. The two folks that showed up, Keith and Dale, were not so much interested in
27 the intersection, but in…Dale was interested in the stormwater conditions, his concern about water
28 flooding his property. I talked to him later about that. As you all know, once he’s put in stormwater
29 improvements, you actually improve the situation and it is better from that regard. Dale’s not here
30 tonight. Keith was concerned about, not traffic at the intersection so much as he was concerned about
31 traffic on his street, which is Banyan, and the concern about traffic from this property coming through
32 there…Ponds…and he wanted a stop sign at Banyan and Coneflower. But they’re not here tonight. The
33 only person here tonight complaining, or I’m sorry, the only person expressing their concern is Eric
34 Sutherland with another person who’s expressed support. So, of all the neighbors, 281 neighbors in the
35 Ponds, this is it. It’s not about those neighbors…they do not appear to be concerned about the traffic
36 safety.
37 So…there’s also in your packets, he mentions the vault and a monument sign. Again, this is just
38 to show an illustration of his lack of research to get the facts. I mean these drawings are available on E-
39 docs. So, he makes reference to a monument feature, which there will be, that’s going to be there to
40 shield a vault. The vault is on the north side of the street, the monument feature is on the south side of the
41 street. This is on Overland and West Elizabeth. The monument feature is set back and it doesn’t shield
42 anything; it’s part of the landscaping of the Bella Vira Townhome sites. If Eric Sutherland wanted to get
43 more information and work on this project and understand it, he could contact me. He’s made no attempt
15
1 at all to contact me to ask for more specific information…that we could explain and show him drawings
2 and talk to him about it. And, in summary there was something else but I forgot what it was…so, thank
3 you.
4 VICE CHAIR KIRKPATRICK: I’m sorry John, but could you explain what the vault is?
5 MR. MINATTA: Sure. So, the northwest corner of Overland and West Elizabeth…so we’ve got
6 to go across the street…right there, approximately, it’s back behind the right-of-way a little bit, is a…the
7 City of Fort Collins has a sixteen inch water line that runs in an east-west direction, comes from…through
8 CSU’s property. There’s a berm on it right now, and it runs right through there under the road. That’s the
9 high point for it so there’s a vent feature for air, and it’s called a vault, but it’s kind of a hump. And the
10 right-of-way goes right up against it. That’s the vault.
11 VICE CHAIR KIRKPATRICK: Thank you.
12 MR. MINATTA: You’re welcome.
13 VICE CHAIR KIRKPATRICK: Alright, staff, would you like to respond to some of the
14 comments that you’ve heard?
15 MR. WARD STANFORD: Good evening Board, I’ll start since a good bit of it was intersection
16 and traffic related. Right turn lanes on Overland…yes, there are right turn lanes at most of the
17 intersections on Overland, with maybe the exception of Lake in that widened area. Those are temporary
18 right turn lanes; the roadway is slated to be a four-lane roadway in the future, and a good bit of the current
19 curb locations are set on that width. The travel lanes on Overland out there are just one travel lane
20 northbound, one travel lane southbound, and bike lanes. That left significant amount of pavement left
21 over, so with that we could include turn lanes at most of those locations. When the road does finally get
22 re-striped ultimately to a four-lane, those right turn lanes will go away. As you look up and down the
23 corridor, you’ll notice that the curb lines are pretty straight, and if we’re going to have a bike…I mean a
24 right turn lane exclusive of the travel lanes, the curb line will move and have to move. So it’s evidence
25 that yes, right now we do have bike lanes…I mean right turn lanes on the corridor basically from south of
26 Elizabeth to Drake. Again, they’re temporary until that becomes a four-lane.
27 As even with the widening, bike lanes will remain on the roadway. Our standard cross sections in
28 town, the arterial cross sections and any other cross section, collectors and such, do not have right turn
29 lanes as a standard. We don’t put right turn lanes on roadways just because. Right turn lanes come by
30 demonstrated need. If the volumes or other criteria are met to install them, then the effort will be made.
31 If a project is big enough to drive the need of it for its own personal impacts, then they may be saddled
32 with the responsibility. This project does not meet the right turn lane requirements, not close. So, the
33 southbound right turn lane at that location is not warranted…at the Overland and Elizabeth intersection.
34 VICE CHAIR KIRKPATRICK: Ward, just for clarity, would you be willing to talk about what
35 the warrants for adding a right lane would be?
36 MR. STANFORD: The…I actually have the document. Basically, it’s the amount of right turn
37 lanes that are in the advancing travel stream. If there’s enough vehicles, and this varies depending on
38 speed of the roadway and so on and so forth…the amount of right turns. If they are high enough to cause
16
1 a significant impact to the movement of the southbound through traffic, then that’s in general what meets
2 one of the requirements for a right turn lane. Another certainly would be level of service. If we have a
3 poor level of service cost, the right turn lane could be warranted to improve the level of service. To say
4 that there’s a given twenty cars in a right turn lane against three hundred vehicles in the through lane…it’s
5 not that straightforward.
6 VICE CHAIR KIRKPATRICK: Could you also tell us what the level of service is for that
7 intersection right now? We don’t have any of the supporting documents, a TIS or any of those things, so
8 I’m sorry to be pinging you with specifics. I’m sorry we’re going to have to ask you not to interrupt.
9 MR. STANFORD: Right at this moment, no I do not have that information in front of me as far
10 as what it exists right now. Based on the study, it certainly was within the level of service standards.
11 BOARDMEMBER HART: Ward, didn’t you indicate at one of these previous hearings that
12 actually the volume of traffic on Overland has declined in the past?
13 MR. STANFORD: Yes, I had gone back and looked at three different time frames. I think it was
14 2008, 2009 that we had data, and then again in 2012, and the earlier, the higher, the most recent, the
15 lowest, in essence. It basically had lightly come down little by little over the past number of years. And
16 if I was better organized up here, I’d pull the numbers out for you. But, yes, that is true.
17 VICE CHAIR KIRKPATRICK: Ward, related to level of service, would you also talk about bike
18 and pedestrian facilities and if there would be any opportunity to add some of the things to CSU, and
19 would you maybe also explain the role of CSU and how they don’t have to comply with our City
20 standards, or LCUASS for that matter?
21 MR. STANFORD: The CSU component I think I’ll leave for Tyler, more of an engineering side
22 aspect. The pedestrian plan has a procedure to go through looking at places that are appropriate for
23 crossings. As general characteristics, we will not put a crossing across an uncontrolled arterial. We do
24 desire some level of control to provide a level of safety on an arterial roadway. That criteria…looking
25 at…we did a study out there just recently, and the amount of pedestrians we had in the morning crossing
26 Overland was one pedestrian east-west. In the evening, we had no pedestrians east or west. Our criteria
27 certainly requires more people crossing a roadway than that to consider it for higher level of crossing
28 control. So, with that, one, it doesn’t look like it meets at the moment. The criteria is along the lines of
29 the amount of people trying to cross roadway based on the amount of volume on a given roadway, and the
30 speed of a roadway. As stated, this one does not have the pedestrians currently crossing that it would
31 warrant a crossing. As far as looking, I think there was the conversation of access across…yes, it is a
32 long roadway without something. Prospect provides one of the only crossings of it that’s controlled.
33 VICE CHAIR KIRKPATRICK: I know there are others who want to ask some questions and I’ve
34 got some follow-up too, but Michael go ahead.
35 BOARDMEMBER HOBBS: Ward, did either the initial TIS or this recent study you just spoke
36 of, did either of those evaluate bicycle traffic?
17
1 MR. STANFORD: The…the study that I just spoke of is…I’m doing that almost right now. I’ve
2 got a study where we did a volume count of bikes, peds, and vehicles out there just recently. And with
3 that, looking at the criteria and the ped plan, it does not…it does include bicyclists.
4 BOARDMEMBER HOBBS: So you’re in the process of evaluating that current study? Is that
5 what you’re saying?
6 MR. STANFORD: I used the counts that we did from early this week or late last week, and using
7 those counts going through the…quickly going through the pedestrian guidelines, evaluating it in that
8 manner.
9 BOARDMEMBER HART: Ward, in the future, what are the plans for Overland Trail? Certainly
10 south of Elizabeth, I think you’ve got the right-of-way. I don’t…how far up do you have adequate right-
11 of-way to improve that…to improve that road?
12 MR. STANFORD: That I think I would have to pass to Tyler.
13 MR. TYLER SIEGMUND: Good evening, our…on our Master Street Plan currently, Overland
14 Trail actually changes classifications right at Elizabeth Street. When this project came through, the
15 classification of Overland was a four-lane arterial for the entire stretch. I believe it was in 2009, roughly,
16 it was downgraded to a two-lane arterial. So, a two-lane arterial doesn’t require as much right-of-way,
17 and this is Overland Trail north of Elizabeth. As far as plans for future widening or improvements, I
18 don’t know of any plans that are slated or on the books. You know, through development we do get
19 upgraded road systems, but as far as a planned project, there’s nothing planned to widen Overland.
20 BOARDMEMBER HART: And part of those counts that would, you know, be the impetus for
21 improvements would be the growth in the west campus, because I remember CSU was around a while ago
22 and talking about how much growth they’re expecting on west campus, and that that will be a major area
23 of growth. Will that be considered as part of this? Because I don’t think the residential development in
24 the area is going to make that much difference.
25 MR. SIEGMUND: It’s analyzed through developments as they come through the process.
26 Certainly our Traffic Department does do traffic counts, and they do keep track of that data. I believe,
27 Ward can speak to this in detail I’m sure, but as the traffic counts get higher, then I believe we start
28 looking at projects to…
29 BOARDMEMBER HART: And that’s how you’ll assess the CSU growth, or growth in CSU and
30 maybe stuff to the north too that starts using Overland Trail as Shields and the other street down there,
31 whatever it is get overloaded? Is that correct?
32 MR. SIEGMUND: Right, through traffic counts, yes.
33 VICE CHAIR KIRKPATRICK: But to build off of that, hypothetically if CSU was to build out
34 its campus and to be quite dense and to generate a lot of traffic, they still wouldn’t be on the hook for
35 doing those improvements. Is that correct?
36 MR. SIEGMUND: Well, CSU is different in the fact that they’re owned by the State, so they
37 follow State guidelines. A lot of the…our Code language related to right-of-way improvements talks
18
1 about issuance of building permit. The City doesn’t issue CSU building permits, so that comes from the
2 State. Certainly they do come through our process…it’s called a SPAR process, and we do have
3 conversations and we do encourage improvements, but sometimes they are not held to the same.
4 MR. STANFORD: If I could, I had just a little bit more information on Mr. Hobbs’ question on
5 the bikes. The…in the AM peak hour, we have seventeen bikes total counted going north-south on
6 Overland. And in the evening, we had fifty-five bikes going north-south on Overland…through, rights,
7 lefts.
8 BOARDMEMBER HART: A great deal of that bike traffic is recreational and it’s non-work
9 hours like weekends and after work hours, and that maybe accounts for the AM/PM difference. But, do
10 you have any weekend counts at all?
11 MR. STANFORD: No, none that I’m aware of for that area.
12 BOARDMEMBER HEINZ: I was going to ask about Elizabeth, is there the chance that that will
13 become a four-lane over time?
14 MR. STANFORD: As the current plan shows, that the north of Elizabeth, it’s not to be a four-
15 lane, just south of.
16 BOARDMEMBER HEINZ: No, I don’t mean north and south of, I mean Elizabeth itself. Is it…?
17 MR. STANFORD: Oh, as far as east-west? It’s slated, or it’s currently classified as a minor
18 arterial, two lane arterial, no expectation of that growing.
19 VICE CHAIR KIRKPATRICK: I want to be crystal clear on what is being proposed, since part of
20 our requirement is to ensure that it still in compliant with the Land Use Code. And I can’t tell…maybe I
21 should be wearing glasses…but I can’t tell on the map there…could you just walk me through where
22 there are sidewalks, where there are bike lanes, and what the intersection is specifically, as will be
23 constructed after this development?
24 MR. SIEGMUND: I can walk you through that.
25 VICE CHAIR KIRKPATRICK: Thanks Tyler.
26 MR. SIEGMUND: Okay, here’s Elizabeth existing here, this would be the extension of Elizabeth
27 to the west. A sidewalk is being provided with the Bella Vira development along the south side of
28 Elizabeth, so there will be the pedestrian connection down to Overland. And they are also providing
29 sidewalk all along the property length here. This is a detached sidewalk. They are widening the existing
30 box culvert to get an adequate sidewalk across the culvert, and it will attach to existing sidewalk to the
31 south. As far as bike lanes, there are bike lanes existing on Overland Trail through this intersection. You
32 can see…this is hard to see right here, but it’s calling out the existing bike lane on this arrow here.
33 There’s a bike lane and then this is the extra right-of-way that we have due to the road classification
34 before the change, and the property line is here. But, there are bike lanes. This does follow through to
35 here, here’s the bike lane as it extends south. Any other…any other questions?
19
1 VICE CHAIR KIRKPATRICK: Yeah, could you tell me…so, we’ve got the sidewalk that goes
2 south on Overland and then there’s no signalization and no official crosswalk going across Elizabeth
3 headed east. Is there is sidewalk on the other side of Elizabeth and Overland?
4 MR. SIEGMUND: Are you talking here?
5 VICE CHAIR KIRKPATRICK: Yeah.
6 MR. SIEGMUND: Yes, there’s existing sidewalk here.
7 VICE CHAIR KIRKPATRICK: On both the north and south sides?
8 MR. SIEGMUND: Yes.
9 VICE CHAIR KIRKPATRICK: Thank you.
10 BOARDMEMBER HANSON: So if there’s a pedestrian walking on the north side of Elizabeth
11 and chose to cross Overland Trail, is there a curb cut or anything to receive them on the west side of
12 Overland Trail?
13 MR. SIEGMUND: Are you talking in this location?
14 BOARDMEMBER HANSON: Yeah.
15 MR. SIEGMUND: Yes, there are handicap ramps that are being built with the Bella Vira project.
16 There is just no sidewalk that extends…
17 BOARDMEMBER HANSON: So once they got to that point, realizing there was no…they
18 would have to cross to the south to get on to the sidewalk.
19 MR. SIEGMUND: Correct, yes they could cross…
20 BOARDMEMBER HANSON: But there is a provision for them to do that though?
21 MR. SIEGMUND: Correct.
22 BOARDMEMBER HANSON: Okay.
23 VICE CHAIR KIRKPATRICK: Any additional questions from the Board for staff or the
24 applicant?
25 BOARDMEMBER HANSON: Because of the technology we have up here, I can look at maps
26 and look at existing right turn lanes, and Ward mentioned one at Lake, an intersection that doesn’t have a
27 right turn lane. I identified a couple others that look like they don’t have right turn lanes, and it does look
28 like it’s related to the number of dwellings that’s serviced by that. And this seems to fit in. Is there
29 anything about the way this is laid out or designed that would prevent a right turn lane being added if it
30 was…if another development deemed it necessary?
31 MR. STANFORD: You’re talking about the southbound right at Elizabeth and Overland? Or
32 other right turn lanes down the corridor?
20
1 BOARDMEMBER HANSON: I’m specifically talking about this one, is there anything about
2 this intersection that would…?
3 MR. SIEGMUND: Are you talking about here…the right lane that’s in question here? The way
4 it’s set up, constructed now, it’s set up for the road to eventually be widened. And certainly it would be
5 set up for a right turn lane if future traffic generated that, yes.
6 BOARDMEMBER HANSON: Yeah, that was my question, thank you.
7 VICE CHAIR KIRKPATRICK: Any additional questions? Would we like to move into
8 deliberation? Alright. Any thoughts?
9 BOARDMEMBER HART: Well, I’ve looked at this. I think it’s really good that Mr. Sutherland,
10 some of the neighbors, have raised the issues, but based upon what we’ve heard from the applicant and
11 staff, it appears that the transportation system is functioning adequately and will function adequately until
12 the time comes when improvements have to be undertaken. But none of those are relevant to this
13 particular project. They just are relevant to the natural growth…growth associated with traffic moving
14 back and forth in that area. And I’ve lived out there for twelve years and I…I can tell you, making a turn
15 from Elizabeth onto Overland Trail has its moments, you know, at noon and at five, and in the mornings.
16 But, you know, I don’t see that this is…this is the thing that’s going to cause the problem. I think that in
17 terms of process, you know, there may have been some glitches in the process, but the bottom line to me
18 is that they have followed the process based upon their best knowledge, and there is no question that
19 there’s been due diligence. If you go past that area you can definitely see the due diligence on a daily
20 basis. And, you know, while I understand the concerns that people have about traffic and how the area
21 operates, I don’t see it’s relevant to this decision.
22 BOARDMEMBER HOBBS: I agree with you Gerry, I believe that this has been brought to us as
23 an extension that has been required by extenuating circumstances, primarily the expansive soils. I
24 understand that it is our responsibility to look at this, make sure that there aren’t…I think what you said
25 were section three, sort of, changes that may have happened since the original approval of this. I don’t
26 believe that we have heard or seen any of those that justify either revisiting this more or refusing it. I
27 support it as it is.
28 VICE CHAIR KIRKPATRICK: Any additional comments?
29 BOARDMEMBER HEINZ: Yeah, I really appreciate Mr. Sutherland’s attention to detail and just
30 concern for the community, and I think you do a great job looking out for the best interest of the
31 community. Sincerely, I believe that that’s your intention. It seems like with the traffic and the streets,
32 that it’s just based on standards, and you know, it’s not just an arbitrary situation. But, I think that what
33 we have before us is a basic matter of extension, so I’m going to approve it.
34 VICE CHAIR KIRKPATRICK: Any additional comments? I likewise will be supporting this
35 effort. I think that the plan complies with all of the relevant and applicable standards in our Land Use
36 Code, and I also think that the request for extension absolutely falls within the requirements in which we
37 have to make…to grant such a request. I consider myself a bike and pedestrian advocate and I think that
38 Fort Collins has really rigorous standards compared to most places. And I think that we are very
39 scientific and prescriptive in the way in which we handle our transportation system, and I think that we
21
1 are doing as we are supposed to. That being said, I do think it would be really awesome to put a cycle
2 tracks and that downgraded two lane arterial for the recreation bike users, but, I’ll just throw that out
3 there. Shall we entertain a motion? Anybody, anybody?
4 BOARDMEMBER HOBBS: I would like to make a motion, but I would like to get…oh, your
5 information is back up there, it wasn’t in our…so, I can read it off there.
6 So I would move that the Board approve the Bella Vira Final Plan Extension of Vested Rights,
7 MIS 140002, for a one year term of vested rights to April 29, 2015, provided that the City Council
8 determines that the extension of the plan granted by the Planning and Zoning Board on May 16, 2013 is
9 valid and binding upon the City.
10 VICE CHAIR KIRKPATRICK: Do we have a second?
11 BOARDMEMBER HANSON: I’ll second that motion.
12 VICE CHAIR KIRKPATRICK: We have a first, we have a second. Any additional discussion?
13 Roll call please.
14 MS. COSMAS: Hobbs?
15 BOARDMEMBER HOBBS: Yes.
16 MS. COSMAS: Hart?
17 BOARDMEMBER HART: Yes.
18 MS. COSMAS: Hanson?
19 BOARDMEMBER HANSON: Yes.
20 MS. COSMAS: Heinz?
21 BOARDMEMBER HEINZ: Yes.
22 MS. COSMAS: Kirkpatrick?
23 VICE CHAIR KIRKPATRICK: Yes. Approval of Bella Vira Final Plan Extension of Vested
24 Rights, number MIS 140002.
25
26
27
28
29
30
ATTACHMENT 7
Staff Powerpoint presentation
to Council
June 3, 2014
1
City Council Hearing – June 3, 2014
Appeal of the Bella Vira, Final Plan
Extension of Vested Rights
2
Project Description:
• Request for a one year extension of the
term of vested right, to April 29, 2015
• Final Plan approved for 60 single family
detached dwellings, and
• 25 multi-family dwelling units on 34.7
acres, on April 29, 2008
Bella Vira, Final Plan Extension of Vested Rights
3
Context Map
Bella Vira, Final Plan Extension of Vested Rights
4
Planning and Zoning Board Hearing
April 10, 2014
Board Decision to Approve:
• Bella Vira, Final Plan Extension of Vested Rights
• For a one year term of vested rights to April 29,
2015
• “…provided…the extension…on May 16, 2013 is
valid and binding upon the City.”
5
Primary Assertions of Appeal:
1. The Planning and Zoning Board failed to
properly interpret and apply relevant provisions
of the Land Use Code.
2. The Planning and Zoning Board failed to
conduct a fair hearing.
6
Summary of Appeal Assertions/Response:
“Vested rights for the Bella Vira Final Plan did laps
on or prior to January 3rd
, 2013”
From Verbatim Transcript (deliberation form the
Board):
• “…there may have been some glitches in the process, but
the bottom line…is that they have followed the process
based upon their best knowledge.”
• “what we have before us is a basic matter of extension…”
• “…the request for extension absolutely falls within the
requirements in which we have to make…to grant such a
request.”
7
“…Final Plan did not comply with the…Land Use
Code…intersection at Elizabeth and Overland Trail
does not meet safety requirements…”
From Verbatim Transcript (deliberation from the
Board):
• “the transportation system is functioning adequately and will
function adequately until the time comes when
improvements have to be undertaken. But none of those are
relevant to this particular project.”
• “the plan complies with all of the relevant and applicable
standards in our Land Use Code…the request for extension
absolutely falls within the requirements in which we have to
make…to grant such a request.”
Summary of Appeal Assertions/Response:
8
“Final Plan did not comply with the…Land Use
Code…in that pedestrian access and facilities do not
meet applicable standards…”
From Verbatim Transcript (deliberation from the
Board):
• “the plan complies with all of the relevant and applicable
standards in our Land Use Code…the request for extension
absolutely falls within the requirements in which we have to
make…to grant such a request.”
• More information can be found in the record
•
Summary of Appeal Assertions/Response:
9
“Applicant's Attorney misstated the facts pertaining
to the limited term of vested rights.”
From Verbatim Transcript (from the Applicant’s
Attorney):
• “the letter…dated March 3, 2011, which said…that the
approval date, rather than it being April 29th, 2008, was in
fact May 13th.”
• “Al and John were operating on the premise that the date
they were looking at was supposed to be May 13th.”
• “The Board took up that extension…the Board’s decision
was to approve the extension to May 16, 2014.”
Summary of Appeal Assertions/Response:
10
“Applicant's Attorney ignored the inability of the…Board to
extend vested rights in 2013 due to deficiency of conditions
necessary for extension - i.e. no due diligence and no hardship
unique to property.”
From Verbatim Transcript (from the Applicant’s
Attorney):
• “Going to exhibit G…what was taken up during these years
were efforts to obtain financing, financing after 2008 was
difficult to get.”
• “…enormous amount of effort trying to find development
partners for this project because they could not get
financing.”
• “…the bulk of the infrastructure is already in… there has
been a good deal of appropriate due diligence on the part of
the applicants.”
Summary of Appeal Assertions/Response:
11
“City Staff made false representations regarding the
conformance of public infrastructure with applicable
standards.”
From Verbatim Transcript (from the Board):
• “the plan complies with all of the relevant and applicable
standards in our Land Use Code…the request for extension
absolutely falls within the requirements in which we have to
make…to grant such a request.”
More information can be found in the record on:
• The Staff Report (page 6)
• The verbatim transcript (pages 5-15, 16, 20, and 21)
Summary of Appeal Assertions/Response:
12
Summary of Board Decision:
Motion:
Board approves the Bella Vira Final Plan Extension of
Vested Rights, for a one year term of vested rights to
April 29, 2015, provided that the City Council
determines that the extension of the plan granted by
the Planning and Zoning Board on May 16, 2013 is
valid and binding upon the City.
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