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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/18/2012 - SECOND READING OF ORDINANCE NO. 149, 2012, AMENDINDATE: December 18, 2012 STAFF: Laurie Kadrich AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 23 SUBJECT Second Reading of Ordinance No. 149, 2012, Amending Division 2 of the Land Use Code to Allow for the Processing of Applications for the Development of Property Not Yet under the Full Ownership and Control of the Applicant or Developer. EXECUTIVE SUMMARY The Land Use Code (LUC) presently requires that all submittal requirements must be met before an application can be processed. One of those submittal requirements is that the applicant must own or control all of the property that is the subject of the application. This Ordinance, adopted on First Reading on December 4, 2012 by a vote of 4-1 (Nays: Ohlson; Weitkunat recused; Kottwitz absent) amends the LUC to give the Director discretion to allow applications to proceed through the review process under certain circumstances even if not all of the subject property is yet controlled by the applicant. The applicant would have to show that, at the time of application, the applicant has ownership of, or the legal right to use and control, the majority of the property to be developed. The Director would then have to determine that reviewing the application would not be contrary to the public interest, and the applicant would need to agree not to record any documents related to the processing of the application until the applicant had gained control of the entire property. The applicant would also be required to indemnify the City against any third party claims related to the processing of the application. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. Copy of First Reading Agenda Item Summary - December 4, 2012 (w/o attachments) COPY COPY COPY COPY ATTACHMENT 1 DATE: December 4, 2012 STAFF: Karen Cumbo Laurie Kadrich AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 31 SUBJECT First Reading of Ordinance No. 149, 2012, Amending Division 2 of the Land Use Code to Allow for the Processing of Applications for the Development of Property Not Yet under the Full Ownership and Control of the Applicant or Developer. EXECUTIVE SUMMARY The Land Use Code (LUC) presently requires that all submittal requirements must be met before an application can be processed. One of those submittal requirements is that the applicant must own or control all of the property that is the subject of the application. Staff recommends that the City Council amend the LUC to give the Director discretion to allow applications to proceed through the review process under certain circumstances even if not all of the subject property is yet controlled by the applicant. The applicant would have to show that, at the time of application, the applicant has ownership of, or the legal right to use and control, the majority of the property to be developed. The Director would then have to determine that reviewing the application would not be contrary to the public interest, and the applicant would need to agree not to record any documents related to the processing of the application until the applicant had gained control of the entire property. The applicant would also be required to indemnify the City against any third party claims related to the processing of the application. BACKGROUND / DISCUSSION Currently the Section 2.2.3 (C) (1) of the LUC limits the Director from submitting applications to the Planning and Zoning Board and/or Hearing Officers until such time as documentation is presented that the applicant “has the requisite power, authority, clear title, good standing, qualifications and ability to submit and carry out the development and/or activities requested in the development application.”. Further, Section 2.2.4 of the LUC states that an application cannot be processed or presented to a decision maker until the Director determines that it is complete and ready for review, and the determination of sufficiency cannot be based on the perceived merits of the development proposal. The intent of these provisions appears to be to avoid expending City resources on proposals that may never come to fruition. In most situations, this makes sense. Sometimes, however, these requirements can cause unnecessary, costly delays that may work to the detriment not only of the developer but also the City. Therefore, staff is recommending that these LUC provisions be amended to allow for more flexibility in the development review process and afford the Director more discretion in determining whether the review of a particular development proposal can and should move ahead in advance of all submittal requirements being met. Additionally, the fact that an application may be allowed to proceed through the review process will not entitle the applicant to actually commence development of the proposed project unless and until all other relevant Land Use Code provisions have been met, including the execution of a final plat and the issuance of building permits. The denial of an incomplete application that has been allowed to proceed to the decision maker under the provisions of this Section shall not cause a post denial re-submittal delay under the provisions of Section 2.2.11(D) (9). STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. The LUC amendment will allow for more flexibility in the development review process and afford the Director more discretion in determining whether the review of a particular development proposal can and should move ahead in advance of all submittal requirements being met. COPY COPY COPY COPY December 4, 2012 -2- ITEM 31 BOARD / COMMISSION RECOMMENDATION If approved on First Reading, the Land Use Code amendment will be considered by the Planning and Zoning Board at a special meeting in mid-December so that the Council would have the Board’s recommendation prior to Second Reading on December 18. ORDINANCE NO. 149, 2012 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING DIVISION 2 OF THE LAND USE CODE TO ALLOW FOR THE PROCESSING OF APPLICATIONS FOR THE DEVELOPMENT OF PROPERTY NOT YET UNDER THE FULL OWNERSHIP AND CONTROL OF THE APPLICANT OR DEVELOPER WHEREAS, Division 2.2 of the City’s Land Use Code (LUC) establishes certain development review procedures for the processing of applications for land development that are submitted to the City; and WHEREAS, among those procedures are the submittal requirements contained in Sections 2.2.3 and 2.2.4; and WHEREAS, LUC Section 2.2.3(C)(1) states that a master list of development application submittal requirements is to be established by the City Manager and that such master list is to include, at a minimum, documentation showing that the applicant “has the requisite power, authority, clear title, good standing, qualifications and ability to submit and carry out the development and/or activities requested in the development application”; and WHEREAS, under LUC Section 2.2.4, an application cannot be processed or presented to a decision maker until the Director of the Planning, Development and Transportation Service Unit (the “Director”) determines that it is complete and ready for review; and WHEREAS, these provisions are intended to alleviate the need for the City to expend City resources on development proposals that may never come to fruition; and WHEREAS, in certain instances, the foregoing requirements can cause unnecessary, costly delays; and WHEREAS, City staff is recommending that LUC Section 2.2.4 be amended to allow for more flexibility in the development review process and afford the Director more discretion in determining whether the review of a particular development proposal can and should move ahead in advance of the foregoing submittal requirements being met; and WHEREAS, the City Council believes that the amendments recommended by staff are in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Section 2.2.4 of the Land Use Code is hereby amended so as to read in its entirety as follows: 2.2.4 Step 4: Review of Applications. (A) Determination of Sufficiency. After receipt of the development application, the Director shall determine whether the application is complete and ready for review. The determination of sufficiency shall not be based upon the perceived merits of the development proposal. (B) Processing of Incomplete Applications. Except as provided below, if a submittal is found to be insufficient, all review of the submittal will be held in abeyance until the Director receives the necessary material to determine that the submittal is sufficient. The development application shall not be reviewed on its merits by the decision maker until it is determined sufficient by the Director. Notwithstanding the foregoing, if an application has been determined to be incomplete because the information provided to the Director shows that a portion of the property to be developed under the application is not yet under the ownership and control of the applicant or developer, the Director may nonetheless authorize the review of such application, and the presentation of the same to the decision maker, as long as: (1) the applicant, at the time of application, has ownership of, or the legal right to use and control, the majority of the property to be developed under the application; (2) the Director determines that it would not be detrimental to the public interest to accept the application for review and consideration by the decision maker; and (3) the applicant and developer enter into an agreement satisfactory in form and substance to the City Manager, upon consultation with the City Attorney, which provides that: (a) until such time as the applicant has acquired full ownership and control of all property to be developed under the application, neither the applicant nor the developer will record, or cause to be recorded, in the Office of the Larimer County Clerk and Recorder any document related to the City’s review and approval of the application; and (b) the applicant will indemnify and hold harmless the City and its officers, agents and assigns, from any and all claims that may be asserted against them by any third party, claiming injury or loss of any kind whatsoever that are in any way related to, or arise from, the City’s processing of the application. -2- The denial of an incomplete application that has been allowed to proceed to the decision maker under the provisions of this Section shall not cause a post denial re-submittal delay under the provisions of Section 2.2.11(D)(9). Introduced, considered favorably on first reading, and ordered published this 4th day of December, A.D. 2012, and to be presented for final passage on the 18th day of December, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on the 18th day of December, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ City Clerk -3-