HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/20/2001 - CONTINUATION OF THE APPEAL OF THE JANUARY 18, 2001 AGENDA ITEM SUMMARY ITEM NUMBER: 31
FORT COLLINS CITY COUNCIL DATE: March 20, 2001
10 FROM: Stephen Olt
SUBJECT:
Continuation of the Appeal of the January 18, 2001, Determination of the Planning and Zoning
Board to Approve the Provincetowne PUD, Filing Two - Final (Continued from the March 6,
2001, Council meeting).
RECOMMENDATION:
Council should consider the appeal based upon the record and relevant provisions of the Code
and Charter, and after consideration, either: (1) remand the matter to the Planning and Zoning
Board or (2) uphold, overturn, or modify the Board's decision.
EXECUTIVE SUMMARY:
On March 6, 2001, the Council began its hearing on the appeal and continued the item to March
20, 2001, to allow for completion of the transcripts of the meetings before the Planning and
Zoning Board (December 7, 2000 and January 18, 2001) and inclusion of additional documents
lippresented to the Planning and Zoning Board at its public hearing on January 18, 2001.
The attached documents include (new documents for the March 20, 2001 City Council
meeting are listed in bold):
* Amended Notice of Appeal (dated and received February 20, 2001)
* Original Notice of Appeal (dated and received January 30, 2001)
* Staff Report, with recommendation, to the Planning and Zoning Board for its
January 18, 2001 public hearing
* Handouts pertaining to the Provincetowne PUD, Filing Two - Final development
proposal that were presented to the Planning and Zoning Board at the January 18,
2001 public hearing
* City Staff response to the amended appeal
* Minutes of the meeting before the Planning and Zoning Board, held Thursday,
January 18, 2001
* Minutes of the meeting before the Planning and Zoning Board, held
Thursday, December 7, 2000.
DATE: March 20, 2001 2 ITEM NUMBER: 31
The Provincetowne Affordable Housing Plan (Version 9) that was presented
to the Planning and Zoning Board on January 18,2001.
KB Home of Colorado Inc., Cost Analysis, Provincetowne Affordable
Townhomes (dated 1/18/01).
The procedures for deciding the appeals are described in Chapter 2, Article Il, Division 3 of the
City Code.
AGENDA ITEM SUMMARY ITEM NUMBER: 39
FORT COLLINS CITY COUNCIL DATE: March 6, 2001
FROM: Stephen Olt
SUBJECT:
Consideration of the Appeal of the January 18, 2001, Decision of the Planning and Zoning Board
to Approve the Provincetowne PUD, Filing Two - Final. COPY
RECOMMENDATION:
Council should consider the appeal based upon the record and relevant provisions of the Code and
Charter, and after consideration,either: (1)remand the matter to the Planning and Zoning Board or
(2) uphold, overturn, or modify the Board's decision.
EXECUTIVE SUMMARY:
On January 18,2001,the Planning and Zoning Board approved the Provincetowne PUD,Filing Two
-Final for 331 residential dwelling units (190 single family tots and 141 multi-family townhomes)
on 70.00 acres.
411 The property is zoned LMN - Low Density Mixed Use Neighborhood (as of the effective date of
March 28, 1997 for the new Land Use Code). The property is located on the south side of Trilby
Road at Brittany Drive, west of South Lemay Avenue, east of South College Avenue, and north of
County Road 32.
On January 30, 2001, an in sufficient Notice of Appeal was received by the City Clerk's office
regarding the decision of the Planning and Zoning Board. An Amended Notice of Appeal was
received by the City Clerk's office on February 20,2001.In the Amended Notice of Appeal from the
Appellants David G. Evans, Doug Sparks, and Mark Menke, it is alleged that:
[Note that the following numbers used in this AIS correspond to the numbering used in the
Appellants'Amended Notice of Appeal]
Pursuant to Section 2-48(b)(2)a, the Planning and Zoning Board exceeded its authority or
jurisdiction, in that the Planning and Zoning Board was prohibited from approving the final plan
submitted by Applicant as no legal documents were submitted to nor approved by the City as
required in Section 29-526J(4) of the Land Development Guidance System for Planned Unit
Developments [also known as the LDGS[.
Pursuant to Section 2-48(b)(1),the Planning and Zoning Board failed to properly interpret and apply
relevant provisions of the Code, in that the Planning and Zoning Board was prohibited from
approving the final plan submitted by Applicant, as Applicant's mere verbal representation that
Applicant would execute,at some unspecified date in the future a legal document and/or documents
not yet agreed to, was insufficient to satisfy the submission and approval of legal documents
requirement of Section 29-526J(4)of the LDGS.Pursuant to Section 29-526J(4)of the LDGS,such
DATE: March 6, 2001 2 ITEM NUMBER: 39
physical existence,execution and approval by the City of such final legal docume winor[Pry
precedent to the approval of the final plan by the Planning and Zoning Board
Pursuant to Sections 248(b)(2)a and 248(b)(1) respectively, the Planning and Zoning Board
exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions
of the Code, in that the Planning and Zoning Board was prohibited from approving the final plan
submitted by Applicant as no legal instruments were submitted to nor approved by the City as
required in Section 29-526J and Section 29-526J(1) of the LDGS.
Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board
exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions
of the Code,in that the notice of the Planning and Zoning Board dated November 16, 2000, for the
hearing of December 7, 2000, and the notice of the Planning and Zoning Board dated January 4,
2001,for the hearing of January 18,2001,were insufficient to confer jurisdiction upon the Planning
and Zoning Board.
Pursuant to Section 2-48(b)(2)(c),the Planning and Zoning Board-considered evidence relevant to
its findings which was substantially false or grossly misleading.
Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board
exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions
of the Code,in that Applicant failed to sustain the burden of proof in seeking the variance to Section
29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the LDGS as
Applicant presented no evidence that the variance would result in substantial benefit to the City and
that the strict application of Section 29-526C(3)(c),Density Chart H,Base Criterion"k"and Bonus
Criterion "r" would render the project practically unfeasible.
Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board
exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions
of the Code, in that there was a substantial deviation from the approved preliminary plans.
Also,the Appellants are citing Jurisdictional Objections to Approval.
[Note that the following allegations were setforth in the Amended Notice of Appeal dated September
3, 1999,from Appellants David Evans, Doug Sparks, and Mark Menke, regarding the August 5,
1999, determination of the Planning and Zoning Board to approve the Provincetowne PUD, Filing
Two—Preliminary. This item was heard by City Council on October 5, 1999. City Council voted to
uphold the decision of the Planning and Zoning Board]
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, execution by the
City Manager of the Agreement of Purchase and Sale of Real Property(hereinafter"Purchase
Agreement")by and between the City of Fort Collins and Pridemark Development Company,
LLC,dated April 2, 1996,was specifically reserved by Section 4 of Ordinance No.41, 1996,
to the Mayor and not the City Manager. The execution of said Purchase Agreement by the
City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as
well as the requirements of Section 23-111(a) of the Code of the City of Fort Collins which
vests sole authority to sell real property upon the City Council pursuant to a duly enacted
ordinance.
DATE: March 6, 2001 3 ITEM NUMBER: 39
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, execution by the
City Manager, on or about April 12, 1995, of an agreement on behalf of the City of Fort
Collins entitled "First Addendum to Agreement of Purchase and Sale of Property"
(hereinafter "First Addendum") by and between the City of Fort Collins and Pridemark
Development Company,LLC, adding Paragraph 27 to the Agreement of Purchase and Sale
of Real Property dated April 2, 1996, was void, in that the First AdAeRd
m � r
matter of law, modify an executory agreement. O [�
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,delegation to City
Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41,
1996, was an improper delegation of legislative discretion which violated the requirements
of Section 23-111(a)of the Code of the City of Fort Collins which vests sole authority to sell
real property upon the City Council pursuant to a duly enacted ordinance.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,delegation to the
City Manager of the power to restructure the sale of the real property from a purchase to an
option to purchase pursuant to the First Addendum to Agreement of Purchase and Sale of
Real Property, was an improper delegation of legislative discretion which violated the
requirements of Section 23-111(a) of the Code of the City of Fort Collins which vests sole
authority to sell real property upon the City Council pursuant to a duly enacted ordinance.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its
predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29-
526 — LDGS and Ordinance No. 161, 1996 was the owner of the subject parcel of real
property at the time of the filing on March 27, 1997, of the Application with the Current
Planning Department requesting Planned Unit Development -Preliminary Plan approval and
approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to
execute the Application as filed nor prosecute such Application on behalf of the record
owner, the City of Fort Collins.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its
predecessor in interest, filed, in a timely manner, a complete application as required by
Section 29-526 et seq. —LDGS and Ordinance No. 161, 1996.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its
predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29-
526 — LDGS and Ordinance No. 161, 1996 was the owner of the subject parcel of real
property at the time of the filing on March 27, 1997, of the Application with the Current
Planning Department requesting Planned Unit Development -Preliminary Plan approval and
approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to
execute the Application as filed nor prosecute such Application on behalf of the record
owner, the City of Fort Collins.
I
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, the Planning and
Zoning Board failed to give timely notice of August 5, 1999, hearing.
I
DATE: March 6, 2001 4 ITEM NUMBER: 39
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, the notice of the
Planning and Zoning Board dated July 19, 1999, for the hearing of ffi Augu�1�
insufficient to confer jurisdiction upon the Planning and Zoning Board. f(„ ��}
* Planning and Zoning Board failed to make required findings,in that,Section 29-526K of the
LDGS requires, "The decision of the Planning and Zoning Board on any application for a
variance shall be set forth in writing in the minutes of the meeting of the Board".
* Applicant failed to sustain the burden of proof in seeking the variance to the City of Fort
Collins Solar Orientation Ordinance,in that,Applicant presented no evidence which would
demonstrate that the granting of the variance would neither be detrimental to the public good
nor impair the intent and purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was
entitled to the variance by reason of exceptional conditions or difficulties with regard to solar
orientation or access,and that undue hardship would be caused to the Applicant by the strict
application of the provisions of Section 29-526(2)A-1/A-1.1.
* The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999,and
filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City
Council of the approval by the Planning and Zoning Board of August 5, 1999,to approve the
Planned Unit Development—Preliminary Plan commonly referred to as Provincetowne PUD,
Filing Two — Preliminary, #73-82T and to the granting of a variance to the City of Fort
Collins Solar Orientation Ordinance is incorporated herein by this reference as though set
forth in full.
The attached documents include:
* the Amended Notice of Appeal (dated and received February 20, 2001)
* Original Notice of Appeal (dated and received January 30, 2001)
* Staff Report,with recommendation,to the Planning and Zoning Board for its January
18, 2001 public heating
* Handouts pertaining to the Provincetowne PUD, Filing Two - Final development
proposal that were presented to the Planning and Zoning Board at the January 18,
2001 public hearing
* the City Staff response to the amended appeal
* Minutes of the meeting before the Planning and Zoning Board, held Thursday,
January 18, 2001
* the Notice of Appeal (dated and received September 3, 1999) and incorporated by
reference into the current appeal
The procedures for deciding the appeals are described in Chapter 2,Article 11,Division 3 of the City
Code.
City Clerk
City of Fort Collins
NOTICE
The City Council of the City of Fort Collins, Colorado, on Tuesday,March 6, 2001 at 6:00 p.m. or
as soon thereafter as the matter may come on for hearing in the Council Chambers in City Hall at
300 LaPorte Avenue, will hold a public hearing on the attached appeal from the decision of the
Planning and Zoning Board made on January 30, 2001 regarding the Provincetowne Second Filing
PUD(#73-82U and#73-82K),filed by David G.Evans. You may have received previous notice on
this item in connection with hearings held by the Planning and Zoning Board.
If you wish to comment on this matter, you are strongly urged to attend the hearing on this appeal.
If you have any questions or require further information please feel free to contact the City Clerk's
Office (221-6515) or the Planning Department (221-6750).
Section 2-56 of the Code of the City of Fort Collins provides that a member of City Council may
identify in writing any additional issues related to the appeal by February 27, 2001. Agenda
materials provided to the City Council,including City staff's response to the Notice of Appeal,and
any additional issues identified by City Councilmembers,will be available to the public on Thursday,
March 1, after 10:00 a.m. in the City Clerk's Office.
The City of Fort Collins will make reasonable accommodations for access to City services,
programs, and activities and will make special communication arrangements for persons with
disabilities. Please call the City Clerk's Office (221-6515) for assistance.
44L)P� • "-
Wanda M. Krajice�
City Clerk
Date Notice Mailed:
February 23, 2001
cc: City Attorney
Planning Department
Planning and Zoning Board Chair
Appellant/Applicant
•
300 LaPorte Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970)221-6515 • FAX (970) 221-6295
February 20, 2001
Ms. Wanda M. Krajicek v E
City Clerk FFqEE
D
City of Fort Collins
300 LaPorte Avenue CITY
Fort Collins, Colorado 80522 CLERK
NOTICE OF APPEAL
(Amended)
TO THE HONORABLE CITY COUNCIL:
NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 2-48 of the Code of the City of Fort Collins the
undersigned parties-in-interest (hereinafter "Appellants") appeal the decision of the Planning and Zoning Board of
January 18, 2001, to approve the Planned Unit Development—Final Plan, commonly referred to as Provincetowne PUD,
Ocling Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance
o Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development
Guidance System for Planned Unit Developments of the City of Fort Collins.
Parties-In-Interest
The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to Section 2-46(3),
(4) and(5)of the Code of the City of Fort Collins. The parties-in-interest are identified for the purposes of this Appeal as
follows:
David G. Evans Doug Sparks Mark Menke
6806 Deerhurst Court 900 Deerhurst Circle 901 Deerhurst Circle
Fort Collins,CO 80525 Fort Collins,CO 80525 Fort Collins, CO 80525
(970)223-7957 (970)223-9863 (970)204-1027
Pursuant to the requirements of Section 2-49(5) of the Code of the City of Fort Collins, all mailing of notices subject to
that Section by the City shall be sent to:
David G. Evans
6806 Deerhurst Court
Fort Collins, CO 80525
(970)223-7957/F(970)493-3820
Notice of Appeal -Amended
Planning and Zoning Board Dceiion
Provincetowne PUD, Filing Two-Final, #73-82U
February 20. 2001
Page 2
Grounds Of Ap eeaI
The following grounds of appeal set forth allegations of error in accordance with the provisions of Section 2-48 (b) (I)
and Sections 2-48(b)(2)a-d. of the Code of the City of Fort Coll ins.
1. Pursuant to Section 248(b)(2)a, the Planning and Zoning Board exceeded its authority or jurisdiction, in that,
the Planning and Zoning Board was prohibited from approving the final plan submitted by Applicant as no legal
documents were submitted to nor approved by the City as required in Section 29-526J(4) of the Land Development
Guidance System For Planned Unit Developments.
On March 27. 1997, an Application was filed with the Current Planning Department requesting Planned Unit
Development Preliminary Plan approval and approval for it Preliminary Subdivision Plat. The Appheation contained a
request for earned credit for a project containing "Affordable Dwelling Units" pursuant to Sections 29-526C(3)(c),
Density Chart 11. Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned
I.nrt Developments of the City of Fort Collins. Section 29-526J(;4)(a) provides, "To qualify for a residential density
b;mus, a project which includes dwelling units for low-income fami!ies shall be accompanied by covenant d eunx is or
other adequate docunaenU t,; In recorded with :he Office of thr. County C'IerF, guarartleeing the use of those dwelGng;s
units for low-income familiea: 'The documents shall not be accepted until approved by w City as to le r,l f-.rni :.and
efrcct. providing that tfte us: cstriction be for at least twenty-five(25) years."
During the hearing L•aforc the Planning and Zoning Board on December 7, 2000, nor at the continued hearing of
Januaiy 18. 2001,. did ;applicant preseut any executed covenant documents or other executed decunr uts to the (_Iry as
required in 'Section 29-52'6.1(4). fit addition, Applicant diet not submit any covenant documents or otbet adequate
documents In a fc.rm which Could be recorded in the Office of the County Clark as required in Sectiuo 1 29-`261(4).
Section 29-526J(4)(c)of the Land Development Guidance System For Planned Unit Development's prcry ides.that,
"No final plan shall be approved for any portion of a planned unit development, approved with a residential density bonus
for providing dwelling units for low-income families. until the nec:ssary legal documents have be,,n submittedl Mid
approved." The Applicant did not meet the requirements of Section 29-526J(4) of the Land Development Guidance
System For Planned Unit Developments, therefore, the Planning and Zoning Board was specificail., pruiaibited fiom
approving the final plan commonly referred to as Provincetowne PUD, Filing Two-Final, #73-82U (Provincetowne, 2nd
Filing, Final (LDGS) — File 473-82K)and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base
Criterion "k" and Bon-is Criterion "r" of the Land Development Guidance System for Planned Unit Developments of the
City of Fort Collins.
2. Pursuant to Section 248(b)( 1), the Planning and Zoning Board failed to properly interpreL and apply relevant
provisions of tie Code, in that, the Planning and Zoning Board was prohibited from approving the final plan submitted by
Applicant, as Applicant's mere verbal representation that Applicant would execute, at some unspecified date in the future
a legal document and/or documents not yet agreed to, was insufficient to satisfy the submission and approval of legal
documents requirement of Section 29-526J(4) of the Land Development Guidance System For Planned Unit
Developments. Pursuant to Section 29-526J(4) of the Land Development Guidance System For Planned Unit
Developments, such physical existence, execution and approval by the City of such final legal documents were conditions
precedent to the approval of the final plan by the Planning and Zoning Board.
Notice of.Appea! - Amended
Planning and /oninaz Beard Decision
•Provincetowne PCD. Filing Two-Final. 973-82U
February 20, 2001
Page 3
On March 21, 1997, an Application was filed with the Current Planning Department requesting Planned Unit
Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat. The Application contained a
request for earned credit for a project containing "Affordable Dwelling Units" pursuant to Sections 29-526C(3)(c),
Density Chart H. Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned
Unit Developments of the City of Fort Collins. Section 29-526J(4)(a) provides, "ro qualify for a residential density
bonus, a project which includes dwelling units for low-income families shall be accompanied by covenant documents or
other adequate documents to be recorded with the Office of the County Clerk, guaranteeing the use of those dwellings
units for low-income families. The documents shall not be accepted until approved by the City as to legal form and
effect, providing that the use restriction be for at least twenty-five (25)years."
Section 29-526J(4xc) of the Land Development Guidance System For Planned Unit Developments provides that,
"No final plan shall be approved for any portion of a planned unit development, approved with a residential density bonus
for providing dwelling units for low-income families, until the necessary legal documents have been submitted and
approved." The .Applicant did not meet the requirements of Section 29-526J(4) of the Land Development Guidance
System For Planned Unit Developments, therefore, the Planning and Zoning Board was specifically prohibited from
approving the final plan commonly referred to as Provincetowne PUD. Filing "I wo-Final, 473-82U (Provineetowne, 2"a
Filing, Final (LDGS)— File 473-82K; and to the granting of a variance to Sections 29-526C(3)(c). Density Chart FL Base
Criterion 'k" and Bonn: Criterion "r' of the Land Development Guidance Syst_rn for Planned Unit Development: of the
•City of Fort C:olhns.
3. PmSL'tnt t S e:iotts , 48(b)(2)a and _'-18(1) (1 ) respectively, the Planning and Zoning Board exceeded its
authority or jurisdiction aacl failed to properlyl interpret and apply relevant pru.isitu: of the (:ode. in that, tni: Planning
and Zoning Board •xas pri'nihitcd front approving the Final plan submitted by applicant as no iegai instruments were
,ubntitt,ed to nor appnned by the City a..s required in Section 29-526J and Section 29-526.1( 1 ) of rile C.aruf Development
Guidance S sr<m F'or Planned t!nri cvelopmef;ts.
Section 29-526J(1) provides that, "The developer shall submit a Icgal instrument setting forth a plan providing
for the permanent care and maintenance of open spaces, recreational areas and communally-owned facilities and parking
lots. The same shall be submitted to the City Attorney and shall not be accepted until approved as to legal form and
effect. If the common open space is deeded to a homeowners' association, the applicant shall file the proposed
documents governing the association. A review of the file in this matter did not reveal the submission and/or
approval of such described legal instruments nor the proposed documents governing the association as required in Section
29-526.f(1).
Section 29-525) provides, "All developments shall meet the requirements herein set forth and no final plan shall
be approved that does not tweet these requirements.- 'Tile Applicant did not meet the requirement; of St,:tion 29-5'_6J(I )
Of the Land Development Guidance System For Planned L nit Developments, therefore, the Planning and Zoning Board
was specifically prohibited from approving the final plan commonly referred to as Provincetowne PUD. Filing "fwo-
Final, #',3-82C) (Provincetowne, 2"'' Filing, Final (LDGS) -- File 473-82K) and to the granting of a variance to Sections
29-526C(3)(c). Density Chart H Ba e Criterion ion V and Bonus Crit,:rion "r'• of the Land DcvciOprncnt G.idance System
for Planned Unit Developments of the City of Fort Collins.
Notice of Appeal -Amended
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Final, #73-82U
February 20, 2001
Page 4
4. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its
authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that, the notice of
the Planning and Zoning Board dated November 16, 2000, for the hearing of December 7, 2000, and the notice of the
Planning and Zoning Board dated January 4, 2001. for the hearing of January 18, 2001, were insufficient to confer
jurisdiction upon the Planning and Zoning Board.
The notice of hearing dated November 16, 2000, and the notice of hearing dated January 4, 2001, failed to set
forth, with specificity, the nature of the project and requested approvals nor did it specifically set forth that the Applicant
was seeking a variance to Sections 29-526C(3)(c), Density Chart H. Base Criterion "k" and Bonus Criterion "r" of the
Land Development Guidance System for Planned Unit Developments of the City of Fort Collins.
The Planning and "Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of
January 18, 2001, to approve th_- Planned Unit Development -Final Plan, commonly referred to as Provincetowne PIJD,
Filing Two-Final, 973-82U (Provincetowne, 2nd Filing, Final (LDGS)- File 473-82K) and to the granting of a variance to
Sections 29-526C(3)ac). Density Chart H, Base Criterion. 'V and Bonus Criterion "r"of the: Land Dcvelopnteni Guidan:x
SN ston1 for Planned Lr.tt Develnpnle wi of the City o' Forf Collmti, in that, the ❑daces of the Pl lmmnA a,id &n ing B^ard
date-r ,iovembeii6, 2`100aodJarmar> 4 W 1, I'Or 11 te hearings of'Deccmber7, 2000, tit dJanttmyld "?Or, rup.,tncij,
were insufficient:as a matter nt law to _onto jurisdiction upor. the Planning and Zoning Board.
To cc vf,, jurisdicton of an agency,a public notice must be clear, definite, eNplicit and not ambiguous. A Folio
is not clear unlLss its mcaning can be :apprehended without explanation. In addition. the notice mast set forth ail
information reasonably necessary to provide adequate warning to all persons whose riglasntight he affected by tlta
proposed action. in order to accomplish this purpose, the notice, at a mininwm, must Live the date, time, and place of thJ
hearing and apprise the public of the subject matter of the hearing and natun of the proposed action. The Failure to
specifically mrtaiou the v;;rtance request randed'ed the notice ut uttictent. Fedd r _.---—McCurd,, 768 P. 20; - ! I (l.a>;o. Ape,
1988); Hallmark Builders p_City of Gunnison 650 P. 2d 556; Sundimce hills Homeowners Association v_Board of
Cou_ntvCommissioners- 534 P. 2d 1212: 91ge.nnitter v. Fowler 290 P. 2d 223. Also, such fail ire to specifically notice the
variance request of Applicant was a denial of the constitutional principle of procedural due process which requires notice
and opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the hearing
decision be vacated and that the matter be set for a hearing de uovo. Fourteenth Amendment, Constitution of the United
States.
5. Pursuant to Section 2-48(b)(2)c, the Planning and Zoning Board considered evidence relevant to its findings
which was substantially false or grossly misleading.
At the hearing of January 18, 2001, Applicant requested that the Planning and Zoning Board grant a variance to
the provisions of Section 29-526C(3)(c), Density Chart H, Base Criterion `k" and Bonus Criterion "r". Applicant
requested that for the purposes of this project that the adjusted gross income for housing provision set forth in said
Section be changed from 30% to 38%. In support of this request, Applicant's representative presented a document
entitled, "KB Home of Colorado Inc., Cost Analysis, Provincetowne Affordable Townhomes." The document purported
to demonstrate losses to be attributed to the development project if Applicant was not given a variance to the provisions
of Section 29-526C(3)(c), Density Chart H. Base Criterion "k"and Bonus Criterion "r". Applicant was unable to
Notice of Appeal -Anieuded
Planning and Zoning hoard Decision
Provincetowne PUD, Filing Two-Final. 973-82U
February 20. 2001
Page 5
substantiate the validity of the various assumptions set forth in said Cost Analysis nor the calculations derived therefrom.
Applicant's testimony clearly indicated that the Cost Analysis was speculative in nature and was not the product of
rigorous application of accepted financial analysis based on validated empirical data.
The document entitled, "KB Home of Colorado Inc., Cost Analvsis, Provincetowne Affordable Townhomes" was
the only evidence presented by Applicant in support of the requested variance. In sole reliance on this document, the
Planning and Zoning Board granted Applicant's request for a variance to Section 29-526C(3)(c), Density Chart H, Base
Criterion "k" and Bonus Criterion "r".
6. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its
authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that, Applicant
Failed To Sustain The Burdett Of Proof In Seeking The Variance To Section 29-526C(3)(c), Density Chart H, Base
Criterion -k" and Bonus Criterion `Y' of the Land Development Guidance System for Planned Unit Developments as
Applicant presented no evidence that the variance would result in substantial benefit to the City and that strict application
of Section 29-526C(3)(c). Density Chart It, Base Criterin❑ "k" and Bonus Criterion "r" would render the project
practically unfeasible.
At the hearing of January 18, 2001. Applicant requested that the Planning and Zoning Board grant a variance to
the provisions of Senior 29-5 6 (3)(c) Density Chart It. Base Criterion "k" and Bonus Criterion r'. Applicant
requested that for the purposes of his project that the adjusted gross income for housing provisions limb in said
Section be Changed from 30 ,, ! In support of this request. Applicants representative. l:irese!itcd a docurlte❑i
entitled. -KB Home of Colorado Inc., Cost Analysis, Provincetowne Affordable l'ownhonies." l'he ducurnent purported
to demonstrate iosses to be altrib.tted to the deveiopment project if Applicant was norgiaen a variance to the ii
of Section 29-526C(3)(c). Density Chart H. Base Criterion -k— and Bonus Criterion "r". :applicant was tntab!c to
substantiate. th:, v:Jidm; of the various assumptions set forth in said Cost Analysis no t!-e calculations dcri,,od thrrefrcnn.
Applicant's testimony clearly indicated that the Cost Analysis was clearly speculative in nature and �t as not the product
of rigorous application of accepted financial analysis based on validated empirical data. In the alternative, if it is
determined that Applicant's Cost Analysis has merit, the criteria for granting a variance is not met solely by a showing of
greater economic benefit that Applicant would gain if the variance was granted. Baum v,_City and Cqu(ty of Uen_v_er .141
Colo. 104.
Pursuant to Section 29-526K of the Land Development Guidance System For Planned Unit Developments, the
Planning and Zoning Board has authority to grant variances only in certain enumerated cases. The Planning and Zoning
Board is limited by the provisions of Section 29-526K and any variance made withuut compliance with those provisions
is beyond the authority of the Planning and Zoning Board, and void. Cross v. Bilett 122 Colo. 278. The record of the
proceedings clearly are devoid of any evidence that the variance would result in substantial benefit to the City and that
strict application of Section 29.5>6C'(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r would render
the project practically unfeasible.
The hurden of proof is on the Applicant seeking a variance front a zoning ordinance. 'La_Plata.County Cgni rs v.
Bd_of A ii, 768 P. 2d 1250 (Colo. App. 1988). It is Appellants contentien that the Applicant failed to sustain the burden
of proof in seeking the variance.
Notice of Appeal -Amended
Planning! and Zoning Board Decision
Provincetowne PUD, Filing'1'wo-Final. #73-82U
February 20. 2001
Page 6
6. Pursuant to Sections 2-48(b)(2)a and 248(b)(i) respectively, the Planning and 'Zoning Board exceeded its
authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that, there was a
substantial deviation from the approved preliminary plans.
Section 29-526F(5)(b) provides that, ".Asa requirement of approval, the final plan shall be in substantial
compliance with the approvers preliminary plan." Further. Section 29-526F(5)(b)(I) states that. "For preliminary planned
unit developments approved on or after March 13, 1981, `substantial compliance' shall mean that all conditions imposed
by the Planning and Zoning Board upon its approval of the preliminary plans have been met and the final plan does not: .
. . c. Contain changes which would normaliy cause the development to be disqualified under the applicable criteria of
this chapter."
It is Appellants contention that the granting of the variance to Section 29-526C(3)(c), Density Chart H. Base
Criterion "k" and Bonus Criterion "r" is a substantial deviation from the approved preliminary plan and constitutes a
change which would disqualify the development under the applicaFle criteria set forth it the L.anci Development
Guidancc Sysleul For Piaaed I_,.lit De,elonmerd.-
j Ufi&dicti_0;.-:Ll Oil,j gc,Tioir:._.Tit \noro_al
Tile i l%iAying are contILmu'D,, •)tlll.e,l .WIS '0 [!'.: Itrllsdiction �jf the Ph.:n;:'IL and Zonm'_ tS.;a'.d of till C_;V U: FcIt
Collins to r:nd::r it decision in this route,:
*ixa llearing Jut+s is-lion Confert'ed On Pian ing and Zoning Bowd, in that. execution by the (. ty l`0 auagcr of
rile Agreement of Purchase and Sale of Real Property(hcre,nafter"PLI chasc Agreement') by and between the City of Port
Collins and Prdemark De,-elopmeni Company, LLC. dates! April 2 1996. was specilttcally reserved L,; Section .t of
Ordinance No. 41, 199`:, to the Mayor and not the C'in' P+lanaecr. The execution Of said Purchase Aarcentcnt by ;he itv
Manager violated the specific requirements of Section 4 of Ordinance No. 41. 1996 as well as the requirements of'Scction
23-11 1(1) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council
pursuant to a duty enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager, on
or about April 12, 1996. of an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement Of
Purchase And Sale Of Property" (hereinafter "First Addendum) by and between the City of Fort Collins and Pridemark
Development Company. LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April
2, 1996, was void, in that the First Addendum could not,as a matter of law, modify an executory agreement.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager of the
power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative
discretion which violated the requirements of Section 23-1 11 (a) of the Code of the City of Fort Collins which vests sole
authority to sell real property upon the C ity Council pursuant to a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City Manager cf
the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First
Addendum Fo Agreement Of Purchase And Sale Of Real Property', was an improper delegation of legislative discretion
Notice of Appeal - Amended
Planning and Zoning Board Decision
�Provincetowne PU'D, Filing Two-Final. #73-82U
Pebruary 20, 2001
Page 7
which violated the requirements of Section 23-1 1 I(a)of the Code of the City of Fort Collins which vests sole authority to
sell real property upon the City Council pursuant to a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in
interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System
For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the
time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit
Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal
authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of
Fort Collins.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in
interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. - Land Development
Guidance System For Planned Unit Developments and Ordinance No. 161, 1996.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in
interest, as a matter of law and pursuant to filing requirements of Section 29.526 - Land Development Gnld&nce System
For Planned Unit Developments and Ordinance No. 161; 1996 was the owner ofthc subject parcel cf real property at the
time of the filing on March 21 1997, of the Application with the Current Planning Department requesting Planned Unit
,time
- Preliminary Plan approval and approval fora Preliminary Subdivision Plat nor was Applicant riven legal
authority to exceute the Application as ailed nor prosecute such Application on behalf of the record owner, the Cov of
Fort Collins.
*No Hearlrlg Jurisdlct!Cn LAnfcf2'ed On Planning and Zoning Board, in that, th,. Plami;llg and Zrmning Board
failed 10 give timcly notice of'Augast 5, 1999, hearing
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Piannin and
Zoning Board dated July i9. 1999. for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the
Planning and Zoning Board.
*Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of the I.and
Development Guidance System For Planned Unit Developments requires. "The decision of the Planning and Zoning
Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board."
*Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins Solar
Orientation Ordinance, in that, :applicant presented no evidence which would demonstrate lhat the granting of the
variance would neither be detrimental to the public good nor impair the intent and purposes of Section
29-526(2)A-I/A-i.I or that Applicant was entitled to the variance by reason of exceptional ccmditions or difficulties with
regard to solar orientation or access, and that undue hardship would be caused to Applicant by the strict application of the
Provisions of Section 29-520(2)A-ILA. l.1.
Notice of Appeal -Amended
Planning afid Zoning Board Decisicu
Provincetowne PUD, Filing Two-Final,#73-82U
February 20, 2001
Page 8
*The full tent of the arguments set forth in the Notice of Appeal dated September 3, 1999, and filed with
the City Clerk of the City of fort Collins in the matter of the appeal to the City Council of the approval
by the Planning and Zoning Board of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly refereed to as Provinettowne PUD, Filing"fwo-Preliminary, t;73-82T and to
the granting of a sariance to the City of Fort Collins Solar Orientation Ordinance is incorporated herein
by this reference as though set forth in fill.
Official/Quasi-Judicial;Administrative Notice
Appellants hereby request that the City Council take Official%Quasi-Judicial,'Administrative Notice of flit
Constitution of the United States, the Constitution of the State of Colorado, Colorado Revised Statutes, the Charter of the
City of Fort C01ins. -he Code of the City of Fort Collins, and the Ordinances of the City of Fort Collins.
No Waiver
Appellants !)ertby submit the Ioregoln^, and re<erve the ri�oht to prescref funkier ar;nnwitt ano materials rat flt
hearim-, I lit: `i OtiZc of Appeal O\• Appellant.i L5 nOi Itlfe[IB.ed Io be cil'titrued as a Sulnr.: :sion to or a %4akel Ot all,'
tarlsdlCJVrral Of' LIell Ithlr !Ioga�ly ,:;tgmlable procedural or subs;t.nti•,:;. d:�fcc- nccurrii.g Chi; (:; II::.
Application. for Planned Unit Do velopment- Prf,-liminani Plan approval Ilia of ail•' &tel,n:I',37.iolls iiod _' 'action t8.4e1) by
the City of Fort i.'oiiins prior to and .u! salt era o the tiling cf said Application.
Ra ect'ully s lhmitizd. Respectfully L submit Co. ! _ ctfilly suhn ta;I,
Da d ':i. l vatls ou�' parks �'1;ck : '_akc
Y
JAN 0 1 I
January 30,2001
CITY
Ms. Wanda M. Krajicek
City Clerk
City of Fort Collins
300 LaPorte Avenue
Fort Collins,Colorado 80522
NOTICE OF APPEAL
TO THE HONORABLE CITY COUNCIL:
NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 2-48 of the Code of the City of Fort Collins the
undersigned parties-in-interest (hereinafter "Appellants") appeal the decision of the Planning and Zoning Board of
:January 18, 2001, to approve the Planned Unit Development—Final Plan, commonly referred to as Provincetowne PUD,
Filing Two-Final, #73-82U(Provincetowne, 2nd Filing, Final (LDGS) —File #73-82K) and to the granting of a variance
�o Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development
uidance System for Planned Unit Developments of the City of Fort Collins.
Parties-In-Interest
The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to Section 2-46(3),
(4) and(5) of the Code of the City of Fort Collins. The parties-in-interest are identified for the purposes of this Appeal as
follows:
David G. Evans Doug Sparks
6806 Deerhurst Court 900 Deerhurst Circle
Fort Collins, CO 80525 Fort Collins,CO 80525
(970)223-7957 (970)223-9863
Pursuant to the requirements of Section 2-49(5) of the Code of the City of Fort Collins, all mailing of notices subject to
that Section by the City shall be sent to:
David G. Evans
6806 Deerhurst Court
Fort Collins, CO 80525
(970)223-7957/F (970)493-3820
c�ti=J Z O ('f-
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Final,#73-82U
January 30, 2001
Page 2
Grounds Of Appeal
The following grounds of appeal set forth allegations of error in accordance with the provisions of Section 2-48 (b) (1)
and Sections 2-48(b)(2)a-d. of the Code of the City of Fort Collins.
1. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board
were prohibited from approving the final plan submitted by Applicant as no legal documents were submitted to nor
approved by the City as required in Section 29-526J(4) of the Land Development Guidance System For Planned Unit
Developments.
On March 27, 1997, an Application was filed with the Current Planning Department requesting Planned Unit
Development- Preliminary Plan approval and approval for a Preliminary Subdivision Plat. The Application contained a
request for earned credit for a project containing "Affordable Dwelling Units" pursuant to Sections 29-526C(3)(c),
Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned
Unit Developments of the City of Fort Collins. Section 29-526J(4)(a) provides, "To qualify for a residential density
bonus, a project which includes dwelling units for low-income families shall be accompanied by covenant documents o,
other adequate documents to be recorded with the Office of the County Clerk, guaranteeing the use of those dwellings
units for low-income families. The documents shall not be accepted until approved by the City as to legal form and
effect, providing that the use restriction be for at least twenty-five(25)years."
During the hearing before the Planning and Zoning Board on December 7, 2000, nor at the continued hearing of
January 18, 2001, did Applicant present any executed covenant documents or other executed documents to the City as
required in Section 29-526J(4). In addition, Applicant did not submit any covenant documents or other adequate
documents in a form which could be recorded in the Office of the County Clerk as required in Section 29-526J(4).
Section 29-526J(4)(c) of the Land Development Guidance System For Planned Unit Developments provides that,
"No final plan shall be approved for any portion of a planned unit development, approved with a residential density
bonus for providing dwelling units for low-income families, until the necessary legal documents have been submitted and
approved." The Applicant did not meet the requirements of Section 29-526J(4) of the Land Development Guidance
System For Planned Unit Developments, therefore, the Planning and Zoning Board was specifically prohibited from
approving the final plan commonly referred to as Provincetowne PUT), Filing Two-Final, #73-82U (Provincetowne, 2nd
Filing, Final (LDGS)—File #73-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base
Criterion "k" and Bonus Criterion "r"of the Land Development Guidance System for Planned Unit Developments of the
City of Fort Collins.
2. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board
were prohibited from approving the final plan submitted by applicant as no legal instruments were submitted to nor
approved by the City as required in Section 29-526J and Section 29-526J(1) of the Land Development Guidance System
For Planned Unit Developments.
Notice of Appeal
Planning and Zoning Board Decision
ovincetowne PUD, Filing Two-Final,#73-82U
nuary 30, 2001
Page 3
Section 29-526J(I) provides that, "The developer shall submit a legal instrument setting forth a plan providing
for the permanent care and maintenance of open spaces, recreational areas and communally-owned facilities and parking
lots. The same shall be submitted to the City Attorney and shall not be accepted until approved as to legal form and
effect. If the common open space is deeded to a homeowners' association, the applicant shall file the proposed
documents governing the association. . . ." A review of the file in this matter did not reveal the submission and/or
approval of such described legal instruments nor the proposed documents governing the association as required in
Section 29-526J(1).
Section 29-526J provides, "All developments shall meet the requirements herein set forth and no final plan shall
be approved that does not meet these requirements." The Applicant did not meet the requirements of Section 29-526J(I)
of the Land Development Guidance System For Planned Unit Developments, therefore, the Planning and Zoning Board
was specifically prohibited from approving the final plan commonly referred to as Provincetowne PUD, Filing Two-
Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance to Sections
29-526C(3)(c), Density Chart H, Base Criterion "k"and Bonus Criterion "r"of the Land Development Guidance System
for Planned Unit Developments of the City of Fort Collins.
• 3. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning and
Zoning Board dated November 16, 2000, for the hearing of December 7, 2000, and the notice of the Planning and Zoning
Board dated January 4, 2001, for the hearing of January 18, 2001, were insufficient to confer jurisdiction upon the
Planning and Zoning Board.
The notice of hearing dated November 16, 2000, and the notice of hearing dated January 4, 2001, failed to set
forth, with specificity, the nature of the project and requested approvals nor did it specifically set forth that the Applicant
was seeking a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the
Land Development Guidance System for Planned Unit Developments of the City of Fort Collins.
The Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of
January 18, 2001, to approve the Planned Unit Development -Final Plan, commonly referred to as Provincetowne PUD,
Filing Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance
to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development
Guidance System for Planned Unit Developments of the City of Fort Collins, in that, the notices of the Planning and
Zoning Board dated November 16, 2000 and January 4, 2001, for the hearings of December 7, 2000, and January 18,
2001, respectively, were insufficient as a matter of law to confer jurisdiction upon the Planning and Zoning Board.
To confer jurisdiction on an agency, a public notice must be clear, definite, explicit and not ambiguous. A notice
is not clear unless its meaning can be apprehended without explanation. In addition, the notice must set forth all
information reasonably necessary to provide adequate warning to all persons whose rights might be affected by the
proposed action. In order to accomplish this purpose, the notice, at a minimum, must give the date, time, and place of the
taring and apprise the public of the subject matter of the hearing and nature of the proposed action. The failure to
e
ecifically mention the variance request rendered the notice insufficient. Fedder v. McCurdy 768 P. 2d 711 (Colo. App.
1988); Hallmark Builders v. City of Gunnison 650 P. 2d 556; Sundance Hills Homeowners Association v. Board of
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Final,#73-82U
January 30,2001
Page 4
County Commissioners,.534 P. 2d 1212; Regetmitter v. Fowler 290 P.2d 223. Also, such failure to specifically notice the
variance request of Applicant was a denial of the constitutional principle of procedural due process which requires notice
and opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the hearing
decision be vacated and that the matter be set for a hearing de novo. Fourteenth Amendment, Constitution of the United
States.
4. Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To Section 29-526C(3)(c),
Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned
Unit Developments, in that, Applicant presented no evidence that the variance would result in substantial benefit to the
City and that strict application of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r"
would render the project practically unfeasible.
At the hearing of January 18, 2001, Applicant requested that the Planning and Zoning Board grant a variance to
the provisions of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r". Applicant
requested that for the purposes of this project that the adjusted gross income for housing provision set forth in said
Section be changed from 30% to 38%. In support of this request, Applicant's representative presented a document
entitled, "KB Home of Colorado Inc., Cost Analysis, Provincetowne Affordable Townhomes." The document purporteo
to demonstrate losses to be attributed to the development project if Applicant was not given a variance to the provisions
of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r". Applicant was unable to
substantiate the validity of the various assumptions set forth in said Cost Analysis nor the calculations derived therefrom.
Applicant's testimony clearly indicated that the Cost Analysis was clearly speculative in nature and was not the product
of rigorous application of accepted financial analysis based on validated empirical data. In the alternative, if it is
determined that Applicant's Cost Analysis has merit,the criteria for granting a variance is not met solely by a showing of
greater economic benefit that Applicant would gain if the variance was granted. Baum v. City and County of Denver, 147
Colo. 104.
Pursuant to Section 29-526K of the Land Development Guidance System For Planned Unit Developments, the
Planning and Zoning Board has authority to grant variances only in certain enumerated cases. The Planning and Zoning
Board is limited by the provisions of Section 29-526K and any variance made without compliance with those provisions
is beyond the authority of the Planning and Zoning Board, and void. Cross v. Bilett. 122 Colo. 278. The record of the
proceedings clearly are devoid of any evidence that the variance would result in substantial benefit to the City and that
strict application of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" would render
the project practically unfeasible.
The burden of proof is on the Applicant seeking a variance from a zoning ordinance. La Plata County Com'rs v.
Bd of Adi 768 P. 2d 1250(Colo. App. 1988). It is Appellants contention that the Applicant failed to sustain the burden of
proof in seeking the variance.
5. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, there was a substantial deviation
from the approved preliminary plans.
Notice of Appeal
Planning and Zoning Board Decision
rovincetowne PUD, Filing Two-Final,#73-82U
anuary 30,2001
Page 5
Section 29-526F(5)(b) provides that, "As a requirement of approval, the final plan shall be in substantial
compliance with the approved preliminary plan." Further, Section 29-526F(5)(b)(1) states that, "For preliminary planned
unit developments approved on or after March 13, 1981, `substantial compliance' shall mean that all conditions imposed
by the Planning and Zoning Board upon its approval of the preliminary plans have been met and the final plan does not: .
. . c. Contain changes which would normally cause the development to be disqualified under the applicable criteria of
this chapter."
It is Appellants contention-that the granting of the variance to Section 29-526C(3)(c), Density Chart H, Base
Criterion "k" and Bonus Criterion 'Y is a substantial deviation from the approved preliminary plan and constitutes a
change which would disqualify the development under the applicable criteria set forth in the Land Development
Guidance System for Planed Unit Developments.
Jurisdictional Objections To Approval
The following are continuing objections to the jurisdiction of the Planning and Zoning Board of the City of Fort
Collins to render a decision in this matter:
.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager of
the Agreement of Purchase and Sale of Real Property(hereinafter"Purchase Agreement') by and between the City of Fort
Collins and Pridemark Development Company, LLC, dated April 2, 1996, was specifically reserved by Section 4 of
Ordinance No. 41, 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City
Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of
Section 23-11 I(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City
Council pursuant to a duty enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager, on
or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement
Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and between the City of Fort Collins and
Pridemark Development Company, LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property
dated April 2, 1996,was void, in that the First Addendum could not, as a matter of law, modify an executory agreement.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager of the
power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative
discretion which violated the requirements of Section 23-111 (a) of the Code of the City of Fort Collins which vests sole
authority to sell real property upon the City Council pursuant to a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City Manager of
the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First
Addendum To Agreement Of Purchase And Sale Of Real Property, was an improper delegation of legislative discretion
Well
violated the requirements of Section 23-11 l(a)of the Code of the City of Fort Collins which vests sole authority to
sell real property upon the City Council pursuant to a duly enacted ordinance.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Final, #73-82U
January 30, 2001
Page 6
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in
interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System
For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the
time of the filing on March 27, 1997, of the Application with the Current Panning Department requesting Planned Unit
Development- Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal
authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of
Fort Collins.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in
interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. - Land Development
Guidance System For Planned Unit Developments and Ordinance No. 161, 1996.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor its predecessor in
interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System
For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the
time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Uni'
Development- Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given lega.
authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of
Fort Collins.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board
failed to give timely notice of August 5, 1999, hearing.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning and
Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the
Planning and Zoning Board.
*Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of the Land
Development Guidance System For Planned Unit Developments requires, "The decision of the Planning and Zoning
Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board."
*Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins Solar
Orientation Ordinance, in that, Applicant presented no evidence which would demonstrate that the granting of the
variance would neither be detrimental to the public good nor impair the intent and purposes of Section
29-526(2)A-I/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties with
regard to solar orientation or access,and that undue hardship would be caused to Applicant by the strict application of the
provisions of Section 29-526(2)A-I/A-1.1.
*The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999, and filed with
the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council of the approval
by the Planning and Zoning Board of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary,#73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance is incorporated herein
by this reference as though set forth in full.
ciaUOuasi-Judicial/Administrative Notice
Appellants hereby request that the City Council take Official./Quasi-Judicial/Administrative Notice of the
Constitution of the United States,the Constitution of the State of Colorado, Colorado Revised Statutes, the Charter of the
City of Fort Collins,the Code of the City of Fort Collins, and the Ordinances of the City of Fort Collins.
No Waiver
Appellants hereby submit the foregoing and reserve the right to present further argument and materials at the
hearing. The Notice of Appeal by Appellants is not intended to be construed as a submission to or a waiver of any
jurisdictional or such other legally cognizable procedural or substantive defect occurring during the processing of the
Application for Planned Unit Development-Preliminary Plan approval nor of any determinations and/or actions taken by
the City of Fort Collins prior to and subsequent to the filing of said Application.
s ectfu ly submitted,
av' G. Evans
•
Community Planning and Environmental Services
Current Planning
ty of Fort Collins
MEMORANDUM
TO: Mayor and Members of City Council
FROM: Stephen Olt, City Planner,,
THRU: Greg Byrne, Director C.P.E.S.
Cameron Gloss, Current Planning Director
DATE: March 6, 2001
RE: PROVINCETOWNE PUD, FILING TWO - FINAL —
Appeal to City Council
The purpose of this memorandum is to respond to an appeal regarding the January 18,
2001 decision of the Planning and Zoning Board to approve the Provincetowne PUD, Filing
Two - Final.
Section 2-48 of the City Code states:
"Except for appeals by members of the City Council, for which no grounds need be stated,
the permissible grounds for appeal shall be limited to allegations that the board or
commission committed one or more of the following errors:
(1) Failure to properly interpret and apply relevant provisions of the Code and
Charter;
(2) Failure to conduct a fair hearing in that:
a. The board, commission or other decision maker exceeded its authority
or jurisdiction as contained in the Code and Charter;
b. The board, commission or other decision maker substantially ignored
its previously established rules of procedure;
1
281 North College Avenue • r'O. Box 380 • Fort Collins, CO 80522-0580 • (970) 221-6750 • FAX (970)416-2020
C. The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
d. The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant."
The Appeal:
Appellants David G. Evans
6806 Deerhurst Court
Fort Collins, CO. 80525
Doug Sparks
900 Deerhurst Circle
Fort Collins, CO. 80525
Mark Menke
901 Deerhurst Circle
Fort Collins, CO. 80525
Grounds for Appeal:
(Note: Bold text represents excerpts from the appeal document)
The following grounds of appeal set forth allegations of error in accordance with the
provisions of Section 2-48(b)(1) and Sections 2-48(b)(2)a - d of the Code of the City
of Fort Collins.
(Note that the numbers used in this response correspond to the numbering used in the
appeal.)
1. Pursuant to Section 2-48(b)(2)a, the Planning and Zoning Board exceeded its
authority or jurisdiction, in that the Planning and Zoning Board was prohibited
from approving the final plan submitted by Applicant as no legal documents
were submitted to nor approved by the City as required in Section 29-526J(4)
of the Land Development Guidance System for Planned Unit Developments.
Staff Response:
This allegation pertains to the affordable housing covenants and alleges that the
Planning and Zoning Board failed to conduct a fair hearing in that it exceeded its
authority or jurisdiction because the required affordable housing covenants, though
2
submitted, were not executed. Staffs position it that the Board did not exceeded its
• authority or jurisdiction because the documents were not executed.
As the Appellants' allege, Sec. 29-526J(4)(a) of the Land Development Guidance
System ("LDGS") provides that:
To qualify for a residential density bonus, a project which includes
dwelling units for low income families shall be accompanied by
covenant documents or other adequate documents to be recorded
with the Office of the County Clerk, guaranteeing the use of those
dwellings for low income families. The documents shall not be
accepted until approved by the City as to legal form and effect,
providing that the use restriction be for at least twenty-five (25) years.
However, this section of the LDGS does not require that the documents be
executed in order for the Board to act upon them as long as they are submitted and
approved by the City as to legal form and effect. Staff had worked with the
Developer in the drafting of the documents and had approved them as to legal form
and effect and the Developer had promised to execute them. The LDGS requires
that the documents be adequate Oto bed recorded with the County. The Developer
promised at the public hearing that they would be executed and recorded and was
advised by the staff and the Board that the plat would not be recorded nor would
. building permits be issued until that occurred. This understanding was made clear
in the record and staffs position is that the technicality of a lack of execution of
these agreements prior to the hearing did not result in the Board's failing to conduct
a fair hearing.
2. Pursuant to Section 2-48(b)(1), the Planning and Zoning Board failed to
properly interpret and apply relevant provisions of the Code, in that the
Planning and Zoning Board was prohibited from approving the final plan
submitted by Applicant, as Applicant's mere verbal representation that
Applicant would execute, at some unspecified date in the future a legal
document and/or documents not yet agreed to, was insufficient to satisfy the
submission and approval of legal documents requirement of Section 29-
526J(4) of the Land Development Guidance System for Planned Unit
Developments. Pursuant to Section 29-526J(4) of the Land Development
Guidance System for Planned Unit Developments, such physical existence,
execution and approval by the City of such final legal documents were
conditions precedent to the approval of the final plan by the Planning and
Zoning Board.
• 3
Staff Response:
This allegation pertains to the same affordable housing covenants and the same
issue regarding their lack of execution prior to the hearing. It is simply premised
upon the Board having failed to properly interpret and apply the relevant provisions
of the Code rather than upon the prior argument that the Board failed to conduct a
fair hearing. Again, staffs position is that the Board did not fail to properly interpret
and apply the LDGS by not requiring the affordable housing covenants to be
executed prior to the hearing. The Board was assured that they would be executed,
and the Board and staff assured the developer that the plat would not be recorded
nor would building permits be issued until they were executed. Staffs position is that
no risk was presented to the City by the lack of execution prior to the hearing. The
covenants have now been executed and delivered to the City and ready for
recordation; although, of course, they should not be recorded until the outcome of
this appeal is known.
3. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and
Zoning Board exceeded its authority or jurisdiction and failed to properly
interpret and apply relevant provisions of the Code, in that the Planning and
Zoning Board was prohibited from approving the final plan submitted by
Applicant, as no legal instruments were submitted to nor approved by the City
as required in Section 29-525J and Section 29-526J(1) of the Land
Development Guidance System for Planned Unit Developments.
Staff Response:
This allegation pertains to the homeowners' association covenants required by Sec.
29-526J(1) of the LDGS, which requires the developer to submit a legal instrument
setting forth a plan providing for the permanent care and maintenance of open
spaces, recreational areas, and communally-owned facilities and parking lots. This
argument is presented to the Council under both the allegation of error that the
Board failed to conduct a fair hearing by exceeding its authority or jurisdiction and
that the Board failed to properly interpret and apply the Code. The Appellants argue
that since the homeowners' association documents and the plan for maintenance
of the open space was not submitted to the Board prior to its hearing, that the Board
either failed to conduct a fair hearing because it exceeded its authority or jurisdiction
or the Board failed to properly interpret the Code.
Staffs position is that the Board did not exceed its authority and jurisdiction
because the Board, in its motion, incorporated the condition contained in the staff
report which provided in part as follows:
4
The Planning and Zoning Board approves this planned unit
development final plan upon the condition that the development
agreement, final utility plans and final PUD plans for the planned unit
development be negotiated between the developer and the City staff
and executed by the developer.....(emphasis added).
Sec. 29-526J(1) requires that no final plan shall be approved that does not meet the
requirement that the developer submit a legal instrument setting forth a elan
providing for the permanent care and maintenance of open spaces, etc. The plan
for maintenance of the open spaces is part of the ❑final PUD planso, and the Board
conditioned its approval of the PUD on the submittal of all final PUD plans by a
specific date. Sec. 29-526F(5)(d) authorizes the Board to approve, disapprove or
approve with conditions, the proposed planned unit development. Therefore, the
Board acted within its authority and jurisdiction in conditionally approving this final
PUD plan. For the same reason, staffs position is that the Board properly
interpreted and applied the LDGS because it included the condition that the final
PUD plans must be submitted to the City subsequent to the plan approval. If these
documents are not submitted to the City on time, then the Board's condition
provides that the final PUD plan approval becomes null and void and of no effect.
4. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and
Zoning Board exceeded its authority or jurisdiction and failed to properly
interpret and apply relevant provisions of the Code, in that the notice of the
Planning and Zoning Board dated November 16, 2000, for the hearing of
December 7, 2000, and the notice of the Planning and Zoning Board dated
January 4, 2001, for the hearing of January 18, 2001, were insufficient to
confer jurisdiction upon the Planning and Zoning Board.
Staff Response:
This allegation pertains to the adequacy of notice. The argument is that the Board
either failed to conduct a fair hearing by exceeding its authority or jurisdiction or that
the Board failed to properly interpret and apply the Code because the notice failed
to set forth, with specificity, the nature of the Project and the requested approvals,
and that the notice did not specifically set forth that the applicant was seeking a
variance.' The notice that was given complied with the requirement of the LDGS
for hearings on preliminary plans that the time, date and place of the hearing must
I A variance was requested to change the affordable housing component from the requirement that
persons qualified for those units must pay less than 30%of their gross income for housing to a requirement
(as presently exists in the Land Use Code) that those persons pay less than 38% of their gross income for
housing.
5
-be published in a newspaper at least seven days prior to the hearing and also
complied with the posting and mailing requirements contained in Appendix A of the
LDGS. Although there is no specific notice requirement in the LDGS for the
approval of a final plan, the staff followed the same notice requirements for this final
plan as are imposed for preliminary plans. Notice was given that the subject matter
of the hearing was the question of the approval or denial of the Provincetowne PUD
Final Plan. The notice did not contain specific reference to all of the issues that
might arise in the discussion of the Provincetowne PUD Final Plan nor any
reference to any variances that might be sought. Having complied with the
requirements of the LDGS for the giving of notice indicating the general topic for
discussion (190 single family lots and 141 multi-family townhomes on 70 acres) and
showing the date (January 18, 2001), time (6:30 p.m.), and place (City Council
Chambers, City Hall West, 300 LaPorte Avenue) for the hearing, staffs position is
that the Board acted properly with regard to the notice.
5. Pursuant to Section 2-48(b)(2)c, the Planning and Zoning Board considered
evidence relevant to its findings which was substantially false or grossly
misleading.
Staff Response:
This allegation of error pertains to the granting of the variance (as is described in
Footnote 1 of this memorandum). The Appellants allege that the Board considered
evidence relevant to its findings which was substantially false or grossly misleading
because the Applicant's testimony, the Appellants argue, was speculative regarding
the cost analysis submitted to the Board entitled ❑K-B Home of Colorado, Inc., Cost
Analysis, Provincetowne Affordable Townhomes.❑ The Appellants argue that the
cost analysis was the only evidence presented by the Applicant in support of the
requested variance, but at the hearing, neither the Appellants nor any other person
presented any evidence to the Board to refute the evidence presented by the
Applicants. Accordingly, the best evidence presented to the Board (and indeed the
only evidence presented to the Board) was that which was presented by the
Applicant. Accordingly, the Board acted properly in considering the evidence and
basing its decision upon the evidence that was presented.
6. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and
Zoning Board exceeded its authority or jurisdiction and failed to properly
interpret and apply relevant provisions of the Code, in that Applicant failed to
sustain the burden of proof in seeking the variance to Section 29-526C(3)(c),
Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land
Development Guidance System for Planned Unit Developments, as Applicant
presented no evidence that the variance would result in substantial benefit to
6
the City and that the strict application of Section 29-526C(3)(c), Density Chart
. H, Base Criterion "k" and Bonus Criterion "r" would render the project
practically unfeasible.
Staff Response:
This allegation of error again pertains to the variance and is founded on the same
argument. The difference is that the Appellants in their sixth argument allege that
the Board failed to conduct a fair hearing because it either exceeded its authority
or jurisdiction or because it failed to properly interpret and apply the Code. The
Appellants argue that the Applicant failed to show that the granting of the variance
would result in a substantial benefit to the City or that the strict applicant of the 30%
rule would render the project practically unfeasible. The Appellants base this
argument upon their position ❑that the cost analysis was speculative and was not
the product of rigorous applicant of accepted financial analysis based upon
validated empirical data.❑ The Appellants argue that the Applicant failed to sustain
its burden of proof in seeking the variance. With respect to this argument, staffs
position is that the Board acted properly. Staffs position is that it cannot be argued
that the Board ❑exceeded its authority orjurisdiction❑ in considering the variance.
Based upon the evidence submitted by the Applicant (that the cost analysis shows
that the application of the 30% rule would render the Project practically unfeasible
and that the Project itself, by virtue of it being an affordable housing project, is a
. substantial benefit to the City) staffs position is that the Board did properly interpret
and apply the Code. The record was made by the Applicant, no contrary evidence
was presented and, therefore, the Applicant met its burden of proof seeking the
variance. In these kinds of quasi-judicial decision making matters, the burden of
persuasion is simply a ❑preponderances of the evidence (51%) and, in this case,
all of the evidence presented to the Board was presented by the Applicant and all
of it went to support the argument that the variance should be granted.
7. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and
Zoning Board exceeded its authority or jurisdiction and failed to properly
interpret and apply relevant provisions of the Code, in that there was a
substantial deviation from the approved preliminary plans.
Staff Response:
The final allegation presented by the Appellants pertains to the question of whether
the final plan is in substantial compliance with the preliminary plan. The LDGS
requires in Sec. 29-526F(5)(b) that the final plan shall be in substantial compliance
with the approved preliminary plan. The Appellants' position is that since the final
plan included the variance (which was not a part of the preliminary plan) that it is not
• 7
in substantial compliance with the preliminary plan and, therefore, should have been
denied. From the standpoint of the physical layout of the plan, the architecture, and
so on, the preliminary and the final plans are alike. The only difference made by the
granting of a variance pertains to who is entitled to rent the affordable housing units.
The only change is a demographic change allowing people of lower financial means
to take up residency in the Project. Since land use regulations generally, and the
LDGS in particular, make no judgments on the virtues or vices of persons of various
incometwealth levels, staffs position is that it would not have been proper for the
Board to deny the plan as being substantially out of compliance with the approved
preliminary plan merely because of the income level/wealth of some of the
occupants of the Project. Applying such an analysis to the approval or denial of a
plan would have placed the Board in an awkward position regarding potential
exclusionary zoning and, taken to an extreme, could have lured the Board into
embarking upon a discussion of applying the Land Use Code in such a manner as
to implicate questions of ethnic and minority discrimination and age discrimination.
Accordingly, staffs position is that the Board acted properly in interpreting the Code,
and did not fail to conduct a fair hearing by exceeding its authority or jurisdiction in
this matter. The demographics of occupants of residential land development
projects should never rise to the level of a criteria upon which approval or denial of
a project can be based.
Also, the Appellants are citing Jurisdictional Objections to Approval. The following are
continuing objections to the jurisdiction of the Planning and Zoning Board of the
City of Fort Collins to render a decision in this matter:
[Note that the following allegations were set forth in the Amended Notice of Appeal dated
September 3, 1999, from Appellants David Evans, Doug Sparks, and Mark Menke,
regarding the August 5, 1999, determination of the Planning and Zoning Board to approve
the Provincetowne PUD, Filing Two—Preliminary. This item was heard by City Council on
October 5, 1999. City Council voted to uphold the decision of the Planning and Zoning
Board]
No hearing jurisdiction conferred on Planning and Zoning Board, in that,
execution by the City Manager of the Agreement of Purchase and Sale of Real
Property (hereinafter "Purchase Agreement') by and between the City of Fort
Collins and Pridemark Development Company, LLC, dated April 2, 1996, was
specifically reserved by Section 4 of Ordinance No. 41, 1996, to the Mayor and
not the City Manager. The execution of said Purchase Agreement by the City
Manager violated the specific requirements of Section 4 of Ordinance No. 41,
1996 as well as the requirements of Section 23-111(a) of the Code of the City
of Fort Collins which vests sole authority to sell real property upon the City
Council pursuant to a duly enacted ordinance.
8
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,
execution by the City Manager, on or about April 12, 1996, of an agreement on
behalf of the City of Fort Collins entitled "First Addendum to Agreement of
Purchase and Sale of Property" (hereinafter "First Addendum") by and
between the City of Fort Collins and Pridemark Development Company, LLC,
adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property
dated April 2, 1996, was void, in that the First Addendum could not, as a
matter of law, modify an executory agreement.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,
delegation to City Manager of the power to sell the real property pursuant to
Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative
discretion which violated the requirements of Section 23-111(a) of the Code
of the City of Fort Collins which vests sole authority to sell real property upon
the City Council pursuant to a duly enacted ordinance.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,
delegation to the City Manager of the power to restructure the sale of the real
property from a purchase to an option to purchase pursuant to the First
Addendum to Agreement of Purchase and Sale of Real Property, was an
improper delegation of legislative discretion which violated the requirements
of Section 23-111(a) of the Code of the City of Fort Collins which vests sole
authority to sell real property upon the City Council pursuant to a duly
enacted ordinance.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,
Applicant nor its predecessor in interest, as a matter of law and pursuant to
filing requirements of Section 29-526 Land Development Guidance System
for Planned Unit Developments and Ordinance No. 161, 1996 was the owner
of the subject parcel of real property at the time of the filing on March 27,
1997, of the Application with the Current Planning Department requesting
Planned Unit Development - Preliminary Plan approval and approval for a
Preliminary Subdivision Plat nor was Applicant given legal authority to
execute the Application as filed nor prosecute such Application on behalf of
the record owner, the City of Fort Collins.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,
Applicant nor its predecessor in interest, filed, in a timely manner, a complete
application as required by Section 29-526 et seq. — Land Development
Guidance System for Planned Unit Developments and Ordinance No. 161,
1996.
9
* No hearing jurisdiction conferred on Planning and Zoning Board, in that,
Applicant nor its predecessor in interest, as a matter of law and pursuant to
filing requirements of Section 29-526— Land Development Guidance System
for Planned Unit Developments and Ordinance No. 161, 1996 was the owner
of the subject parcel of real property at the time of the filing on March 27,
1997, of the Application with the Current Planning Department requesting
Planned Unit Development - Preliminary Plan approval and approval for a
Preliminary Subdivision Plat nor was Applicant given legal authority to
execute the Application as filed nor prosecute such Application on behalf of
the record owner, the City of Fort Collins.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, the
Planning and Zoning Board failed to give timely notice of August 5, 1999,
hearing.
* No hearing jurisdiction conferred on Planning and Zoning Board, in that, the
notice of the Planning and Zoning Board dated July 19, 1999, for the hearing
of August 5, 1999, was insufficient to confer jurisdiction upon the Planning
and Zoning Board.
* Planning and Zoning Board failed to make required findings, in that, Section
29-526K of the Land Development Guidance System for Planned Unit
Developments requires, "The decision of the Planning and Zoning Board on
any application for a variance shall be set forth in writing in the minutes of the
meeting of the Board".
* Applicant failed to sustain the burden of proof in seeking the variance to the
City of Fort Collins Solar Orientation Ordinance, in that, Applicant presented
no evidence which would demonstrate that the granting of the variance would
neither be detrimental to the public good nor impair the intent and purposes
of Section 29-526(2)A-1/A-1.1 or that Applicant was entitled to the variance by
reason of exceptional conditions or difficulties with regard to solar orientation
or access, and that undue hardship would be caused to the Applicant by the
strict application of the provisions of Section 29-526(2)A-1/A-1.1.
* The full text of the arguments set forth in the Notice of Appeal dated
September 3, 1999, and filed with the City Clerk of the City of Fort Collins in
the matter of the appeal to the City Council of the approval by the Planning
and Zoning Board of August 5, 1999, to approve the Planned Unit
Development Preliminary Plan, commonly referred to as Provincetowne
PUD, Filing Two —Preliminary, #73-82T and to the granting of a variance to the
City of Fort Collins Solar Orientation Ordinance is incorporated herein by this
10
reference as though set forth in full.
• Staff Response:
The aforementioned allegations identified as Jurisdictional Objections to Approval,
and denoted by an asterisk (`), were set forth in the Amended Notice of Appeal
dated September3, 1999, from Appellants David Evans, Doug Sparks, and Mark
Menke, regarding the August 5, 1999, determination of the Planning and Zoning
Board to approve the Provincetowne PUD, Filing Two — Preliminary. These
Jurisdictional Objections to Approval are the same arguments that were presented
to City Council on October 5, 1999, with Council voting to uphold the decision of the
Planning and Zoning Board, and in a different format presented to the Court, in
opposition to the approval by the City of the preliminary plan.
Since these Jurisdictional Objections to Approval have already been addressed by
the City Council during the appeal of the preliminary plan and by the City in
litigation, staffs position is that these arguments have been sufficiently addressed
by the City and that they need not be addressed by the City in this appeal.
•
ITEM NO. 9
MEETING DATE 12/7/00
STAFF S}-CVe C7I
City of Fort Collins PLANNING AND ZONING BOARD
STAFF REPORT
PROJECT: Provincetowne PUD, Filing Two - Final - #73-82U
APPLICANT: Downing, Thorpe & James, Inc.
c/o Rick Volpe
1881 Ninth Street, Suite 103
Boulder, CO. 80302
OWNER: City of Fort Collins
P.O. Box 580
Fort Collins, CO. 80522-0580
PROJECT DESCRIPTION:
This is a request for final planned unit development (PUD) approval for 331 residential
dwelling units (190 single family lots and 141 multi-family units) on 70.0 acres, located on
the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South
College Avenue, north of County Road 32, and zoned LMN - Low Density Mixed Use
Neighborhood. This is a qualified Affordable Housing project.
RECOMMENDATION: Approval
EXECUTIVE SUMMARY:
This request for final PUD approval:
* Is in conformance with the approved Provincetowne PUD, Filing Two - Preliminary;
* meets the applicable All Development Criteria of the Land Development Guidance
System (LDGS).
COMMUNITY PLANNING AND ENVIRONMENTAL SERVICES 281 N.College Ave. P.O.Box 580 Fort Collins,CO 80522-0580 (970)221-6750
PLANNING DEPARTMENT
Provincetowne PUD, Filing Two — Final - #73-82U
December 7, 2000 P & Z Meeting
Page 2
COMMENTS:
1. Background:
The surrounding zoning and land uses are as follows:
N: E, RL : existing City facility and single family residential
(City Transfort Service Center, Brittany Knolls PUD)
S: LMN, POL: future filings of the Provincetowne PUD and City-
owned property
E: RL, LMN, UE:vacant land, existing single family and multi-family
residential, and church (Eagle Tree, Stanton Creek,
Redeemer Lutheran Church)
W: LMN, POL, FA1 in Larimer County: vacant land, future filings of the Provincetowne
PUD, and City-owned property
The subject property was annexed into the City as part of the Halycon Annexation in
December, 1980.
The subject property was part of the original Provincetowne PUD Master Plan that was
approved by the Planning and Zoning Board in November, 1982 for single family and multi-
family residential, commercial, park, and industrial uses on 410 acres.
The subject property was part of the Amendment to the Provincetowne ODP that was
approved by the Planning and Zoning Board on October 26, 1987 for single family and
multi-family residential, church, business service, neighborhood and regional shopping,
and recreational uses on 426 acres.
The Planning and Zoning Board approved the Redeemer Lutheran PUD on April 27, 1992
for a church facility on 5.0 acres. This site, although part of the Amendment to the
Provincetowne ODP, is not part of the current development request.
The Planning and Zoning Board approved the Second Amendment to the Provincetowne
ODP on September 27, 1993 for the purpose of allowing multi-family residential on a
portion of Tract B, previously approved for single family residential. This approval changed
7.64 acres (located at the southwest corner of South Lemay Avenue and Trilby Road) of
the overall 30.14 acre Tract B from a single family to multi-family use.
The Planning and Zoning Board approved the Provincetowne PUD, Filing One on October
25, 1993 for 93 single family lots on 50.34 acres. This site, although part of the Second
Amendment to the Provincetowne ODP, is not part of the current development request.
• Provincetowne PUD, Filing Two — Final -#73-82U
December 7, 2000 P & Z Meeting
Page 3
The Planning and Zoning Board approved the Eagle Tree Condominiums PUD on August
26, 1996 for 92 multi-family dwelling units on 7.64 acres. This site, although part of the
Second Amendment to the Provincetowne ODP, is not part of the current development
req uest.
The subject property is part of the Provincetowne Amended ODP that was approved by the
Planning and Zoning Board on December 16, 1996 for single family and multi-family
residential, neighborhood commercial, and neighborhood parks and open space uses on
160.0 acres. The Board placed a limit of 955 residential dwelling units on the 160 acres,
with a maximum residential density of 5.97 dwelling units per acre, on their approval. City
Council upheld this decision at their public hearing on February 25, 1997.
The Planning and Zoning Board approved the Provincetowne PUD, Filing Two on August
5, 1999 for 331 residential dwelling units (190 single family lots and 141 multi-family units)
on 70.0 acres. This decision was appealed to City Council, which upheld the Board's
decision at a public hearing on October 5, 1999.
2. Land Use:
• This is a request for final PUD approval for 331 residential dwelling units (190 single family
lots and 141 multi-family units) on 70.0 acres, located on the south side of Trilby Road at
Brittany Drive, west of South Lemay Avenue, east of South College Avenue, and north of
County Road 32. The proposed gross residential density is 4.73 dwelling units per acre.
The request is in conformance with the approved Provincetowne PUD, Filing Two —
Preliminary. It was evaluated against and meets the applicable All Development Criteria
in the LDGS.
This is a qualified Affordable Housing project, based on the 141 multi-family units at the
northwest corner of the project.
3. Design:
Architecture:
The multi-family buildings will be 3-plex, 4-plex, 5-plex, and 6-plex structures up to 29' in
height. They will contain a mix of 2-bedroom and 3-bedroom dwelling units. They will be
constructed of a combination of wood lap siding and brick or stone as masonry accent
along portions of the building foundations. The roofing will be dimensional asphalt shingles.
Provincetowne PUD, Filing Two — Final - #73-82U
December 7, 2000 P & Z Meeting
Page 4
Landscaping:
Street trees are being provided at a 40' spacing throughout the development. There is a
mix of shade, ornamental, and evergreen trees in the common open areas and detention
areas that will be installed by the developer and maintained by the Homeowner's
Association.
The landscaping in the multi-family portion of the development, in Parcel H, will consist of
deciduous, ornamental, and evergreen trees; deciduous and evergreen shrubs; and,
ornamental grasses and perennial flowers. There will be trees and shrubs in the surface
parking areas to meet the interior landscaping requirements and provide adequate
screening from streets. There will be deciduous and evergreen shrubs as foundation
plantings around the multi-family buildings. Landscaping in the multi-family area will be
installed by the developer and maintained by the Homeowner's Association.
Parking:
All single family lots in Parcels D, F2, F3, G1, and G2 will provide for their off-street parking
requirements in driveways and garages on each lot.
The multi-family units in Parcel H will provide for their parking requirements with small
surface parking lots and parallel parking along the private drives, local streets, and
connector streets along and within this phase of development. A total of 271 parking
spaces are needed for the mix of 2-bedroom and 3-bedroom multi-family units and the
applicant is providing 272 spaces.
4. Neighborhood Compatibility:
There were two neighborhood meetings held for this development proposal (March 17,
1997 and December 9, 1998) prior to the Planning and Zoning Board public hearing and
decision on the preliminary PUD. Since the Board approved the preliminary PUD and City
Council upheld an appeal of their decision, and since the final PUD is in conformance with
the preliminary PUD, no additional neighborhood meetings have been held regarding this
development proposal.
5. Transportation:
This development will gain its primary access from Trilby Road via the proposed
Provincetowne Drive (a collector/connector street) and from South Lemay Avenue via the
existing Province Road (a collector/connector street). There will be 3 secondary access
streets from the existing Brittany Drive along the northeasterly boundary of this proposed
Provincetowne PUD, Filing Two — Final -#73-82U
December 7, 2000 P & Z Meeting
Page 5
development, adjacent to the Eagle Tree single family residential development and the
Reedemer Lutheran Church.
FINDINGS OF FACT/CONCLUSIONS:
In evaluating the request for the Provincetowne PUD, Filing Two - Final, staff makes the
following findings of fact:
* It is in conformance with the approved Provincetowne PUD, Filing Two - Preliminary.
* It meets the applicable All Development Criteria of the LDGS.
RECOMMENDATION:
Staff is recommending approval of Provincetowne PUD, Filing Two - Final - #73-82U.
.� ■ NONE
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on a
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INA
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In
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i
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Activity A: ALL DEVELOPMENT CRITERIA
• ALL CRITERIA I APPLICAELE CRITERIA ONLY
s:he c.:enan IWil the=Caw .
aep�ie+ek7 be nwea7
CRITc�ION
• Yes INo If no, please ex=lain
Aj
Al. COMMUNITY-WIDE CRITERIA.
1.1 Solar Onentation I I i I I�wtaylr� art9Pb
1.2 Ccmorehensive Plan ljkl I K I I
1.3 Wildlit2 Habitat I IX I I
1.4 Mineral Deposit I I I
1.5 Ecclocicaliy Sersitive Areas I resarved I I I
1.6 Lands cf Agricultural Imooranee I reserve' I I I
1.7 Enercv Corse.vation I I I I I
;.e Air Quality I I I I
1 .5 waTer Quality
10 Sawace arc I I I I I
Wastes
•
1 11 w=--, rr n r/"
1.12 ResidentialDensity I
A. 2. NE!GHEORHOOD COb1PATIEUTY CRITERIA I I
VenicLi'er. PeC=saran. Eike Tran<_ocraticn I I I J I I
ail irc P!2camant and Orient aticr, I I
2.3 Natural Features
• V=ni"• ar Circulation anc PEr'Rirc I I { I X I J
2 = recestnan Circulation I IXI I I I
2.' Ar_. ite:ure I I I I
2.8 ' Eutlaing Heicnt ana Views I I I
2.5 : Shading I I I
2.10 Sclar Access
211 His•oric Resources I I I I I
2.12 Sett:acks I Ixl I I
2.13 Lanascace I I I I I
2 1 ' Sicns
2.1= Site Lighting I I I
2.16 Noise and Vibration I I I I
9.17 Glare or Heat I I I
2.18 Hazardous Materials I
A 3. ENGINEERING CRITERIA
3.1 Utility Capacity I
3.2 Design Standards
• 3.3 Water Hazards _
3.4 Geologic Hazards I
Land Development Guidance System for Planned unit Developments
The City of Fort Collins,Colorado.Revised 1994 U��
•61 - �
Final Site Plans
for
PROVINCETOWNE P.U.D. FILING 2
City of Fort Collins, Colorado
KEY MAP
r N6,
*GENERAL DEVELOPMENT OVERALL LAND
E PHASING SCHEDULE USE SUMMARY
i r J
.
� IYs
1 MAP PARCEL H
Phase I u u
VICIN=MAP .. --. . __. ....._.
S
PARCEL $ BEET INDEX
Phase 4 SHE8T1 COVER SHBEI
PARCEL is `' SHEET 2 OVERALL SIZE PLAN
SHEBI 3 FINAL PLAN:PARCEL D
SHEBT4 FINAL PLAN:PARCEL
SHEBr 5 FINAL PLAN:PARCELS F2
SHOT 6 FINAL PLAN:PARCELS F3
FINAL PLAN:PARCELS GI&02
t / Phase PD SHM 8 FINAL PLAN:PARCELS 01&02
nmRr a SHE6I 9 FINAL PLAN:PARCELS 01&02
SHEETIO FINAL PLAN:PARCEL
' 1 SHEET 11 PLANS&D6rAE3
ISSUE DATE: 1-14-00
RRV31011 DAM&S60D
RV1810N DA7&7-28-M RRVMION DATE:10-I&
1 Aanu aunaeaa
PROJECT SITE
�t W}) I(AUFMANgBROAD
�} w�rwsr.P,,..vmw.w.saua.ao �.u�� •�•�� �_ _...W.o
mrvet canwm.om �ewr_s:.� Gism:a-
�E
PARCEL.Ha \ �� iy. THORPE
)AMPS
PARCEL 0
`ODY.BOON y
PARCEL P2 _ `SwF
a tl
OTA PART OPTHIS _ IK�
FINAL PLAT) N- -_� .1,,,,, PARCELD
PARCEL F3
y—
/ / _� \ — O
OVERACT. LAND / �,s� � � -�� _ - - a
USE SUMMARY
ARCELI •.
APPLICANT:�
wunau+�ea0�o
OT A PART OF THI = .-
'°" PLNAL PLAT)
` 1
�y f
I�I OPENSPACE
, owwa ms rux
,� ® OVEWLSRH P[.AN 20F 11
PARCEL D
STANDARD/PAINTED STOP SIGN
GUEST PARKING INTERSECTION (TYP.I u�.cpE
\ 1 11 W
( ') CROSSWALK(See Engineering _ __— mamas�.r i..�.uaurenm�w.a re',EFc
\COYYON OPEN SPACE/
LANDSCAPED ISLAND VINCLIO
r:.'�"'
ro l win- yCHUsEAM il7i.jT -OUTLOi-E .1
-ii►ww SEE.'DEET _
I. �. -� w rr ureau.a ra .w..'..—
:. CE RUAD - YATCHUNF..
PROVIN pe�ti®vim OUTLOT E .✓'* Ip
VIDBL
�— DK CROSS
CROSSWALK \ I
(S<e Eotineerint Drani g )� \ _�_ =__S_ -lf • , II � I ry4 I��^- r���p��^��^�� A
4.5' DETACHED SIDEWALK I
WITH TREELAIIN 11 �� \;{I 1 11I1 11 .,. I _° 1,;=_. �.:�"•: n.�""—
'�
N
COMMON OPEN SPACE/ PANE ILkw
/ SAOUI EHROUK
LANDSCAPED ISLAND
I,I 51011T D4RTANCE
FUTURE TRAIL I / EAS_EYEN1' (TAP
CON NEC TION
��
PARCEL
BOUNDARY i�a.• I F---" u w ... i vuevxo a.w.we�.rs 0
A' 6NCRETE
T FOOTPATH
OUTLOT F wu amrt�mv euw.vr
APPUCAN':
! LOT I
SOLARR ORIENTATION
TATION — , KARWN�YtlAD
REQUIREMENTS (TYP.) J --
OUTLOT E
YIDBLOCK ms
L. Comm _ _ CROSSWALK
J SPACE—� .�
C E 10N 7'11T11RE TKAIL
II �naw...Acao un.;r
fI
�4k� --
J
PARCEL D KEYP
3 OF i 1
FINAL SITE PLAN
rvnn ��
GUEST PARKING COMMON OPEN SPACE/
PARCEL D
STOP SIGN (TYP.) LANDSCAPE ISLAND it/ U ans r.wiunu
PROVINCE ROAD WALK ,
OUT OT - & —_ -- EXISTING) DOWNM
: �w r.r. i
WALKTHO E
ULU
— :.. ..:
esrv..e on 10
,,. I ,.�...m.,.s..'°.....t"�+�.m.:.,-. )AMPS
1i �_ `,,I( aA .n "•• C"�� r. I��us'— n. .._. OPEN SPACE AREA
—YY i8 k _ (PART bP RATUIW. OPEN BPACB ARRA m °� •��s��^ re^a+
GITY
D NATURA Ras URGE BY
51 r.� w1f,m- = -- rr
-- Bow
--1 m ;.r�.�:o, 31 )y .,. °; .,. ;,fi II -1 I � I ` w '�.'..�r•'..r'�:e.'a:'
�1 I I-.� �� Im.`.,.."• eI Ir m• I � a ve'-'s' -m.-rwrm
z � r
I v = I EST ®.�.m. A
rtt A IRi-Y4-M 4 f-aw6
1 I I� r F`r D -\�'•,` I I �:, —� I o LINE �9.:�,S"j&mam AWO
J'e
�l fill
rsFl.u'wn Os .u,ni u,p
1w m F
COMMON
SPACE -
OUTLOT F armo. mns . �r� .rr.
g .p..m.a
.J �r..W/r..•.mI.bIO1.W M�nTm r.NI .mPY Y.I.O.aWv.m
UTLOT
II y CURB RAMPS AT PARCEL"' a�imA�� -'�"•'p"'r�- ~'m"'-m
ALL INTERSECTIONS BOUNDARY p APPUCAW:
m mrr m ma... awA•aimenv wro.xr: AAVlYAN�ORWw
LOT MEETING
a*� ram. carom .
(' SOLAR ORIENTATION I r
0' CONCRETE REgUIREMENTS (TYP.) '" ..A�• ' _
FOOTPATH • E
SIGHT DISTANCE �•
EASEMENT (TYP.) E
t ) NIDBLOCK
1 CROSSWALK
\ (s.. o.. sA... 1.) m�
\ v o s
) \ \\ 80' TEMPORARY n.m• �"''-'•°ems
\ \ TURNAROUND I �c—
\\ \ lon.ep I RRY MAP ® 'w-r 40F 11
PARCEL D
FINAL SITE PLAN ��
.... l...,m.., PARCEL F2
Tmpm
JAMES
ran
MIDBLOCK
CROSSWALK
_— ---------------- /m �'�� �F,�/
FAl
��NFcn
PARCEL �% \ .P 3 )1
BOUNDARY411/ EAGLE TREE
/ N
rm.vo.nmo rumor, ('�
SIGHT DISTANCE SINGLE FAMILY RES.
EASEMENT (TYP.) / orw A / / i /. !',� PROVINCETOWNE FILING 1
PARCEL
1! F
ro
COMMON OPEN SPACF� o� F3o '..'^.-ID -m -_.I' aON aI - --__4i
Ilr LANDSCAPE ISWNDS/ W .If I ---� FL I" COMMON
I .Z j' v I I •I m + m \i OPEN
SPACE
ADDRESS SIG
NAGE
III FOR LOTS APPLICANT:
239 AND 240
Lm"
4 [v
4.5' DETACHED I ROW w LOT MEETING
SOR ORIENTATION
SIDEWALK -e .,, f:� REQUIREMENTS (TYP.) pp
WITH TREEWWN. 42 w x' E ., \
( FL !' "' ' "' 6 "' " ;a ,1 ADDRESS SICNAGE
-1 1 FOR LOTS "m
! I FUTURE ROAD _ -fit 1L' ,-n+li,e, ,T 241 AND 242 w
INTERSECTION
! __ �UTLOT C ._ !'NNE ASKE-S'I e' CONCRETE
STANDARDIPAINTD m n m ..
..
m m m r m r ♦ vucw n
CROSSWALK I - MAT BLINK (SEE SHEET EJ COMMON OPEN FOOTPATH �� nw.•+e ru+,
—" SPAC avu:,•.�rrc
} ........ 4z r_ —I— " — --M r w. 5 of 11
FL -` -�s-- \ 71 PARCELS F2
FINAL SITE PLAN �����
PARCEL F3
OtL.Sk 12461. btllf ONOTAVIMMW NIOYPY Mt tYNITW
M .�.m rt•pR Iwl mrw.0 , un r
Y.wlrY,a Y,rrm�m„u .�,� ,ou,.l s us • n NA
�rmr.r.,rww..�•,n . r �„rw u<NNI DOWNIIxf
- r.sn u r/r THOSE
JAMES
.N M
1014 ,u ,r Y.
FUTURE ROAD
INTERSECTION w _Ou�la�C __ BIlN g cl -_
__ EAGLE TREE
STANDARD/PAINT D MATCHLINE (SEE SIIEET.Br_CONNON OPEN SINGLE FAMILY RES.
INTERSECTION ,� _ -I—""'— ^-- — SPAC PROYINCETO1fNE
CROSSWALK ) FIllNC I "•'°°�'• w•A.,a v r,a..,r
IAr nS FL )r sw r, -- w r— — y \..
u.reassm ) ea' � ., // i` ''a\ PARCEL
CURB RAMPS AT ) ROW ___ _ / BOUNDARY .p...�'a•'N'es
ALL INTERSECTIONS °1 �°°"w�'°°� 1°•""r
1*ir.) W �vwo HEATHER �� : f
Z uerr•°�w r....rl ___ GLENL .. �� OA .�pm�Nn r rr srm m
PARCEL
F9 ` omv mrr mw' a1
cR�Ln J w :� w\ \i.�^� . °+ w \// � \ • v.®,v®vin'"`s•,u".r'�i.rw"'i.'as � N
— \ O
STOP SIGN �� �� \� •Y / \\ \ w \ 8 C7
STANDARD/PAINTED HEATHER GLEN
INTERSECTION /�' __ /RCl,E` d• \ //""` w // \ \ •r �...�'a.,�.,.r'�"•.Y. ...a ,'� IjE� �^FW+
CROSSWALK
-'LOT MEETING
/ Qs / SOLAR ORIENTATION mN \ • \ \ \ , �"ae u
/ REQUIREMENTS (TYP.)
//� Je•C // \ � �\"'�.. t�i 1 _�//,,./...,•..,.,,\ �e°�" ' w (\ 0Psi
s nn s wr w s.,a r r.r a
MIDBLDCK
'�11F �/ 't\a F• / -� MAT"IIliN
CROSSWALK eArsm-rr am.Ax.o.rA.me m o s uu.rer
{I� /� GF•C0 // \ Is..eYA o.pl ) aor _ ) ). _ t :ram • cI(LlN' r amr,.o�.rr..
ROVINCE ROAD w-
r®.or rn'o:.l
{{ qQ' /—•,who. ( TRACT B :C m� Iwx.cnoal OUTIq, APPL[CANT.
NO APART OF THIS
\ SIGHT DISTANCE
FINAL�SITE PLAN) j E EMENT{TYPE --MIDBLocK
TANDARD/PAINTED CROSSWALK u•.mw.l \ y��
•\ / �, NTERSECTION
OUTLOT I / / Ao+ /CROSSWALK f as
NEIGHBORHOOD_///
PARK SITE
{� f (PLATTED ONLY DESIGN
J PART OF THESE PLANS)
�` // aFQ' / iA�• m�a a
NOT rt sua
S /
I �:�/ F,P / ,r � AP YY
f / ^ PARCELS F9 6 OF I 1
FINAL SITE PLAN ------ow
\ PARCELS G1&G2
ml[U ewmlc axuc[/lor mQ oYcuY y �T` F' r EO' Iw d
COMMON OPEN SPACE/ � rp T.ORPE
LANDSCAPE ISLANDS nF. JCS
.usrn _ '& ����? � ♦4�� ' ' SIGHT DISTANCE mvv
EASEMENT (TYP.)
.e �. ...,� Maass, ..... a EE
•l r /�=ry,T�m� � in �, z 'Y'.w"
1 BATTSFORD CIRCLE csxaY v rsr a
_COMIP0 OPEN
SPACE—
� ,,,;ram � I 0eavwva.nunrarr
COMMON OPEN SPACE/
xala: rtYeru rmsslc an.anm oucan OUTLOT D YY anar•m nry Yrm v u.a rs
LANDSCAPE ISLANDS
420 vYlsasraYa•avvwas
Yav s°m"`s"nm uvsYmay.•m ua ll, -f-l�r�� .r 1 CROSS HATCHED 41 ....v®us�aw
v 1 1 AREA t DENOTES PARCEL G2 v�'�•.vi-w.®®mow_ (�
a arev
Ira A api mme� / /XPi.[S99 IUxY " '��YYa� Gi
a irlwie' � , 0"fin �� (6'. 1 •.�IYaY.a7.nTO'A.6k'rM � ��ro
tl11R U®1lITOX NYYYY: ,R a R 1''' _F p
_ 0' I W x I Im.xo wvaao rturn.m d
BENSON LANE
a a v BENSON LANE uaw ava ra.a.� a
TYPICAL �� •� �. O
SYMBOL FOR _
LOT MEETING r e®Ir n (Ay
SOLAR ORIENTATION r"e ran n..m
REQUIREMENTS
I1 rumor nuoum R " � �_m __�13 1
ON STREET
PARALLEL
PARKING APPiSCANT:
DETACHED SIDEITAL
WITH
..1. ...s.
WITH TREEIAWN -
mmo�lsaao
®r'w wl re v mn Yv, n Ivelc wn Y rccns I.ws �I Z 1 r"m• i �.rrr v rrii
0ar.vevnwa /yI 1 rumry —
) s. p
ur�v w pv m,m.worm ,�pMM
' j OPER'SFACC.—a�....rr,�y 1 BEERRURST CR. r
STANDARD/PAINTED
INTERSECTION ZWMA?Ir.
CROSSWALK rums a.an
s{ I... mu mn wll
. PARCELS GI & G2 7v or ll
FINAL SITE PLAN
PARCELS G1 &G2
auomn enu<enm z _ F
A..air-• .�.•^. /�� n• . 1I I I � � + F xF� / S wu uv n
DCIWNM
TtKwm
JAMES
oles �
_� — wars, ,•• \ �/ e I YACI IIJ`E SEE 1� • �♦ •�••
\ � �. ",oc *'t; \� wry �R xx I / •x s s a�i n s ena�, x.•��.iw." iw.:.-w o w
som mrru ewnw<emeeenar am ou<cu. ' I SPACE— ai emr.nm exuvo eum„a ua ar
•ie�mex�wiei®�wem�"ams..u�`.aa • , i E' \ J I OUTLOT D f'•""` o 'ry zo iy ,.ar�s r ..us
�':rx^.®e n ex T•.asnT i�e C 1 Ire /..,,,,� �f� n
neve eeu a•veevx�•e u® z � Y yI. i ) [[� y d o,
` 1m.n.�i WONYMR 1 � C •t• ` I ,Y� -�+� N fl u• Tam-,e0•aa�Oeewa
na esowmme nmm,muai v.�^'u es`a•m )(T�+• 'o E ui =�� r" � I -I--^,a. �g .e~.=mmm�n��m Q
'°°^e°••"am!.•aa i.e a•ve w,.0 Pu a i 7 AiI ANBARD�PAg4,TE
RSEC ON I- ;I ,r I' ,.•aa..as..ria n Ta.s
�.aw•••��•�•.�xuu a rt,.�• i �= CRO SR
A s rn eme x•.oe•,vesiaxu aa•m`v®anu.' ,a:. (• �i/�',+jA.p a'3/ SE. $NG1/ _ I I I •n n,s��i v nrL'�s'..n. na'
` men.,aen m,n• z i i// p�VG-�e4i. � mre.cc�uxaJ I luu � p��,tee v,u `.� N
eau aemnmu auwm: i s of i , , � �* � ry � •�mer�v ws was rn.a�i mm i�
..®x"'s��r:n E E / ♦�� x��/. {, x ,r,,�$ '0'::. ' �-_�-� 3 1aT.vo BusDoo rtnm•em � � C
..o x,..x�. .<..,... e s / ♦ /\h, . rqy� rt i.",i y k I 1 x .V ��77yy IL
DENSON LANE
� O �/ "`� 2 / -� � � ' I w.e•w. it
�ii{E{ •uma�uaem . oee weer..,eem ,. ,�\C, /\ �itw \ w e .x p n w ra .u�w...n v,..a�
iIIi',e°,'r'�s,®uu:�l..•xu x.aue.aa x•e < ylx. N I. nn so•eueuc wn w n �C ,
APPUCANT.,
snow.ucum f6l ,
�
nm.� u• I +—� �xx'� I .a W?
®xx o m.a 2�� I I. � & 13 •I I �rta__ii m em IUEnuxr•wo.o
x• cams
0x..®ewr,.e / ` FF�s "e' —,,,fir ,,.n.� I • t�
�...�wox m.m.x�a � ���J, ��. ,, � zo Pe.�rs�'��+c.cccn wrc 1 0 � � � .•ry
ATMEE
� pem I OQ a/IN
!4.5'
ce am•..e.•.�..+v� �'' DETATCHED
■ .n.,. iv.nu mT•q , II SIDEIIALK WITH MEETING
DISTANCE ••^•�
'
\TREE LAWN LOT EASEMENT (TYP.)1 111 E I SOLAR ORIENTATION
\ .T' R
� EgDIRENENTS (TYP.) ""a• cams o,•m
e( eau m eux
KEY
. rrt rrc:.•.,am
iSPARCELS GI k G2
OF 11
PINAL SITE PLAN
PARCELS G1&G2
�� sslvwrnar�OI.OPIY
W ' • BbL YO Cy q __L_Y_l_Y_U�•
.V•LY � w' � �_ molts' Y.i!•~I Y-•�Li
TYPE IIII BARRI ADE e�w.er—a-rw.c una •�-
.•a.. .,.... _ I' �'' f.l (See Enkineeri ` Drew nas) lI DETACHED SIDEWALK
6TREELAUN
mwraaeasr
v PARCEL BOUNDARY
xolm irrnru°uvaxe ar"e•^°e nuc•un \} LOT MEETING SOLAR
lemrwol e•uv Wumxmvx rr \ ORIENTATION �i Icayeeecu.• c•v) .0 mnrm xm.rrm^na•�
uu.n w ar�"i.wm wai nsx mx \REQUIREMENTS (TYP.) w xmlr'n sr xm.l®n s a°^
« ^ i zX14V _--M �I COMMON OPEN SPACE/
• p .w.mv..r.,^.:..°�:.: D O LANDSCAPE ISLANDS
.A0p0 c �v=g.:
CURB RAMPS AT ALL
• r�r «'.�mrir�.on'�rx° "'ra•x°'^u..^m,• �a I' CpNO ^ \ •2 ,« INTERSECTIONS AS rSHO :ep
. .3":n'1"S n"",ni.�w�il•m ��. � 1 11"ea� �ia's�\� U1T'jWN �r•^.'n`��'7�7r�17� a
PARCEL BOUNDARY •o n s m r rms n+a u. � N
��nnLE TREE__ ____ ^n�� jtCrJ7,
'v`�•r!�"•« 4jJ - l SINGLE FAMILY RES. b
PROYINCETOMNE FILING 1 rn x,.�s w.w• yy
M ,• i� °a3 r^�s rma.n w.lw•
SIGHT DISTANCE�
16 Q
.� � alI .,,... 9��, r\ ' EASEMENT (TYP.) oti«H Cl 1NTE SEEw 1 .ue_xx r•nvmrmw�
rumo w••oame F� C11 1•� 1�xy Gf?,.za�,x Yaa �'i BATTSFORD CIRCLE
"PO'°an•�1`r r'C'�«� � —COMMON OPEN / .m. L a I
SPACE,
i:.m.nau r a•wW waa 1Y j I COMMON OPEN SPACE/ APPLICANT-
OU\TLOT D�f'•"- o w. ' LANDSCAPE ISLANDS
I( j 20 nr a1P MVII°n�lAn:.D
CROSS HATCHED
AREA DENOTES
-(--_i•. PARCEL G2
i.v mv..•o,ao 8 « �. � « ); 5 I rme p m rrn
0vr�o m•.a � ,. � � g �. 1 i_wr �. �i .. a a�aw
aaw
I �su. wa.mw.e:min
em• P1®f OI.
) ipY YR flY
EBY YAP
jI• ' YML:I'_IOW'ARC
PARCELS Cl 8 G2 9 OF 11
FINAL SITE PLAN
• ! 0
• PO EN'flAl. FUTURE "'" -
TRINSFOR7' BUS STOP TYPE III BARRIC D
f (See En ine n wet �p 31IS33S)3N1'IHJ1Vp�+�
CURB RAMP AT 8Sii(�5.R61FI.4 cmxmw y.e r r tY PRIVATE INTERSECTION cregly rr c
PEN 5ISPACE AS SHOWN
C*V Gam- .S) v ww-,. ,Mq�C ; Nam\ / CO%pA,y NILIS COURT UneuJ NQ�
THOM
" ., / F•� ��@5 (AMPS
ME 9
< 16
�CROWNRIDGECIRC.Li./ // d !� \e\ �, ' •
J I '1 n III ) �W L � .a �—_—e�m1 6 - � .(i� �A•.
CA
.• " . 24 P
T RAIL FENCE FFER a� \
lI " � rrj-m r UTLO : WFTIAND BUFFER niw /
Mmnl.Dcl� \ b
_____ __ - ____ SNWALE_ �y
PA SIGHT DISTANCE WE'IWETI 1D AREA
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. t1\ICf SFFIFMt
Community Planning and Environmental Servicesp' �P.�.
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Natural Resources Department
City of Fort Collins
MEMORANDUM
TO: Planning and Zoning Board
FROM: Mark Sears, Natural Areas Program Manager
DATE: November 29, 2000
RE: Provincetowne—Offsite Drainage and Water Easements
Provincetowne is a collaborative project between the City of Fort Collins and the developer. The
City became the owner of this property due to a failed special improvement district years ago. In
an attempt to sell the land to a responsible developer and to provide affordable housing, the City
chose the developer based upon a proposal review selection process. Approximately 160 acres of
this land around Benson Reservoir and along Trilby Road is being purchased by Natural
Resources for a natural area.
Kaufman and Broad are working with Natural Resources to obtain drainage and waterline
easements across the natural area portion to the south and west of the portion to be developed.
Natural Resources staff is supportive of the drainage easements and approves of the drainage
improvements that Kaufman and Broad are proposing to construct on the natural area. We
believe the drainage improvements will enhance the wildlife habitat in the natural area by
creating wetlands. Our only concerns related to the drainage easements are ongoing maintenance
and liability, which we believe can be resolved in the development agreement.
Kaufman and Broad have proposed to construct the waterline across the south side of Benson
Reservoir immediately adjacent to the north side of the Victoria Estates Subdivision. This
alignment would have minimal impact to existing vegetation and wildlife habitat. However, we
are concerned about future impacts the waterline may have on the site. Our plan is to restore this
site to native vegetation and enhance the wildlife habitat. Future waterline maintenance, repairs
and especially replacement could have significant impacts on vegetation and wildlife habitat once
the site is restored. Therefore, we have asked them to look for another alignment that would
avoid the natural area. If no other alignment were possible, Natural Resources staff would
support the waterline alignment proposed across the natural area.
If Kaufman and Broad proceed with their request for the waterline easement, it would need to go
to the Natural Resources Advisory Board for their recommendation and then to Council for
approval. The request to construct the drainage improvements on the natural area would go to
the Natural Resources Advisory Board for their review and then be approved through the
development agreement process.
281 N. College Ave. • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970) 221-6600 • FAX(970)224-6177
November 24, 2000
Irvin&Eva Lieser
830 Rumford Court
Fort Collins,CO 80525
Community Planning and Environmental Services
City of Fort Collins
P. O. Box 580
Fort Collins,CO 80522-0580
Atm: Steve Olt
City Planner
Mr. Olt:
I am responding to the letter from you,dated 11/16/00,regarding Provincetowne,2°d Filing, Final
(LDGS)-File#73-82K
The following three items are of concern to me.
1. I fail to understand how this can be a final filing when there is a suit pending in Appellate Court
regarding the sale of this property.
2. There are currently two(2)major multifamily facilities on the next corner,less than%block away.
I believe that this area supports the proper mix of housing without the introduction of 141 additional
multifamily units.
3. Currently the children in this area attend school in Loveland because the Fort Collins schools are
unable to accept these students. It seems unwise to introduce more children to this situation. The
141 multifamily units would surely produce several more students for the already burdened schools.
There are several more issues of concern with this project,but just consideration of these three would
cloud the scenario sufficiently to table further discussion until the questions have been answered We urge
the Planning&Zoning Board to table this item
Sincerely,
Eva Lieser Irvin Lieser
•
1
MEETING OF THE PLANNING AND ZONING COMMISSION
CITY OF FORT COLLINS, COLORADO
Held Thursday, December 7, 2000
At City Council Chambers
300 West Laporte Street
Fort Collins, Colorado
In the matter of Provincetowne PUD,
Filing 2, final approval
Commission members present :
Glen Colton, Chair
Jennifer Carpenter
Sally Craig
Dan Bernth
Jerry Gavaldon
Judy Meyer
Mikal Torgerson
Staff present:
Paul Eckman, City Attorney' s Office
Cameron Gloss, Planning Department
Georgiana Deines, Planning Department
Tara Williams, Planning Department
970
Meadors Court Reporting, LLC Phone: ( ) 482-1506
140 W. Oak Street, Suite 266 Toll-free (800) 482-1506
Fort Collins, Colorado 80524 Fax: (970) 482-1230
e-mail: meadors@reporterworks.com
2
1 CHAIRMAN COLTON: That brings us up to
2 Provincetowne PUD, filing 2, final. All right.
3 MR. OLT: Ready to go?
4 MR. COLTON: Yes . Steve.
5 MR. OLT: Okay. Try not to break the mike.
6 Okay. This is the Provincetowne PUD, filing 2,
7 final. The Planning and Zoning Board approved the
8 Provincetowne filing 2 PUD preliminary in August of 1999 .
9 At that time, the project was approved for 331 residential
10 dwelling units. That was a breakdown of 190 single-family
11 lots and 141 multifamily units .
12 The project is located just south and west of
13 the intersection of Trilby Road and Lemay Avenue. Brittany
14 Knolls is a single-family development to the north of
15 Provincetowne. The Eagletree single-family and multifamily
16 projects, as well as Redeemer Lutheran church, are to the
17 east and north and east of this project . Stanton Creek
18 development is to the east, across Lemay Avenue.
19 The final is a request for 331 residential
20 dwelling units and, again, that ' s 190 single-family lots and
21 141 multifamily lots on 70 acres .
22 Access to the site, there would be two points of
23 access off of Trilby Road, one being Brittany Drive. That ' s
24 existing from Trilby south into both Eagletree and proposed
25 Provincetowne development. There would be a new
3
•
1 Provincetowne Drive, I believe is the name of it,
2 Provincetowne Road, from Trilby Road. There' s an existing
3 Province Road coming in off of Lemay Avenue that would
4 provide access from the east, and there would be three
5 points of access from Brittany Drive into this
6 Provincetowne, filing 2 .
7 Again, this filing is in substantial compliance
8 with the approved preliminary PUD. With that, I ' ll end my
9 presentation and entertain any questions the Board may have.
10 MR. COLTON: Do we have the applicant present,
11 too, please?
12 MR. NIER: Good evening, Mr. Chairman, members
• 13 of the Board. My name is Glenn Nier. I 'm with Kaufman &
14 Broad. I ' ll be very brief.
15 First off, I 'd like to thank City Staff. I ' ve
16 been involved with this project for quite some time, and
17 they've been very, very thorough, but they' ve always been
18 willing to meet with us, return phone calls . I deal with a
19 lot of municipalities, and that' s not always the case. So
- 20 they' ve been very helpful but very thorough at the same
21 time, so you can be thankful that you have a staff of that
22 sort.
23 We -- we and the Staff have been working very
24 hard on this . We've had many meetings trying to clarify a
25 lot of the engineering issues, and I think we ' re probably 99
4
1 percent there.
2 So, really, with that, I have representatives
3 from Downing, Thorpe, and James who have been with this
4 project for five years or more. Know much more of the
5 history than I do. They' re here to answer any questions.
6 And our engineering staff. They' re here also to answer
7 technical questions that I wouldn't be able to.
8 With that in mind, I 'd like to respectfully
9 request your approval or recommendation of this project, and
10 if you have any questions, we ' re here to answer them.
11 MR. COLTON: Thank you. Anyone want to ask any
12 questions now? Okay.
13 Is there anyone in the audience who would like
14 to comment on this? Okay. Is there an organized
15 neighborhood effort on this or a spokesperson on this
16 tonight?
17 MR. EVANS: I don't know how organized the
18 neighborhood is in this effort. I think there ' s just going
19 to be a few people.
20 MR. COLTON: Okay. We' ll give you four minutes
21 each.
22 MR. EVANS: I assume that ought to be adequate.
23 I 'm going to be pretty brief.
24 MR. COLTON: Okay. Thank you.
25 MR. EVANS: Good evening, ladies and gentlemen.
5
1 I 'm Dave Evans . I reside in the Eagletree subdivision,
2 adjacent to the development that ' s being proposed for
3 approval tonight . Inasmuch as you may review the
4 preliminary plan as of August 5th, 1999, at this hearing, I
5 am here to request your assistance for the residents of
6 Eagletree subdivision in maintaining the character of their
7 development.
8 As you know, the applicant intends to develop 331
9 residential dwelling units on 70 acres . The density of this
10 development proposal will result in a 4 . 73 dwelling unit per
11 acre density.
12 The Eagletree subdivision adjacent consists of
13 93 single-family residents on 50 acres. The density of
14 Eagletree is 1 . 86 dwelling units per acre.
15 Applicant proposes to link these two
16 developments via street connections along Brittany Drive. I
17 am of the opinion that the density value of each of the
18 respective developments are not compatible and should not be
19 linked in such a manner as to diminish the density
20 attributes expected by residents of the Eagletree
21 subdivision. In that regard, the linking of these two
22 developments via street connections along Brittany Drive
23 will diminish the character of the Eagletree subdivision.
24 It is the desire of the Eagletree residents that
25 the subdivision retains the low-density character of the
6
1 transportation infrastructure of their community as well as
2 to maintain the low noise level generated by the present
3 level of traffic within the subdivision.
4 I am requesting that the Planning and Zoning
5 board join in the preservation of the Eagletree' s character
6 and deny the applicant' s request to connect its local
7 streets along Brittany Drive. This request is consistent
8 with the stated intent and provisions of the Land
9 Development Guidance System, wherein it ' s stated that
10 special care should be taken to respect the context of the
11 site and character of the surrounding existing
12 neighborhoods, in that intensification and development must
13 be balanced with strong sensitivity to protecting existing
14 neighborhoods .
15 We have another concern, which is an ongoing
16 concern, is relative to the drainage. At the hearing before
17 the Planning and Zoning Board of August 5th, 1999, it was
18 determined from the materials introduced by and the
19 testimony of representatives of the storm water division and
20 the planning department of the City of Fort Collins that the
21 drainage system of the Provincetowne PUD filing 1
22 subdivision had been inadequately designed to accommodate
23 the flow of waters in, upon, and through the Eagletree
24 subdivision.
25 It was the intent, as stated by the Planning and
7
1 Zoning Board at that hearing that the applicant, as a
2 condition of that approval, would be restricted from
3 diverting any of the flows of water from the Provincetowne
4 PUD filing 2 subdivision into, through, or upon any element
5 of the Provincetowne PUD filing 1 subdivision, drainage
6 system.
7 I 'm requesting that any approvals given by the
8 Planning and Zoning Board to approve the request of the
9 applicant specifically be conditioned upon a written
10 provision that applicant will not divert any waters from
11 applicant ' s development into, upon, and/or through the
12 drainage systems of the Provincetowne PUD filing 1
• 13 subdivision.
14 We have matters, I guess greater global matters
15 of adequate public service. In accordance with the
16 provisions of the Land Use and Development Guidance System,
17 it is incumbent upon the Planning and Zoning Board not to
18 approve developments that negatively impact the public
19 health, safety, and welfare.
20 L Applicant ' s development significantly impacts
21 the existing quality of the infrastructure and various other
22 services provided to the residents of the City of Fort
23 Collins . Inasmuch as no economic model has been developed
24 to substantiate the proposed development would not have an
25 immediate and ongoing native impact to the existing level of
•
8
1 services provided by the City of Fort Collins to the
2 residents and that the Planning Department has not analyzed
3 such an impact in relationship to the dilution of the level
4 of services being received currently by the residents of the
5 City of Fort Collins, an approval by the Planning and Zoning
6 Board of this application without preparation or review of
7 such service impact would be contrary to the intent,
8 purposes, and requirements of the Land Development Guidance
9 System.
10 And we've got some substantive requirements that
11 we need to consult as far as the covenants . It says,
12 pursuant to the provisions of Section 29-56 -- I mean,
13 526 (j ) for the Land Development Guidance System, applicant,
14 as being the recipient of residential density bonus for this
15 development, is required to provide covenant documents to be
16 recorded with the office of the County Clerk, guaranteeing
17 the use of dwelling units for low-income families .
18 This provision requires that the covenants
19 shall be submitted and approved by the City of Fort Collins
20 as to legal form and effect, providing that the use,
21 restriction for dwelling units used for low-income families
22 be for at least 25 years . The provision also provides that
23 no final plan shall be approved for any portion of the
24 planned unit development, approved with a residential
25 density bonus for providing low-income families, until the
9
1 necessary legal documents have been submitted and approved.
2 A review of the file of the Planning Department did not
3 reveal that the covenants had been submitted or approved.
4 In that requirement, I would seek the Planning
5 and Zoning Board' s undertaking of an investigation to make
6 sure those are -- have been filed and approved prior to
7 taking any action in this matter.
8 I have written comments that I 'm going to submit
9 for the record to the secretary of the Planning and Zoning
10 Board which incorporate our ongoing objections to the
11 jurisdiction of the Planning and Zoning Board, based on the
12 prior hearing and the appeal to the City Council. Thank
13 you.
14 MR. COLTON: Thank you.
15 MR. MENKE: Good evening, ladies and gentlemen.
16 My name is Mark Menke, and I live at 901 Deerhurst Circle,
17 within the Eagletree/Provincetowne subdivision.
18 I appreciate the opportunity to come before you
19 tonight to speak. I know this has been an ongoing
20 subdivision, if you will, issue with us, the neighbors, and
21 with you and with the fine City Staff that ' s been working on
22 it this whole time. I also realize that growth is
23 inevitable, and I appreciate a well thought out and planned
24 and managed growth solution.
25 However, I am concerned with several items
10
1 within the Eagle -- or within the Provincetowne filing 2 .
2 The first item is the density, which Dave just spoke of. It
3 does not lend itself to the density within the
4 surrounding -- within the adjacent neighborhood. To that
5 point, I also request that you look at shutting down the
6 avenues coming from the new filing that are adjacent to
7 Brittany.
8 Myself, when I first moved into this subdivision
9 three years ago, the plot that I looked at, those avenues
10 were not on that plot, in a very old plot that was presented
11 to us at that time. We did research that. The first time
12 we saw connections for those avenues, two of those avenues,
13 was at a meeting with the citizenry, and at that time, many
14 of the neighbors voiced an objection to having those avenues
15 open within the neighborhood.
16 We were concerned about traffic flow. We saw
17 no specific purpose for those two streets to be brought that
18 weren' t in the original plan, and this is going back to the
19 old plan I was speaking of. And I would request that the
20 Planning and Zoning Board entertain closing off those
21 avenues .
22 The way I understand through this, this filing
23 has been --
24 STAFF MEMBER: Excuse me, sir. Could you raise
25 your microphone a little bit?
11
1 MR. MENKE: Okay. Is that better? Up? Is that
2 better? Okay.
3 Also, I have a concern with the -- what has been
4 expressed to me as mandatory affordable housing being part
5 of this filing. I am not an attorney, and I 'm not
6 well-versed at this, but I have a concern for propagating
7 things at the City' s expense, which is my expense. If
8 the -- if it hasn' t been well investigated, and I haven' t
9 heard any comment on this through this whole process .
10 Last year, the Colorado State Supreme Court
11 heard a case out of the City of Aspen having to do with
12 the -- a requirement of mandatory affordable housing. And I
13 understand that the State Supreme Court found in favor of
14 the plaintiff and found it not appropriate to dictate
15 mandatory affordable housing. I would like some comment on
16 that .
17 I have a question why the City is going forward
18 with the activity while there is still some litigation
19 pending having to do with this -- with this activity. All
20 the litigation that had started off with this still is not
21 complete to date. I think that puts us as taxpayers at
22 risk, going forward with the project.
23 Something that ' s bothered me through this whole
24 project . I don't -- I don't feel, myself and my wife,
25 Patricia, have been involved with this for three years, and
12
1 I question whether or not the City has done everything that
2 it could to work with the plaintiff in the. litigation and to
3 work with the citizens in the neighborhood who have concerns
4 expressed by Mr. Evans here tonight.
5 Then we are supposed to be a community, a team,
6 and to have a just member of the City Council stand up and
7 tell us that we have to learn from the school of hard
8 knocks, end quote, I find to be not a supportive or an
9 environment for a neighborhood like this to be developed in.
10 As this plan goes forward, which I 'm sure that
11 it will, because we are going to be having growth in the
12 area, I would make two other requests . When they break
13 ground, I would request that the drainage issues be put in
14 first. This has been going on now for almost 10 years, and
15 if they break ground and something else happens here, the
16 drainage is substantial. It needs to be taken care of to
17 move -- to move the water and to spread it around the sides
18 of the subdivision.
19 Also, along with that, we would request that the
20 road be put in to help keep construction traffic out of our
21 neighborhood. We have a -- there may be a neighborhood of
22 only 90 homes, but we have a very large population of
23 children in that area and we' re fighting right now as a
24 neighborhood to try to keep traffic and speeding traffic
25 down on Brittany and construction trucks just lend
13
1 themselves to disaster. A fully-loaded construction truck
2 won' t be able to stop, even though the speed limits are 25
3 and they aren' t observed in that neighborhood.
4 With that, I ' ll conclude my remarks, and I thank
5 you for your time tonight.
6 MR. COLTON: Thank you.
7 Okay. Is there anyone else who would like to
8 speak?
9 MR. SPARKS: Good evening. My name is Doug
10 Sparks . I also live in Eagletree subdivision.
11 Many of us have been coming forward in front of
12 this board and also City Council for four to five years, so
13 you can understand how strongly we feel about this issue and
14 about the proposed project that they' re trying to put in
15 next to us .
16 This evening, I notice a change in the Board.
17 It ' s being more flexible. It ' s being concerned for the
18 approval and modification of the church, contrary to what
19 the City Plan has defined.
20 1What we' re asking is the same consideration. As
21 I 've heard comments or phrases from some of the board
22 members . Modified to fit the neighborhood. Not detrimental
23 to public good. The process needs improvement .
24 I would just like to briefly say on these
25 phrases, modified to fit the neighborhood, proposed project
14
1 does not fit our neighborhood. The density is quite a bit
2 times, I would say, than our current density. Almost six
3 times. The traffic impact and the safety is not
4 detrimental -- is detrimental to the residents that are
5 there.
6 The process in this improvement is from the very
7 beginning of this project, we objected to the traffic flow
8 through our subdivision. We have presented our opinions and
9 no one has listened to us. And we were told at one of the
10 meetings that this traffic would flow through without being
11 given the opportunity to object to it, to have any comments .
12 It was already drawn up and given to us without any
13 alternatives.
14 This project, lastly, this project has been
15 questioned about its legitimacy, and it ' s currently moving
16 forward in the court system. And I am asking that this
17 project not be approved or moved forward until the judicial
18 outcome is finalized. Thank you.
19 MR. COLTON: Thank you.
20 Is there anyone else? How many others are going
21 to speak after this gentleman? Is there going to be anyone
22 else? Okay.
23 MR. EBERSOL: My name is Don Ebersol and I, too,
24 am a resident of Eagletree, 613 Biscay Lane. And I moved in
25 there about a year and a half ago. And prior to my knowing
15
1 the good neighbors around me, I was told that this was
2 pretty much of a dead-end issue.
3 It had already been decided, that it wouldn' t do
4 any good to go and talk to any of the people that you've
5 helped elect or appoint, because the issue of parking had
6 already been discussed, and other people far smarter than
7 me, and I 'm just an old country boy, could ever -- you know,
8 there was no way that they could mess up this thing, that
9 they' d already figured out how many cars were going to come
10 through there. They knew exactly how many each family would
11 have in all of those developments . And, you know, my
12 grandkids wouldn't have any concern at all, playing in the
• 13 back of my property, which, to be exact, is located on the
14 intersection of Brittany and Province.
15 And to go back to my comment about all this
16 being cut and dried, I soon discovered with my old country
17 sense of common sense, if you will, that, hey, there ' s going
18 to be a lot of cars coming through here. And I wonder how
19 many. And they' re going to have construction equipment, and
20 they' re going to have a lot of, you know, heavy trucks that
21 aren' t going to be able to stop, you know, really quick.
22 Where are they going to exit all of this? Where is, in
23 fact, the master plan that all these very intelligent people
24 figured out?
25 And I don' t think there is one, because if you
16
1 look at all those people coming out of that property on the
2 south side of my property, where are they going to go?
3 What, are they going to go to Lemay? They' re going to go
4 north. And they' re going to be meet everybody else going
5 the same direction. They' re even going to go around to the
6 west and they' re going to go out that other exit to Trilby,
7 and then there ' s going to be a lot of traffic on the
8 corners, which I knew, you know, would happen anyway.
9 But why can' t they -- why can't they exit some
10 of the traffic through to the south to connect County Road
11 32? Or why can' t they establish a temporary construction
12 access to that site? And that would -- that would alleviate
13 some of the concerns that I have.
14 And by golly, I know, there ' s going to be people
15 who move out there, and it' s up to me to be a part of the
16 progress, if it ' s planned and if it ' s well thought out. But
17 I don't want to be a victim of poor planning, and I think it
18 really is .
19 But I would also -- you know, my dad taught me
20 that honey draws more bees to the pot than vinegar, and I 've
21 always believed that, so I 'm not going to criticize, openly,
22 any of the planning. But I ' d like to know from the City
23 Planner from Traffic what he foresees down the road for this
24 project.
25 MR. COLTON: Thank you. Anyone else?
17
1 I guess I don't see anyone else, so we' ll close
2 it to public input and bring it back to the Board, and I
3 guess to Staff. We have quite a number of questions here
4 that they raised. Steve, I know you probably took some
5 notes. Would you like -- do you feel like you' re in a
6 position to address some of the concerns they've raised, and
7 would you like us to list them?
8 MR. OLT: Well, obviously, there are a number of
9 concerns dealing, you know, starting .from the top, with the
10 density of the proposed development and compatibility.
11 You know, without sounding glib, obviously,
12 again, we 've been through it, as I 've indicated, a four to
13 five year process, and there is an approved preliminary PUD
14 that, at that point in time, back in August, the project was
15 evaluated and justified, the density was justified, based on
16 the City' s criteria, based on the master plan that actually,
17 Eagletree has been a part of for 15 years .
18 Therefore, you know, it ' s -- the fact of the
19 matter is that the density and the layout of the project
20 have been determined to be appropriate and compatible.
21 There are differing mixed density, single-family residential
22 components of this, as they transition from Eagletree to the
23 multifamily component.
24 Eric Bracke is here, if you want more specific
25 information on the traffic impacts, and I believe Glenn
18
1 Schlueter is still here.
2 I don't recall, quite frankly, as I look at my
3 notes . From the preliminary, I do have my staff report with
4 notes here, and Mr. Evans had said something about a
5 condition on preliminary approval relative to the drainage
6 and the assurance that the drainage from this development
7 would not impact Eagletree. First of all, I don't see a
8 condition that was imposed at preliminary, but Mr.
9 Schlueter, I believe, would be willing to address the
10 drainage issues .
11 Those really seem to be the major issues from
12 the four citizens that I heard speak. I guess I would
13 respond to questions or concerns at this point in time.
14 MR. COLTON: Steve, were the street connections
15 that they' re talking about on Brittany in the preliminary?
16 MR. OLT: Yes, they were, absolutely, discussed
17 heavily.
18 MR. COLTON: Okay. And I wasn' t here at the
19 preliminary.
20 MR. OLT: Yeah.
21 MR. COLTON: How about even prior to that? I
22 mean, was that something brand-new, or were there street
23 connections even envisioned at the ODP level?
24 MS. WAMHOFF: I can probably maybe answer that a
25 little bit better. There were planned street connections
19
•
1 there, but when they platted the lots that were out there
2 and platted Brittany, they platted street returns, curb
3 returns, into that area. So there are -- there was intended
4 to be that. We' re actually having to go in and vacate
5 little corners of right-of-way so that they now would match
6 up with what they' re proposing here, because they differ
7 slightly. So, yes, there was intended to be connections off
8 of there to the west .
9 MR. COLTON: Okay. Could you tell us what ' s
10 going to happen with the construction traffic? Is it all
11 going to go down Brittany, or is there another way to get it
12 in? Or -
• 13 MS. WAMHOFF: When they construct the first
14 phase, it ' s going to be having to construct Province Road,
15 so I assume it would go down Province Road, where they' ll be
16 constructing.
17 MR. COLTON: Is there some way that we can have
18 some assurance that would happen?
19 MS . WAMHOFF: Yes, we can place notes and put
20 that as a part of the condition on their development
21 construction permit.
22 MR. COLTON: That sounds like it would be real
23 important, to try to keep as much of that as possible off of
24 Brittany.
25 Okay. Kind of jumping around a little bit .
20
1 But, Steve, how about this affordable housing document issue
2 that Mr. Evans brought up?
3 MR. OLT: I think what I 'm going to do is refer
4 to Paul Eckman, the City Attorney on that.
5 MR. ECKMAN: I think Mr. Evans has made a good
6 point, that those documents need to be -- and I think we
7 need to inquire of the applicant, because I don' t have
8 knowledge myself of those covenants . The Code requires that
9 there be either covenants or documents, adequate documents,
10 that guarantee the use of the dwelling units for low-income
11 families for 25 years.
12 And there' s only a one opportunity for a waiver
13 of those -- of that requirement, and that is if they,
14 affordable housing units, are provided under a contract with
15 a governmental housing authority, which I don' t believe is
16 the case here, as far as I know.
17 So then the Code goes on to say that no final
18 plan shall be approved for any portion of a planned unit
19 development approved with a residential density bonus for
20 providing dwelling units for low-income families until the
21 necessary legal documents have been submitted to the City
22 and approved.
23 And I ' ll just have to defer to the applicant.
24 MR. COLTON: Does the applicant -- can the
25 applicant answer that question?
21
1 MR. NIER: As part of the contract with the City
2 for the sale of the property, which I 'm sure you' re aware
3 that the City owns the property. We' re purchasing it in
4 take-downs each year. Part of the contract that addresses
5 the affordable housing component states that it will be part
6 of the development agreement, which we have not negotiated a
7 development agreement yet, because per City Code or statute,
8 we can't do that until the plat is approved.
9 We 've had numerous conversations with the
10 affordable housing folks as to how we ' re going to regulate
11 this or how they' re going to regulate it as far as setting
12 our price point, following the guidelines. But as far as
13 official documents that have been recorded at this point,
14 no.
15 But it is part of the contract. It states
16 clearly in the contract with the City for the purchase of
17 the property that the affordable housing component will be
18 addressed in the development agreement; and a development
19 agreement, as you all know, addresses our phasing and how we
20 will place things in sequential order within the project .
21 And part of that is, they also want us to address the
22 affordable housing component, that we would start
23 negotiating that as soon as we get the final approval .
24 So I don' t know if that --
25 MR. COLTON: It sounds to me, which comes first,
22
1 the chicken or the egg.
2 MR. NIER: Chicken or the egg.
3 MR. COLTON: Yeah.
4 MR. NIER: I can tell you from City staff
5 comments, it has not come up in my conversation with the
6 affordable housing people or with City staff at this point.
7 MR. COLTON: Okay. Maybe while Paul seems to be
8 discussing that, maybe Glenn would be able to address the
9 drainage issues that were brought up.
10 MR. SCHLUETER: Yeah, I 'm not aware of any
11 conditions that were wrong, but I did make the statements
12 and did work. with the applicant -- well, not myself, but the
13 staff that did work with the applicant, along -- I believe
14 it was Province Road, they presently live there, and some of
15 the drainage from the front yards was going there, and onto
16 their side of the road and onto their barrow ditch. They
17 redesigned that so none of the water goes on there.
18 And the other things I heard in the comments was
19 about phasing. We don' t allow anyone to build more than 25
20 percent of their buildings per phase until the drainage
21 system is in. If they start at the north, they' re going to
22 have to build some sort of either a temporary system or the
23 final system as they work their way south. Because that ' s
24 the way the drainage goes . But we haven' t worked out the
25 phasing plan or the development drainage language at this
23
1 point yet.
2 MR. COLTON: I 'm wondering, Paul, do we need a
3 five-minute recess here or something to check the status of
4 documents? Or have --
5 MR. ECKMAN: I think that would be a good idea.
6 MR. COLTON: Okay. Let ' s take a short break so
7 we can clear up the understanding on the affordable housing
8 issue.
9 (Recess . )
10 MR. COLTON: Okay. Welcome back to the Planning
11 and Zoning meeting. We have taken a short break so we could
12 check into the status of some affordable housing
• 13 documentation.
14 Paul, could you just give us a brief update on
15 what we found?
16 MR. ECKMAN: Yes, as you heard before we took
17 this break, the applicant made reference to a sale-purchase
18 agreement that has provisions, according to the applicant,
19 in it regarding the affordable housing and requiring it to
20 be affordable for 25 years, but we can' t produce that
21 tonight .
22 I suspect that we could find it in time or we
23 could explore that in greater detail and see if I could
24 perhaps talk with one of the associates in our office that
25 would know about it .
24
1 But I hate to -- I hate to ask the Board to rely
2 on that kind of information, and I think that even the
3 sale-purchase agreement might be better bolstered by the
4 applicant within a specific restricted covenant, if they' re
5 so inclined, to prepare for a later meeting.
6 Point chart H does require and make specific
7 reference there, and it ' s in Section K of that -- those base
8 points, that if there is to be an affordable housing bonus
9 added for density, that there must be some covenants
10 prepared and presented as required under Section
11 29-526 (j ) (4) , which is the other part of the Land
12 Development Guidance System I read to you earlier, and it ' s
13 very clear that no final plan shall be approved until we
14 have those.
15 And I just don' t feel too comfortable tonight in
16 asking the Board to rely on this information without the
17 actual document before us or in your packets . So I think we
18 ought to continue this for the purpose of obtaining that
19 document and being able to provide it to you at some future
20 meeting, probably the next -- we don't meet until January,
21 but the next meeting of this Board would probably be
22 sufficient time for the applicant.
23 And then the other question that arises is, how
24 far do you want to go in the discussion of other issues that
25 have been brought up by the public input session, during the
25
1 public input session, to see if you want to spend time on
2 that now or wait for those issues until the next meeting.
3 MR. COLTON: I think staff heard the issues that
4 were raised, as well as we did. We've talked about a few.
5 I guess I would ask Board members if they have any specific
6 items other than the general ones or might be more detail
7 around any of the ones that were raised that staff should
8 make sure they have reviewed before the next.
9 MR. GAVALDON: We have a lot of new Board
10 members since this issue came up, and maybe it would be to
11 our benefit if we have just high-level copies of the ODP to
12 reference Eagletree as part of the original ODP development,
13 because issues were brought up and a lot of misconceptions
14 are tied to that.
15 Too, look at the traffic information, as Eric
16 can talk about the traffic calming. There' s a separate
17 process, not part of ours, but Eric can work with the
18 neighbors on that. He can outline some history.
19 Too, look at the preliminary. Just some of the
20 drawings of the preliminary, showing the process of this .
21 And I think that should be sufficient. And
22 since we ' re going to have a meeting and this can be
23 continued, they can bring up the issues again and maybe
24 staff can key off of some of the discussion tonight and be
25 more prepared -- be prepared again.
26
1 MR. COLTON: I think it would really help if you
2 have kind of a layout of this construction, how it ' s going
3 to proceed and how it would be routed. If we can do
4 something like that with the applicant and how much would be
5 on Brittany and some of the existing streets versus how much
6 would be on new streets. Okay.
7 Anyone else have any other specific items?
8 MR. BERNTH: I . would just ask Paul in the work
9 notes to address, two people brought up the idea of pending
10 litigation and how we address that as a Planning and Zoning
11 Board.
12 MR. ECKMAN: Do you want to address that just
13 for a bit tonight, or do you want to wait?
14 MR. BERNTH: It would be up to you, Paul, or the
15 Board members. I 'm fine with waiting, if the Board members
16 are.
17 MR. ECKMAN: I think I can respond to that very
18 quickly. I don' t think it' ll take much time.
19 It is true that there was litigation and still
20 is . As I understand it from discussing that with John Duval
21 in our office, who handled that or at least on the City' s
22 behalf monitored that litigation, the City prevailed and the
23 developer prevailed as defendants in that -- in that case at
24 trial, and then the plaintiff has taken it on to the Court
25 of Appeals, and that ' s where it is now.
27
1 There is no stay issued by the Court of Appeals
2 against the City to -- in -- with respect to approving a
3 final plan. There have been no injunctions ordered or
4 restraining orders or anything of that sort. And I don' t
5 think it would be appropriate for the City to refuse to
6 approve or act upon the application for a final plan just
7 because the matter has been appealed, unless a court orders
8 the City not to act upon it.
9 I think otherwise it would be out of line for
10 the City to refuse to act, because we do have an application
11 before us . We have no order from any court saying we cannot
12 act upon it . And our Code requires that we do act upon
13 applications as they come to us.
14 So I think if the plaintiffs desire to take some
15 action to ensure that this Board cannot act and should not
16 act on this application, then that action should be taken in
17 court to seek a stay or seek an injunction.
18 MS . CRAIG: Paul, could I ask you, since the
19 City is owner of this land, as the owner, if you go ahead
20 and say, you know, "Developer, you go ahead and submit your
21 plans to the City, you do whatever, " and he does, and he
22 starts on it, and the City/owner loses the case, could the
23 developer come back to you and sue you for the cost of what
24 he ' s put in to try to put this together?
25 MR. ECKMAN: I 'm going to have to apologize for,
•
28
1 somewhat, my lack of familiarity with the case, but I
2 believe the developer was a defendant in this case along
3 with the City, and probably the prime defendant, really. I
4 don' t -- so I see the two together in this . I don't think
5 that there' s a conflict between the developer, and the City
6 as the seller --
7 MS. CRAIG: Okay. The developer goes forward
8 and starts spending thousands of dollars trying to put this
9 pending into effect and loses in court . We as the owner of
10 the land are not liable for letting, you know, or selling
11 and telling them it was okay to do this .
12 MR. ECKMAN: No, because we ' re both defendants
13 together and both represented by counsel as defendants in
14 the case. I don't see any opportunity there for the City to
15 become liable for that.
16 MS . CRAIG: Okay. Thank you.
17 MR. COLTON: Okay. Any other issues to raise or
18 are we ready for a motion? Judy, I see you. Jerry, you' re
19 first, I guess .
20 MR. GAVALDON: Paul -- no, excuse me, Paul.
21 Cameron. When is the next public meeting?
22 MR. GLOSS: January 18th.
23 MR. GAVALDON: January 18th. Okay. I 'm going
24 to move for a continuance. Move for continuing of
25 Provincetowne PUD filing 2, final 7382-U, to January 18th,
29
1 2001, and continuing -- and continuation is for ascertaining
2 and recovery of the affordable housing documents/process, to
3 be brought before the Zoning Board, and staff will bring
4 that, as well as addressing other questions or concerns that
5 were brought up during tonight' s hearing.
6 MR. COLTON: Do you want to second?
7 MS. MEYER: Oh, I ' ll second.
8 MR. COLTON: Okay. Any comments from Board
9 members?
10 Okay. Let ' s have roll call, please.
11 THE CLERK: Bernth.
12 MR. BERNTH: Yes .
• 13 THE CLERK: Meyer.
14 MS . MEYER: Yes .
15 THE CLERK: Gavaldon.
16 MR. GAVALDON: Yes .
17 THE CLERK: Torgerson.
18 MR. TORGERSON: Yes .
19 THE CLERK: Craig.
20 MS. CRAIG: Yes .
21 THE CLERK: Carpenter.
22 MS . CARPENTER: Yes .
23 THE CLERK: Colton.
24 MR. COLTON: Yes.
25 Okay. Thank you all very much, and I guess
30
1 we' ll see you in a little more than a month.
2 (Matter concluded. )
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31
1 STATE OF COLORADO )
2 ) TRANSCRIBER' S CERTIFICATE
3 COUNTY OF LARIMER )
4 I, Jason T. Meadors, a Registered Professional
5 Reporter and Notary Public, State of Colorado, hereby
6 certify that the foregoing proceedings, taken in the matter
7 of the Provincetowne PUD, and recorded on Thursday,
8 December 7, 2000, at 300 West Laporte Street, Fort Collins,
9 Colorado, was duly transcribed by me and reduced under my
10 supervision to the foregoing 30 pages; that said transcript
11 is an accurate and complete record of the proceedings so
12 taken.
13 I further certify that I am not related to, employed
14 by, nor of counsel to any of the parties or attorneys herein
15 nor otherwise interested in the outcome of the case .
16 Attested to by me this 13th day of March, 2001 .
17
..
19 '• . ��
3A11 �. Ja n T Meadors
20 lO eadors Court Reporting, LLC
140 West Oak Street, Suite 266
21 7�••......••`p� Fort Collins, Colorado 80524
OF Q4 (970) 482-1506
22
My commission expires January 6, 2001 .
23
24
25
i
i
December 7,2000
Planning and Zoning Board
City of Fort Collins
300 LaPorte Avenue
Fort Collins, Colorado 80522
RE: Provincetowne PUD,Filing Two—Final - #73-82U
Public Hearing of the Planning and Zoning Board, December 7, 2000
Request For Inclusion Of The Written Testimony Of David G. Evans
6806 Deerhurst Court,Fort Collins 80525
TO THE HONORABLE MEMBERS:
I hereby formally request that the statements set forth herein be made a part of the official record of the
hearing by the Planning and Zoning Board of the City of Fort Collins to be held on December 7, 2000, in
the matter of Provincetowne PUD, 2nd Filing,Final(LDGS)-#73-82K as set forth in that certain notice of
public hearing dated November 16, 2000. In addition, I hereby formally request that all documents
referred to in this statement be incorporated as part of this written testimony as though fully set forth
herein.
Preservation of Neighborhood Character
As set forth in the records of this matter, Applicant is seeking final planned unit development (PUD)
approval for 331 residential dwelling units(190 single family lots and 141 multi-family units)on 70 acres
which establishes a density value of 4.73 dwelling units per acre. The development which is the subject
of this approval request is situated immediately adjacent to Provincetowne PUD, Filing One(Eagle Tree)
consisting of 93 single family lots on 50.34 acres with a density value of 1.86 dwelling units per acre.
I am of the opinion that the density values of each of the respective developments are not compatible and
should not be linked in such a manner as to diminish any aspect of the density attributes expected by the
residents of the Eagle Tree subdivision. In that regard,an element of Applicant's development which will
diminish the character of the Eagle Tree subdivision is Applicant's request that local streets within
Applicant's development be connected to Brittany Drive within the Eagle Tree subdivision. Applicant's
site plan sets forth the connection of its local streets at various locations along Brittany Drive. It is the
desire of the residents of the Eagle Tree subdivision to retain the low density character of the
transportation infrastructure of their community as well as to maintain the low noise level generated by
the present level of traffic within the subdivision, therefore, I am requesting that the Planning and Zoning
Board deny the Applicant's request to connect its local streets along Brittany Drive. This request is
consistent with the stated intent and provisions of Sections 29-526 et seq. of the Land Development
Guidance System, wherein it was stated the special care should be taken to respect the context of the site
and the character of the surrounding existing neighborhoods, in that, intensification and redevelopment
must be balanced with a strong sensitivity to protecting existing neighborhoods.
Provincetowne PUD, Filing Two—Final-#73-82U
Public Hearing of the Planning and Zoning Board, December 7,2000
Request For Inclusion Of The Written Testimony Of David G. Evans
December 7, 2000
Page 2
Drainage
At the hearing before the Planning and Zoning Board of August 5, 1999, it was determined from the
materials introduced by,and the testimony of representatives of the Stormwater Division and the Planning
Department of the City of Fort Collins, that the drainage system of the Provincetowne PUD, Filing One
subdivision had been inadequately designed to accommodate the flow of waters in, upon and through said
subdivision. It was the intent, as stated by the Planning and Zoning Board at that hearing, that the
Applicant, as a condition of approval, would be restricted from diverting any of the flows of water from
the Provincetowne PUD, Filing Two subdivision into,through or upon any element of the Provincetowne
PUD, Filing One subdivision drainage system. I am requesting that any approvals given by the Planning
and Zoning Board to the approval request of Applicant specifically be conditioned upon a written
provision that Applicant will not divert any waters from Applicant's development into, upon and/or
through the drainage system of the Provincetowne PUD, Filing One subdivision.
Adequate Public Services
In accordance with the provisions of Sections 29-526 et seq. of the Land Development Guidance System,
it is incumbent upon the Planning and Zoning Board not to approve developments that reduce the public
health, safety and welfare. Applicant's development significantly impacts the existing quality of the
infrastructure and various other services provided to the residents of the City of Fort Collins. Inasmuch
as no economic model has been developed to substantiate that the proposed development would not have
an immediate and ongoing negative impact to the existing level of services provided by the City of Fort
Collins to the residents, and that, the Planning Department has not analyzed such an impact in
relationship to the dilution of the level of services being received currently by the residents of the City of
Fort Collins, an approval by the Planning and Zoning Board would be contrary to the intent, purposes and
requirements of Section 29-526 et seq. of the Land Development Guidance System.
Substantive Requirements
Pursuant to the provisions of Section 29-526J(4) of the Land Development Guidance System, Applicant,
as being the recipient of a residential density bonus for this development, is required to provide covenant
documents to be recorded with the Office of the County Clerk, guaranteeing the use of dwelling units for
low-income families. The covenants shall be submitted and approved by the City of Fort Collins as to
legal form and effect, providing that use restriction be for at least twenty-five (25) years. No final plan
shall be approved for any portion of a planned unit development, approved with a residential density
bonus for providing for low-income families, until the necessary legal documents have been submitted
and approved. A review of the file of the Planning Department did not reveal that the covenants have
been submitted nor approved. In that regard,the Planning and Zoning Board is precluded from approving
the final plan.
. Provincetowne PUD, Filing Two—Final - #73-82U
Public Hearing of the Planning and Zoning Board, December 7, 2000
Request For Inclusion Of The Written Testimony Of David G. Evans
December 7, 2000
Page 3
Jurisdictional Objections To Approval
The following are continuing objections to the jurisdiction of the Planning and Zoning Board of the City
of Fort Collins to render a decision in this matter:
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager of the Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement')by
and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996, _
was specifically reserved by Section 4 of Ordinance No. 41, 1996, to the Mayor and not the City
Manager. The execution of said Purchase Agreement by the City Manager violated the specific
requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-11 I(a)of
the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council
pursuant to a duty enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First
Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and
between the City of Fort Collins and Pridemark Development Company, LLC,adding Paragraph 27 to the
Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First
Addendum could not, as a matter of law, modify an executory agreement.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager
of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper
delegation of legislative discretion which violated the requirements of Section 23-111 (a) of the Code of
the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to
a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City
Manager of the power to restructure the sale of the real property from a purchase to an option to purchase
pursuant to the First Addendum To Agreement Of Purchase And Sale Of Real Property, was an improper
delegation of legislative discretion which violated the requirements of Section 23-11 1(a) of the Code of
the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to
a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application
with the Current Planning Department requesting Planned Unit Development- Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort
Collins.
Provincetowne PUD, Filing Two—Final-#73-82U
Public Hearing of the Planning and Zoning Board,December 7, 2000
Request For Inclusion Of The Written Testimony Of David G. Evans
December 7,2000
Page 4
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et
seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161,
1996.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997,of the Application
with the Current Planning Department requesting Planned Unit Development- Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort
Collins.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning
Board failed to give timely notice of August 5, 1999, hearing.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning
and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer
jurisdiction upon the Planning and Zoning Board.
*Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of
the Land Development Guidance System For Planned Unit Developments requires, "Me decision of the
Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of
the meeting of the Board."
*Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins
Solar Orientation Ordinance, in that, Applicant presented no evidence which would demonstrate that the granting of
the variance would neither be detrimental to the public good nor impair the intent and purposes of Section
29-526(2)A-I/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties
with regard to solar orientation or access, and that undue hardship would be caused to Applicant by the strict
application of the provisions of Section 29-526(2)A-I/A-1.1.
*The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999, and
filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council
of the approval by the Planning and Zoning Board of August 5, 1999, to approve the Planned
Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD,
Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort
Collins Solar Orientation Ordinance is incorporated herein by this reference as though set
forth in full.
ectf s�itte�
a ' G. Evans
Presented to Council
KB Home of Colorado Inc.
Cost Analysis
Provincetowne Affordable Townhomes -
Plan 1 Plan 2 Plan 3
LAND DEVELOPMENT
Land /Development/Fees $ 70,317 $ 70,317 $ 70,317
DIRECT CONSTRUCTION
Home Construction Cost $ 65,243 $ 59,519 $ 67,734
Total Land and Construction $ 135,560 $ 129,836 $ 138,051
OTHER VARIABLE/FIXED COSTS
(14% of Sales Price)_ $ 17,882 $ 17,882 $ 17,882
TOTAL COST $ 153,442 $ 147.718 $ 155,933
SALES PRICE
3 Person at 30%income S 89,743.00 $ 89,743.00 $ 89,743.00
3 Person at 38%income $ 127,725.00 $ 127,725.00 $ 127,725.00
4 Person at 30%income $ 105,550.00 S 105,550.00 $ 105,550.00 -
4 Person at 38%income $ 147,746.00 $ 147,746.00 $ 147,746.00
GAIN/LOSS
3 Person at 30%income $ (63,698.57) $ (57,974.57) $ (66,189,57)
3 Person at 38%income $ (25,716.57) $ (19,992.57) $ (28,207.57)
4 Person at 30%income S (47,891.57) $ (42,167.57) $ (50,382.57)
4 Person at 38%income $ (5,695.57) $ 28.43 $ (8,186.57)
m atot affordable VC show.xis
Presented to
Planning and Zoning Board
KB Home of Colorado Inc.
Cost Analysis
Provincetowne Affordable Townhomes
Plan 1 Plan 2 Plan 3
LAND DEVELOPMENT
Land/Development/Fees $ 70,317 $ 70,317 i 70,317
DIRECT CONSTRUCTION
Home ConstnicUon Cost $ 65,243 $ 59,519 $ 67,734
Total Land and Construction i 135,580 S 12938 1��
OTHER VARIABLE/FIXED COSTS
(14% of Sales Price) $ 17,882 $ 17,882 $ 17,882
TOTAL COST $ 153,442 S 147,718 S 155,933
SALES PRICE
3 Person at 30%Income $ 89,743.00 S 89,743.00 S e9,743.00
3 Person at 38%Income 8 127,725.00 S 127,725.00 $ 127.725.00
4 Person at 30%Income $ 105,550.00 $ 105,550.00 S 105,550.00
4 Person at 38%Income 9 147,746.00 $ 147.746.00 $ 147,746.00
GAINILOSS
3 Person at 30%Income $ (63,698.57) s (57,974.57) $ (66,189.57)
3 Person at 36%home $ (25,716.57) s (19,992.57) $ (28,207.57)
4 Perrin at 30%Income S (47,891.57) $ (42,167.57) $ (50,382.57)
4 Person at 38%Income $ AW5.57) S 28.43 s (8,188.57)
1naro1
affordable VC ahow.bs
Capp ,, .
MEETING OF THE PLANNING AND ZONING COMMISSION
CITY OF FORT COLLINS, COLORADO
Held Thursday, January 18, 2001
At City Council Chambers
300 West Laporte Street
Fort Collins, Colorado
In the matter of Provincetowne PUD
concerning Provincetowne PUD, Filing 2, Final Plan
Commission members present:
Jerry Gavaldon, Chair
Mikal Torgerson, Vice Chair
Jennifer Carpenter
Judy Meyer
Glen Colton
Dan Bernth
Staff present:
Paul Eckman, City Attorney' s Office
Ted Shepard, Planning Department
Peter Barnes, Planning Department
Georgiana Deines, Planning Department
30
1 MR. GAVALDON: Welcome back to the Planning and
2 Zoning Board meeting tonight. We' re going to go to Item
3 Number 5, Provincetowne, but before we go, we ' d like to
4 welcome the Boy Scouts here, they' re working on their
5 Citizenship Merit Badge. So, welcome tonight.
6 Okay. Steve, are we ready for staff report, or
7 how would you want to handle --
8 MR. OLT: I guess I would like some direction
9 from the Board. Just so that everyone in the house is
10 aware of what ' s happening tonight, this is a continuation
11 of the Provincetowne PUD, Second Filing, Final Plan review
12 and decision. This was brought before the Board on
13 December 7th of 2000, just last month. And during the
14 course of that discussion, there had been an item brought
15 up about the affordable housing component of this
16 development proposal, and fact that the Land Development
17 Guidance System has set forth criteria that certain legal
18 documentation relating to the assurance that the
19 affordable housing will be provided and insured, for a
20 minimum of 25 years, be developed and approved or agreed
21 to between the city and the applicant. Based on that
22 criteria, this item was continued to tonight ' s meeting.
23 On December 7th we had gone through the
24 presentation. There had been presentation by staff, the
25 applicant, public input, and discussion. This item was
31
1 continued for, to my recollection, for one particular
2 reason and that was to resolve the affordable housing
3 element . And so, I guess I would like some direction in
4 terms of what the Board would like in the form of
5 presentation, if one is necessary. Looks like Mr. Eckman
6 has something to say at this time.
7 MR. GAVALDON: Okay. Let ' s defer to Paul,
8 because I think we already started some discussions about
9 how (inaudible) . Go ahead, Paul.
10 MR. ECKMAN: Well, I was just reading the
11 minutes, and they state that the continuation is for
12 ascertaining and recovery of the affordable housing
13 documents . Those are the documents brought up by Mr.
14 Evans at the last meeting that we were" nt able to produce.
15 And those need to be brought before the Board. So we know
16 we ' re talking about that. The motion also says, "Also to
17 address other questions and concerns that were brought up
18 at tonight ' s hearing. " And you made the motion, Mr.
19 Gavaldon. I think you had in your mind what those other
20 questions and concerns were that you wanted to have
21 addressed. And maybe it would be best for you to list
22 those concerns and questions too, because we ' re here to
23 discuss those, and then see if that covers all the
24 concerns that the applicant or the audience feels is fair
25 for us to cover tonight .
32
1 MR. GAVALDON: Okay. So, what I was asked for
2 was copies of the ODP and the traffic information, and ask
3 that Eric Bracke talk about traffic calming as a separate
4 process, not part of the discussion tonight . And we also
5 got copies of the preliminary plan, so we have those two
6 already in Board packets. Glen asked for information on
7 the construction and how it ' s going to proceed and how
8 traffic will be routed. Information on how much traffic
9 wil-1 be on existing streets versus new streets . That was
10 Glen' s, and Dan asked for pending litigation be addressed
11 and how does the Planning Board -- do they address that
12 issue. So those were probably the only ones that I was
13 seeing in my mind as specific items that we were going to
14 focus this meeting towards without going all wide open,
15 and still keeping a fair and impartial meeting -- hearing.
16 MR. ECKMAN: And then I notice on the minutes,
17 as to the pending litigation question, I immediately
18 responded to that and our last meeting. And I don' t know
19 if there are any further questions that Mr. Bernth wants
20 to ask regarding that or not but --
21 MR. GAVALDON: Okay. So it comes down to
22 traffic. Documents that were represented to us and
23 affordable housing component are probably the only items
24 that I see that we would like to focus on tonight .
25 MR. OLT: One thing I would like to add, the
33
1 applicant also has submitted to you, the Planning and
M2 Zoning Board, a request for a variance to a particular
3 criteria and on Point Chart H, the Residential Uses Point
4 Chart . At the time of preliminary PUD, this project did
5 gain points for the affordable housing component, the
6 intent to provide affordable housing, and provide it for a
7 period of time.
8 In that point chart I would like to quickly
9 read the criterion that they' re requesting a variance to,
10 "If the project contains dwelling units set aside for
11 individuals earning 80 percent or less the median income
12 of city residents, as adjusted for family size, and paying
13 less than 30 percent of their gross income for housing
14 including utilities, calculate the percentage of
15 affordable housing -- or affordable dwelling units to the
16 total number of dwelling units in the project and enter
17 that percentage.
18 "If the project is proposed to be constructed in
19 multiple phases, these affordable dwelling units must be
20 constructed as part of the phase for which the approval is
21 sought.
22 "In order to ensure that the affordable dwelling
23 units will remain affordable for a period of not less than
24 25 years, the developer shall record such protective
. 25 covenant as may be required by the city under Section
34
1 29-526J4 of the Land Development Guidance System. "
2 Getting to the heart of the matter, this is
3 coming from my memorandum to you -- provided to you, the
4 Planning and Zoning Board. In staff' s evaluation of their
5 request for the variance, staff does understand that the
6 applicant has committed to these affordable, 141
7 affordable, dwelling units, being "for sale" units, they
8 will be for purchase.
9 In 1994, City Council adopted an ordinance
10 defining affordable housing projects, affordable housing
11 units for rent, and affordable housing units for sale .
12 The Affordable Housing Board recommended to council that
13 they increase the amount of household gross income that an
14 individual or family may pay for their housing from the 30
15 percent as stipulated in the criterion I just read to you
16 previously, the -- increasing that from 30 to 38 percent .
17 This is now set forth in he City Code, it ' s Section
18 26-631 .
19 That section -- section of that particular
20 section of the code says, "Affordable housing units for
21 sale shall be the dwelling unit which is affordable for
22 purchase on terms that would be affordable to households
23 earning eight -- 80 percent or less of the median income
24 of city residents as suggested for family size, and paying
25 less than 38 percent of their gross income for housing,
35
1 including principle, interest, taxes, insurance, et al . "
2 Staff has determine that had this request to
3 the -- from 30 to 38 percent on the previously approved
4 Residential Uses Point Chart, would bring this project in
5 conformance with the existing city code, and recommends
6 approval of the variance request. So you ' ll need to take
7 action on that as a separate motion from the project
8 itself at the end of your discussion.
9 _ MR. GAVALDON: Thank you very much, Steve .
10 Okay. We ' ll go with that . So the board will allow the
11 process to go this way, we' ll allow the applicant to speak
12 specifically on the items that we ' re discussing tonight as
13 this construction and housing as we have our documents,
14 and the variance, should be the only three items that we
15 should be focusing on.
16 Paul, would you be okay with that approach to
17 the applicant and all groups to be discussed in those
18 three elements?
19 MR. ECKMAN: I think so, unless there ' s some
20 additional item that the applicant or the rest of the
21 audience feels that we have not properly touched on.
22 MR. GAVALDON: And that will fall under new
23 information, and we have to deal with that appropriately.
24 MR. ECKMAN: Apparently we have one, at least .
25 MR. GAVALDON: Sir, do you want to come up and
36
1 add an item that you feel appropriate?
2 SPEAKER: Do I go ahead and state my name?
3 MR. GAVALDON: Yes, please.
4 MR. MENKE: Hi, I 'm Mark Menke and I live at 901
5 Deerhurst Circle. I 'm in the current Eagle Tree,
6 Provincetowne, Filing One Subdivision.
7 The one item that I didn' t hear discussed was
8 something that I brought up to Ms . Craig, and she ' s not
9 here tonight, and was brought up in the minutes, and that
10 had to do with the drainage from the property. Is --
11 there is a drainage -- I forget what you call them --
12 where it gathers in. A pond. There ' s a detention pond
13 planned that will be constructed for this project, in the
14 far northeast corner of the project area that -- the way I
15 look it as in Filing 3, not part of Filing 2, but they' re
16 using this, and I don ' t understand.
17 And this was one of the points we made at the
18 December 7th hearing: How you can do something for one
19 filing and construct on the property of another filing?
20 And also I think there' s some question having to do
21 with -- specifically, with the ODPs. There ' s seems to
22 have been a misunderstanding or maybe not a complete
23 disclosure in the record of the ODPs and the dates of the
24 ODPs that the citizenry were shown at different times when
25 -- changes were made to those ODPs over the life of this
37
1 project that we 'd also like to discuss . Because they' re
2 -- and they go back to ODPs dating back to the July of
3 ' 96 . And it has to do with the inlets of the streets,
4 because there were representation made -- representations
5 made that the inlets of the streets are there in the
6 neighborhood and are provided for. And I 'm here to tell
7 you that they' re not there for two of the streets that
8 want to be cut through. That ' s all. Thank you very much.
9 MR. GAVALDON: Okay. - With Paul ' s nod, we' ll go
10 ahead and include those two items and keep them specific.
11 Do you have one, sir?
12 Okay. All right . So let ' s go ahead and have
. 13 the applicant come forward and speak specifically to the
14 items that were brought up. And I ' ll go over it again:
15 the housing component, the construction, the variance, and
16 the drainage. And, Steve, you may have to help with the
17 ODP segment of it .
18 So, if we can stay in focus with that, we can
19 go -- we can move this in a fair, orderly manner, and then
20 we ' ll allow citizens to speak only to the items that we' re
21 discussing tonight, and then we ' ll proceed. Okay. Thank
22 you. And you have -- how much time will you need?
23 MR. NIER: Probably just few moments . I 'm going
24 to discuss the construction access .
25 MR. GAVALDON: Okay.
38
1 MR. NIER: And then we have other people in the
2 audience that can speak to some of the other matters .
3 My name is Glenn Nier. I 'm with Kaufman and
4 Broad, 8401 East Belleview Avenue, Denver.
5 And, if I may, I 'm going to have to turn my back
6 to you and to the microphone. But I just want to point
7 out what our intention is for construction access, and our
8 concerns in keeping construction away from the existing
9 subdivision. So, I 'm just going to point those out to
10 you. If you have any questions, I ' ll just come back up to
11 the microphone .
12 SPEAKER: (Inaudible. Speaker off screen. )
13 MR. NIER: Okay. I ' ll try to do it --
14 MR. GAVALDON: Do we have a pointer?
15 MR. NIER: I didn' t bring a pointer with me. I
16 had a graphic, but the people in the audience wouldn' t be
17 able to see it. So I think I ' ll able to show you from
18 here .
19 This is the existing subdivision right in this
20 area. It ' s not colored. And our intention would be that
21 we are going to phase this project, but we intend to do it
22 from start to finish, move on-site, and move out when it
23 is completed from a development standpoint . Thank you.
24 Current access into the site is right here off
25 of Provincetowne Road, and this road dead-ends at
39
1 approximately this location and then turns into Brittany
2 Drive. We intend to extend this road, Provincetowne Road.
3 Provincetowne Drive comes in through here. It ' s called
4 Heatherglen Circle. And then move up in through here,
5 which is Provincetowne Road.
6 Our construction access off of Trilby will be at
7 this northern extension here, or access point, and we
8 intend to bring construction traffic not in through this
9 access that already exists, but down through here. So for
10 the scrapers, all the pipe and utility crews, and
11 everybody, will be instructed that they have to use these
12 accesses . They can not use existing streets . And that
13 will be throughout the duration of construction.
14 We ' ll have signs placed on our property that direct
15 people, and, obviously, we ' ll have a presence on site
16 daily with the construction trailer. So everyone will be
17 very aware of the fact that they are not to drive through
18 the residential streets . And that would even be, once we
19 finish our development and go into vertical development of
20 the subdivision, the actual houses themselves . So that ' s
21 our intent .
22 We ' re concerned about it too. It ' s not a new
23 issue with us . We build developments all over the state
24 that we have to deal with this, and it ' s an issue to all
25 of them and an issue with us, so we ' re very used to
40
1 dealing with it.
2 Do you have any other questions -- of me?
3 MR. GAVALDON: We ' ll just save the questions for
4 when we get through the applicant ' s presentation, if there
5 are any.
6 MR. NIER: All right. Thank you.
7 MR. GAVALDON: Are there are other members of
8 the applicant -- of the applicant that can -- that can --
9 will come and speak on the other items that were brought
10 up?
11 MR. RUBEL: Good evening. My name is Dave
12 Rubel . I 'm with LFC Transportation Consultants . We did
13 the traffic impact study and the updates to that . I 'm noz
14 sure exactly what -- my address is 1889 York Street,
15 Denver, Colorado, 80206. I 'm not sure exactly what kinds
16 of traffic questions you' d like to have me address. It
17 wasn' t real specific. So in lieu of that, what I ' d --
18 what I ' d propose is that I just be here to respond to --
19 to questions from the commission or from the audience, if
20 that ' s okay.
21 MR. GAVALDON: Are there any Board questions on
22 for the -- on the traffic citing? Okay. We ' ll hold them.
23 I 'm glad you' re here. Thank you very much.
24 MR. RUBEL: Thank you.
25 MR. GAVALDON: Okay. Is there anyone on the
41
1 applicant ' s side that wants to speak on the housing
2 component document, and also on the variance, and be able
3 to address the drainage?
4 MR. KLAUSING: Mr. Chairman, can I use this one
5 or --
6 MR. GAVALDON: Either one ' s fine, sir. Thank
7 you.
8 MR. KLAUSING: Thank you. Good evening, Mr.
9 Chairman, members of the Planning Commission. My name is
10 Steve Klausing, and I 'm the Director of Public Relations
11 for Kaufman and Broad. And I 'm going to speak to you
12 tonight about two issues, the first is the affordable
13 housing component, and the second is our request for a
14 variance .
15 We have worked very diligently since last
16 December to put together a housing plan and present that
17 to the City staff for their comments and review. And as
18 of, I think it was about 5 : 45 this evening, we had final
19 is crossed and is dotted on that plan.
20 We originally submitted some documents about ten
21 or twelve days ago. We've had a series of meetings up
22 here. The City Attorney and I and Mr. Waido have been on
23 the phone discussing the affordable housing planning
24 element on a daily basis .
25 I think that I can represent -- and I would
42
1 certainly encourage the staff to -- to contradict me if
2 I 'm wrong, but we have at this point, agreement on all
3 issues regarding the affordable housing plan. We have
4 both a plan which has been drafted and agreed to.
5 I think that there' s maybe some more is to
6 cross and is to dot just mainly because of the rapid
7 soeed with which we did this . But I believe we are 99. 9
8 percent in agreement on everything.
9 We also have what ' s called Master Covenant. -
10 This property will originally have a master covenant which
11 covers all of the property identified in the plan as
12 affordable housing. Affordable housing is defined in your
13 city code, and back when this project was originally
14 approved, as having a tie, or a component tie to the area
15 median income. And that area median income is calculated
16 by the Department of Housing and Urban Development. Their
17 income limits is for the Fort Collins area . We have tied
18 our plan to that . This property is restricted by the
19 recorded covenant which will go of record at the -- well,
20 right after the creation of the lots . So when we file a
21 condominium map, immediately after that will be filing a
22 covenant, master covenant, which restricts the identified
23 lots, which are 141 at this time, to -- to being
24 affordable for a period of 25 years .
25 As more of the property is developed, or less,
43
1 that number will be adjusted. But, at this point, we have
2 made application -- in our application, I believe, it ' s
3 for 331 units and 141 is a little more than 30 percent,
4 as you can see. So we' re doing a little more than that in
5 this submitted original filing. So, as to the affordable
6 component, we believe that we have complied with the city
7 code. We have provided that plan, it has been adopted by
8 the city, and we' re prepared to move ahead.
9 Now, we do have before you a request for a
10 variance. Now, that variance is based upon two things .
11 The first is the fact that the city code, or the city' s
12 policy, regarding the definition of affordable housing was
13 changed, and, I believe, that was around 1993 . That
14 change -- it used to read that it was -- as in the Land
15 Development Guidance System -- 30 percent . And I want to
16 make -- there ' s reference to two 30 percents, so let me
17 make then clear.
18 The first 30 percent is our agreement . We 've
19 agreed to build 30 percent of the units as affordable.
20 That ' s in a covenant, that ' s in the plan, that ' s in the
21 contract with the city. That ' s not what we ' re talking
22 about .
23 The formula for determining what an affordable
24 unit is, is you take the area median income for Fort
• 25 Collins, you multiply that times 80 percent and then out
44
1 of that 80 percent -- let ' s just say, just make things
2 real simple, like $10, 000 -- that ' s very, very low, it ' s
3 more in the range of $40, $50, 000 . This $10, 000, you
4 multiply that times 80 percent. That becomes $8, 000.
5 Then you multiply that times -- the old code says 30
6 percent, the new code says 38 percent -- for units that
7 are for sale.
8 The old code did not distinguish between For
9 Rent units and For Sale units . I believe that the city
10 staff re-examined that issue and concluded, appropriately,
11 that there is a difference in a For Rent unit and a For
12 Sale unit . And that to get comparable kind of housing
13 you have to be able to pay a little bit more for a For
14 Sale. And, also, there are some costs' included in For
15 Sale units that you wouldn' t commonly find in a For Rent .
16 That ' s why they increased the For Sale units from 30 to 38
17 percent.
18 That 38 percent is multiplied times the 80
19 percent that you come out with. That figure is what a
20 buyer can spend for their housing. That ' s called the
21 maximum monthly housing expenses . It must include
22 principal, interest, taxes, insurance, homeowner' s dues,
23 utilities, mortgage insurance. It has to include,
24 basically, everything that they would spend for their
25 housing allowance. That ' s the maximum amount that they
45
1 can spend on a unit .
2 Obviously, if you take certain things out like
3 homeowner' s association dues, utilities, maintenance, and
4 that type of thing, actually what they' re spending on
5 their unit is less because you've had to take a certain
6 amount out.
7 What we are asking is that you grant us a
8 variance from the old code and apply the new standard
9 _which is the 38 percent . The legal standard for our
10 obtaining this variance is that it must be practically
11 unfeasible for us to build and sell the units at 30
12 percent .
• 13 And I, at this point, am prepared to show you
14 some figures and calculations we have concluded.
15 May I distribute these, please, Mr. Chairman?
16 (Distributes documents . )
17 What I have given you is a form of a proforma .
18 It ' s not exactly a proforma, but let me kind of walk you
19 through it a little bit . Plan 1, 2, and 3 across the top,
20 that ' s -- that ' s three different plans that we would
21 intend to offer. And that ' s basically what they are. Two
22 bedroom and three bedroom. I think that to be -- to be
23 honest with you I think that it ' s two three-bedrooms, but
24 I can' t -- I can ' t swear to that .
25 The first line there, "Land Development, " that
46
1 basically is the cost of the land that we paid the city,
2 and the cost to develop lots. Now, that ' s based upon
3 figures that we have a pretty good handle on at this time,
4 because we are anxiously waiting to go ahead and start
5 developing.
6 You then have what ' s called "Direct
7 Construction. " That ' s the sticks and bricks . And to
8 build, for example, Plan 1, it ' s $135, 560 .
9 You then have what we refer to as, ' Other
10 Variable and Fixed Costs . " These are things like the
11 cost to put up a model, the cost to do marketing, sales,
12 promotion, et cetera, overhead, but no profit . No profit
13 at all . That is -- those are our fixed costs . You then
14 get the final cost, which for Plan One is $153, 442 .
15 The next series of calculations is the Sales
16 Price. The three-person is based upon the two bedroom and
17 it uses the 30 percent of the income. So what we do is we
18 take the median area income for three-person family in
19 Fort Collins, multiply it times the 80 percent, and then
20 multiply that times 30 percent. That ' s how much they can
21 afford to spend. That comes out to about $700 a month.
22 After you take out homeowner' s insurance -- or,
23 excuse me -- common area fees and that type of thing. We
24 then amortize that payment, $700 a month, as what is a
25 common market rate of 8 percent times 30 years . And we
47
1 come up with a value of that house. And the value of that
2 house at -- for the three-person at 30 percent -- is
3 $89, 743 . That ' s the most that we can charge somebody for
4 that house . The most that we will be able to charge
5 somebody at 30 percent is $89, 743.
6 Again, that is a three-person family. That ' s 80
7 percent, which is the affordable limit . It ' s taking 30
8 percent of the 80 percent of their housing expenses. It ' s
9 taking utilities, which, of course, we estimate: gas,
10 water, sewer, common area maintenance, that type of thing.
11 Homeowner association dues . Take that out . You come up
12 with $89, 743 .
13 Now, we do a very same calculation right below
14 it at 38 percent, which is what we ' re asking, that you
15 allow us to go to 38, the current city code. And you can
16 see that the value then is $127, 725 . That means that
17 that ' s the most that an eligible buyer -- and only
18 eligible buyers can buy these units . They have to be --
19 they have to qualify. They have to qualify to be an
20 affordable buyer. We couldn' t sell these to somebody
21 making a hundred thousand dollars . We have to sell them
22 to somebody who falls within these guidelines .
23 Under the second calculation, we could charge
24 $127, 725 . If you then drop down to, "Gain-Loss, " that
25 shows you essentially what the gain and loss under each
48
1 scenario. Obviously, at 30 percent the difference between
2 $89, 000 and $153, 000 is a substantial amount of money,
3 $63, 000 .
4 At 38 percent it drops down to $25, 000 . What
5 we ' re trying to -- the point I 'm trying to make is that,
6 even at the 38 percent, obviously these units are -- we ' re
7 going to have to subsidize them. We' re going to have to
8 subsidize them to a very substantial amount. At 30
9 percent it is -- it ' s almost half of the -- half of what
10 it is -- well, it ' s 40 percent of what the -- of what the
11 cost is .
12 Affordable housing is -- is -- it promotes a
13 very legitimate city goal . And it is something that we ' re
14 committed to. Our housing plan stipulates that we will
15 market, have a specific and special marketing program, to
16 try to bring buyers in, and we will make a very, very
17 concentrated effort.
18 As you probably recall, our sales plan for the
19 remainder of the property stipulates that we only sell
20 building permits at the rate of one for every -- two for
21 every affordable housing unit that ' s sold. So we have a
22 very strong motivation to sell these.
23 I could take you through the analysis, but I
24 think it ' s pretty self-explanitory at this point for the
25 four-person. At 30 percent on Plan 1 it ' s $105, 000 . At
49
1 38 percent it goes to $147, 000. And then you can see the
2 difference. The gain and loss, again, at the 30 percent
3 is about $47, 000, and at 38 percent it ' s a loss of about
4 $5, 000 .
5 I wanted to stress that the total cost figures
6 here do not include profit . There ' s no profit . We do
7 cover administrative expenses, and we do cover the things
8 like the sales complex, the models, and that type of
9 thing, but it is absent Kaufman and Broad' s profit .
10 In closing, I think that if you have any
11 questions when you' re all finished, and so forth, I would
12 be happy to go back over this . I hope I ' ve made it clear
. 13 enough to make the point . We believe that it is -- it is
14 painfully, to us, obvious that it is practically
15 infeasible to build at 30 percent .
16 The city code has, since 1993, recognized that
17 38 percent is an appropriate amount . We simply ask that
18 you give us the benefit of what anybody going through the
19 process would get right now. It doesn ' t change the fact
20 that we ' re going to build 30 percent affordable . It
21 doesn' t change our plan with the city at all . And it will
22 -- it will allow this program to proceed.
23 I want to thank, as I conclude here, I want to
24 thank the Planning Staff and also the City Attorney Staff
25 who have worked very, very hard with us to put this
50
1 together very diligently. And I would encourage you to
2 accept our request and the Planning Staff' s recommendation
3 for approval. Thank you very much.
4 MR. GAVALDON: Thank you very much. Okay.
5 Steve, or is any one member of the staff available, or the
6 applicant, to help -- to talk to us about the drainage on
7 the property, and also about the Filing 3 and Filing 2 of
8 the ODP? Basil, you got one?
9 MR. HAMDAN: I ' ll start with the drainage. I
10 don' t know if this -- if you can see -- I think they were
11 addressing this issue . This is the -- the limits are here
12 -- this is the limits of the filing of Provincetowne,
13 which is commonly known -- commercial name is Eagle Tree
14 Subdivision. Currently it ' s mostly built out .
15 There ' s a multi-family component in that
16 subdivision in this area, and an existing detention
17 facility, detention pond, on this corner -- as you
18 mentioned -- on the northeast corner of Trilby and Lemay.
19 The applicant on this second filing is proposing
20 a drainage detention area in this location. The out --
21 the outlet from this pond will go down an existing swale
22 and pipe system, coming down here, joins this existing
23 pond, crosses across Lemay, and goes out towards Fossil
24 Creek to the east .
25 The objection, as I understand it, was that how
51
1 come this subdivision is draining across this other
2 private detention system. And I want to emphasize that
3 this is a very common situation, that it happens all over
4 town where we have detention -- you know, drainage
5 facilities from upstream subdivisions going through
6 neighboring, downstream subdivisions .
7 When this plot for Filing 1 was done, all these
8 areas, drainage areas, were designated as public --
9 publicly -- on public easements were designated on these
10 drainage facilities . So there ' s a drainage easement
11 designated to the City of Fort Collins . And we do that
12 everywhere to -- so we don' t landlock upstream
13 subdivisions, so that these areas can drain across --
14 I want to emphasize also that they are providing
15 their own detention, so they are not sending developed
16 flows . These are detained flows that were planned. Even
17 at an ODP stage, when this was envisioned to be one large
18 ODP, you knew that the drainage tended to drain in this
19 direction, so we had to provide a future outlet for this
20 area to go across the first phase, which was the
21 downstream area that was developed first.
22 So that ' s why all these areas were designated as
23 public drainage easements on private property. So it ' s
24 not unusual for this to happen. It just happened in this
25 case that there was a lag -- a large lag between when the
52
1 first filing was developed and the second. And it ' s two
2 different developers, so it presents a little different
3 scenario, but, other than that, it ' s pretty typical. So
4 if you have any questions about that I 'd be happy to
5 answer.
6 MR. GAVALDON: Okay. I think we covered all
7 items that were brought up. What we' ll do is, since
8 there' s no Board -- there' s no indication of any questions
9 at this time, we ' ll allow citizen input to be specific to
10 the items that we are addressing tonight . Are there any
11 citizens that would like to come up and speak? Okay.
12 Four minutes per person, please. Georgeanne, could we
13 time? Thank you.
14 MR. EVANS : Good evening, Ladies and Gentlemen,
15 my name is Dave Evans, I also am a resident of the Eagle
16 Tree Subdivision, Provincetowne 1 Filing. We have two --
17 or I have two issues -- primary, that we are surprised
18 again by a variance request. Notification for the public
19 hearing never stated that there would be a variance
20 request . At the minimum we' re requesting that this Board
21 postpone this matter in order to give us an opportunity
22 to be able to investigate the legitimacy of the request
23 for the variance, and present evidence that might
24 contradict what the applicant has presented as far as
25 hardship for the variance.
1 Secondarily, there was questions at the first 53
2 meeting regarding the ODP as it related to the`'connector
3 streets along Brittany. What I think we needed -- or
4 Menke requested clarification of -- there was some dispute
5 as to when those connectors appeared on the ODP. And I
6 think -- I don' t know if it was Miss Craig, or one of the
7 members asked that that be brought forward back to the
8 Planning Commission, and a determination made as to when
9 the connectors actually, physically appeared on what
10 version of the ODP, because there ' s a multiplicity or
11 multitude of ODP approvals starting in 182 all the way
12 through ' 97 to today, really, on this matter. So I think
13 they want a clarification of that because our criteria
14 was, as a neighborhood, the street connectors never
15 appeared on any ODP that we every saw prior to 1997,
16 January 1, 1997 .
17 So we needed some clarification and the Board
18 wanted some clarification because that ' s always been a
19 matter of contention for the residents there.
20 MR. GAVALDON: Thank you. Okay. Thank you very
21 much. We have two podiums here. If you would please
22 utilize both, that would be great .
23 MR. EVANS: Thank you again.
24 MR. GAVALDON: Thank you.
i25 MR. EVANS: Basil didn' t quite catch what I was
54
1 trying to get to on the draining. The point is -- I guess
2 I Wduld like to refer to the little handout that we got in
3 the mail, if I may. Is that okay?
4 MR. GAVALDON: It depicts the filing as this
5 grey area, and this is what I believe it to be. Okay.
6 And where they are going to put the retention pond is not
7 in the grey area. They' re going to put the retention pond
8 in a Filing 3 area.
9 That ' s not part of Filing 2, and I don' t
10 understand how you can build something in a filing area
11 that ' s not part of the filing. What gives them the right
12 to do that?
13 MR. GAVALDON: Okay.
14 MR. EVANS : And how does that satisfy the
15 drainage issues for that retention area to go in. At the
16 very least, this documentation as it ' s been presented to
17 us is confusing.
18 MR. GAVALDON: Okay.
19 MR. EVANS : The second thing that I ' d like to
20 point out is that, when we bought our property and we
21 moved into Eagle Tree, what was given to us at the time
22 was a ODP dated July of 196. That ODP dated July of ' 96
23 did not have the connector streets for -- could I point to
24 the map -- for two of the streets .
25 The two connectors that have been put in are
55
1 right here, which there are no curbs and gutters that
2 allow for that today, which was testified to by City
3 Engineering at the last meeting. And right up here . So
4 these two connector streets are what I am particularly
5 disputing, and are what many of the neighbors have
6 disputed.
7 They .weren ' t on the ODP going back to ' 96. They
8 appeared magically at some point in a city meeting that we
9 had, and from that point forward we ' ve protested those
10 streets being connected through in vain. And I, for one,
11 would request that this plan be stopped, and those streets
12 be eliminated from this map, and to go back to what was
13 the original filing back in July that I had privy to when
14 I bought my property. And I guess that ' s really all I
15 have tonight .
16 MR. GAVALDON: Okay. Thank you. Anyone else?
17 MR. HAMDAN: Can I address the issue of the --
18 MR. GAVALDON: Okay. Just a sec, Basil, I want
19 to make sure we ' ve got all the citizen input, and we ' ll go
20 over the steps and cover your points. Any more folks want
21 an opportunity?
22 Okay. Seeing that we don' t have anymore citizen
23 input, we ' ll close the public discussion.
24 Basil, if you want to you go ahead and speak on
25 the -- on Number 3, the Filing 3 detention pond for Filing
56
1 2 .
2 MR. HAMDAN: I guess I misunderstood the
3 question. I think what he is -- what Mark is referring to
4 is this area, in the corner here that is not part of
5 Filing 2 . However, the detention pond for this part is in
6 this area. It is currently being plotted with this Filing
7 2 as a tract, correct? I think we are planning it as a
8 tract.
9 However, there ' s no planned development in this
10 area, that ' s why it ' s not darkened, it ' s still lightened
11 up. But it is being plotted, and there is a drainage
12 easement that will be designated on it. And since they do
13 own the property at this point, and they will be
14 designated -- designating that property as a drainage
15 easement, it is allowed. So it ' s on their property, and
16 they will be planning it, however, they will not be
17 developing it at this time.
18 MR. GAVALDON: Thank you very much. Ward,
19 could you help us on the ODP street, connector streets, or
20 Sherry. I don' t know which one is -- which one is going
21 to take that one.
22 MS. WAMHOFF: I can probably address it because
23 I 'm the one who spoke on it last time.
24 MR. GAVALDON: Okay. Great .
2S MS. WAMHOFF: What I had indicated, the
57
1 right-of-way had been dedicated for street returns in that
2 area. They may not be built out there . They weren' t
3 built on the other side of the street until Eagle Tree
4 went in, but there was right-of-way that was dedicated for
5 curb returns that does exist on that other side. So
6 obviously at the time that they platted the street, it was
7 intended that there was to be connections just as there
8 was on the east side of the street .
9 MR. GAVALDON: Okay. If I recall, an ODP is
10 like a bubble chart . Streets, necessarily, are not
11 really defined.
12 MS . WAMHOFF: They may not . Typically local
13 streets are not defined. It is just usually collector
14 streets that are defined.
15 MR. GAVALDON: The collectors . But it ' s a real
16 bubble -- it ' s just a real bubble overview.
17 MS . WAMHOFF: Correct .
18 MR. GAVALDON: Okay. Okay. Thank you. Steve
19 you want to -- or Paul -- tackle the variance?
20 MR. OLT: The Land Development Guidance System
21 provides that, "Notice of the time, date, and place of
22 the Planning and Zoning Board' s hearing on a preliminary
23 plan shall be published in a newspaper of general
24 circulation within the city at least seven days prior to
• 25 such hearing. "
58
1 For whatever reason the Land Development
2 Guidance System never required us to publish notice of a
3 final. We have always thought that we should, and so we
4 do. But all that we ' re required to do is publish notice
5 of the time, date, and place. And we don' t have to
6 include, for legal purposes, in that publication all the
7 topics that we might be talking about on the hearing --
8 at the hearing on the matter.
9 MR. GAVALDON: Okay. And you can file the
10 variance then?
11 MR. ECKMAN: Yes . So I don' t believe we had a
12 legal reason -- a legal requirement to publish in the
13 newspaper the topics that we might be discussing tonight
14 and the variance, though a new issue, didn' t have to be
15 included in the notice.
16 MR. GAVALDON: Okay. Thank you. Paul or Steve,
17 do you want to tackle the ODP connecting streets and the
18 ODP, I believe Sally had a question about this on December
19 7th.
20 MR. OLT: Yes. Getting back to Mr. Menke ' s
21 concerns -- looking at a couple concerns, I think the
22 drainage -- well, okay, you asked on the ODP, and the
23 street connections first . I wasn' t involved in the
24 Provincetowne PUD in 1996, but I am certainly aware
25 through my research, that there was an Overall Development
59
1 Plan that was reviewed in 1996 and possibly July was one
2 of the iterations . But I am showing you a rendered copy
3 of the Overall Development Plan up on the screen that was,
4 in fact, brought to the Planning and Zoning Board on
5 December 16th, 1996. This plan was approved by the
6 Planning and Zoning Board, and it shows, as typically an
7 ODP will show, a collector street network through the
8 property. And then, in this particular case, in these two
9 locations, you can see these orange circles and those say
10 on the approved Overall Development Plan, "Potential local
11 access connections . " And both of those connections are in
12 arrow form only, but that ' s typically the way a local
13 street connection would be made .
14 So those were in fact shown 'on the approved
15 Overall Development Plan of record, that has been recorded
16 in the City of Fort Collins, that then has been carried
17 over to the preliminary PUD, which the Planning and Zoning
18 Board approved August 5th of 1999 . Those arrows from the
19 Overall Development Plan, potential local street
20 connections now are shown as local street connections on
21 the preliminary approved PUD. That is being carried over
22 now into the final PUD plan that ' s before you tonight,
23 identical locations .
24 So that has been of record since the plan was
• 25 reviewed and approved in 1996, in essence. Dealing with
60
1 the retention, or detention, pond issue, Basil has
2 addressed it, I think, adequately, but what I want to
3 point out -- Mr. Menke was concerned that the map that was
4 sent to the citizens did not show that detention, or
5 retention, pond on the map as part of Filing 2 . This is,
6 at a thousandth scale, a vicinity map and nothing more.
7 It shows the general configuration of a development plan.
8 It ' s a vicinity map. It ' s not a detailed development
9 plan.
10 But, as . you can see on the final PUD plan, that
11 are is, in fact, planned as a detention pond as part of
12 the Provincetowne 2nd Filing, and it is being platted as
13 part of Provincetowne 2nd File. And I ' ll answer any
14 questions the Board may have.
15 MR. GAVALDON: Okay. Thank you very much.
16 I ' ll allow a rebuttal from the applicant if they choose
17 to.
18 MR. ECKMAN: I think that we should, and I think
19 also -- and I want to talk a little bit about this notice
20 -- because I was just advised that not only did we publish
21 for meeting, but we also as a courtesy, not as a
22 requirement in the LDGS, but as the courtesy, we did a
23 mailing as well. But, as Mr. Evans spoke, he spoke only
24 to the issue of notice and perhaps ought to be afforded
25 the opportunity, if he wishs, if he is opposed to the
61
1 variance, to explain to the Board why he believes that the
• 2 applicant has failed to carry it ' s burden to justify the
3 variance, if he wishes . If not, if he has no issue about
4 that, that ' s fine, but I thought you ought to afford him
5 that opportunity.
6 MR. GAVALDON: Okay. Mr. Evans, if you would,
7 and then we ' ll allow the applicant a bit of time to do a
8 rebuttal .
9 MR. EVANS: My reason for having the objection
10 to the procedure of having the P&Z Board proceed in this
11 matter is due to the lack of our ability to formulate an
12 opinion as the merits, or lack thereof, of the applicant ' s
. 13 request for the variance, since we ' ve been surprised by
14 the proposal to do a variance .
15 It appears that the variance will significantly
16 deviate from the requirements of the LDGS. It would be
17 only fundamentally fair, procedurally, every other
18 fashion, to provide us an opportunity to evaluate what
19 they' re presenting as far as evidence seeking the variance
20 request . We have no opportunity at this juncture to
21 evaluate that request for the merits, and juxtapose
22 against what the conditions set out in the LDGS require.
23 So for me to just arbitrarily indicate that the applicants
24 request for variance has no merit would be of sheer
. 25 folly. It may have true merit to it, it may be merit to
62
1 the core, but at this juncture we haven' t had an
2 opportunity to formulate any kind of rational response or
3 review of it . And I think when you' re asking for variance
4 of that magnitude, that goes to the very essence of the
5 economic nature of the structure of this transaction.
6 The least that the Planning and Zoning Board could do
7 would be to afford the general population, the general
8 public the opportunity to be heard on that issue. So,
9 thank you, Mr. Chairman. -
10 MR. GAVALDON: Thank you very much. Will anyone
11 from the applicant party would like to make any comments
12 or rebuttal . Usually we do it in 10 minutes, if you can
13 do it in 5 we ' d appreciate that .
14 MR. KLAUSING: I can do it in three.
15 MR. GAVALDON: Okay. You need to.
16 MR. KLAUSING: Mr. Chairman, Members of the
17 Planning Commission, we had no comments on anything except
18 for the -- a brief response on the request for the
19 variance. We believe the staff has adequately answered
20 all of the questions regarding the drainage and traffic,
21 and we do agree with all those, as well as the chronology
22 from Mr. Olt of the approval of this project over the past
23 several years .
24 In regard to the 38 percent, I don' t believe
25 that Fort Collins code requires that the developer built
63
1 affordable units either at a loss or that, in fact,
• 2 that -- that the project not make any money. We have made
3 a representation to the city, and that representation
4 must be backed up at a later date with substantial filings
5 with the city, which are required in contract form, which
6 go beyond the code. These contract provisions visions
7 require that we provide the city with construction costs,
8 and other costs, and so forth, associated with this
9 project . The costs that we have provided to you are a
10 good faith effort that we have spent a substantial amount
11 of time putting together. And, in many instances, these
12 costs are based on direct experience, and in some
13 instances they are based on actual, direct costs that we
14 will incur, or know that we will incur in our estimating
15 of this particular project . But if the city has any
16 concerns, we ' ll be providing reports of a detailed nature
17 to the city throughout the history of this particular
18 project .
19 And I would also urge the Planning Commission
20 not to lose sight of the fact that what we are asking is a
21 return to -- or bringing us up to current law, existing
22 law, existing policy as recognized by the -- by the
23 Planning staff and by the city. Frankly, to not bring us
24 current would be -- would be an injustice.
. 25 It would be an injustice not to us, but also, I
64
1 believe, to the city, because I think that this will make
2 this project practically infeasible. Look at that those
3 figures . We' re not going to build these and lose $60, 000
4 a unit. We just -- we can't do that .
5 What does that mean? It has to be not as nice
6 a project . And, you know, that ' s the economics of it, you
7 know, and what we' re trying to do is provide a good
8 project and a good product. And, to be honest with you,
9 if we can go with what the city' s current code is, we can
10 do a better project. We can do this project that we ' re
11 talking about .
12 I 'm not saying we ' re going to build anything
13 less, but, you know, obviously, you know, we want this
14 project to work for everybody. You know, the key thing
15 that I think we all have to keep harping back to, is that,
16 while we only have a 141 of these units, we have twice
17 that in this first filing that we cannot build any of
18 those until we have built and sold affordable units, so --
19 and we've already bought this land. We own this land now.
20 So we have a tremendous motivation to make this work. We
21 are motivated to the extent that we' re going to be
22 subsidizing these to many thousands of dollars, and I 'm
23 sure that, you know, the facts and figures that we provide
24 to the city over the course of the life of this project
25 will bear that out . Thank you for your time, and I
65
1 apologize I went over my three minutes.
2 MR. GAVALDON: That ' s all right . Thank you very
3 much. Okay. ' We ' ll bring this back to the Board now. Are
4 there any questions for the staff or applicant or
5 citizens? Any Board members have questions? Oops . Any
6 Board member have any questions? Jennifer.
7 MS. CARPENTER: I guess this is probably for Ken
8 and maybe I just missed it . Do we actually have an
9 affordable housing agreement signed at this point?
10 MR. WAIDO: No, it ' s not signed. It ' s in a form
11 that we ' re ready to sign, I believe.
12 MR. ECKMAN: I left at your desk copies of the
. 13 agreement that we have been so diligently working on
14 almost without stop, today as a matter of fact, and you
15 have that at your desk. It ' s about 23 pages . If you look
16 there, it ' s the stapled document .
17 And it is not signed. It probably wouldn ' t be
18 appropriate for signature until after the Board has ruled,
19 and certainly the covenants shouldn' t be recorded until
20 the condominiums have been actually mapped and are able to
21 be conveyed, and that ' s when you' d record the covenants
22 against those condominiums . But I can tell you that we
23 have an agreement, and Ken and I have worked hard on it
24 today with Steve Klausing. And we believe that we have a
25 meeting of the minds on all substantive matters, and it ' s
66
1 all spelled out in an agreement. We did have to hurry to
2 get it here for you tonight, so there may be some
3 typographical errors or grammatical imperfections that we
4 could do, but I can assure you that we feel comfortable
5 with the substance of it and we wouldn' t expect to change
6 the substance of it.
7 MS . CARPENTER: So, if we chose to approve this
8 project, should it be contingent on the signing of that
9 affordable housing agreement? _
10 MR. ECKMAN: I think that the applicant would
11 agree with us, and if not please let us know, that they
12 intend to sign that agreement .
13 MR. KLAUSING: Absolutely. We would not.
14 (Inaudible. Off microphone. )
15 MR. GAVALDON: Okay. Thanks . Anyone else?
16 Any --
17 MR. TORGERSON: Yeah. I had a question for the
18 gentleman. I 'm sorry I forgot your name.
19 MR. KLAUSING: Yes .
20 MR. TORGERSON: You presented a pretty thorough
21 analysis of your, you know, of your proforma here. This
22 wasn' t done the last time you came to the P&Z Board, you
23 weren ' t asking for this variance.
24 MR. KLAUSING: Actually we did not -- first of
25 all, we didn' t have those documents put together because
67
1 it was, candidly, an oversight on our part. We didn' t
2 realize at that hearing all these documents had to be
3 finished. And so at that point then we dove into actually
4 putting the document together and everything. And so we
5 just simply were not prepared the last time, December 7th.
6 We didn 't think we had to have this document done. It ' s
7 our error, and --
8 MR. TORGERSON: But during the planning process
9 you elected to select the point -- in the points chart the
10 option that you would be building these at 30 percent of
11 the AMR.
12 MR. KLAUSING: During that process, which was
. 13 back in 1996 -- first of all, we didn' t own the property,
14 so I can' t speak to what those people did or what they
15 thought . There ' s wasn' t any choice if you -- if you
16 wanted to build affordable housing, that was the
17 definition of affordable housing.
18 The bottom line is the city' s changed the
19 definition of affordable housing. We believe that it' s an
20 appropriate change because it reflects the difference
21 between rental units and for purchase units . There is a
22 difference. So they' ve agreed in this -- in the case it ' s
23 38 percent . And, you know, way back then there ' s wasn' t a
24 choice though. That ' s what the LDGS said, 30 percent .
• 25 That ' s why we ' re asking for a variance.
68
1 MR. TORGERSON: And the difference between
2 rental and For Sale units is that they have homeowners '
3 insurance, maybe HOA dues, things like that?
4 MR. KLAUSING: There are additional costs, and
5 there ' s also a difference in value. You know, if you take
6 feature by feature, square foot by square foot, for a
7 purchase unit you have to spend more to get more. And if
8 you look at per square foot construction costs and per
9 square foot costs to the -- to the consumer, it is
10 typically, product for product, less expensive for
11 rental . So it ' s not -- it ' s additional cost that all go
12 into it, HOA dues for example, and also, in this case, we
13 have to include every single thing they would pay for
14 their housing.
15 MR. TORGERSON: Right. But presumably someone
16 who buys a house and then rents it to somebody doesn' t
17 rent it to that person at a loss, so that person' s passing
18 on those same costs to the person that ' s renting the
19 house .
20 MR. KLAUSING: That ' s probably the case, but
21 we ' re talking about rental units that are built to be
22 rented. Obviously a single-family person, or
23 single-family detached house, they would try to rent their
24 house for what they' re paying for it .
25 MR. TORGERSON: Right . And that would include
69
1 all those same costs so the justification that for sale
2 units should be bumped up because it includes things like
3 owner ' s dues, taxes, and things like that, really doesn' t
4 wash because a for rent unit presumably would include all
5 those things as well, or the person that owns the rental
6 unit would be losing money.
7 MR. KLAUSING: That ' s the case if that ' s a
8 person who owns their unit and they' re going to rent it
9 out, which, incidentally, is prohibited under this
10 program. There won' t be any rental units . That is not
11 the case though if you look from our perspective, building
12 the units . The unit are not comparable.
13 I ' ll give you one example, just one example,
14 mortgage insurance . Mortgage insurance for these units
15 will be at least $30 to $35 to $40 . That ' s not something
16 that a renter pays .
17 MR. TORGERSON: Okay. Thank you.
18 MR. GAVALDON: Okay. Anything else? I have one
19 if you can come . Okay. I may have to go back to a
20 no-brainer, tell me if this is a no-brainer, but "25 years
21 to be affordable, " what does that mean in for sale units
22 versus rental units?
23 MR. KLAUSING: That means that this restriction,
24 which is a title restriction, as it will appear in the
25 chain of title, and -- unless a person doesn' t use a title
70
1 company -- then this restriction is going to be passed on
2 to each and every buyer down the line for the next 25
3 years . Frankly, even if they didn't use a title company,
4 it ' s there. But let ' s just assume that they do. That
5 means that the -- we sell this unit to you, and five years
6 down the road you want to sell it yourself. You are
7 similarly restricted on who you can sell it to just as we
8 were. That is to ensure that the city retains its stock
9 of affordable housing. Because what we want to avoid is
10 windfalls . I mean, if we' re subsidizing these, and
11 somebody' s getting into a unit for $10 or $15 or $20, 000
12 less than what it cost, we don' t want them to turn around
13 a year or two or five years down the road and sell it a
14 make a huge profit right away. We just can' t allow that,
15 because they shouldn' t get the benefit of the city' s and
16 our sacrifice. We' re both making a sacrifice for this
17 program. You know, it needs to be available for each
18 person down the road for 25 years to take advantage of.
19 MR. GAVALDON: Okay. Let me take your example
20 one step further. Okay. You sell me the unit, so that
21 unit that I have, and it ' s Unit 101, right? And Unit 101
22 will hold that 25 year, "for affordable" element on it .
23 So I cannot say, "Hey, Judy, take 101, " and move my
24 element to 102 . She can' t -- I can't do that .
25 MR. KLAUSING: You can' t say --
71
1 MR. GAVALDON: You can' t transfer it.
2 MR. KLAUSING: No. No. If you try to sell a
3 unit to her, well --
4 MR. GAVALDON: Okay. I was just thinking that,
5 if she lived next door, and I wanted mine to be
6 affordable, you can' t transfer it, it stays with the
7 property.
8 MR. KLAUSING: That ' s right . That ' s right .
9 Because it ' s in the chain of title.
10 MR. GAVALDON: Okay. I see.
11 MR. KLAUSING: And it ' s also -- it ' s in the
12 master covenant. And I believe that each time a piece of
• 13 this property is sold to us, it ' s also been -- a
14 restrictive covenant has been filed at that time as well.
15 MR. GAVALDON: I see. Okay. And then, last, I
16 was looking at your table. If you went with -- and my
17 numbers are rough -- but, if you went with a -- Okay -- 30
18 percent, the deficit, or delta (sic. ) , would be $2 . 5
19 million of those 42 units . If you go to 38 percent, it ' s
20 about $1, 000, 050.
21 MR. KLAUSING: I haven' t done that calculation,
22 but I ' ll -- I ' ll trust your numbers .
23 MR. GAVALDON: So going to 38 significantly
24 reduces the deficit cost .
25 MR. KLAUSING: It certainly makes it so that
72
1 we' re not losing as much money.
2 MR. GAVALDON: Are we losing -- are we going to
3 be eliminating anyone from affording it at the 38, if we
4 go there from 30?
5 MR. KLAUSING: What ' s going to happen is that
6 people will be able to spend -- there will be a bigger
7 pool of people.
8 MR. GAVALDON: Bigger pool. Okay. Than we were
9 at 30 percent?
10 MR. KLAUSING: Right. Right. And to be honest,
11 that ' s a little bit of a concern that we ' re thinking
12 about, you know, is that we ' d like as deep a pool as
13 possible because 141 of these -- we'd like as deep a pool
14 as possible.
15 MR. GAVALDON: Okay. I just had to ask. Okay.
16 Dan?
17 MR. BERNTH: One of the questions I had is --
18 I 'm just looking at total number cost, the $155, 000,
19 whatever, $442, 000, whatever those numbers are. Does that
20 mean that every single-family home that you' re going to
21 build is going to be at least that cost? I mean, we' re
22 just making the assumption that you' re going to lose --
23 MR. KLAUSING: First of all, we can' t sell them
24 for that. We won' t be able to sell them for that. That ' s
25 how much we ' re losing. If you' re talking to the figure
73
1 that appears by, "Total Cost, " we can' t sell them for
2 that.
3 What we can sell them for under -- under, let ' s
4 say three-person, 38 percent, we can sell Plan Number 1
5 for a $127, 000, could sell Plan Number 3 for a $127, 000 as
6 well. But we, as matter of fact as you look across there,
7 what we can sell them for is almost the same, it doesn't
8 really change. But -- no. That ' s what we can sell them
9 for, and if you ask if they' re all going to be that price,
10 I can' t say that, that they' re all going to be that price,
11 because -- let me just give you one example. We would
12 like these purchasers to be able to select some options .
• 13 This -- this -- what this tells you is the
14 maximum price that we can sell it for.' That ' s the
15 maximum. We ' d like some of the -- we 'd like them to be
16 able to select some options, and --
17 MR. BERNTH: I get -- yeah. And I don' t mean to
18 interrupt . My question is you have three plans of homes
19 you ' re going to build, single-family homes, is that
20 correct?
21 MR. KLAUSING: Sure.
22 MR. BERNTH: At those different prices . So
23 you' re, at minimum, going to take a beating on each one?
24 MR. KLAUSING: Absolutely.
25 MR. BERNTH: Okay. How do you make that up? Do
74
1 you just stiff everybody else, or -- I mean. And not
2 being sarcastic, but how do you make that kind of downfall
3 up on the other -- however many houses you' re building --
4 190 .
5 MR. KLAUSING: Well-- well -- you know, I 'm sure
6 that some of the people wish that they had looked at this
7 three or four years ago, you know, and started running
8 numbers, and so forth, because it is, to be honest with
9 you, a real serious concern for us . We have taken to
10 saying that on the affordable project here, we ' re building
11 them for practice. You know, we ' re not going to make any
12 money. What we have to do in -- and, to be honest with
13 you, this is how every other affordable project that we ' re
14 aware of is done, and that is that somebody else pays .
15 Someone else is going to have to pay. Some of those costs
16 are going to get shifted.
17 I will point one thing, and that is that the
18 city is, in a real sense, our partner in this. And this
19 is a project that we all want to see succeed, and in the
20 code there are provisions for the city doing certain
21 things . We haven't asked for any of these things at this
22 time, but, for example, there are some provision to defer
23 the payment of fees .
24 And, if there are some construction or
25 development things, that we might want to propose that
75
1 provided that they don' t impact anything like health or
• 2 safety, you know, the city has the authority, if they want
3 to, to consider them for the potential use on other
4 projects to promote affordable housing. And we ' ll
5 probably look at those, but we haven' t asked the city for
6 anything at this time.
7 We ' re prepared for go ahead without any of those
8 things that can be worked out, you know, but that ' s sort
9 of the city' s partnership part in this, you know, is to
10 look at some things, you know, to help us out . But, to
11 answer your question, absolutely, the other product has to
12 pay for it .
• 13 MR. BERNTH: But aren' t you at a huge
14 competitive disadvantage, because, even using Jerry' s
15 numbers, excuse me, conservative numbers -- 200 homes
16 that, let ' s say, you' re going to build an addition to the
17 affordable housing component. Those 200 home have to cost
18 at least $5, 000 more . Aren ' t you at a competitive
19 disadvantage when you' re going against U S Homes, or
' 20 whatever, building the exact same product?
21 MR. KLAUSING: Well, initially, I would say
22 initially to you, yes, we are. On the other hand, I would
23 also say to you that -- our new name is KB Home by the way
24 -- KB Home is the largest home builder in the country. We
25 are in Fort Collins for the long haul. We have a
76
1 commitment here that ' s going to keep us here for a long
2 time. We ' re going to do whatever it takes to make this
3 project work.
4 And are we happy that we' re just going to build
5 these for practice? No, we ' re not. We' re just have to
6 find ways to make this a better deal for us .
7 And, you know, it ' s a wonderful piece of
8 property, and, to be honest with you, it ' s a great
9 opportunity, you know, to be active in Fort Collins . We
10 like this market. You know, we enjoy building here.
11 We' ll have to take our lumps .
12 And, you know, if it means that, you know, that
13 we swallow some profit on the rest of the units, we ' ll
14 have to do that. If it means that we 'find some innovative
15 ways to market them up, you know, the other product,
16 we ' ll certainly try to do that as well. Thank you for
17 being sensitive to our plight.
18 MR. BERNTH: And I ' ll just thank you for doing
19 that because, obviously, the economics is not part of the
i -
20 Planning and Zoning Board' s purview, but mainly out of
21 curiosity. Thank you.
22 MR. KLAUSING: Thank you for inquiring.
23 MS CARPENTER: Aren' t there some Federal tax
24 credits for affordable housing that you might qualify for
25 in this?
77
1 MR. KLAUSING: You know, there are some Federal
2 tax credit programs, but what you have to basically have
3 to do is you have to get tax credits from entities which
4 have collected those tax credits and can't use them. And
5 then you can get -- you can get special financing. And
6 basically what that does is it -- it enables you to reduce
7 you equity in the project . That ' s the long story of how
8 that works .
9 But because of the size of our company we didn't
10 usually find it advantageous to do that. We are still
11 able to finance, internally, these things, and it ' s not
12 usually a good idea. We ' ll have enough problem -- as a
13 matter of fact, we have our own mortgage company, so, you
14 know, we ' ll be challenged to mortgage 'these units as it
15 is .
16 MR. GAVALDON: Any other questions? Go ahead,
17 Mike.
18 MR. TORGERSON: What ' s the lot costs for the
19 lots that aren' t affordable, roughly?
20 MR. KLAUSING: You mean -- which of these
21 figures are you taking about?
22 MR. TORGERSON: The $70, 000. That seems awfully
23 high for an attached product.
24 MR. KLAUSING: Well -- one of the things -- with
25 an attached product you still have lots -- you still have
78
1 to do all of the service connections and so forth. I
2 can' t tell you, you know -- we basically -- here ' s what we
3 did -- we basically calculated this based on -- on the
4 costs for the entire project.
5 MR. TORGERSON: That' s what I 'm concerned about .
6 MR. KLAUSING: Right.
7 MR. TORGERSON: An attached lot wouldn' t bear
8 the same cost as a detached lot on the market, but the
9 total costs --
10 MR. KLAUSING: We ' re going to try to -- we ' re
11 going to try to reduce those costs. Absolutely. We ' ll
12 try to reduce those costs, but that means -- that means
13 that the rest of this project is bearing those costs . We
14 still have -- we still have a unit to 'sell. We still have
15 one unit to sell . It ' s the only way we can make it up is
16 on the sale of that unit.
17 MR. TORGERSON. Right . But if you take your
18 overall development costs and divide it by the number of
19 units in the project, that would make your attached
20 product artificially costly, because that wouldn' t
21 normally be done in a market-based --
22 MR. KLAUSING: This --
23 MR. TORGERSON: -- if you were trying to market
24 your attached lots, you wouldn' t try to market them the
25 same price as the detached lots .
79
1 MR. KLAUSING: We -- we -- we -- we probably
2 couldn' t be able to, you' re right.
3 MR. TORGERSON: Right. But in this example we
4 have an attached product lot for $70, 000, and I 've never
5 seen anything like that on the market. It ' s typically
6 half that. And I think the reason it ' s that high is
7 because -- you' ve just said, we took the total number of
8 units and divided our development costs by that. So it
9 seems that this is artificially high.
10 MR. KLAUSING: Well, it is -- those are still
11 the costs that have to be associated to that unit . It may
12 mean that we -- and we will have to. That ' s the only way
13 we can make this work, is allocate more costs to other --
14 to other lots . You' re right.
15 MR. TORGERSON: So it ' s disingenuous to present
16 it this way. What ' s interesting is -- I see a lot of
17 proformas because of the line of work I 'm in -- and it ' s
18 interesting how different the proformas that are presented
19 to banks versus cities are. And it involves things like
20 this, shifting the lot costs around and that sort of
21 thing.
22 If you were going to a bank and you were saying
23 I 'd like to develop this project and you said I 'm taking
24 my total number of units and dividing that into my total
• 25 costs, they' d laugh at you because that wouldn' t be how
80
1 you would actually function in the market.
2 MR. KLAUSING: If we actually did this on a
" 3 per-acre basis, though, it would be higher over on that
4 side, on the side of the affordable units .
5 MR. TORGERSON: Right. But your cost per lot
6 wouldn't be higher.
7 MR. KLAUSING: Well, you' re right. We ' re going
8 to have to reduce the cost per lot. You know, I don' t
9 know how -- how far we' re going to have to go to, but you
10 can see that, even at -- there is a loss of each unit here
11 of around $20, 000 .
12 MR. TORGERSON: Uh-huh. If you assume --
13 MR. KLAUSING: Even at -- even at 38 percent,
14 there ' s a loss of at least $20, 000, or' roughly $20, 0001
15 for each of these.
16 MR. TORGERSON: But that only --
17 MR. KLAUSING: So, even if you reduce the costs
18 $20, 000 --
19 MR. TORGERSON: Right .
20 MR. KLAUSING: -- we ' re still at a break-even
21 point, with no profit, we' re at a break-even point with 38
22 percent, even if we reduce it by $20, 000.
23 MR. TORGERSON: It seems like, if you were
24 looking at the market today -- and Dan' s a realtor, he
25 probably knows better than I -- but I haven ' t see any
81
1 attached product lots for $70, 000 sold in Fort Collins .
2 That seems probably double what the market would bear at
3 this point.
4 MR. KLAUSING: I can't argue with you because I
5 don' t know what they sell for.
6 MR. TORGERSON: Okay. All right . Thank you.
7 MR. GAVALDON: Glen?
8 MR. COLTON: Okay. So I guess your point is
9 this is probably inflated, and maybe the real costs would
10 end up being $40, 000, and then the single family ones are
11 going to have to sell at a hundred, or something, to be
12 able to --
13 MR. TORGERSON: Right. Which is what any
14 contractor would do if they were developing something.
15 What I 'm saying is, the proforma we ' ve been presented
16 probably isn' t very accurate. I doesn' t -- it seems that
17 the lot cost was inflated in order to make that situation
18 look worse for them.
19 MR. COLTON: So if they allocated the costs in a
20 more appropriate manner, it would make them look like they
21 at least broke even or maybe make a little money.
22 MR. TORGERSON: Right . I 'm not sure of the
23 exact economics, but it seems like it ' s clearly inflated.
24 MR. GAVALDON: Okay. Thank you very much. Any
• 25 other Board questions, or are we getting ready for a
82
1 motion, or more discussion?
2 MR. ECKMAN: Mr. Chairman?
3 MR. GAVALDON: Yes, sir.
4 MR. ECKMAN: I just wanted to go through the
5 variance procedures a little bit, and I wouldn' t -- if it
6 weren' t for the fact it ' s a quarter to 9 : 00, if it were a
7 quarter to 12 : 00 I 'd probably have a different view --
8 but, with regard to Mr. Evans ' concern that he hadn' t had
9 time to prepare to address this variance. I did give him
10 a copy of the proforma -- oh, gosh, probably a little
11 short of a half hour ago now, so we ' ve had a chance to
12 look at that proforma and we ' ve heard a lot of discussion
13 about it . Wouldn' t want to leave this meeting without at
14 least inviting him to, tonight, to address these things
15 since he was concerned about that . And I think that he is
16 familiar with the variance procedures . I thought, though,
17 that it might be good just to go over those briefly with
18 you. And the reason I think he ' s familiar, is because on
19 the preliminary we had, I think, a solar variance which
20 became an issue in his appeal --
21 MR. GAVALDON: Uh-huh.
22 MR. ECKMAN: -- and he demonstrated through his
23 appeal that he was quite familiar with the variance
24 procedures, but I did want to touch on them again.
25 MR. GAVALDON: Okay.
83
1 MR. ECKMAN: That issue may have even gone into
• 2 his litigation later. I can' t recall, because I didn' t
3 handle the litigation.
4 But the Board can grant variances . You need to
5 determine that the granting of the variance would neither
6 be detrimental to the public good, nor impair the intent
7 and purposes of this section of the Land Development
8 Guidance System.
9 Then there are four different demonstrations
10 that an applicant can make to get a variance. And it is
11 the fourth one, that the applicant has chosen. So they
12 have -- they are required to demonstrate that the granting
• 13 of the variance from the strict application of any
14 provision of the LDGS would result in benefit
15 to the city by reason of the fact that the proposed
16 project would help satisfy a defined community need such
17 as affordable housing. Affordable housing is a -- is a
18 legitimate, defined community need.
19 And they have to show that the strict
20 application of such provision would render the project
21 practically infeasible, which is what proforma was
22 designed to do.
23 So those are the criteria, and if you were
24 inclined -- if Mr. Evans were inclined to desire to speak
• 25 to you about that tonight, I think we ought to give him
84
1 that opportunity. If he feels he' s not prepared, and
2 doesn' t want to that ' s fine too, but I thought we ought to
3 at least give him that opportunity before -- before you
4 decide this matter, if you' re inclined to decide it
5 tonight .
6 MR. GAVALDON: Okay. Mr. Evans, would you like
7 a few moments to discuss on the variance segment, sir?
8 MR. EVANS : Thank you, Paul. I appreciate that .
9 I don' t know what I can possibly add to that. I ' ve heard
10 some -- a demonstration of the variance of issues that we
11 would have forward. In the analysis of the proforma that
12 we ' ve seen, we ' ve seen it 15, 20 minutes . Contractual
13 hardship or economic hardship in and of itself is not a
14 basis for the P&Z Board to grant a variance . Just because
15 somebody doesn' t -- and I ' ll use the crass terms --
16 doesn' t do their homework over a period of time, I don' t
17 care if it ' s two weeks or two years, doesn' t legitimize in
18 the future a granting of a variance.
19 Unfortunately, if the scenario, as the applicant
20 paints it, is true to their costs, and if we assume the
21 proforma, as presented, presents the legitimate financial
22 spectrum of what they've got to look to -- well,
23 unfortunately, it ' s not, you know, a basis, it ' s not a
24 foundation for which the variance provisions under the
25 LDGS were constructed.
85
1 A bad business deal put together by that
• 2 applicant is a bad business deal put together by the
3 applicant . And it ' s not in the purview, I don ' t believe,
4 of the P&Z Board to rectify the consequences of that
5 circumstance.
6 I can' t do any more justice to the applicant ' s
7 request for a variance because we haven't had the
8 opportunity really to thoroughly go through the dynamics
9 of it, see how the LDGS is being impacted, look at the
10 agreements that this is predicated upon, and do some real
11 formal evaluations . So other than giving it that broad
12 overview of why I feel it' s beyond the scope of the P&Z to
13 grant predicated on strictly financial, economic basis,
14 I ' d reserve, you know, our, I guess, presentations if the
15 Board would be so inclined to continue this matter to a
16 future date.
17 MR. GAVALDON: Okay. Thank you, Mr. Evans .
18 MR. EVANS : Thank you.
19 MR. GAVALDON: Thank you very much. Okay. We
20 have some options . There ' s an option to continue .
21 There ' s an option to approve or not approve the variance .
22 And there ' s the option of the project. So that ' s what it
23 comes down to. Paul, is that what you see as some options
24 we have?
25 MR. ECKMAN: I 'm sorry. I was --
86
1 MR. GAVALDON: I was throwing out some ideas as
2 to how to put together a motion. We can continue this to
3 look more into the variance. Two, we can support the
4 variance or not the variance, and then treat the project
5 separately, independently, of the variance.
6 MR. ECKMAN: Yes. And you should -- well,
7 obviously, if you' re going to continue it, that ' s the
8 first motion, and it takes care of everything else, but I
9 would ask that you vote on the variance first before you
10 vote on the main project.
11 MR. GAVALDON: Okay. We have guidance here to
12 go with the variance. Any Board member want to bring up a
13 motion, and then we can discuss, or do we need more
14 discussion and questions? Okay. '
15 MR. BERNTH: I 'm just going to ask Paul, how to
16 craft a variance, particularly if it ' s a positive variance
17 on that. Could you give us some language to help us out,
18 please?
19 MR. ECKMAN: Well, I think in your motion you
20 need to address the requirements that the Board needs to
21 find. You need to determine -- I ' ll go slowly -- that the
22 granting of the variance would neither be detrimental to
23 the public good, nor impair the intent and purposes of the
24 Land Development Guidance System. That ' s one thing.
25 Then you need to -- moving down to that fourth
87
1 choice -- you need to find that the project would satisfy
2 a defined, community need, being affordable housing.
3 And you need to find that the strict application
4 of this provision -- that ' s the 30-percent rule -- would
5 render the project practically infeasible.
6 That ' s probably the basic question, is that
7 practical infeasibility from what I heard in the
8 discussion. That ' s the most important question.
9 MR. BERNTH: I do have the language here. Thank
10 you, Judy, for helping me out . I would make a motion
11 that -- to grant the requested variance to Point Chart H,
12 Residential Uses, specifically the affordable housing
• 13 criteria; i. e . , changing it from 30 to 38 percent, would
14 neither be detrimental to the public good, nor impair the
15 intent or purpose of this section; would result in the
16 substantial benefit of the city by reason of the fact that
17 the proposed project would help satisfy defined community
18 need. Obviously, in this case, affordable housing. And
19 that the strict application of such revision would render
20 the project practically infeasible.
21 MS . MEYER: I ' ll second.
22 MR. GAVALDON: Okay. Any board discussion?
23 MR. TORGERSON: I won' t be supporting the
24 motion. I ran some quick numbers and it looks like -- if
. 25 I ran my numbers right. This is all in my head. I don' t
88
1 have a calculator here -- this would result in about an
2 extra $300 per month that these people would have to pay
3 on their mortgage. And that, to me, cuts out a
4 substantial part of the people we ' re really targeting, if
5 the -- people who need affordable housing.
6 And that seems to go counter to the detriment,
7 you know, the detrimental to the public good argument .
8 And I don' t -- I wasn't totally convinced that -- that if
9 we didn' t grant this variance, that it would result in an
10 infeasible project . It seems unlikely to me that Kaufman
11 and Broad didn' t do any economic studies until a week ago,
12 or two weeks ago, since we continued this. I guess it was
13 longer that that .
14 So, I won' t be supporting the motion.
15 MS. CARPENTER: This is a toughy, because, in a
16 lot of ways, I agree with you Mikal . But I guess I 'm
17 looking at this, and if the proforma is anywhere close to
18 right at 30 percent -- well, actually at 38 percent -- I 'm
19 really concerned about the temptation to reduce the
20 quality in this project to make up that loss . I just
21 think that temptation is going to be overwhelming.
22 Forgive me if I 'm having a little trouble buying
23 the corporate developer as benefactor to the city, and
24 that they' re willing to lose that much money. I just --
25 I 'm having a hard time with that.
89
1 What I really hope we don' t see is this project
M2 coming out of the ground, and the quality really being
3 sacrificed, and we end up with a mess down there.
4 But because, to me, with this proforma at 38
5 percent it -- I wouldn' t do it . At 30 percent I would
6 really be worried about what this would look like. So, I
7 guess with that, I ' ll support the motion.
8 MR. GAVALDON: Anyone else? Glen.
9 MR. COLTON: I was just following Mikal ' s line
10 of thinking here, and if that land cost is really closer
11 to 40 instead of 70, that would bring the total cost to
12 about 122 as opposed to the 153 or 155, which still makes
13 it marginal, I guess, unless it ' s a four-person at the 38
14 percent income level.
15 And I wouldn' t really care if they lost money on
16 this or not, but I guess I kind of fall back on the
17 definition of affordable housing being at 38 percent, the
18 number currently. So I guess it seems fair that we could
19 apply that to this project .
20 MR. GAVALDON: Mikal, I really appreciate your
21 numbers, because when I was looking at this, I was looking
22 at the first $70, 000 . I went, "Oh, that ' s awfully high, "
23 and then started looking at where they need to share the
24 costs, and then the data that says it should be lower. If
25 we go less and we do the 30, my fear is -- and I agree
90
1 with Jennifer -- is that we may get less -- we may get --
2 we may have something built that we would not be happy
3 with if we went with the lower number.
4 And I think KB Homes, you need do a better
5 numbering -- you need to do a better job on your numbers
6 and present this sooner. And -- but we have a process,
7 and a process allows them to bring this forward. Given
8 that, it ' s fair game for us to review and make our
9 discussion on.
10 But I -- I question some issues with it, but I
11 do believe in the community goals and objectives of
12 affordable housing. And I 'm going to go with this one,
13 but we ' ll be looking at it a little seriously to make sure
14 that they meet everything that they say they' re going to
15 do. If they come up with less, we have other processes
16 for that . So that ' s where I 'm going to be at. Anyone
17 else?
18 MS . CARPENTER: I forgot, could we add a
19 friendly amendment to this that makes this contingent on
20 the affordable housing agreement being actually signed?
21 MR. BERNTH: I guess I 'm going to ask -- I don' t
22 know. Who would I ask for that, because wouldn' t that be
23 part of the development agreement that would be required
24 prior to completion? Or is that something that we should
25 make --
91
1 MR. OLT: I 'm going to have to defer to Paul .
2 It sounds like a legal issue to me.
3 MR. ECKMAN: Well, I, first of all don't know
4 that it would be part of the variance, probably would be
5 more of the main question. But you certainly can make it
6 contingent if you wish. We' ll make it happen. But I have
7 no objection to your making it contingent . And the
8 applicant has already stated tonight in the record that
9 they will sign it, so I have no concern that they
10 wouldn' t .
11 We won' t sign the development agreement until
12 this thing' s signed.
• 13 MR. BERNTH: If we can' t trust Paul, who can we
14 trust?
15 SPEAKER: And there ' s also in this document, it
16 defines what an eligible family is and what the units are,
17 and there ' s the 2 to 1 permitting rheostat control that
18 the city has on it too. So, if they don't sign this
19 agreement, they might get two units . They won' t get any
20 more, because for every two units they build they have to
21 build an affordable unit.
22 MR. GAVALDON: Okay. I think we ' re ready for a
23 vote.
24 CLERK: Torgerson.
• 25 MR. TORGERSON: No.
92
1 CLERK: Carpenter.
2 MS. CARPENTER: Yes .
3 CLERK: Meyer.
4 MS . MEYER: Yes.
5 CLERK: Bernth.
6 MR. GAVALDON: Yes.
7 CLERK: Colton.
8 MR. COLTON: Yes .
9 CLERK: Gavaldon.
10 MR. GAVALDON: Yes. Okay. The variance passes.
11 We ' re ready for the main motion. Everyone ready?
12 MR. BERNTH: I would recommend approval of
13 Provincetowne PUD, Filing 2, File Number 73-82U, with the
14 following conditions -- would you like me to read that?
15
16 MR. ECKMAN: Can we just refer to "that lengthy
17 condition"?
18 MR. BERNTH: I will refer to that lengthy two
19 paragraphs on our last -- I guess that would be Page 5 and
20 6 of the staff report.
21 MR. COLTON: I second.
22 MR. GAVALDON: Okay. Motion for moving and
23 seconded. Do we have any Board discussion? Okay. May we
24 have a vote?
25 CLERK: Carpenter.
93
1 MS . CARPENTER: Yes .
• 2 CLERK: Meyer.
3 MS . MEYER: Yes .
4 CLERK: Bernth.
5 MR. BERNTH: Yes .
6 CLERK: Colton.
7 MR. COLTON: Yes .
8 CLERK: Torgerson.
9 MR. TORGERSON: Yes .
10 CLERK: Gavaldon.
11 MR. GAVALDON: Yes . Okay. That concludes our
12 -- motion passes . That concludes our discussion agenda.
13 Do we have any other business, Cameron?
14 MR. GLOSS : No, we don' t.
15 MR. GAVALDON: Okay. I just have one, if I can.
16 Cameron, do we have enough topics for our upcoming work
17 sessions?
18 MR. GLOSS : I 'm not familiar with the question.
19 Could you repeat the question?
20 MR. GAVALDON: Do we have enough work topics to
21 cover --
22 MR. GLOSS : Oh, work topics . I 'm sorry. I
23 didn' t hear you. Yes, we do. We have plenty. I can
24 think of several that we 've already got projected for the
25 next three to four months .
94
1 MR. GAVALDON: Okay. Judy?
2 CLERK: When' s our next meeting?
3 MR. GAVALDON: What? Our next meeting?
4 MR. GLOSS: It' s coming up on the 1st, February
5 lst. And then we have another one on the 15th.
6 CLERK: So we get two meetings in February?
7 MR. GLOSS: Yes, we do, and relatively full
8 agendas .
9 MR. GAVALDON: Cameron, in the interest of time,
10 if it ' s okay with the Board, I ' d like to go over some
11 degree of time management. If we can keep the topics --if
12 we can have an idea of what times we need for each of the
13 topics will be so we can kind of flow through them. And,
14 two, we can give ample time for discussion and consent
15 agenda, so that way we won' t get bogged down and rush at
16 the end.
17 MR. GLOSS: I 'm solidly behind you.
18 MR. GAVALDON: So we can ask for times and we
19 can work towards a time. That way we can move smoothly
20 without rushing.
21 MR. GLOSS : Okay. I ' d like to talk to you about
22 that before the next work session.
23 MR. GAVALDON: Okay. Can do. Meeting' s
24 adjourned everyone.
25 (Meeting concludes 8 : 45 p.m. )
. 1 STATE OF COLORADO )
2 ) TRANSCRIBER' S CERTIFICATE
3 COUNTY OF LARIMER )
4 I, Marcela T. Losh, a Shorthand Reporter and Notary
5 Public, State of Colorado, hereby certify that the foregoing
6 proceedings, taken in the matter of the application by
7 Provincetowne PUD, Second Filing, Final Plan, and recorded
8 on Thursday, January 18, 2001, at 300 West Laporte Street,
9 Fort Collins, Colorado, was duly transcribed by me and
10 reduced under my supervision to the foregoing 66 pages; that
11 said transcript is an accurate and complete record of the
12 proceedings so taken.
13 I further certify that I am not related to, employed
14 by, nor of counsel to any of the parties or attorneys herein
15 nor otherwise interested in the outcome of the case.
16 Attested to by me this 23rd day of February, 2001 .
17
18
19
A Marcela T. Losh
L ---
20 OT�,� Sy Meadors Court R porting, LLC
[� � - 140 West Oak Street, Suite 266
21 Fort Collins, Colorado 80524
22 9 'PUBLIC 00 (970) 482-1506
�.�c` Pam.
23 /lf OFCO0p�`� My commission expires January 3, 2005 .
ill24
25
ITEM NO. 5
MEETING DATE 1/18/01
STAFF Steve Olt
City of Fort Collins PLANNING AND ZONING BOARD
STAFF REPORT
PROJECT: Provincetowne PUD, Filing Two - Final - #73-82U
APPLICANT: Downing, Thorpe & James, Inc.
c/o Rick Volpe
1881 Ninth Street, Suite 103
Boulder, CO. 80302
OWNER: City of Fort Collins
P.O. Box 580
Fort Collins, CO. 80522-0580
PROJECT DESCRIPTION:
This is a request for final planned unit development (PUD) approval for 331 residential
dwelling units (190 single family lots and 141 multi-family units) on 70.0 acres, located on
the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South
College Avenue, north of County Road 32, and zoned LMN - Low Density Mixed Use
Neighborhood. This is a qualified Affordable Housing project.
RECOMMENDATION: Approval with a condition
EXECUTIVE SUMMARY:
This request for final PUD approval:
* Is in conformance with the approved Provincetowne PUD, Filing Two - Preliminary;
* Meets the applicable All Development Criteria of the Land Development Guidance
System (LDGS).
COMMUNITY PLANNING AND ENVIRONMENTAL SERVICES 281 N.College Ave. P.O.Box 580 For[Collins,CO 80522-0580 (970)221-5750
' I ANNING DEPARTMENT
Provincetowne P.U.D., Filing Two— Final, #73-82U
January 18, 2001 P & Z Meeting
Page 2
COMMENTS:
1. Background:
The surrounding zoning and land uses are as follows:
N: E, RL : existing City facility and single family residential
(City Transfort Service Center, Brittany Knolls PUD)
S: LMN, POL: future filings of the Provincetowne PUD and City-
owned property
E: RL, LMN, UE: vacant land, existing single family and multi-family
residential, and church (Eagle Tree, Stanton Creek,
Redeemer Lutheran Church)
W: LMN, POL, FA1 in Larimer County: vacant land, future filings of the Provincetowne
PUD, and City-owned property
The subject property was annexed into the City as part of the Halycon Annexation in
December, 1980.
The subject property was part of the original Provincetowne•PUD Master Plan that was
approved by the Planning and Zoning Board in November, 1982 for single family and multi-
family residential, commercial, park, and industrial uses on 410 acres.
The subject property was part of the Amendment to the Provincetowne ODP that was
approved by the Planning and Zoning Board on October 26, 1987 for single family and
multi-family residential, church, business service, neighborhood and regional shopping,
and recreational uses on 426 acres.
The Planning and Zoning Board approved the Redeemer Lutheran PUD on April 27, 1992
for a church facility on 5.0 acres. This site, although part of the Amendment to the
Provincetowne ODP, is not part of the current development request.
The Planning and Zoning Board approved the Second Amendment to the Provincetowne
ODP on September 27, 1993 for the purpose of allowing multi-family residential on a
portion of Tract B, previously approved for single family residential. This approval changed
7.64 acres (located at the southwest corner of South Lemay Avenue and Trilby Road) of
the overall 30.14 acre Tract B from a single family to multi-family use.
The Planning and Zoning Board approved the Provincetowne PUD, Filing One on October
25, 1993 for 93 single family lots on 50.34 acres. This site, although part of the Second
Amendment to the Provincetowne ODP, is not part of the current development request.
• Provincetowne P.U.D., Filing Two — Final, #73-82U
January 18, 2001 P & Z Meeting
Page 3
The Planning and Zoning Board approved the Eagle Tree Condominiums PUD on August
26, 1996 for 92 multi-family dwelling units on 7.64 acres. This site, although part of the
Second Amendment to the Provincetowne ODP, is not part of the current development
request.
The subject property is part of the Provincetowne Amended ODP that was approved by the
Planning and Zoning Board on December 16, 1996 for single family and multi-family
residential, neighborhood commercial, and neighborhood parks and open space uses on
160.0 acres. The Board placed a limit of 955 residential dwelling units on the 160 acres,
with a maximum residential density of 5.97 dwelling units per acre, on their approval. City
Council upheld this decision at their public hearing on February 25, 1997.
The Planning and Zoning Board approved the Provincetowne PUD, Filing Two —
Preliminary on August 5, 1999 for 331 residential dwelling units (190 single family lots and
141 multi-family units) on 70.0 acres. This decision was appealed to City Council, which
upheld the Board's decision at a public hearing on October 5, 1999.
• 2. Land Use:
This is a request for final PUD approval for 331 residential dwelling units (190 single family
lots and 141 multi-family units) on 70.0 acres, located on the south side of Trilby Road at
Brittany Drive, west of South Lemay Avenue, east of South College Avenue, and north of
County Road 32. The proposed gross residential density is 4.73 dwelling units per acre.
The request is in conformance with the approved Provincetowne PUD, Filing Two —
Preliminary. It was evaluated against and meets the applicable All Development Criteria
in the LDGS.
This is a qualified Affordable Housing project, based on the 141 multi-family units at the
northwest corner of the project.
3. Design:
Architecture:
The multi-family buildings will be 3-plex, 4-plex, 5-plex, and 6-plex structures up to 29' in
height. They will contain a mix of 2-bedroom and 3-bedroom dwelling units. They will be
constructed of a combination of wood lap siding and brick or stone as masonry accent
along portions of the building foundations. The roofing will be dimensional asphalt shingles.
•
Provincetowne P.U.D., Filing Two— Final, #73-82U
January 18, 2001 P & Z Meeting
Page 4
Landscaping:
Street trees are being provided at a 40' spacing throughout the development. There is a
mix of shade, ornamental, and evergreen trees in the common open areas and detention
areas that will be installed by the developer and maintained by the Homeowner's
Association.
The landscaping in the multi-family portion of the development, in Parcel H, will consist of
deciduous, ornamental, and evergreen trees; deciduous and evergreen shrubs; and,
ornamental grasses and perennial flowers. There will be trees and shrubs in the surface
parking areas to meet the interior landscaping requirements and provide adequate
screening from streets. There will be deciduous, and evergreen shrubs as foundation
plantings around the multi-family buildings. Landscaping in the multi-family area will be
installed by the developer and maintained by the Homeowner's Association.
Parking:
All single family lots in Parcels D, F2, F3, G1, and G2 will provide for their off-street parking
requirements in driveways and garages on each lot.
The multi-family units in Parcel H will provide for their parking requirements with small
surface parking lots and parallel parking along the private drives, local streets, and
connector streets along and within this phase of development. A total of 271 parking
spaces are needed for the mix of 2-bedroom and 3-bedroom multi-family units and the
applicant is providing 272 spaces.
4. Neighborhood Compatibility:
There were two neighborhood meetings held for this development proposal (March 17,
1997 and December 9, 1998) prior to the Planning and Zoning Board public hearing and
decision on the preliminary PUD. Since the Board approved the preliminary PUD and City
Council upheld an appeal of their decision, and since the final PUD is in conformance with
the preliminary PUD, no additional neighborhood meetings have been held regarding this
development proposal.
5. Transportation:
This development will gain its primary access from Trilby Road via the proposed
Provincetowne Drive (a collector/connector street) and from South Lemay Avenue via the
existing Province Road (a collector/connector street). There will be 3 secondary access
streets from the existing Brittany Drive along the northeasterly boundary of this proposed
. .. .. . . . . . .... .. . .. ....
. Provincetowne P.U.D., Filing Two — Final, #73-82U
January 18, 2001 P & Z Meeting
Page 5
development, adjacent to the Eagle Tree single family residential development and the
Reedemer Lutheran Church.
FINDINGS OF FACT/CONCLUSIONS:
In evaluating the request for the Provincetowne PUD, Filing Two - Final, staff makes the
following findings of fact:
It is in conformance with the approved Provincetowne PUD, Filing Two - Preliminary.
It meets the applicable All Development Criteria of the LDGS.
RECOMMENDATION:
Staff is recommending approval of Provincetowne PUD, Filing Two - Final -#73-821-1, with
the following condition:
1. The Planning and Zoning Board approves this planned unit development final
plan upon the condition that the development agreement, final utility plans,
and final PUD plans for the planned unit development be negotiated between
the developer and City staff and executed by the developer prior to the
second monthly meeting (February 15, 2001) of the Planning and Zoning
Board following the meeting at which this planned unit development final plan
was conditionally approved; or, if not so executed, that the developer or the
City staff, at said subsequent monthly meeting, apply to the Board for an
extension of time. The Board shall not grant any such extension of time
unless it shall first find that there exists with respect to said planned unit
development final plan certain specific unique and extraordinary
circumstances which require the granting of the extension in order to prevent
exceptional and unique hardship upon the owner or developer of such
property and provided that such extension can be granted without substantial
detriment to the public good.
If the staff and the developer disagree over the provisions to be included in
the development agreement, the developer may present such dispute to the
Board for resolution. The Board may table any such decision, until both the
staff and the developer have had reasonable time to present sufficient
information to the Board to enable it to make its decision. (If the Board elects
to table the decision, it shall also, as necessary, extend the term of this
condition until the date such decision is made.)
Provincetowne PUD, Filing Two — Final - #73-82U
December 7, 2000 P & Z Meeting
Page 6
If this condition is not met within the time established herein (or as extended,
as applicable), then the final approval of this planned unit development shall
become null and void and of no effect. The date of final approval for this
planned unit development shall be deemed to be the date that the condition
is met, for purposes of determining the vesting of rights. For purposes of
calculating the running of time for the filing of an appeal pursuant to Chapter
2, Article II, Division 3, of the City Code, the "final decision" of the Board shall
be deemed to have been made at the time of this conditional approval;
however, in the event that a dispute is presented to the Board for resolution
regarding provisions to be included in the development agreement, the
running of time for the filing of an appeal of such "final decision" shall be
counted from the date of the Board's decision resolving such dispute.
■r■� ■ .■■■i ♦I♦� III � �h�
♦ �� \■►� 1
on
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MMMMM
MMMMMM
win
■i iiliili � \ � ' --
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111
Activity A: ALL DEVELOPMENT CRITERIA
ALL CRITERIA I APPLICABLE CRITERIA ONLY
is the csenw Win the= ' :
2.0picacle7 be satisfies?
r j
�ps INo If no. please explain
CRITERION
A1. coMbturII T�r-tivIDE CRtTEERIA I I I I I v
1.1 Solar Onertaucin
1.2 Comprehensive Plan F I I I I
1.3 Wildlife 1-12bitat
1.4 Mineral Deposit I I I
a
1,6 _calocically Sensitive Areas I rzszrve.. I I I
1.c Lends cf Aerieultural Imoorance ( reserved I 1 1
1.7 Energy Conservation I I I E I I
;.e t it Quality I I I I
1.s water Quality I I I I I
l0 S s;y2ce and Wastes 1
111 wa rr n ( 1 I I I
Residential Density 1 1
2, NE!GHEORP000 COMPATIBILITY CRI i=:=c1:=1
I I I i
Venicuier. psd3stran. eike Transooraticn I I I 1 1
Euiicinc P!2csrrsnt and Orientaticr.
Natural r=_aturas
Venicular Circulation -nc Parking
2.- Energ er.clAccess I (XI I X I I
rcczsthan Circulation I IXI I I I
2 ? ' wilding tieic_nt and Views I I I
2.9 . Shading I I I I
2.10 Sclar Access 1 1 I
21; Hismric Resources
2.12 Setbacks
2.13 Landscabe I I I I I
_ 2.14 Sicns
2.15 Site Lighting
2.16 Ncise and Vibration I I 1 I
1 r Gi re or Heat I I I
2,18 Hazardous Materials
A 3. ENGINEERING CRITERIA
3.1 Utility Capacity 1 I I I
3.2 Design Standards
3.3 Water Hazards
3.4 Geologic Hazards I
Land Development Guidance System for Planned Unit Developments
The City of Fort Collins.Colorado.Revised-P�h 1994 u��
Final Site Plans
for
PROVINCETOWNE P.U.D. FILING 2
City of Fort Collins, Colorado
KEY MAP
r-
"'�• 4 * GENERAL DEVELOPMENT OVERALL LAND
i PHASING SCHEDULE USE SUMMARY
j-
- I ilwiir
I ILBY WAD-
KEY MAP I �.�'• _ _ _
,. PARCEL H
Phase L w
VICINITY MAP
PARCEL
SHEET INDEX
�
Phase 4 SHEHTI COVER SHEEN
RYO^T a PARCEL J$ ' SHEET 2 OVERALL SITE PLAN
Phase 6 SHEET3 FINAL PLAN:PARCEL
sea. ,,,,d., SNEE'1'4 FINAL PLAN:PARCEL
I SBEET 5 FINAL PLAN:PARCELS F2
2 SHEET 6 FINAL PLAN:PARCELS F3
_ PARCEL D SHEET 7 FINAL PLAN:PARCELS Ol&G2
Phase 2 Slur S FINAL PLAN:PARCELS GI&G2
SHEBT 9 FINAL PLAN:PARCELS GI&02
SHEET 10 FINAL PLAN:PARCEL H
SBEEr 11 PLANS&DETAILS
ISSUE DATE: 1-14-00
REMQm
ION DA 5.1-00 RBVI3ION DAT&18:7-2600
I xevLVLON DAM lalsao
� PROJECT SITE ..®..�.....�........... ..,.m ���.�...�,.� �o�� � �_
xnuFntiaNAsRoau
�� lbl lAR!lL.Y¢W AVQI12 e1RRt00 .tee— —.�....�
owvrA.minxAoo ems ® �m-
DOWNM
PARCELH '.. /�..— aft THORPE
JANMS
clw—
Lt I eARcm a
��
- —El
------- --
' `QDt.t010IDMY V . ems,• {�
F2 _
OT A PART OF THIS PARCEL NImo' \.,.
FINAL PLAT] ., - ---.. t I„m PARCBI.D � O
PARCELP3---
. _ \
R
OVERALL LAND
i
USE SUNDAARY oiuvc ts.
uiw+w V� lOVtOMRV Or• t . . ..
i o • u u �
rt a u u n
nin n u u w u -eer' � APPLICANT:
�
1 4
f ODt.eWlMR
OTAPART OF — -...
Iir FINAL PLAT)
�e
yr
Ilfq}
ttj OPEN SPACE
°I onxui BR.ue
2 oe hit Ovm MLSrMP M 11
PARCEL D
mn euuunaa
STANDARD/PAINTED STOP SIGN • ��°� u,a'p�',",�'q DaWNR4G
\ \ 1 \ GUEST PARKING CROSSWALK INTERSECTION (TYP.) yr ����! • HOM
/ ( ') (Se 6nElneartv9 - - - w�nar•siaaaianr.anmaar_ JAWS
Drawlvg.
\ COMMON OPEN SPACE/ __ vaen KOItl;
LANDSCAPED ISLAND VINCFy iO�D�
�� 1 --OtB mmns�eew�.nm ws n•
yam' g1 °"
MATCN�iE.(►E�5 EET 0 _ -R1Ak0
_- D dIAtCH11NE..(SEE O�CO z°.. 8 s .` I� ,•��•. `..u..nvs:v P sw.n. w�`u.,..,y
m PROVINCE ROA OUTLOT E` w W""'f d� p �. o .)1 s '1• w.v v_�.ve�.�.usw.
_.. IN\
NIDBLOCK
CROSSWALK _�--
(Be. Engineering DrawivAa) \\ - _ -1 " '1 j i •• �.. se w.eis s r�s..n�v A
II 11 _L -gym e ill ` wnsanwwu�ns W�`� r`�
DETACHED SIDEW
WITH
WITH TREELAWN \ 1 �• I ae' � ,�_.. •.vean {�
COMMON OPEN SPACE/ BROOK LANE lerW
SADDLE
.
LANDSCAPED ISLAND r /rl "SiEIiT 0 ANCE FUTURE TRAIL I ;... �\_ •'• —.'. '�---�I �L�v .�k _ I�'i m , —�e—�O
CONNECTION
PARCEL I1L
BOUNDARY
u.e �C✓Oy'A. �ACRETE
r .,, •' r..m�a eum.m
Itt FOOTPATH \ /y\ p I r. •wu�..r r.a.r
�f OU7L0 E)� >`; / \•\5 > '°'� tia�w mV ure'°"n r.r
OUTLOT F M. MIWT .ry
APPLICANT:
LOT MEETING t ,'> ♦ _ ._un• >w..s ua • _--=—_
+ SOIAR ORIENTATION , ° NAIR}IaN�eo01o
{{ REQUIREMENTS (TYP.) A� OUTLOT E
` MIDBLOCK
(,1 MUM CROSSWALK m �_ .•
SPACE��
1
I L/ \'FU�I77'VRE TRAIL
CONC,l6CT(ON \D'�ava..ucve nm_�pi.
+ilf
30F 11
• ®��.sa".m:ra m.a PARCEL D
FINAL SITE PLAN � �am'
PARCEL D
GUEST PARKING COMMON OPEN SPACE/
STOP SIGN (TYP.) LANDSCAPE ISLAND � U mn w�mx r
PROVINCE ROAD Imr+n*uxl _ RAC
P E — EXISTING' "Ws,`,�!us sly.•
OUT OT WALK uwaw THOM
___ iaw-au..e�.rmw
1...': JAMES
=-0 .� -r- >, ft'PWAn ow./rou
OPEN S ACE AREA
;. A R y n. ••� 1 I (PART It NATURAL OPEN BPACR AREA w°�Wriw.s�p w�a
o1NR AND YAINTAINRR BY
RAL
1 NATU RRSOURCR SM.)
I � f sr
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e w' < �w arow mwieeiwei sews s°�
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m I o —,•.na '��` N _ JR
ESTINE
39,
Tor �� Is CA UpNE I wr um w m
a SNO }I'
rn �R COMMON e°Le�i..°s�reiws uw.wr. a
SPACE
r erimo
OUTLOT F
re � � I 1 .. . -_.. •. r =nrmnavnm .v mweu rwme..
i
�ps1 m�xm weeL�ell eee•�Tm rwe.W aw
♦ UTLOT f CURB RAMPS AT PARCEL'I s"rwe^"�.p�n APPLICANT:
ALL INTERSECTIONS BOUNOgRY I ®�arwr erA�war, —
♦ (TYP-)
!!4 LOT MEETING .wwm �wear '�m
SOLAR ORIENTATION
r
R' CONCRETE REQUIREMENTS (TYP.) I ' ® Ate.�. °'•�° v�y.
f FOOTPATH I _ ( •�
' I SIGHT DISTANCE I ' f
e EASEMENT (TYP.) w
( I xww,.a i
CROSSWALK
MIDBLOCK
P.D
� BO' TEMPORARY —ttttt —
j TURNAROUND •.r.r
MAP 4oR 11
PARCEL D
FINAL SITE PLAN
i • � i
Va. PARCEL F2
e m.r an.e mrrm.,.�.
wa...mm m wv s ma mmm„n '•mm.m . rr
=nwweworm wwmm—... ,.w" m.Y,r m. .mwmr • —
wm.. V RRJAMB
cm
�/ \ / � amr� New wmY:=,lm•�•`�as
r \�+ y-✓ I. on';Yo evaucMIDBLDCK
war ®,^m lot—r wr Ym,w mt .•'..:+w r
�� 9 "t.' eu v ,j •'• m mPMIYwm' •rm11 m,YR m!
CROSSWALK I / w � ny Tn {—emu ®: ws'�ev wii•a Y+
_-------------- u.. --� •'• ��t �' er, § ^.—�-le - • �I I r�wv®eY�rieesm uw /1
,�,� rz z ^me,�:::`...®°r Via: ^•!
/ • ?� �'`i y�N �•' �` Yo'weir a Ye.crass wx �1 mr^,
PARCEL . m°""°,Y'�®e""'".. {�
HOUNDAR�/ �Os a ( •. �� >�a n.i room ,� N
y •p�� EAGLE TREE wr uo awnew rtuo,o 'V
SIGHT DISTANCE / C f ni \ .t SINGLE FAMILY RES. mwr mwww— rY,r
EASEMENT (TYP.) +" /^ /,_� /i �) a ( PROYINCETOHNE FILING I www ms
PARCEL �VV�e,marrmuw mn
RE
FZ.
r,m�mmrm,.r,mm.m,m.w u..
l9
I�{ COMMON OPEN SPAC 3 V
1} LANDSCAPE ISLANDS
F/ U j I _ - F6 ,I� I \a OPEN
Y __ au •,••—' COMMON �:a,ew ia,mrumm•"wr•m
SPACE
ADDRESS SIGNAGE ,�
FOR LOTS I o -. - =m - ( ^' ) APPLICANT:
239 AND 240
��� IsY.omu seta ,al I 1 • � .,:� �„ \ w.e tiunlw=emo
ff
Y.:.
LOT MEETING
4.8' DETACHED I ROW ..r ~'� ^ .. �'',„�".,;'" w SOLAR ORIENTATION
SIDEWALK ^, i \ REQUIREMENTS (TYP.) y
{ WITH TREELAHN I 12 s' & a ^� s •' s a ADDRESS SICNACE P'n`•' 1 mm 'n•m
3 Pus Pa ••^
�} f FUTURE ROAD — _ � � _ g� �__ ,—i — 24 LOTS
R AND.M.2
INTERSECTION�� i 1.••o.wa.aena ul �—
STANDARD/PAINT D m m �UTLOT C m m m m m m m 8' CONCRETE Pus a sm�n
m mmm mmmmmm FOOTPATH
INTERSECTION MATCHLINE SEE SHEET a _COMMON OPEN
•{ CROSSWALK I aY ( � ••-..__ _ SPACE. — _ �YMCI
. Im�.aeuen) FL 111 ... I,e ... �— I �, \ In PARCELS F2 a5 OF 11
FINAL SITE PLAN
' PARCEL F3
mis1.VYdO 8dM URmRRAlltll nIWMf Y1.TNIYINM
aw nOTNOn C1.W gV0n0 ,mmrt�nt llM �I� ; 4Nr IYC
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FUTURE ROAD---I U�L�TrC S E� EAGLE TREE
INTERSECTION 'r s r r r rrr-r-rr r r r r r r r r r r r
MATCHLINE (SEE SHEET 6)_—COMMON OPEN SINGLE FAMILY RES.
STANDARD/PA[NT D - - - _ PROVINCETOWNE
INTERSECTION .x' - - j SPAC FILING 1 ..r m.• �4v err s N4.r
CROSSWALK --�- -- :r.w.®r..sn�.r.s�w w.
(AT T u 1 r I6 —1 Y. y y � \. /
wTSMa ON) I es' '�.� a wi '•n� PARCEL
BOUNDARY r.aTwrrinn Tr lbw
CURB RAMPS ( W o a ow�.viwnYurr Na r.0
ALL INTERSECTITI ONS
ITTP.) Z rNp.psleW�r) HEATHER CLENy \� d V\ roA ��v'r°'rsrr n"r.�eer'r
PARCEL
MIDBLOCK ( o ' s \• \ ` r..ne..�.r r..r w.
CROSSWALK a 1� •E \\ � °"mot .. / \ \\. ' .:...w.m.11:1::..Y:."�,w z N
STOP SIGN
\ y URI
STANDARD/PAINTED HEATHER GLEN / �\\ / d / /\ \ ?' \\'1 +mm •r Dy {r7Jy
INTERSECTION NCLln ( \ / ff / \ \ m \'� "r'E..°v ir�"rs nn`�n.n w...rr ,wr
CROSSWALK r /'/ r. \ \ �'. rnree r.. w p
/-'l.OT MEETING
/ SOLAR ORIENTATION NH \ r
REQUIREMENTS (TYP.) �'+\ ear J/_\ 36 w (', nr s""iiv:.u.�`I`w a ra s.nri� u•. a
.x
NIDBLOC ._; r II;� m ( ` H�Ni nNmn mm.en
II{ ti K ---- — OTC li 'A CROSSWALK v _ r
i
¢R° \ MN I I r r TC �rmw
ROVINCE ROAD pUTI ='.rrr�Irn4:Y Srbiw..ee r.wr.
� TRACT B �,. r APPLICANT'
i� (NOT A PART OF THIS 1 — _ a N' NAMAVI A"
1 44.5'R
SIIG DISTANCE PLAN) per mNYC.KE {TPP MIDBLO ..
L
TANDARD/PAINTED CROSSWALK
°4 NTERSECTION `
OU 'LOT I CROSSWALK _
NEIGHBORHOOD / °`� / ! _
PARK SITE / 2
I (PLATTED ONLY DESIGN
' NOT PART OF THESE PLANS)
. / . ,
� 1 n PARCELSLS F3 GOP
FINAL SITE PLAN
�
.�y.� PARCELS G1&G2
Y.'�•NOLpO miMt[M!0 n.cY.Y M1
°PfE ai�nLL COMMON THORPE
OPEN SPACE/ w b r �•� �IM
PE ISLANDS•� -- -- ''O \ g. j ) € i LANDSCA �.w. ..<a'�
LAMES
• `- ♦v� :. m. SIGHT DISTANCE
EASEMENT (TYP.).ac.. -,.••., �nnesr, M t EE $ y�„ 11�["""'
•-'•' � •, Sn Cam,' � BATTSFORD CIRCLE <�•[[orr
1
vsr m wvn�_vv�a•vr n
_CSPACE OPEN
SPACE—
o r~• COMMON OPEN SPACE/
xme mmcu awmr sre•anar er aW[•n OUTLOT 0 r"`"- •" �,�r (' ' r LANDSCAPE ISLANDS
.rrr.�vmr[.rrr wa rs
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.°im.'n°wra rus:wn umwm r..vm«v A�`urs n�YIAnA'n YL rP� 'T' k9' W ns°Yn.•OrIW...rn
[ •®nrm..s v.m•nwmnun ""1�'}' y- • I ° ' AREASDENOTESD
uses.vrru nr.swn•vivmnnin ia® _ "� �" " �� '
PARCEL G2 _ww.s®r.rs a.wn
*•'•^"+•"^^°°'°'^°m°'r•°° I I
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� s 1. 1 L I" � I � ,e.® r•s a
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W amO�a ai n.4. 1 .bt YIO NYLW RMOIIr
RENSON LANE
rwa .a iw .na.nun ..vuw ��_ 1 1 .1 ' w�ws wma �iniv O
° r BENSON LANE 1 TYPICAL rrr
n 0
SYMBOL FORa
{ LOT MEETING w m n.w�.oa v w rar a
SOLARORIENTATION REQUIREMENTS
w.ua •-r tree
REpUIRENENTS •
!iF r•ma muo•me I �"._t� � �®un rr•s
ON STREET
S :7.Sw a'.°d'k."'9e�° :u•n PARALLEL
PARKING m°•° APPLSCANT,.
as 1 nn�
werw�ero[o
n I I 1 I. DETACHED WITH
SIOEl1ALK .sn s.r. I ..r.rs.
i 1 �--'•e I � I 1HH TREELA1fN E
mro�tlao .•� ; C
u z z ✓/ ...r..
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0w ev a.n.r m
-- ST CR' -
s...s,r w n•m m rweeni CPNJ
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I �wav.•..r vv vsa m,o 11°'° �ww
STANDARD PAINTED
m�[.•,.n. w , ; INTERSECTION! � ,rCROSSWALKv-�—
CROSSWALK nvms a.w
mw [rte n.x
. PARCELS G1 k G2
FINAL SITE PLAN
' y PARCELS G1&G2
m�.ellyaym meucvYr+awu � z � .•�. =t . �J^wt \. ,n�...0 F � \L .�i n -�tR.YUYIm
W � : - :� I n �, ` `II\( • �I Ilw ��wu""si`cl' ��` s+Cr • ..vl.�l:n .Y..rc r&"a THOM
0. R /\ ~ •... I • urn•Y O O�ir�eee•mwo .Y••.�^.t '
ell, el
w... u•eo. sa'aA+� _.., T 1 •, \\ <� �LM= • I.I fl N C NE SEE g Y e mloml.wv+
r "�" arl/ `• F CH •r ua _ r.a rrsrne�n r+•.�.e n'
e . ,. d a � m I / ,» �e�•n'�.r'�r.lme�+irins u••'m.i ••••v
I •, S� —COMMON CE OPEN
'�. •N 1 SPACE
oA / "»^" mal'® •.a �Inrusealss
'O^UTTLOT 0
ammmis..`sa®��mr'wmi+ter Fe ik � 0 /� Y R� �( �.r Eo aura walmes lwn
j •sm.sw m�enann•n+mal.ln 1 ijY '1 j•�i �-uz lrq,;.�� cam—, av' w ®r.+�nwn I.erm
ru.n.mv�s•^. f(, o i ry �n •r�nsuvwi��rrwn
' '�R�Lerm OIW6 In•L ' t c, '{- --yy..-+..�
i a nr coca•m+em Y�hem mm.i ) {f �`O� i 4i =e,�� ���� I I
a �r�rta,6 Ni W OYnm 4 i I w I. Iw s=..�n:lnn..la n
e a,I
eaulr s a 0a rw.r•ar a lar..lam i ANRBE ONRO
a�iula'0 n m""i•n n"""ai. .r inm �,y /' Aiy�v'� -S6
a•n.wnrt.wn....•ria•r rmm [. _ �. ar�werwsu m`r N
1y, ,.tea.. ra.a wm 1 a+eaarwr
/ 1 Ir ,;,. �;�Ewa �C���•jy�]i
»m ,wYwn w..,nwe
/ / •;� 1 t � b
DENSON LANE ;
r-�..® . .no m / ��� .:/� °a s ( �. "a � n. .n�d �w I .IJ n I .rtv a'r'•a0 Qw
�� m a,am'lau a�4�� Fw S. ( - n A ' p F � Ir g �®un•r
'tt rs.ar�.n s � ¢./ • akne � i w .� � I 6 �na_��
!�I ra°r°+lar nne �wwn aval '/ c..aq wwe uur a V 9 rtn
ff
� 6, APPSdCANf:
�� x ��'Tn uu� +--'®i nmw_r 1 t_ieb�♦� v.YeP PAUYM�lYMD
( ®® .la+wva oem / is�� ��. I � w� 1 •, m erg' eo.a
0rm+.+me.e \ ��,E��F ! �.n � — ,. is ' � 1 _ � wm• �
-msnam rev+s..n '• �/ �1 ; u.y I / vi m
.14
vnr
s+a m.w+ra me ul
I ♦ �I ®m..+wrr•aY ra.Inn n
,( DETATC HED
SIDEWALK WITH SIGHT D
IORTD IST—ANCE
TREE LAIN —LOT EASEMENT (TYP.)
MEETING SOLAR ORIENTATION R �—
REQUQUIREREMENTS (TYP.)
ar
. � �.
PARCELS GI 8 C2 MMAPImC 8 OF 1 1
FI.NA^.L SITE PLAN
• � s
PARCELS G1&G2
DOWNM
THOM
JAMB
Ar.� � xm.uwxnx
Zy TYPE Id BARRI ADE I �•YW . .. . .
.xx.. •r•••, __ (See Enkineeri E Drew nar) \I IS' DETACHED SIDEWALK
1 i i 11aTB TREELAIIN� oauu zone ��
PARCEL BOUNDARY �•^�u��,�
xrtm mmcu.xwm^mm•cxnor:wcwn I 'uv°n'.�m�uv.,i,r:rtu,."`^.:^^V
\ LOT MEETING SOLAR / c c $ �wom s su°us uw.s uer
uvau u..sesmuu \ ORIENTATION i yyeacr•.c • I cl ®�ous^seaasws,. mw w os�'iu`w usv.nm"usmn rs�^ \REQUIREMENTS (TYP.)
COMMON OPEN SPACE/
LANDSCAPE ISLANDS a woia�ws•umruw nn
�•uws•.mrm mus,uu \ / NOpO '•• C. rss;iirwi'srt w'� A
A CURB RAMPS AT ALL
` rm�. •ma,^s a n. ou>^ua®n^ �p CP\i0 ' INTERSECTIONS ASw ^wsw a a
us s aus er sm s uxu x,mu '^
•. uu�.w•.s.,rt. " '�I w: � �L:E",y�. SHOWN
"'°":�: .....'x'.^x^`""'.w•mrt""a � '1 kA �... \�� « (rn.l xrm�u.�a'm...'�:'.�x7�
PARCEL BOUNDARY �s ^^s.rt^ems w ^ ,p N
xu.x ssermox surun: (^y '�'xr gyps / EAGL_ - - u ^Fw37
E TREE ' car uo w,emo rt•xo•o
SINGLEIN FAMILY RES.
11
x'm °u^.u�un' '°'•`�•1O1 x 0°•"'•^ E^ _ � � +° eo- � : g$ �PROYINCETOI/NE FILING I
»6"
'�< ¢ � ' j ��'♦♦ 'E SIGHT DISTANCE srtm r Q
«as n. ,. a a,S ) '• M ,.. r '« : ♦ . EASEMENT (TYP.) m ' ua•.ma •' a _
SEE( P•x®0 rt•vn•od �, eR � « , BATTSFORD CIRCLE wsewx a.
EII
--COMMON
� OPEN ♦ � (_m �.a°i mmm $ SPACE, A L .wu I u®u^ .•nass sv
�'� s. i•.^nr..v w,um rt,^ OUTLOT D t0- -I_� L• ' COMMON OPEN SPACE/ APP1ICAM.'
! o �y . 20
-I xr j LANDSCAPE ISLANDS
! .< f xa Y•P MIeYxN�Gtl1D
t _ '•t'I}-,,,r''f} E� "''' CROSS HATCHED
I .^ AREA DENOTES
• �_,i,v. PARCEL G2
®��^�.s m.sum Jr• p I. � ,u I� qJ '� I rv.r �
N•Z• P•rme%Y O9
` IW1L Nf^Y
KEY MAP
PARCELS Cl & C2 9 OF 1 I
FINAL SITE PLAN
• I PO F. �� `i /� y I y �•9
TR�NSFORTNTIAL FUTURE IC
BUS STOP TYPE 111 BARR
CURB RAMP T(See Engine PRIVAft INTERSECTION f �L�(}xRii�iaP Pam c°uacrd yo co pxnZ cY 8
PEN SPACE AS SHOWN
oat K va M \�E4Sg \, _ COLO
ATCy�N, N' \� C� NY HILLS COURT Iwcul
JAMB
41,
�, �� �e, \ ns* o i c�` OVrror \ ��� • �ww@ww `5� �"'....e.r
y I `.�_, , ' � � �ROWNRIDG=� � �.\ ♦�.� \` �wwe,�CEOVE 9V'F'
RAIL FENCE ALONG -dY \\\
�. UTLOT,�I...D. D BUFFER MIDBLOCK\
Irr • - J is IAA aBU BUFFER
m
PATIO) SIGHT DISTANCE 61, WETLAND BOUNDARY
ENCLOSURE EASEMENT (TYP.) WETLAND AREA BUILDING I 5
TRASH ENVELOPE I
(s•• b..t SR TEMPORARY BUILDING ENVELOPE (TYP.) (SEE ENG. DX S)
s..sn... u) GRAVEL TURNAROUNDS ENCLOSURE W CONC. F Q
(r•.. R..4 .w am ' (s•. h..n SENSITIVE WILD WALK
GATE FOR I a
LA AC mrm.A..d x.u-. s•.an.a u) 1, SPA DETENTION
LANE ACCESS s..eep....ey a,..°y. LIFE SICNACE POND ACCESS!
P•.a.ad...d a.l.u.) mm m (s.. °ewl semi u) O EN SPACE/
1{ Isn..e m snwioa) seiwl.xom 1 D TENTfON
POND TEMP PENCE
�e v•re x m�m.o�n OFF—SITE (atd T-Pml I
PARCEL H �m A� LANDSCAPE/UTILITY ama °^^)I
�II xm nnxxmx ,+ s ner��.m wnme na. EASEMENT PARCEL Fl
mAmeim m,m m.m m.. MIXED RESIDENTI L
I........ ENHANCED WETLAND APPLICANT:
p v _�—
BUFFER ZONE I 'I�. I ATTACHEDD/DyEETAC ED
!![ n W ,e. s m i� '. b.d.ceM Pl.m) 1, ® I IUIOIIIM�YbN
: PARCEL
n9 °I m.m _�ew.0. DOUNDARYI
WX
l
®n.
..Ye�•�� M.� ttlyv.n tl.OlO Ailf n,mimu� 0romoewee wJ,m i I Ww
ne°,'.°"m `advam vcumm.smm ®e�mlm xxam me.m .._'—FUTURE I wam a
P•m.x
PROJECF
�•aM- mmw.lv mul 1. \ iiiAP rPLL AR PW
BOUNDARY
r '•ml"a.nm� iv m. __ miv a aaaml PARCEL H I 1 O OF 1 1
m.mr mrn mo __ �wav FINAL SITE PLAN
Yar aai
9._9. DOWNING
THORPE
in
CWReNu
Yaa a
SBNSTTTVB WILDLIFE SI(iNAOfl BUM RACK DETAIL
Xm ,Ol PIM6 X 111i WII PMC6 X MAl IMPX KLO, a.-..fw
Z�w .esw
it a . ..
eiii A PDo-nncnaxn[ XX[5 vX[ C'>mlT4GV'A111 N
rr )P"'/P IWY®9ENb[ I.DM®acxYJ IM Wr9 � wP. .w Ylv..r..i 3�
Wl 101]CY-S.3 ROITNO WYWM WYI BPI.C[ �nJ
(,�.NYX b[.[l.0 (t Lp InuWs P�mY CS) w y Nqy— R V
TYPICAL PATIO SCREEN ENCLOSURE ADDRESS SIGNAGB DETAIIS
xn NDrX•u r000 m lmml XW[mu XrD Nom:.u.NDpD a Xp,YM XW[m l � SURE DETAIL
Wl lYC6 X MI Plllt R YID G /.�
Nrp XOIG Yl XWD m XCION lW ld.l \/�
M P1M6 N a
APPUCANT-
���.,w.I wn+uh�eao.o
f.T s
I R�
•�.� � a IYI•lYNY C
SPUTT-RAI.PENCE DETAIL WETLAND SUPPER AREA �o
�` ym Wl PYC6 M PWI!l DRIDD
ryul1�{[FI '
11Y5 . ® 11 OP 11
euNS A DMI S —��
Final Landscape Plans
for
PROVINCETOWNE P.U.D. FILING 2
tD
ROAD- City of Fort Collins, Colorado
INDEX OF SHEETS
PARCEL R
Phase I
S
PARCEL WAe_.w.n �
Phase 9� fr1 lit 6 I'y
PARCEL 1% --
Plisse 5 2
PARCEL H E "
3 ; T
y�+— Aunn•Awa.N
•�- 'II ARCEL C .u-' / '��
Phase 2 *P-8 �L
PHASING MAP - ---
ara PARCEL F
NMM)M la
-i -- SIGNATURE BLOCK
PARCEL Fes=
ARCEL
161 =
r NE OHBORHOOD
PARK SHS
� N➢RlH
t C ISSUE DATE: 1-14-00
-
xon+r _ REVISION DATR:7-1-00
PROJECT SITE REVISION DAT&7-28-00
\' REVISION DA7&ID-IS-0D
REVISION DATE:I2-7-OD
j
KEY MAP VICINTI'Y MAP
RAUFMANABROAD _
1� W1 usr wLv2w KvrlKa wRM
OM9.OWa.K00.mi
K _
---
_ YTL
- 1
s+n+woe smm�P urtxrw�w. -
nnre ii , �° unwv
i n 7� O ,
:w Y
I� � 1 ;� �� i � /� wr /t21��� 1 ,� I �r rsi�=emu•
, M
f i-xu ' - J �w••r.� � �c y� �„r — � m�" werw�umu
Nil
ff
E �..G ' I � M � • � � WTCMLIS N!
3
., WATRIYBQGIT
1 LANDSCAPePNASDIO i�b U -
Y ALSOWMPLANANDMJnN tR1OP1AY3 r,,, REY IMP Nis
�/�. .:.- t' p , � �e '��gyp♦ r
//(�� � � -' alb' /TT �� RuS+�Q`iw • � � � � " i
�1 '�� r�p��1�1rI1,11/If�'��1�� � TF���=-_ �I 1/ IL)%. �� l .L� .— t®♦ s
'lose' -`I)))��C£ e����''�� _-4 ���=e ��� r eV�'•r4 � ..
° � •� �� , It
IBIIm
_ b
Dowm
Y fI1JN M - -.M °-M THOM .
IMM
z rnr.M J /'Y •. l y eec .. m s »I +e 4 YTL
ro nr
..
'� / i � 3• nr E� �ws _ �
9R /
ETLANV
kb a 1< 4b h u n. .•� Is» �/ !� � ..m v.o v.0
' AREA
L r-flP - ealx• ! I I men�wiv r..s
n x r Mj. ili slWnwxm+oxaM
YI '.^ a,/
i �1Ic , M ( � e�� y o-n s° \ I � e��l' I �`-�'1;- ' (�i �� T=r•:s __ �.�ss.
I � rxwi�o-sw� `BI \ "t R -_•�`.� � s�nie r ST3� �s-n � a�saiSs L� �
TlJ
101
Ll
APP
� IdGNC:
Tt
•• �WATIM CKA"
IANDSCAMPNASIND I I a Al
�� •I:w�w[�yv of - _ _— �' �� �
LP-3
MMb UMPLAN'.m1 QJ®(DlOPLANS e • w w « wwn NEY IMP His
]� 1 I r� �..!/ { J�`i, _ � (; � m �� 1. V I _.....wq my•e.
`4
MTL
�Ff ��..f�s�a ll 'In�'ll I IT. �l. /ISAJ .I � > I _______._•..I.�r�
MTClu'. uni v"T.
9r T `u o- m
x-41
]� f � /sti`• t4 �1
MHWPEANTEWNOTRS
s
e-cc
• Gti
4 \ \YATCI6M[ OeET v-0 .
.cn..e.nv. \
WAMMUIDWART - —
r [ANDSCAMPHASWO '�4 Y �0 KKK
u1WOw
��� •n-s:�ml - - � `�� '_ •'�'' RAN
-LP-4
SEE AM 3[I8 P[AN AND&7OW®ISiO PSAt6 NFY IMP NIS
i • •
MOM
G--
EXISTING WETLAND AREA
-.A
P. \\\���1444J.
*x a
APMCANM
nrtaiosr. 0,. hr YY.YVI�Y161D
YAiC "-
NL i
! WAIMUMCKW
or
PC, X6
LAYmcA E ° „a - 70
I LP-5
9�ALSOSRBeuNAND W70Rl�lWOPfAN3 s - s .. w K[r u.r NTS
EAST TRILBY ROAD
06 mil l 147
06
I
------------- --
rr� _ r=
{ 4 —
C
F s®eoce % o A A i SNIffrPLINTDIGNOYM
6
0 1 \ _
F' APPI]CANf:
1 2 / rFaFT
WA'1119IB18 CHARS _ ��
' IAtDSCAMPNASDIO �" '9�
E�'( � ® � W� .,.�. •y t::-tam �'�'
LP-6
(�� SRSALSO SIIR PLAN AND RN<�R1O BANS • M NEY IMV Nis
• � ram.
V S •fig` �••••,� '•, ��`,�. ��'� is
fill",L�� . �• W
t1i r�,' •'
•• 11
1•
�: II
•I ...'W�s I�IUI� .
L-� LEGEND
JAM
MTL
T `
.-.._ . �...., EEf+l�
SON LANE
,�'—�t^�--�`v—!� ✓ '.� cage. w � �l d
SRWPLANMMNOM
N
M
S� • _� z; II _ o m w
- CANI'.
...:°.r.
... ..... - _ SWALE - ,_ . _._ __. _n OgERRURST CR.
tJ{ I WATERUEEIXAlffLANDSCAMPHASM
il
'•14 LP-8
s®ALSO SIIe PI.ANAtIII ENQpJ®IWOEANS .' ` .. .. p,r, xnws n,s
• • s
• _._ , T .<n Ar xuai e HMT Lbw o
�ID
42�
�YATCIAII{ R SHEET 6 [ 1. _ _ -T� �v m
Imom
rs. BURRIED RIP RAP _ _
/ �tJ ee-Lnglrtaering T s) i �..'-, "
OPEN SPACE
SHMPLANTDMNUM
A a
EXISTING SINGLE FAMILY ---.E. [y
�.s �um�uxNxao
mac—
� 4Zr
' � 7
k WATIMUSECHART
LANDSCAPEPHASM
3®ALSUSIIBPIARAND WS�IMOPlANS - -r xn ww xrs
»ti
kk _
r
-------- ------- { EXISTING SINGLE FAMILY
SHWIPLANUMNUM
I Cl
gar
.0 N�
IC
- - o
=��-e=sue
APPUCANr
•- _
� � .:� `✓ N Aenwo
� . ,I;EATHE�GLE . ~N'� ,uw'w
LANDSCAMPHASM
am :� _ 14 &' LP-1O
f smAIJO SRBMN ANDHil�QiOK q — . - w ro wr .tv,W Nrs ,
Wi qQ KR L0.1Y '• / q�C WENDuw s.a
s.ro
OORiQ✓r.
rrL
ATUER GLEN
HE. EN
M i J -sue Lg
SHMPLAMMONOM
y FUTURE PARK SITE
"
PROVINCE ROAD
r.
APP Arrr
WATIRUSECHART
--
IwNorwee PHASING
�� -Mom„®••y � ',��.., �o�w
M AMS IBPIAN AND ENOQ7®IWO MNS • KEY W Ni5
MEND
a"
MEND
LJ m'"0' lllttlR
=Amp-
Nie^m m
j < .i SHRffrRANHNGNGL87 �.I � mY
o � w
dr
FUTURE PARK SITE
M m APPUCARr
1111 ttt1 mmum.
F Q_
{ _ WATHIUSECHAET
LANDSCAPE PHASINGWPM
WOl1CAN
LP-12
Of 7 S®ALSO SGE N Z7A—M OPLWS • - w .i «r. KU w - xis
LBO �_
Lamm-�IFY k rr•._
THOM
VIMU
r='L T T
km
EXISTING SINGLE FAMILY
it O""�i'...f"
_
M -
-VI ROADCi—
' 7.::S
PEO
WE O�
Y11TCI{M t!6 Yl2T V-ti
- -2, ,.
WA7MUSBCsA4r
LP-13
�111! SEMAIZO SflB MNANU&IagamWONANS • - w w wr KEv rw NTS
SADDLEBROOK rt •-._ ,., _ � yT N .® �..-.
N
Har—
SHWPLANMMNUM
/' � \ ' ,off=•�',`¢3� ' � ,c _ — m_ � Z �s
/ s /•' \ i � v e6e�m� O
( x^, i MUAUN�eou.D
/I. - ` -Baum-�� a — ,•_a-✓
s —
j I �NAs mecaAm
�� •LANDlCAPEPHA.9QiO- -WAR
_ utacu�
I f MMAMSrM PLAN ANDENU QPEANS - - LP-
4
B
M NMI NEY WG Nn
EXISTING SINGLE FAMILY WORSE
...v.a. IAMW
- —
Da.—
PROVINCE ROAD
TT
SHWPLANTMNOM
T
� i I
- _ �....
_ nsYYw..ean
1 � rer see oxen vw 1 Ir�.'�.""'�e�"'�':.
• � ,� :w wxa. �, •a r
g SADOLEBROOK_ LANE
NATIRUYICNARI'
SEBA1.90 SR8 PLAN AND&A(@
YAiC�OYE�6 IT LF4 / ' 1— .�•� _s v
OOOPIR'I•
31
_ - SADDLES I I® --for-
91�[PL,NSINO N0l87 a
M ,... 10MA a
3 92t rT AITUCAM:
ftf � I v. r•__.� YAViMW�YgLD
r•_y PP
WASH_ USE(9ART yI{�.III`} a, 8 a.•n
9r
I LANDSCAMPNASrtM
A -_
uj1y�t _ LP-16
�fllf SEE AM SRS PLAN AIM @1�DiO MANS , r r .. wM NLv uer NLS
r YATCIEEI! EE e eneE Ny!-+z - � ✓ s
__________J �• I -. �
an _
YATCROME SEE eneeT V.N
__________y .y________.
YATCIRME EEE MEET V•lT
SHHRrKAWnMNUM A
\\�'ae_ zs^^•� �Y:~� `,• a ..�... � �
APPIdGNT:
4s{{! ENEMM�YENE
-4 I A7 IN!SE!SHEET V.n
Y
A7C TCM.VR azE exEET V-ls f
1 i T
WATWIO®CHART
LANDS
�•} .®essay m v .A � � � MAN
LP-17
Sf ALSOSTIBPLANANDEPIWEMPIMPLANS N Nr •n W➢ NTS
Lamm
m.. THOM
® ......:... AMPs
\ MT 22=
w MATCNLIL Q[SI LP-T! \\ YTL ®1Oam. QL��
.�_____________________� v..v
� YATfIIY[6Q YttT LP•10 \\ r------I
rh..r nu..
__—
., ---------
�►
-
SHOUPPLANEMNOPES
----------------
s
____
/
/
/
a�
WA'IISROQCNART
} � I� m.,•i000
4 LAIIDSCAPEPHASM
eNDENW
SYSAf.W SOH MAN AND WRINIMORQW PLANS • •• KEr auv Nis LP-18
i • •
HT
sHourpLANrm NUM
l,;ate,
Id
-_______.__________ ___ ..- _ p
q-Q
'fl ----- -OM --
r-m
WATMUSCHW
�.J
f s®�snan ANDsNas+MMPLwxs K�
J L
• O@iPIIALNOBR.
iaua.aovu.�aftimfpN
.V' I.Y00aYYaWfmlmOfO�N �Ty
y�y. if.fIL10R.N.mf1♦�CfAY.VOT 1RN.VY�ap1��N�V
tlall.Ya)fRlaRgaO yaM�p
�fO.m.SAtnl -•---
1NLM>ZRiY_AI.MYa ,l-_M F—\
.� w.eti A RNLIRf�•O VR�•�O 1
muuavf
�ws iv�i IPva
— /w�.•Lr ww
TYPICAL MONT REEVATRW(4.PL= TW0 VMYSO)R®BVATON /
i
Idb oil
n.i m
I I I
�a� U
i i i I y6p=,7�
TYPICAL PIRONTHBVATION(6PIIDO ONRSNRYMMMZVATRIN
.umswfRraoRvfRavnmq pRavfwCm
1014
APPLICANT:
I _
w�
I
i TYPICALRHAREMATWN S foaRNwaauYfnar.wmvmN NOWAK 1 OY 1( —S PIID4 c.a
f wNasa�naTawiwm wn�wuffoauY�fnsasmYNao ��"L r
ao.f>tNalloowfffuo�.
1 ARCCHITMM ALLL.BVATIONS r
SWT
R%kE C'N BRITTANY KNOLLS
Q SIM
SEPJICE CENIEP (Urban
-, - - - J —.—..__.__ _L. ,•� "m[rvnvA r-[ro[x[ NmMxxxo[
Residential)
as I.wlrx.Mx-
r..._..
TRILBYRr mAL THORPE
_ w
AMPS
1 ,i 0 4.�"2�N1aB48ra a. t{pux a
Nleo xoo
e°F6b.t p 41s y0 J6C1 VV COMMER uL &`xn
iI _r 7 1 \ \I Ar .Nxl cnMcn N T.I
�. .n.l u:TI-E ILvq
oo r1 iJ LARIMER COUNTY . I I•uwx[ IN
Iv E q Agricultural w�. 1yyyry1
II ��ft
z xu ('AT1MIll MARCII - ` '11 1 s�" x I T
Inv L.T.s .NI I:LE�ILY.end ICU MFSI i i
uxltf 'ITl A
VILLAGEC ER IMIECDREII=to '� � 1 L LEGAL DESCRIPTION
rxWO[T.KN[q [U[[[vC fT ED •Y.V
.F(AN.. ///F` Zifr } °x`. c :• ..w.,..W_"`_SINGLE
.plAn I FAMILY F�
"rsrrc AL iril ,n / P EucnfoT I I -l'
§ .n a�. r Ini ( L.� •sue
w I / ttax"¢rn `�(,.I Ike 1 ,M r EA E TREE T
P f Ir/ I 1 nzv-v
!v • _ „ SMGLEFAMILV ETAQN1
DRx ) I Ai r.. ' vs I[ y l 1 MIL S"
[ [.I I aeon
^"„a"o E� Fl y.. 1T DN —Ire'_= •ram=a
4Y SINLI.E �G�
FAMILY ` ,xlMln o } [ _ �'•'�'L:
111'TAM[IIFD
O "^ ARREM
U �-
m ° / E. a COMMD I)
xg91M1Ci IBL• �Y . I _ �__v��w TMlud' 'A. Q IX PAM V
\ � �/
RORERTBRNRON nEI ANDSlr1RIDPAx A
1
kE`JEkVlllk ANO SUPPORT/
qE =1fINC'GL['T R I J
\., I l. s
� o
♦ AM r
1
I� nrle[DUL v�J,, ".N.
w 8�
`•✓� '� _,\ `� .,. 0 8 okL R CA
xµ rrz.,
91 "irtnnU ev[e `C B. I L,
��� C M ED IDENTIAL CS 91 FAMILY
AIII
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Community Planning and Environmental Services
Current Planning
ity of Fort Collins MEMORANDUM
Date: January 18, 2001
To: Planning and Zoning Board Members
From: Stephen Olt, City Planner
RE: PROVINCETOWNE Planned Unit Development (PUD), Second Filing -
#73-82U.
Request for a Variance to Point Chart H - Residential Uses, the Affordable
Housing Component, of the Land Development Guidance System
(LDGS).
The Planning and Zoning Board approved the Provincetowne PUD, Second Filing on
August 5, 1999. This request, being a residential project, was evaluated against Point
Chart H - Residential Uses in the LDGS. It received a portion of the overall points
earned based on the following criterion:
"If the project contains dwelling units set aside for individuals earning 80% or
less of the median income of City residents, as adjusted for family size, and
paying less than 30% of their gross income for housing, including utilities
("Affordable Dwelling Units"), calculate the percentage of Affordable Dwelling
Units to the total number of dwelling units in the project and enter that
percentage, up to a maximum of 15%. (If the project is proposed to be
constructed in multiple phases, the Affordable Dwelling Units must be
constructed as a part of the phase for which approval is sought.) In order to
insure that the Affordable Dwelling Units remain affordable for a period of not
less than 25 years, the developer shall record such protective covenants as may
be required by the City under Sec. 29-526(J)(4)."
The Applicant for the Provincetowne PUD, Second Filing has submitted a request for a
variance to the 30% provision in this criterion on Point Chart H - Residential Uses,
requesting that the percentage be amended to 38% for the following reasons:
1. The LDGS provides a density bonus to the developer that builds
affordable units. An affordable unit is one which is priced such that the
housing cost, including utilities, for individuals with incomes of 80% or less
• of the Area Median Income (AMI) for Fort Collins is less than 30% of that
281 North College Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970) 221-6750 • FAX (970)416-2020
amount. The LDGS does not recognize any difference.between "for rent"
and "purchase" units in calculating the maximum•mopthly housing
amount. Additionally, all costs including utilities, insurance, mortgage
insurance and Homeowners' Association (HOA) dues must be included in
the maximum amount.
2. The Applicant purchased the subject property from its predecessor in
1997, subject to a contract for purchase dated April,_1996. At that time,
development of the property was subject to the LDGS that was utilized by
the City of Fort Collins before the adoption'of the current Land Use Code
L( UC) in March, 1997.
3. Following the replacement of the LDGS in 1997 with the LUC, the City
adopted a new policy that recognized a difference between "rental" units
and "for sale" units (Section 26-631 of the Code of the City of Fort
Collins). While retaining the 30% of gross income for"rental" units, the -
City now permits 38% of gross income to be used for "sale" units. This
change recognizes that in the case of"for sale" units several other costs
are often included in mortgage payments, or other mandatory payments,
that are not commonly included in the case of a "rental" unit. It is
recognized that the failure to increase the allowable percentage would
result in fewer dollars being available to pay the principal and interest in
the case of"for purchase" units and, therefore, would result in the buyer
purchasing a lesser house than they could in relation to a comparable
"rental" unit.
4. Because the LDGS does not recognize a difference between "rental" and
"purchase" units, the result is to penalize the purchaser because their
purchase dollar does not buy as much as the comparable renters. The
City's current policy has corrected this inequity.
5. The Applicant is committed to providing affordable housing to the City;
however, the use of 30% of gross income versus 38% of gross income is
such a substantial difference that it makes it financially unfeasible for the
Applicant to build this housing type.
6. The City has recognized the financial difference between "rental" and "for
sale" units and has endorsed the use of 38% of gross income in the case
of"for sale" units (Section 26-631 of the Code of the City of Fort Collins).
7. The City has identified a need for affordable housing and has adopted a
plan to increase the stock of affordable housing in Fort Collins. The
Applicant's proposal is an important part of that plan and has been from
the original sale of the property to the Applicant's predecessor.
Therefore, the Applicant hereby requests a variance based on Section 29-526(K)(4) of
the LDGS. The granting of the variance from the strict application of the provision will
result in a substantial benefit to the City by reason of the fact that the proposed project
will help satisfy a community need (affordable housing) and that the strict application
would render the project practically unfeasible.
Section 29-526(K) of the LDGS states that the Planning and Zoning Board is
empowered to grant variances to the provisions of this section. Variances may be
granted if the Board determines that the granting of the variance would neither be
detrimental to the public good nor'impair th67intent and purposes of this section, and if
the applicant demonstrates:
(1) That by reason of exceptional topographical, soil, or other subsurface
conditions or other conditions peculiar to the site, undue hardship would
be caused to a subdivider by the strict application of any other provisions
of this section, or
(2) That by reason of exceptional conditions or difficulties with regard to solar
orientation or access, undue hardship would be caused to a subdivider by
the strict application of any provisions of this section, or
(3) That the plan as submitted is equal to or better than such plan
. incorporation the provision for which a variance is requested, or
(4) That the granting of a variance from the strict application of any provision
would result in a substantial benefit to the City by reason of the fact that
the proposed project would help satisfy a defined community need (such
as affordable housing or historic preservation) or would alleviate an
existing problem (such as traffic congestion or urban blight), and the strict
application of such a provision would render the project practically
unfeasible.
It is Staffs understanding, based on verbal commitments by the Applicant, that the 141
multi-family dwelling units in the Provincetowne PUD, Second Filing will be available to
qualified individuals as affordable units "for sale". In 1994, City Council adopted
Ordinance No. 66, 1994, defining Affordable housing project, Affordable housing unit for
rent, and Affordable housing unit for sale. Their decision was based partially on a
recommendation by the Affordable Housing Board to increase the.amount of household
gross income that an individual or family may pay for housing from 30% to 38%. This is
set forth in Section 26-631 of the Code of the City of Fort Collins, which states:
"Affordable housing unit for sale shall mean a dwelling unit which is available for
purchase on terms that would be affordable to households earning eight (80)
percent or less of the median income of city residents, as adjusted for family
size, and paying less than thirty-eight (38) percent of their gross income for
housing, including principal, interest, taxes, insurance, utilities and homeowners'
association fees. The unit must be occupied by and affordable to such low-
income household(s) for a period of not less than twenty (26) years."
Staff has determined that the granting of the requested variance to Point Chart H —
Residential Uses, specifically the Affordable Housing criterion, would neither be
detrimental to the public good nor impair the intent and purposes of this section, would
result in a substantial benefit to the City by reason of the fact that the proposed project
would help satisfy a defined community need (in this case, affordable housing), and the
strict application of such a provision would render the project practically unfeasible.
Staff recommends approval of the Applicant's request for a variance to the Affordable
Housing criterion on Point Chart H — Residential Uses to allow the amount that the
purchaser of a "for sale" dwelling unit may spend be increased from 30% to 38% of their
gross income, based on Section 29-526(K)(4) of the LDGS.
Community Planning and Environmental Services
df k�a'r �§��:.., ��meyabtl paper
Natural Resources Department --
City of Fort Collins
MEMORANDUM
TO: Planning and Zoning Board
FROM: Mark Sears, Natural Areas Program Manager
DATE: November 29, 2000
RE: Provincetowne—Offsite Drainage and Water Easements
Provincetowne is a collaborative project between the City of Fort Collins and the developer. The
City became the owner of this property due to a failed special improvement district years ago. In
an attempt to sell the land to a responsible developer and to provide affordable housing, the City
chose the developer based upon a proposal review selection process. Approximately 160 acres of
this land around Benson Reservoir and along Trilby Road is being purchased by Natural
Resources for a natural area.
. Kaufman and Broad are working with Natural Resources to obtain drainage and waterline
easements across the natural area portion to the south and west of the portion to be developed.
Natural Resources staff is supportive of the drainage easements and approves of the drainage
improvements that Kaufman and Broad are proposing to construct on the natural area. We
believe the drainage improvements will enhance the wildlife habitat in the natural area by
creating wetlands. Our only concerns related to the drainage easements are ongoing maintenance
and liability, which we believe can be resolved in the development agreement.
Kaufman and Broad have proposed to construct the waterline across the south side of Benson
Reservoir immediately adjacent to the north side of the Victoria Estates Subdivision. This
alignment would have minimal impact to existing vegetation and wildlife habitat. However, we
are concerned about future impacts the waterline may have on the site. Our plan is to restore this
site to native vegetation and enhance the wildlife habitat. Future waterline maintenance, repairs
and especially replacement could have significant impacts on vegetation and wildlife habitat once
the site is restored. Therefore, we have asked them to look for another alignment that would
avoid the natural area. If no other alignment were possible, Natural Resources staff would
support the waterline alignment proposed across the natural area.
If Kaufman and Broad proceed with their request for the waterline easement, it would need to go
to the Natural Resources Advisory Board for their recommendation and then to Council for
approval. The request to construct the drainage improvements on the natural area would go to
the Natural Resources Advisory Board for their review and then be approved through the
• development agreement process.
281 N. College Ave. • PO. Box 580 a Fort Collins,CO 80522-0580 a (970) 221-6600 • FAX(970)224-6177
November 24,2000
Irvin&Eva Lieser
830 Rumford Court
Fort Collins,CO 80525
Community Planning and Environmental Services
City of Fort Collins
P. O. Box 580
Fort Collins,CO 80522-0580
Attn: Steve Olt
City Planner
h4r. Olt:
I am responding to the letter from you,dated 11/16/00,regarding Provincetowne,2°"Filing, Final
(LDGS)-File#73-82K.
The following three items are of concern to me.
1. I fail to understand how this can be a final filing when there is a suit pending in Appellate Court
regarding the sale of this property.
2. There are currently two(2)major multifamily facilities on the next comer,less than Y:block away.
I believe that this area supports the proper mix of housing without the introduction of 141 additional
multifamily units.
3. Currently the children in this area attend school in Loveland because the Fort Collins schools are
unable to accept these students. It seems unwise to introduce more children to this situation. The
141 multifamily units would surely produce several more students for the already burdened schools.
There are several more issues of concern with this project,but just consideration of these three would
cloud the scenario sufficiently to table further discussion until the questions have been answered We urge
the Planning&Zoning Board to table this item
Sincerely,
Eva Lieser Irvin Lieser
December 7,2000
•
Planning and Zoning Board
City of Fort Collins
300 LaPorte Avenue
Fort Collins, Colorado 80522
RE: Provincetowne PUD,Filing Two—Final-#73-82U
Public Hearing of the Planning and Zoning Board, December 7, 2000
Request For Inclusion Of The Written Testimony Of David G. Evans
6806 Deerhurst Court,Fort Collins 80525
TO THE HONORABLE MEMBERS:
I hereby formally request that the statements set forth herein be made a part of the official record of the
hearing by the Planning and Zoning Board of the City of Fort Collins to be held on December 7, 2000, in
the matter of Provincetowne PUD, 2"d Filing, Final (LDGS)-#73-82K as set forth in that certain notice of
public hearing dated November 16, 2000. In addition, I hereby formally request that all documents
referred to in this statement be incorporated as part of this written testimony as though fully set forth
herein.
Preservation of Neighborhood Character
As set forth in the records of this matter, Applicant is seeking final planned unit development (PUD)
approval for 331 residential dwelling units(190 single family lots and 141 multi-family units)on 70 acres
which establishes a density value of 4.73 dwelling units per acre. The development which is the subject
of this approval request is situated immediately adjacent to Provincetowne PUD, Filing One(Eagle Tree)
consisting of 93 single family lots on 50.34 acres with a density value of 1.86 dwelling units per acre.
I am of the opinion that the density values of each of the respective developments are not compatible and
should not be linked in such a manner as to diminish any aspect of the density attributes expected by the
residents of the Fagle Tree subdivision. In that regard,an element of Applicant's development which will
diminish the character of the Eagle Tree subdivision is Applicant's request that local streets within
Applicant's development be connected to Brittany Drive within the Eagle Tree subdivision. Applicant's
site plan sets forth the connection of its local streets at various locations along Brittany Drive. It is the
desire of the residents of the Eagle Tree subdivision to retain the low density character of the
transportation infrastructure of their community as well as to maintain the low noise level generated by
the present level of traffic within the subdivision,therefore, I am requesting that the Planning and Zoning
Board deny the Applicant's request to connect its local streets along Brittany Drive. This request is
consistent with the stated intent and provisions of Sections 29-526 et seq. of the Land Development
Guidance System, wherein it was stated the special care should be taken to respect the context of the site
and the character of the surrounding existing neighborhoods, in that, intensification and redevelopment
must be balanced with a strong sensitivity to protecting existing neighborhoods.
Provincetowne PUD, Filing Two—Final-#73-82U
Public Hearing of the Planning and Zoning Board, December 7, 2000
Request For Inclusion Of The Written Testimony Of David G. Evans
December 7, 2000
Page 2
Drainage
At the hearing before the Planning and Zoning Board of August 5, 1999, it was determined from the
materials introduced by,and the testimony of representatives of the Stormwater Division and the Planning
Department of the City of Fort Collins, that the drainage system of the Provincetowne PUD, Filing One
subdivision had been inadequately designed to accommodate the flow of waters in, upon and through said
subdivision. It was the intent, as stated by the Planning and Zoning Board at that hearing, that the
Applicant, as a condition of approval, would be restricted from diverting any of the flows of water from
the Provincetowne PUD, Filing Two subdivision into, through or upon any element of the Provincetowne
PUD, Filing One subdivision drainage system. I am requesting that any approvals given by the Planning
and Zoning Board to the approval request of Applicant specifically be conditioned upon a written
provision that Applicant will not divert any waters from Applicant's development into, upon and/or
through the drainage system of the Provincetowne PUD, Filing One subdivision.
Adequate Public Services
In accordance with the provisions of Sections 29-526 et seq. of the Land Development Guidance System,
it is incumbent upon the Planning and Zoning Board not to approve developments that reduce the public
health, safety and welfare. Applicant's development significantly impacts the existing quality of the
infrastructure and various other services provided to the residents of the City of Fort Collins. Inasmuch
as no economic model has been developed to substantiate that the proposed development would not have
an immediate and ongoing negative impact to the existing level of services provided by the City of Fort
Collins to the residents, and that, the Planning Department has not analyzed such an impact in
relationship to the dilution of the level of services being received currently by the residents of the City of
Fort Collins, an approval by the Planning and Zoning Board would be contrary to the intent,purposes and
requirements of Section 29-526 et seq. of the Land Development Guidance System.
Substantive Requirements
Pursuant to the provisions of Section 29-526J(4) of the Land Development Guidance System, Applicant,
as being the recipient of a residential density bonus for this development, is required to provide covenant
documents to be recorded with the Office of the County Clerk, guaranteeing the use of dwelling units for
low-income families. The covenants shall be submitted and approved by the City of Fort Collins as to
legal form and effect, providing that use restriction be for at least twenty-five (25) years. No final plan
shall be approved for any portion of a planned unit development, approved with a residential density
bonus for providing for low-income families, until the necessary legal documents have been submitted
and approved. A review of the file of the Planning Department did not reveal that the covenants have
been submitted nor approved. In that regard,the Planning and Zoning Board is precluded from approving
the final plan.
Provincetowne PUD,Filing Two—Final-#73-82U
• Public Hearing of the Planning and Zoning Board, December 7, 2000
Request For Inclusion Of The Written Testimony Of David G. Evans
December 7, 2000
Page 3
Jurisdictional Objections To Approval
The following are continuing objections to the jurisdiction of the Planning and Zoning Board of the City
of Fort Collins to render a decision in this matter:
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager of the Agreement of Purchase and Sale of Real Property(hereinafter "Purchase Agreement') by
and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996,
was specifically reserved by Section 4 of Ordinance No. 41, 1996, to the Mayor and not the City
Manager. The execution of said Purchase Agreement by the City Manager violated the specific
requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-11 I(a)of
the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council
pursuant to a duty enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First
Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and
between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the
Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First
Addendum could not, as a matter of law, modify an executory agreement.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager
of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper
delegation of legislative discretion which violated the requirements of Section 23-111 (a) of the Code of
the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to
a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City
Manager of the power to restructure the sale of the real property from a purchase to an option to purchase
pursuant to the First Addendum To Agreement Of Purchase And Sale Of Real Property,was an improper
delegation of legislative discretion which violated the requirements of Section 23-11 l(a) of the Code of
the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to
a duly enacted ordinance.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application
with the Current Planning Department requesting Planned Unit Development- Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort
. Collins.
Provincetowne PUD, Filing Two—Final-#73-82U
Public Hearing of the Planning and Zoning Board,December 7,2000
Request For Inclusion Of The Written Testimony Of David G. Evans
December 7, 2000
Page 4
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et
seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161,
1996.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997,of the Application
with the Current Planning Department requesting Planned Unit Development- Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort
Collins.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning
Board failed to give timely notice of August 5, 1999, hearing.
*No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning
and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer
jurisdiction upon the Planning and Zoning Board. '
*Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of
the Land Development Guidance System For Planned Unit Developments requires, "Me decision of the
Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of
the meeting of the Board."
*Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins
Solar Orientation Ordinance, in that, Applicant presented no evidence which would demonstrate that the granting of
the variance would neither be detrimental to the public good nor impair the intent and purposes of Section
29-526(2)A-I/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties
with regard to solar orientation or access, and that undue hardship would be caused to Applicant by the strict
application of the provisions of Section 29-526(2)A-I/A-1.1.
*The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999, and
filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council
of the approval by the Planning and Zoning Board of August 5, 1999, to approve the Planned
Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD,
Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort
Collins Solar Orientation Ordinance is incorporated herein by this reference as though set
forth in full.
ectf s�itte�
a ' G. Evans
Community Planning and Environmental Services
Current Planning
City of Fort Collins
January 4, 2001
Dear Resident:
The Planning and Zoning Board of the City of Fort Collins, Colorado, on Thursday, January
18, 2001, at 6:30 p.m. in the Council Chambers**, City Hall West, 300 LaPorte Avenue, will
hold a public hearing on a proposed project in your neighborhood. The proposed project is
commonly known as Provincetowne, 2nd Filing, Final (LDGS)— File #73-82K
This is a request for final planned unit development (PUD) approval for 331 residential dwelling
units (190 single family lots and 141 multi-family townhomes) on 70.0 acres, located on the
south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South
College Avenue, north of County Road 32, and zoned LMN— Low Density Mixed Use
Neighborhood. This project has a qualified Affordable Housing multi-family residential
component.
Both the Planning and Zoning Board and the City Planning Staff consider your interest and
input in this matter, as well as your neighbor's input, an extremely important part of the City's
review of this proposal. If you are unable to attend the public hearing, but would like to provide
input, written comments are welcome.
The list of affected property owners for this public meeting is derived from official records of
the Larimer County Assessor. Because of the lag time between occupancy and record
keeping, or because of rental situations, a few affected property owners may have been
missed. Please feel free to notify your neighbor of this pending meeting so all neighbors may
have the opportunity to attend.
Please Note: Due to the number of projects being reviewed by the Board, there is no
guarantee this item will be heard on the date advertised. For the benefit of those attending the
meeting, the Board typically sets their schedule at the beginning of the meeting.
Sincerely,
levje)OtP�
City Planner
*Please note that if the Thursday, January 181h meeting runs past 11:00 p.m., the
remaining items may be continued to Thursday, February 1", 2001 at 6:30 p.m. in the
Council Chambers, City Hall West.
"*The City of Fort Collins will make reasonable accommodations for access to City
services, programs, and activities and will make special communication arrangements
for persons with disabilities. Please call 970.221.6750 for assistance.
281 North College Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970) 221-6750 • FAX(970)416-2020
Community Planning and Environmental Services
Current Planning
City of Fort Collins
November 16, 2000
Dear Resident:
The Planning and Zoning Board of the City of Fort Collins, Colorado, on Thursday, December
7, 2000, at 6:30 p.m. in the Council Chambers", City Hall West, 300 LaPorte Avenue, will hold
a public hearing on a proposed project in your neighborhood. The proposed project is
commonly known as Provincetowne, 2n° Filing, Final (LDGS) - File #73-82K.
This is a request for final planned unit development (PUD) approval for 331 residential dwelling
units (190 single family lots and 141 multi-family townhomes) on 70.0 acres, located on the
south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South
College Avenue, north of county Road 32, and zoned LMN— Low Density Mixed Use
Neighborhood. This is a qualified Affordable Housing project.
Both the Planning and Zoning Board and the City Planning Staff consider your interest and
input in this matter, as well as your neighbor's input, an extremely important part of the City's
review of this proposal. If you are unable to attend the public hearing, but would like to provide
input, written comments are welcome.
The list of affected property owners for this public meeting is derived from official records of
the Larimer County Assessor. Because of the lag time between occupancy and record
keeping, or because of rental situations, a few affected property owners may have been
missed. Please feel free to notify your neighbor of this pending meeting so all neighbors may
have the opportunity to attend.
Please Note: Due to the number of projects being reviewed by the Board, there is no
guarantee this item will be heard on the date advertised. For the benefit of those attending the
meeting, the Board typically sets their schedule at the beginning of the meeting.
Sincerely,
* ft-
teveOlt
City Planner
*Please note that if the Thursday, December 7th meeting runs past 11:00 p.m., the
remaining items may be continued to Thursday, January 18th, 2001 at 6:30 p.m. in the
Council Chambers, City Hall West.
"The City of Fort Collins will make reasonable accommodations for access to City
services, programs, and activities and will make special communication arrangements
for persons with disabilities. Please call 970.221.6750 for assistance.
281 North College Avenue • PO. Box 580 • Fort Collins,CO 80522-0580 • (970) 221-6750 • FAX (970)416-2020
ACTIVITY:
Residential Uses H
DEFINITION:
An residential uses. Uses would include single family attached dwellings, townhomes, duplexes,
mobile homes, and multiple family dwellings; group homes; boarding and rooming houses;
fraternity and sorority houses; nursing homes; public and private schools; public and non-pro5t
quasi-public recreational uses as a principal use, uses providing meeting places and places for
public assembly with incidental office space, and child care centers.
CRITERIA:
The following applicable criteria must be answered`)res" and implemented within the
development plan
1. DOES THE PROJECT EARN THE M NDAUM PERCENTAGE Ytot eVNo N/A
POINTS AS CALCULATED ON THE FOLLOWING"DENSITY
CHART H"FOR THE PROPOSED DENSITY OF THE
RESIDENTIAL PROJECT? The required eamed credit for a
residential project shall be based on the following:
60 ercentage Points=6 or fewer dwelling units per acre 64,1 %
60 - 70 percentage points=6-7 dwelling units per acre duZ/w
70- 80 percentage points=7-8 dwelling units per acre
SO- 90 percentage points=8-9 dwelling units per acre
90-100 percentage points=9-10 dwelling units per acre
100 or more percentage points= 10 or more dwelling units per acre
2. DOES THE PROJECT EARN AT LEAST 40 Yes No�. N/A
PERCENTAGE POINTS AS CALCULATED
ON THE FOLLOWING"DENSITY CHART H"
FROM BASE POINTS?
isLand Development Guidance System for Planned Unit Developments. The City of Fort Collins,Colorado.
Revised as per Ordinance No.2, 1996.
S
Criterion Maximrm- .. EarnNew
ed
deli! Credit
$ 2000faadmautmgmghbadnod sm%imomtaraamighhor6 Wsavimcedwtobe
paposd to be constructed h mmfinetedra
wig be coo (Iftheasa pal muhip phases,mch neighborhood serving ee� 30%
nmt 6e aonstnrotad r a part ofthe plait fa which approval is sough.)
b 650 red ofined"09 err@stop(,ppiins"sonlybPujaft having a density arst sad six 161dwaRmgunits 20%
par
a an a groat aomp be&) .
C +ono fact of an aaiatmg oo®mdy/ayonal shopping miner,a•ons eamLLyhegimai Shopping camato be 10%
constructed as a pad of ma project (If the paled is pmpmd le be omsh dad hi=*iple ph,,,,each
Omm=kY**gimg aI I i gomtwaombemc*uckdraptdffiephase&r bkhappm'dissought)
3300"afanedstogneWahoodaoo®mdypk a a mozeemHy f aip.(E UT()OLP pg� 20X
a
d 3500 fed of it pubiiely owned,but not davelaped,neighborhood or comn oky pork,a
(EXCEFr GOLF COURSES)cr , o'==Mitrficility 10% I
3500 fat ofapnbRay owned golfeourse,w6d6rdeatapedanet
e 2500 fed ofan existing scbneCmatmgautequumrdaaftheStateafCDkra& ,MpuharyedMWMIM 10%
�0 f 3000 fat of m exirtirrgmajorempiolmrataaRa,aamla®PbYmmtoentermbe constructed aa part of,hepmjed (tribepojedispropaaedtobeconstructedinmlwplephases,suchmajaawloymegcemerHaut 20%
F:q be constnicled r a pad of the phase At which approval is son
shopping tom) No busldmg,o�ae a 6uamm park.a
S pping caster which has sawed as the bans for the chiming of credit undo say other-bass-aifaia of this
ea: Dasity Chat m also be usads the bashfa claiming aadrtunderthi,aeeiao.
�`� �o`.�{'a.� 1000 kit ofinexisting ahi7d ore aoter,aadrild mro cauato is coomuctedua the t Wd predict. (if the 5%
as, g ah � �omenrated;muhiple phun,urda alvla ore cesncnwC be constructed as a pad ofthe
"North Fort CoMme Zo%
p .{ I Ilse Central 11udm District
& 20%
A project whose.: boundary is cootiguaus to Caning urban level opmeN. Credit may 6e awned as follows: 30X
popatybamdaryhu 0-10%aomigukr
0% Fa pojaCs whoa
10-I5% For prgmu whore property boundary has 10-20%mmiguity,
15-20X Fameiats whose mooaty 6amd.ry has 20-30%mai.i
�20 2516 Fa pgeaa property .... ..an_40%�.. �n
r srwrae jxiyD
r.l— popatyooTmaaay steno 30%000TiguTry [�
ICiheproject contains dwelGug voila ad adder for is6viduala aumog 20%or lm ofthe medico inoome of 13X
rridema,u adjusted for family dn;,and prying kit then 30%artheir gaoa mmms fa housing mduddiw
k [kitr�aaladsteths peroaA+ge of AQordabh Dwdliog Hobs to We total mmba (�
ofdweHna pojertand erderthan peruedwieptoamsximrmofIm (Lfthepojectispropeed
to bloo pp�'d uaedh mduphphaa;the ATmdabh Dwelft Units mist be mndnufad as a pad ofthe phase f r
of��drali gh.) Inadarohwmd dwAffand"DwauiogL%h mamaffwd&WfaapwW
Sae.2S-5 yase,we dewlaperdrgraoad rrh prataaive aownemsrmayhs mquieed by the Cdyuoder
26())(4} 11 q
MYQg Darned
.... •. Credit
fitmbe dmmtotdthat daptujed will reduce n0o4mewabb
1 sY+t+ms err lhraugln aa®ined energy exrserveim measutn be)oOmee tearmally tequ;ed by as S%bums maybe
nand for+t'erY 3%re3reiat m ener�rtre.
$ CalerrWea 1%bum far every So sera included!in the project
,
II CalmWetbeperastage oftbe total acres in the px&d ihataee devoted to mandoat use. FugavSSaifth+tperou"Pasabomt
5e�
0 If the applicant aammtl eem
a to preserving paurar ofyae open space that mom the
Ferom+BeON"open W ersm space age to the total development acoage and eater this petexatage a abcome. utti nlerrlafe the
Apart ofthe total development budget istobe spot m neighborhood publictramtSn7itiawhichusenotrequiredbyCtyCode,
P color 2%hams for every ft00 pordwdUng uo@mvtead•
Q Cade me 1%�bamfor idopmot ngdprt;kbe spot mneighbarhoodfic0itin and
services wbicitam not otherwise requiredbyCity
every Sloo per,dwelling Unit invested.
0' Ifthepraject dwdlerguom seaside far individuate caning goxerlean ofthe medico incorrect
A or family size,end paying Ies than 30%of their CtYrmdent+.ash
r �� Om income for homing including mileis rABadabb Dwelling Vans"}
+r :'3; P�+6a ofafadabk l)welling[)nCabdes tatalm,her ofdwellmg mite m the Project and enter the
saboom.uptcamardmanaf15% (IfMoProjectisproposedtobecuouuctedm le �Uoits
mwntbeeommxtdaapenofdx Pbmfwwhich meth dice.the Afaedable Dwelling
+PPro"+d is smart.) Ice erderk®me the the Affordabk Dwelling Units remain
affQ*WFxN<5 under xS ap=6(]X4}hodafnet ku than 25 years.the developershall socts suchprot, "covenantsumaY he required by the City
;.ax. 7fa commitment is being nude to develop a specified percentage ofthe total nhusber ofdwvdling icing for
k! handicapped housing udefioed by the City ofFae Collins,calculate the boom as follows: Typ0"A"�
"��' S Type"A" .J x Tvoe"A"Units
. Total Units
Inmcareshallthecombioedboombevcuwd n30%
¢ Type"H^ 1.0 x Tvex"8^Uning
c
Total Units
If thesite aadjao�Property contains a historic buildmgaplece,a berm may be nod far the following:
3% Fa preventing err mitigating outside find', a adverse to its preservation(e.
f exeoomic and soc,l facxarsk i em'vo®ent+4 land mar.aeralhetiq
3% Qaatamgthe m a newuou w0l be in keeping with the character of the budding or il place,while avoiding tow Units;
..^`..kie prig dq*veum ofthe building or place that well lead to its continuance, �man
appropriate� Ixeaervation and improvement uapardonr fmaterlreedpad®gindxon hiplefam7 P P Ysojee; m v idd rmdergtomd,with dss a iarmanakvated
U wrking m+weraome aaanacueaery use to the Primary a berm may be earned a follower
9% For providing75%or more ofthe puking structure;
sfu
% Far providing 50-74%ofthe parking m a structure;
3% For providing 25-49%afthe parking in amuc4ue.
V caa>�ratibmhgmdempovide,ppovd•••••� firo c3diAll"�systems forthe dwelling using,enter a bonus of l0%
`ssa
;' s� Ifthesppliontoamoningkprovidmg adequate,safe and oommimt
W ofthe distinction paints described below.calculate the boo an All s i� cycle am between the project and any
w ;
5% Fa acme k0xncucdexistmg CitysidewAmd pdh0ang /
,.."....... stop dsstaocea a defined in this Density mark
erctmectrngkaay
3% For connectme tn.existing City bicvcie avl which is ndi,cot to crtrawersn the '
TOTAL "
KAUFMAN ® BROAD
January 5, 2001
Mr. Glen Colton
Chairman
Planning and Zoning Board
City of Fort Collins
PO Box 580
Fort Collins,CO 80522-0580
Subject: Request for Variance
Provincetowne PUD Filing H,Affordable Housing Component
Dear Mr.Colton:
1. This Request for Variance is filed on behalf of Kaufman&Broad Homes, hereinafter the
"Applicant",pursuant to Article H, Section 29-526, Paragraph K of the City of Fort Collins
Land Development Guidance System (LDGS). This is a request for a variance from Article
II, Section 29-526 Density Chart H (r). The Applicant is proposing to construct for sale
. townhomes that will be priced as Affordable Housing and would be deed restricted for 25
years. The Applicant specifically requests a variance from the "30%" provision in the above
stated section "r" and requests that this percentage be amended to "38%".
2. The LDGS provides a density bonus to the developer that builds affordable units. An
affordable unit is one which is priced such that the housing cost, including utilities, for
individuals with incomes of 80% or less of the Area Median Income (AMn for Fort Collins
is less than 30% of that amount. The LDGS doses not recognize any difference between for
rent and purchase units in calculating the maximum monthly housing amount. Additionally,
all costs including utilities, insurance,mortgage insurance and HOA dues must be included
in the maximum amount
3. The Applicant purchased the subject from its predecessor in 1997, subject to a contract for
purchase dated April 1996. At that time, development of the property was subject to the
Land Development Guidance System,utilized by the City of Fort Collins before the
adoption of the current Land Use Code in March 1997.
4. Following the replacement of the LDGS in 1997 with the Land Use Code,the City adopted
a new policy that recognized a difference between rental units and for sale units. While
retaining the 30%for rental units the City's Advanced Planning Department now permits
38% to be used for sale units. This change recognizes that in the case of for sale units
several other costs are often included in mortgage payments or other mandatory payments
. that are not commonly included in the case of a rental unit. It is recognized that the failure
to increase the allowable percentage would result in less dollars being available to pay the
principle and interest in the case of for purchase units, and therefore result in the buyer
purchasing less house than they could in relation to a comparable rental.
KAUFMAN AND !ROAD OF COLORADO, INC.
$401 EAST 9ELLEVIEW AVENUE SUITE 200 DENVER. COLORADO SU237 TEL 302.220.6000 VAX 303.773.1O30
Request for Variance
Provincetowne PUD Filing H,Affordable Housing Component
Page 2
5. Because the LDGS does not recognize a difference between rental and purchase units,the
result is to penalize the purchaser because their purchase dollar does not buy as much as the
comparable renters. The City's current policy has corrected this inequity.
6. The Applicant is committed to providing affordable housing to the city,however,the use of
30%versus 38%is such a substantial difference that it makes it impossible for the Applicant
to build and price this product in any fiscally responsible manner.
7. The City has recognized the financial difference between rental and for sale units and has
endorsed the use of 38%in the case of for sale units.
8. The City has identified a need for affordable housing and has adopted a plan to increase the
stock of affordable housing in the city. The Applicant's proposal is an important part of that
plan, and has been from the original sale of the property to the Applicant's predecessor.
Therefore, the Applicant hereby requests a variance based on Paragraph K (4) of the LDGS. The
granting of the variance from the strict application of the provision will result in a substantial benefit
to the City by reason of the fact that the proposed project will help satisfy a community need
(affordable housing) and that the strict application would render the project practically infeasible.
Respectfully submitted,
Glenn Nier
Kaufman&Broad Homes
cc: Cameron Gloss,AICP,Director of Current Planning
Steve Olt,City Planner
Maurice Head,Affordable Housing Planner
John Duval,Deputy City Attorney
JAN-18-2e01 18:14 K&B LEGAL 303 770 9052 P.02/25
yes {EE{
d .E
e{r
PROVINCETOWNE
AFFORDABLE HOUSING PLAN
THIS AFFORDABLE HOUSING PLAN("Plan'l is made effective as of
2001,by KB HOME COLORADO INC.,a Colorado corporation,
formerly known as Kaufinan and Broad of Colorado,Inc.("Developer'l, as owner of a portion
and option holder as to the retraining of a portion of the real property legally described on
Exhibit A attached hereto and incorporated herein by this reference(the"Pmperty'l.
RE�ALS
A. Pursuant to that Agreement of Purchase and sale of Real Property dated April 2,
1996, as amended ("Agreement'),by and between The City of Fort Collins, Colorado, a
municipal corporation C City'l, as Seller,and Developer, as Buyer,the City previously sold a
portion of the Property to Developer commonly]mown as Filing No.2 and the Developer holds
an option to purchase the balance of the adjacent property,to be]mown as"Subsequent Filings."
Collectively,Filing No. 2 and Subsequent Filings consist of a mixed-use commercial and
residential community commonly known as"Provincetowne,"
B. Pursuant to the Agreement and to the PUD Plan for Provincetowne("PUD'%
. Developer has agreed that at least thirty percent(30%)of all residential units to be constructed in
the Property be built as affordable housing units and that said units be restricted to remain as
affordable housing for twenty-five(25)years,all as more particularly described in this Plan.
C. Developer desires to submit this Plan with respect to the implementation of the
covenants creating affordable housing units within the Property, and the City has reviewed this
Plan and by signature below acknowledges its approval of the same.
NOW,THEREFORE,Developer hereby submits the following plan.
1. Affordable Housing Units. Developer will construct within the Property thirty
percent(305/6)of the total residential units finally approved for construction on the Property as
units that are designed to be affordable(the"Affordable Units'), in satisfaction of the Agreement
and the PUD. The obligations of Developer contained herein may be satisfied in part by the
construction of Affordable Units within the Property by Developer or by persons or entities to
whom Developer conveys any portion of the Property. An Affordable Unit is one which the
purchase price does not exceed the Maximum Purchase Price as determined herein and in the
Master Covenant and is one which is sold only to an Eligible Buyer.
2. Location and Designation of Affordable Units.
a. Units. Filing No.2 consists of three hundred thirty-one(331)residential
units. One Hundred Forty-One(141)of those units shall be restricted as Affordable Units
1
1:11.ege11WP1TLETrovincetowne Affordable Housing Plonv9.doc
JAN-SB-2001 10:14 K&B LECdq- 303 770 9052 P.e3i25
("Filing 2 Affordable Units)and shall be separately subdivided condominium units•Exhibit B to
this Plan contains a list of the lots within Filing No.2 on which the Filing 2 Affordable Units
will be built.As the number of Affordable Units contained in Filing No. 2 exceeds thirty percent
(300/9)of the total number of residential units in Filing No.2,the balance of the required
Affordable Units for the Property("Remaining Affordable Units")shall be determined by
multiplying the total number of residential units approved in the Property times thirty percent
(30%) less the 141 Filing 2 Affordable Units. The location of the lots in Subsequent Filings on
which the Remaining Affordable Units are to be constructed("Remaining Affordable Units")has
not yet been identified. The authority to identify the location of the Remaining Affordable Units
within Subsequent Filings is hereby granted to Developer upon notice and consent of the City or
its designee,which consent will not be unreasonably withheld by the City,provided that
Developer complies with the Agreement,the PUD and this Plan.Upon request of the Developer,
the City shall execute and deliver a recordable releases)for lots in Filing No. 2 and Subsequent
Filings which are designated as being lots on which Affordable Units will not be constructed.
b. Covenants. Simultaneously with the creation of each Affordable Unit as a
separately subdivided parcel of real estate,by recording of a condominium map or otherwise,
and prior to sale or contract to sell,Developer will subject each Affordable Unit to a recorded
covenant in the form as attached hereto as Exhibit-C and incorporated herein by this reference
("Master Covenants"). In the event no Affordable Unit is required on a particular lot,a
Memorandum signed by the Developer and the City evidencing the same recorded in lieu of the
Master Covenants will effect a full release of all units and property comprising such lot from the
provisions of this Plan. A copy of such Master Covenants or Memorandum,as is applicable,"
shall be provided to the City promptly following the recording of same by the Developer in the
real property records of the County of Latimer,Colorado.
3. des.
a. Marketina/Sales. The Developer will market the Affordable Units to
specific demographic groups within the City and sell the Affordable Units to only`Eligible
Buyers"as defined in l.a of the Master Covenants. Criteria and process for choosing buyers of
the Affordable Units with respect to sales to Developer's homebuyers shall be as required in the
Master Covenants. In the event more than one such Eligible Buyer is interested in purchasing
the same Affordable Unit,Developer,in cooperation with the City,may consider other criteria
designed to further the goals of the Plan(i.e., gross assets)in choosing a buyer,may elect a
lottery process, or may implement another equitable election procedure(i.e., first come, first
served). Marketing of the Affordable Units may include,but not be limited to,first-time
homebuyer seminars.
b. Sales Price The conveyance of each Affordable Unit by Developer or
subsequent sellers to a purchaser shall be for a purchase price which does not exceed the
Maximum Purchase Price as set forth in the Master Covenant. In the event Developer conveys
an Affordable Unit for a sales price less than the Maximum Purchase Price and Developer is
required to pay any commission to transactional or buyer real estate agents or brokers upon the
sale of any Affordable Unit,Developer may increase the purchase price for the sale by the
amount to be paid to such real estate agents or brokers in connection with such sale,provided the
2
r:LLegaIMPMETrovineetowne Affordable Homing Planv%doc
JPN-16-2001 18:15 K&B LEGPL 303 770 9052 P.04/25
. total of the purchase price and any commission does not exceed the Maximum Purchase Price
and the commission does not exceed 3%of the Purchase Price. The sales price for a two
bedroom Affordable Unit has been based upon the Eligible Buyer's, as defined in the Master
Covenants,total income equaling the 3 persons Median Income in Fort Collins for the year 2000
as determined by the U.S.Department of Housing and Urban Development Income Limits
("HUD')and the sales price for a three bedroom Affordable Unit has been based upon the
Eligible Buyer's total income equaling the 4 person Median Income for Fort Collins for the year
2000 as determined by HUD. The Developer may increase the Maximum Purchase Price for
each such sales with respect to sales occluting in the year(s)following the year of this
Agreement by the increase, if any, in the 3 person and 4 person,respectively,Median Income for
the City of Fort Collins as determined by the HUD for the year in which the closing of the sale
actually occurs.
C. Certification.'Prior to closing, each Eligible Buyer shall present to the
Developer a certification obtained from the City confirming that the buyer is an Eligible Buyer.
4. Miscellaneous.
a. Binding Effect This Plan shall be binding upon and inure to the benefit of
Developer and the City and their respective successors and assigns.
b. Entire Plan. The Agreement, as modified and amended,and this Plan,
together with any exhibits or documents referred to in or supplied pursuant to the terms of this
• Plan(all of which are incorporated in this Plan by this reference),contains the entire affordable
housing plan relative to Provincetowne and supersedes any and all prior oral representations,
covenants,understandings,memorandums or other agreements between the parties or their
agents.
C. Conveyance of Lots. The City aclmowlcdges that Developer may convey
certain parcels of property within Provincetowne to others for development, and that, in the event
of such conveyance,the new owners of the conveyed parcel shall become solely responsible for
Developer's obligations and all requirements under this Plan with respect to such parcels of
property conveyed in the event said parcels are not released from this Plan.
d. Section Headings. The section headings are inserted only for convenient
reference and do not define, limit or prescribe the scope of this Plan.
e. Governing Law. This Plan shall be construed under the provisions of
Colorado law.
f. Severability. If any terms, covenants or provisions of this Plan shall be
illegal or unenforceable for any reason,the same shall not invalidate any other terms,covenants
or provisions, and all of the remaining terms, covenants and provisions shall remain in full force
and effect.
3
IN.sgaMPMETrovineewwne Affordable Housing Planv9.duc
;AN-18-2001 18:15 K&B LEGAL 303 770 9052 P.05/25
g, AMZKW= This Plan may be amended,modified or rescinded only in
writing as executed by Developer and the City.
h, Assi All obligations arising under this Plan shall burden
Developer as provided herein and its successors and assigns. All rights of Developer and the
City as provided herein shall inure to the.benefit of Developer and the City and their respective
successors and permitted assigns,as follows:
(i) It is contemplated that the City may sometime in the future assign
its enforcement rights under this Plan to a designee or to-be-formed entity which has as its
primary purpose the development or management of affordable housing projects in the City or is
otherwise qualified to undertake the responsibilities described in this Plan. Any such assignment
shall be in writing delivered to Developer, and the assignee so named in such instnunent shall in
all instances.replace references to the City in this Plan and in the attached Master Covenants.
(ii) Developer may assign any of its rights under this Plan to an
assignee specifically delegated in a writing executed by Developer and approved in advance by
the City.
EXECUTED on the dates shown below.
DEVELOPER
KB HOME COLORADO INC.,
a Colorado corporation,formerly known as
Kaufman and Broad of Colorado,Inc.
By:
Title:
Date-
4
1AL*ge VMTLS\Pmvin=to c Affordable Housing Pta vM=
JPN-18-2001 18:15 K&B LEGPL 303 770 9052 P.0625
ACCEPTANCE BY THE CITY OF FORT COLLINS, COLORADO
The foregoing Provincetowne Affordable Housing Plan,and its terns are hereby
approved, agreed to, adopted and declared by the City of Fort Collins, Colorado
THE CITY OF FORT COLLINS,COLORADO,
a municipal corporation
By:
Title:
Date:
s
I:LLegaMPMETrovinomowne Affordable Housing Planv9.doe
JHN-18-2001 18 15 K&B LEWL 303 770 9052 P.07i25
EIMIT A
LEGAL DESCRIPTION
(see attached)
6
l:LLega1\WP\TLETrovincewwne Affordable Housing Planv9.doc
JAN-18-2001 18:16 K&B LEGAL 303 770 9052 P.08i25
EXHIBIT B
INITIAL PLAN OF AFFORDABLE HOUSING UNITS
The lots and buildings described hereinafter refer to that certain subdivision map for
Provincetowne Filing No.2,to be recorded in the real property records of Larimer County,
Colorado on or after the date hereof
Filing 2 Affordable Units
Number of
Block Building Residential Units*
3 1-12 48
2 13-18 27
1 19-34 66
Total 141
7
1:\Le8VAwP\TLMProvinoetowne Affordable Housing Planv9.doc
JAN-18-2001 18:16 K&B LEGAL 303 770 9052 P.09/25
EDIT C
MASTER COVENANTS
(See attached)
8
I:XUg NWP1TLE%Provineetowne Affordable Housing Planv9.dac
JAN-18-2001 18:16 K&B LEGAL 303 770 9052 P.10i25
MASTER COVENANT
FOR THE OCCUPANCY AND RESALE OF
UNITS ,PROVINCETOWNE
THIS MASTER COVENANT FOR THE OCCUPANCY AND RESALE OF UNTTS
Provincetownc(the"Covenant')is made and entered into this
day of 2001,by KB HOME COLORADO INC., a Colorado
corporation,formerly known as Kaufinan and Broad of Colorado,Inc. (the"Declamfl,and
enforceable by the CITY OF FORT COLLINS, COLORADO,a municipal corporation, or its
designee(the"City' .
WITNESSETH:
WHEREAS,Declarant owns the real property described as follows:
Condominium Units Provineetownc,according to the
Condominium Declaration for Provincetowne recorded in Book
_at Page.under Reception No. and the
Condominium Map of Provincetowne recorded in Book at
Page_,under Reception No. .in the real
estate records of the County of Larimer,Colorado.
(collectively,the"Affordable Units"and each such unit, individually,an"Affordable Unit').
WHEREAS,Provincetowne is subject to a certain Provincetowne Affordable Housing
Plan dated .2001 by Declarant to the City(the "Affordable Housing Plan')
and Declarant has executed and recorded this Covenant in satisfaction of its obligations with
respect to Provincetowne arising under the Affordable Housing Plan.
WHEREAS,Declarant agrees to restrict the acquisition,resale or transfer of the
Affordable Units to Eligible Buyers as that term is defined in this Covenant. In addition,the
Declarant agrees that this Covenant shall constitute a resale restriction setting forth the
Maximum Purchase Price for which each Affordable Unit may be sold,the amount of
appreciation and the terms and provisions controlling the resale of the Affordable Units should a
subsequent owner of an Affordable Unit desire to sell his or her interest in the Affordable Unit at
any time after the date of this Covenant. Finally,by this Covenant,the Affordable Units shall be
restricted against use and occupancy inconsistent with this Covenant.
NOW, THEREFORE,for consideration hereby acknowledged by Declarant,Declarant
hereby represents,covenants and declares as follows:
1. Definitions. The following terms shall have the following meanings when used in
this Covenant:
9
1ALegaMPMETrovincetowne Affordable Housing Planv9.doc
JAN-18-2001 18:16 K&B LEGPL. 303 770 9052 P.11/25
a "Eligible Buve�'means a natural person,family or household with a(1)
Maximum Gross Annual Income that is no more than 80a/o of the Area Median Income for Fort
Collins, and(2) whose proposed Monthly Housing Expense(s)(principal, interest, taxes,
insurance,utilities,HOA expense)for a Maximum Loan at the Market Interest Rate does not
exceed 38%of the Maximum Cross Annual Income adjusted to a monthly income. This
definition of Eligible Buyer is to be used solely to calculate the maximum income level of buyers
eligible to purchase an Affordable Unit and shall not be construed as in any way limiting the type
of lending program or loan terms(except that such terms or conditions shall not be predatory)
which an Eligible Buyer may accept to finance the purchase of an Affordable Unit. A person,
family or household who at the time of purchase qualified as a Eligible Buyer shall continue to
be deemed so qualified until such time as the Affordable Unit is Transferred. The following is
the method of determining an Eligible Buyer and a hypothetical example of the determination of
the Maximum Purchase Price,based on the identified assumptions and estimates:
Exa=ls
1, Maximum Annual Gross Income of Elieible Buyer The Area Median Income
((("AMP)as determined by U.S.Department of Housing and Urban Development Income Limits
—Year 2000 3 person Household=$50,687.40 x 80%_$40,549.92
2. Monthly Housing Expense: 38%($40,549.92+12 x.38)-$1,284.08
Assumvtions:
Initial Sales Price
2 Bedroom Unit: $ 127,724.80
Loan Amount(97%): S 123,893.05
Interest Rate: 8%
Monthly Housing E392M s:
Monthly Principal and Interest: $909.08
Est.Monthly H.O.A.Dues 60.00
Est. Gas 50.00
Est.Property Insurance 25.00
Est.Water and Sewer 30.00
Est.Monthly Real Estate Taxes 130.00
Est. Monthly Electrical 35.00
Est.Private Mortgage Insurance 45_00
Total : $ 1,284.08 Monthly Housing Expenses
to
1:U.cgd\WP\TLE\Provincetowne Affordable Housing Plaav9.doc
JAN-18-2001 18:16 K&B LEWL 303 770 9052 P.1225
. b. "Market Interest Rate"means the Fannie Mac yield on 30-year mortgage
commitments(priced at par)for delivery within thirty(30)days,rounded up to the nearest.125
of 1.00% as of the first business day of the month(printed in the Wall Street Journal).
C. "Maximum Gross Annual Income"means no more than 80% of the Area
Median Income for Fort Collins as determined by the U.S.Department of Housing and
Development Income Limits CMUD'I. Income shall mean the pre-tax income from all
acceptable sources as defined in the Fannie Mae Seller/Servicer Guide which income shall be
verified in one or more of the following methods:
i. Obtain two(2)paycheck stubs from the proposed Eligible Buyer's
two(2)most recent pay periods.
ii. Obtain a true copy of an income tax return from proposed Eligible
Buyer for the most recent tax year in which a return was filed.
iii. Obtain an income verification from the employer of the proposed
Eligible Buyer.
iv. Obtain an income verification certification from the Social
Security Administration and/or the Colorado Department of Social
Services if the proposed Eligible Buyer receives assistance from such
agencies.
V. Obtain an alternate form of income verification reasonably
requested by the City.
d. "Maximum Loan"means 97%of the purchase price for the applicable
Affordable Unit.
e. "Owner"means the Declarant and any subsequent buyer, devisee,
transferee, grantee, owner or holder of title of any Affordable Unit.
f. "Proposed Monthly Housing Expense"means the monthly total of the
principal and interest, private mortgage insurance,homeowners association dues, 1/12th of
estimated real property taxes and estimated gas,property insurance, water and sewer and
electricity expenses.
g, "Trans means any sale, assignment or transfer that is voluntary,
involuntary or by operation of law(whether by deed, contract of sale,gift, devise,bequest,
trustee's sale, deed in lieu of foreclosure,or otherwise)of any interest in an Affordable Unit,
including,but not limited to a fee simple interest, a joint tenancy interest,a tenancy in common,
a life estate, or any interest evidenced by a land contract by which possession of an Affordable
Unit is transferred and the Owner obtains title.
h. "Acouisition Date"means the date of Transfer of an Affordable Unit.
• II
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JPN—ie-2oei 18 17 K8B LEGAL 303 770 9052 P.13i25
i. "Contract Date"means the date of contract for the proposed Transfer of an
Affordable Unit to a new Owner.
2. Transfer Subject to Covenant Declarant and each subsequent Owner of each of
the Affordable Units hereby covenants and agrees that the Affordable Units shall be used,
occupied and Transferred strictly in conformance with the provisions of this Covenant for so
long as this Covenant remains in force and effect with respect to each such Affordable Unit
Each Owner who takes title from Declarant and every subsequent Owner of each Affordable
Unit shall execute and record the Memorandum of Acceptance attached hereto as Exhibit A
(completed with the appropriate information relating to the Affordable Unit and such Owner)
with such owner's deed to his or her Affordable Unit in the real property records of the County
of Latimer, Colorado.
3, UM and Occupancy. An Owner(other than Declarant), in connection with the
purchase and ownership of an Affordable Unit,must:
a. occupy the Affordable Unit as his or her sole, exclusive and permanent
place of residence during the time that such Affordable Unit is owned by such Owner. A
permanent residence shall mean the home or place in which one's habitation is fixed and to
which one,whenever he or she is absent,has a present intention of returning after a departure or
absence therefrom,regardless of the duration of the absence. In determining what is a permanent
residence, the following circumstances relating to the Owner shall be taken into account:
business pursuits, employment, income sources,residence for income or other tax purposes, age,
marital status,residence of parents,spouse and children,if any,location of personal and real
property, and motor vehicle registration;
b. not engage in any business activity on or in such Affordable Unit, other
than permitted under applicable zoning ordinances and the condominium declaration governing
the Affordable Unit; and
C. not permit any use or occupancy of such Affordable Unit except in
compliance with this Covenant during the period of such Owner's ownership of the Affordable
Unit.
4. Maximum Purchase Price, Every Transfer of an Affordable Unit by Declarant or
subsequent buyers to a purchaser shall be for a purchase price which does not exceed the
Maximum Purchase Price as set forth herein and in the Plan.The Maximum Purchase Price shall
be the maximum amount which an Eligible Buyer can finance with a 30-year,97%loan at
Market Interest Rate (as defined herein). In the event Developer conveys an Affordable Unit for
a sales price less than the Maximum Purchase Price and Developer is required to pay any
commission to transactional or buyer real estate agents or brokers upon the sale of any
Affordable Unit, Developer may increase the purchase price for the sale by the amount to be paid
to such real estate agents or brokers in connection with such sale,provided the total of the
purchase price and any commission does not exeeed the Maximum Purchase Price and the
commission does not exceed 3% of the Purchase Price. The Sales Price for a two bedroom
12
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Affordable Unit shall be based upon the Eligible Buyer's total income equaling the 3 persons
Median Income in Fort Collins for the year 2000 as determined by the U.S.Department of
Housing and Urban Development Income Limits("HUD')and the Sales Price for a three
bedroom Affordable Unit shall be based upon the Eligible Buyer's total income equaling the 4
person Median Income for Fort Collins for the year 2000 as determined by the HUD. Each such
sales price is subject to increase with respect to sales occurring in the year(s)following the year
of this Agreement by the increase,if any,in the 3 person and 4 person, respectively, Area
Median Income for the City of Fort Collins as determined by the HUD for the year in which the
closing actually occurs.
5. Maximum Purchase Price.
a. A selling Owner shall not permit any prospective buyer to assume any or
all of the selling Owner's customary closing costs nor accept any other consideration which
would cause an increase in the purchase price above the Maximum Purchase Price, and all such
additional consideration, in any form,shall be considered by the City when determining whether
the purchase price for the Affordable Unit exceeds the Maximum Purchase Price.
THE MAXIMUM PURCHASE PRICE IS ONLY AN UPPER LEWT ON PRICE
APPRECIATION FOR EACH AFFORDABLE UNIT,AND NOTHING HEREIN SHALL
BE CONSTRUED TO CONSTITUTE A REPRESENTATION,WARRANTY OR
GUARANTEE BY THE DECLARANT OR THE CITY THAT UPON TRANSFER THE
OWNER SHALL OBTAIN THE MAXIMUM PURCHASE PRICE. FURTHER,
NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PREVENT AN
OWNER FROM SELLING A UNIT FOR LESS THAN THE MAm UM PURCHASE
PRICE.
6. Transfer of Affordable Unit.
a. In the event that an Owner desires to sell the Affordable Unit owned by
such Owner,the Owner shall provide notice to the City of such Owner's intent to sell at least ten
(10) days prior to engaging a broker to list the Affordable Unit for sale. The City may keep a list
of interested purchasers and may provide same to any selling Owner in the City's discretion.
b. After providing the notice required in Subsection 6.a,the selling Owner
may list the Affordable Unit for sale with a real estate agent licensed in the State of Colorado or
the selling Owner may market the Affordable Unit as a so-called "for sale by owner,"and may
enter into a contract for the sale of the Affordable Unit upon such terms and conditions as the
selling Owner shall, in the selling Owner's sole discretion, deem acceptable, provided,however,
that:
(i) the purchase price shall not exceed the Maximum Purchase Price;
the selling Owner must believe in good faith that the purchaser is
an Eligible Buyer and that the purchase price does not exceed the Maximum Purchase Price; and
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(iii) the contract must state as a contingency that the purchaser will
submit the application described in Subsection 6.c below to the City within three(3)days after
contract acceptance,and that the selling Owner's obligations under the contract are expressly
contingent upon the City's determinA on that the purchaser is an Eligible Buyer and that the
purchase price does not exceed the Maximum Purchase Price as evidence by issuance of the
Certificate described in Subsection 6.c below.
o. Within three(3)days after contract acceptance (defined as the date of last
execution of the contract by the purchaser or the selling Owner),the purchaser shall complete
and submit an application form to the City requesting a determination that the purchaser is an
Eligible Buyer and that the purchase price does not exceed the Maximum Purchase Price. The
City shall promulgate the form of such application,which shall request only such information as
is necessary to determine whether the purchaser is an Eligible Buyer and whether the purchase
price exceeds the Maximum Purchase Price. The City shall make its determination within five
(5)days for sales by Declarant and within fourteen(14)days in the event of any other sale after
receipt of the completed application,as evidenced either by(A)the issuance of a certificate,
signed by the City and in recordable form,stating that the purchaser is an Eligible Buyer,the
amount of the purchase price and that the purchase price does not exceed the Maximum Purchase
Price(the"Certificate');or(B)delivering a notice to seller and purchaser that a Certificate
cannot be issued and stating the reason(s)therefor. Failure by the City to make its determination
and deliver the Certificate or the notice as described above within the applicable 5 or 14-day
period will be deemed an approval of the purchaser and the purchase price,and the City shall
thereafter issue a Certificate with respect to the transaction immediately upon request therefor by
the selling Owner or the purchaser. Delivery of the Certificate shall not be construed as a
representation or warranty that the Eligible Buyer will in fact qualify for purchase money
financing for the acquisition of the Affordable Unit.
d. Upon the Transfer of the Affordable Unit,the Certificate shall be recorded
by the Eligible Buyer in the real estate records of the County of Larimer,Colorado, along with
the deed for the Affordable Unit,and if the Certificate is not so recorded,then the Transfer shall
be voidable at the option of the City.
7. No Rental of Affordable Units. An Owner may not rent or lease such Owner's
Affordable Unit for any period of time. The requirements of this Section shall not preclude an
Owner from sharing occupancy of the Affordable Unit with non-owners on a rental basis
provided Owner continues to reside in the Affordable Unit and to meet the obligations contained
in this Covenant.
8. Remedies in the Event of Breach.
a. In the event that the City has reasonable cause to believe that an Owner is
violating the provisions of this Covenant,the City,by its authorized representative,may inspect
the Affordable Unit owned by such Owner between the hours of 8:00 a.m. and 5:00 p.m.,
Monday through Friday,after providing such Owner with no less than twenty-four(24)hours
advance written notice.
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. b. In the event a violation of this Covenant is discovered,the City shall send
a notice of violation to the Owner detailing the nature of the violation and allowing the Owner
fifteen(15)days to cure such default. Said notice shall state that the Owner may request a
hearing before the City within fifteen(15)days to determine the merits of the allegations. If no
hearing is requested and the violation is not cured within the fifteen(15)day period,the Owner
shall be considered in violation of this Covenant. If a hearing is held before the City,the
decision of the City based on the record of such hearing shall be final for the purpose of
determining if a violation has occurred.
C. There is hereby reserved to the City the right to enforce this Covenant,
including any and all remedies provided by law for breach of this Covenant or any of its terms,
including,but not limited to,disgorgement of profits received by the selling Owner over the
Maximum Purchase Price, specific performance of this Covenant, and/or a mandatory ir;junction
requiring sale of an Affordable Unit by the Owner thereof. The costs of such sale shall be
assessed against the proceeds of the sale with the balance being paid to the Owner. In the event
the City resorts to litigation with respect to any or all provisions of this Covenant and the City
prevails,the City shall be entitled to recover damages and costs,including reasonable attorneys'
fees.
d. In the event any Affordable Unit is transferred in a manner that is not in
tall compliance with the terms and conditions of this Covenant,such Transfer shall be wholly
null and void and shall confer no title whatsoever upon the purported transferee. Each and every
Transfer of an Affordable Unit,for all purposes,shall be deemed to include and incorporate by
this reference the covenants herein contained,regardless of reference therein to this Covenant.
9. Release of Covenant in Foreclosure, City's Option to Buy.
a. The City,pursuant to the process and rights described in Subsection 9.b
below(the"Option to Buy'), shall release this Covenant of record and waive its ability to
enforce the provisions of this Covenant with respect to a particular Affordable Unit in the event
of foreclosure or the acceptance of a deed in lieu of foreclosure with respect to such Affordable
Unit by a holder of a first priority deed of trust against the Affordable Unit(the"First Lien
Holder') (which shall be the only party entitled to take the Affordable Unit free of this Covenant
pursuant to the provisions of this Section 9),provided that the First Lien Holder taldng title to
such Affordable Unit by foreclosure or acceptance of a deed in lieu of foreclosure,pursuant to
the terms and conditions of the Option to Buy,grants to the City,the option to acquire the
Affordable Unit within thirty(30)days after conveyance of title to the Affordable Unit by public
trustee's deed or deed in lieu of foreclosure. In such event that the City or its designee exercises
its Option to Buy and acquires a particular Affordable Unit the City or its designee may sell the
Affordable Unit to Eligible Buyers, or rent the Affordable Unit until such time that the
Affordable Unit can be sold to an Eligible Buyer in accordance with this Covenant.
b. In the event of(A)a foreclosure by the First Lien Holder(including
assigns of the First Lien Holder), and subject to the issuance of a public trustees deed to the First
Lien Holder following the expiration of all statutory redemption rights,or(B)the taking by the
First Lien Holder of title to the Affordable Unit by deed in lieu of foreclosure and the giving of
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JHN—ie-2om ie:ie K&B LEGAL 303 770 9052 P.17/25
notice by the First Lien Holder to the City as provided in Paragraph(i)below,the City shall have
the option to buy the Affordable Unit which shall be exercised in the following manner:
(i) The First Lien Holder shall give such notice to the City as is
required by law for lien holders in the foreclosure proceeding to the address of the City as
provided in this Covenant with a copy to The City of Fort Collins City Attorney's office. In the
event that the First Lien Holder takes title to the Affordable Unit pursuant to a deed in lieu of
foreclosure,the Fast Lien Holder shall give notice to the City with a copy to the City upon the
vesting of title to the Affordable Unit in First Lien Holder.
(ii) The City shall have 30 days after(A)in the case of foreclosure,
issuance of the public trustee's deed,or(B)in the case of a deed in lieu of foreclosure,the City's
receipt of the notice required in such event pursuant to Paragraph(i)above,in which to exercise
this Option to Buy by tendering to the First Lien Holder,in cash or certified funds,an amount
equal to the redemption price which would have been required of the Owner or any person who
might be liable upon a deficiency on the last day of the statutory redemption period(s)and any
additional reasonable costs incurred by the First Lien Holder during the option period which are
directly related to the foreclosure or deed in lieu of foreclosure.
(iii) Upon receipt of the option price,the First Lien Holder shall deliver
to the City, a special warranty deed conveying fee simple title in and to the Affordable Unit to
the City,in which event this Covenant shall remain valid and in full force and effect. The First
Lien Holder shall convey only such title as it is received through the public trustee's deed or the
deed in lieu of foreclosure and will not create or participate in the creation of any additional liens
or encumbrances against the Affordable Unit following issuance of the;public trustee's deed or
the deed in lieu of foreclosure to the First Lien Holder. The First Lien Holder shall not be liable
for any of the costs of conveyance to the City or its designee.
(iv) In the event that the First Lien Holder is issued a public trustee's
deed or takes title to the Affordable Unit pursuant to a deed in lieu of foreclosure and thereafter
offers the Option to Buy to the City and the City does not exercise the option,as provided herein,
the City shall cause to be recorded in the records of the Clerk and Recorder of the City and
County of Larimer, Colorado,a full and complete release of this Covenant as it affects the
Affordable Unit only. Such release shall be placed of record within thirty(30)days after
demand therefor by the First Lien Holder following expiration of the option and a certified copy
of the release shall be mailed to the First Lien Holder upon its recordation.
(v) If any of the terms, covenants,conditions,restrictions,uses,
limitations,obligations or options created by the Option to Buy shall be unlawful or void for
violation of. (A)the rule against perpetuities or any analogous statutory provisions, (B)the rule
restricting restraints on alienation, or(C) any other statutory or common law rules imposing like
or similar time limits,then such provision shall continue only for the period of the lives of the
current duly elected and seated City Council of the City,their now living descendants, if any,
and the survivor of them,plus twenty-one(21)years.
10. Covenant Runnin¢with Land,•Duration of Covenant.
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• a. The terms of this Covenant shall constitute covenants running with the
Affordable Units, as a burden thereof; for the benefit of,and shall be specifically enforceable by
the City and its successors and assigns,as applicable,by any appropriate legal action including
but not limited to specific perf nmance,injunction,reversion or eviction of non-complying
Owners and/or occupants.
b. This Covenant shall terminate,expire and be of no further force and effect
with respect to a particular Affordable Unit following the first Transfer of said Affordable Unit
that occurs more than twenty-five(25)years after the date that this Covenant is placed of record
in the Office of the Clerk and Recorder of the County of Larimer, Colorado.
11. Miscellaneous.
a Notices. Any notice,consent or approval which is required or permitted to
be given hereunder shall be given by mailing the same,certified mail,return receipt requested,
Properly addressed and with posting f111y prepaid,to any address provided herein or to any
subsequent mailing address of the party as long as prior written notice of the change of address
has been given to the other parties to this Covenant.
Said notices,consents and approvals shall be sent to the parties hereto at
the following addresses unless otherwise notified in writing:
To Declarant: KB Home Colorado Inc.
8401 East Belleview Avenue, Suite 200
Denver, Colorado 80237
Attn: Provincetowne Project Manager
with copy to: KB Home Colorado Inc.
8401 Fast Bellcview Avenue, Suite 200
Denver, Colorado 80237
Attn: Regional Legal Counsel
To the City: The City of Fort Collins,Colorado
Fort Collins,Colorado
Attn: City Manager
with a copy to: The City of Fort Collins City Attorney's Office
Fort Collins,Colorado
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To the owner. To be determined pursuant to the Memorandum of
Acceptance(as shown on Exhibit AJ recorded with respect
to each Transfer of an Affordable Unit.
b. Exiub isi . All exhibits attached hereto are incorporated herein and by this
reference made a part hereof.
G. Severability. Whenever possible,each provision of this Covenant and any
other related document shall be interpreted in such a manner as to be valid under applicable law;
but if any provision of any of the foregoing shall be invalid or prohibited under said applicable
jaw,such provisions shall be ineffective to the extent of such invalidity or prohibition without
invalidating the remaining provisions of such documents.
d. Choice of Law. This Covenant and each and every related document are
to be governed and construed in accordance with the laws of the State of Colorado.
e. . Successors. Except as otherwise provided herein,the provisions and
covenants contained herein shall inure to and be binding upon the heirs, successors and assigns
of the parties.
f. Section Hcg&es. Paragraph or section headings within this Covenant are
inserted solely for convenience of reference, and are not intended to,and shall not govern,limit
or aid in the construction of say terms or provisions contained herein.
S. Waiver. No claim of waiver,consent or acquiescence with respect to any
provision of this Covenant shall be valid against any party hereto except on the basis of it written
instrument executed by the parties to this Covenant. However,the party for whose benefit a
condition is inserted shall have the unilateral right to waive such condition.
h. Gender and Number. Whenever the context so requires herein,the neuter
gender shall include any and all genders and vice versa and the use of the singular shall include
the plural and vice versa.
i. Personal Liability. Owner agrees that he or she shall be personally liable
for any of the transactions contemplated herein.
j. Further Actions. The parties to this Covenant agree to execute such
Anther documents and take such further actions as may be reasonably required to cant'out the
provisions and intent of this Covenant or any restriction or document relating hereto or entered
into in connection herewith.
k. Modifications. The parties to this Covenant agree that any modifications
of this Covenant shall be effective only when made by writings signed by the Declarant(or its
successors) and the City and recorded with the Clerk and Recorder of Larimer County,Colorado.
18
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. L Owner and Successors. The tern Owner shall mean the person or persons
who shall acquire an ownership interest in an Affordable Unit in compliance with the terms and
provisions of this Covenant;it being understood that such person or persons shall be deemed an
Owner hereunder only during the period of his,her or their ownership interest in the Affordable
Unit and shall be obligated hereunder for the full and complete performance and observance of
all covenants,conditions and restrictions contained herein during such period.
IN WITNESS WHEREOF,the parties hereto have executed this instrument on the day
and year above first written
DECLARANT: KB HOME COLORADO INC.,
a Colorado corporation,formerly]mown as
Kaufman and Broad of Colorado, Inc.
By:
Title:
Date:
STATE OF COLORADO )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this`day of
2001,by as of
KB Home Colorado Inc., a Colorado wrporation, formerly known as Kaufman and Broad of
Colorado, Inc.
Witness my hand and official seal.
My commission expires:
[SEAL]
Notary Public
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ACCEPTANCE BY THE CITY OF FORT COLLINS.COLORADO
The foregoing Master Covcnant for the Occupancy and Resale of Units
Proviucetowne,and its terms are hereby accepted,approved,agreed to and adopted by the City
of Fort Collins,Colorado
THE CITY OF FORT COLLINS,COLORADO,
a municipal corporation
By:
Title:
Date:
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was aclmowledged before me this_day of
2001,by as of
The City of Fort Collins,Colorado,a municipal corporation.
Witness my hand and official seal.
My commission expires:
[SEAL]
Notary Public
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EXMIT A
Memorandum of Acceptance
(See attached)
• zl
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MEMORANDUM OF ACCEPTANCE
OF
MASTER COVENANTS
FOR THE OCCUPANCY AND RESALE OF
UNIT .PROVINCETONM
AREAS the Buyer,is
purchasing from the Seller,at a price of
$ a condominium unit described as:
Condominium Unit Provincetowne,according to the
Condominium Declaration for Provincetowne recorded in Book
at Page__,under Reception No. and the
Condominium Map of Provincetowne recorded in Book_at
Page_,udder Reception No. in the real
estate records of the County of Latimer,Colorado.
WHEREAS,the Seller of the Unit is requiring as a prerequisite to the sale transactions,
that the Buyer acknowledge and agree to the terms, conditions and restrictions found in that
certain instrument entitled,"Master Covenant for The Occupancy and Resale of Units
Provincetownc,"recorded on ,2000,in Book_at Page_�under
Reception No. in the real property records of the County of Latimer,
Colorado, a copy of which is attached hereto as Exhibit A(the"Master Covenant").
NOW,THEREFORE, as an inducement to the Seller to sell the Unit,the Buyer.
1. Acknowledges that Buyer has carefully read the entire Master Covenant, has had
the opportunity to consult with legal and financial counsel concerning the Master Covenant and
fully understands the terms, conditions, provisions, and restrictions contained in the Master
Covenant. Resale is restricted by the Master Covenant and profits may be required to be
disgorged and/or reversion may occur upon breach of the Master Covenant.
2. Notice to Buyer, pursuant to Subsection 1l(a) of the Master Covenant, should be
sent to:
3. Directs that this memorandum be placed of record in the real estate records of the
County of Latimer, Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
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• BUYER:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001,by as
Wimess my hand and official seal.
My commission expires:
(SEAL]
Notary Public
23
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EJMff A
TO
MEMORANDUM OF ACCEPTANCE
(See attached copy of recorded Master Covenant)
u
I:\Le9sAWP\TLE\Pmvineetowne Affordable Housing Ptmv9.doc
TOTAL P.25
EX IB ,
KB Home of Colorado Inc.
Cost Analysis 4
Provincetowne Affordable Townhomes
Plan 1 Plan 2 Plan 3
LAND DEVELOPMENT
Land/Development/Fees $ 70,317 $ 70,317 $ 70,317
DIRECT CONSTRUCTION
Home Construction Cost $ 65,243 $ 59,519 $ 67,734
Total Land and Construction $ 135,560 $ 129,836 $ 138,051
OTHER VARIABLEIFIXED COSTS
(14% of Sales Price) $ 17,882 $ 17,882 $ 17,882
TOTAL COST $ 153,442 $ 147,718 $ 155,933
SALES PRICE
3 Person at 30%Income $ 89,743.00 $ 89,743.00 $ 89,743.00
3 Person at 38%Income $ 127,725.00 $ 127,725.00 $ 127,725.00 .
4 Person at 30%Income $ 105,550.00 $ 105,550.00 $ 105,550.00
4 Person at 38%Income $ 147,746.00 $ 147,746.00 $ 147,748.00
GAIN/LOSS
3 Person at 30%Income $ (63,698.57) $ (57,974.57) $ (66,189.57)
3 Person at 38%Income $ (25,716.57) $ (19,992.67) $ (28,207.57)
4 Person at 30%Income $ (47,891.57) -$ (42,167.57) $ (50,382.57)
4 Person at 38%Income $ (5,695.57) $ 28.43 $ (8,186.57)
Y
1/18/01 affordable VC showxls
o 5 N 011 �
September 3, 1999 SEP 3 ;
, D
C!TY CLERK
Ms. Wanda M. Krajicek
City Clerk
City of Fort Collins
300 LaPorte Avenue
Fort Collins, Colorado 80522
NOTICE OF APPEAL
TO THE HONORABLE CITY COUNCIL:
NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 2-48 of the Code of the City of
Fort Collins the undersigned parties-in-interest (hereinafter "Appellants') appeal the decision of the
Planning and Zoning Board of August 5, ^toft?rvrPlanned Unit Development - Preliminary
Plan, commonly referred to as Provinceto e Preliminary, #73-82T and to the granting
of a variance to the City of Fort Collins So ece.
Parties-In-Interest
The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to
Section 2-46(3)and(5)of the Code of the City of Fort Collins. The parties-in-interest are identified for the
purposes of this Appeal as follows:
David G. Evans Doug Sparks Mark Menke
6806 Deerhurst Court 900 Deerhurst Circle 901 Deerhurst Circle
Fort Collins, CO 80525 Fort Collins, CO 80525 Fort Collins, CO 80525
(970)223-7957 (970) 223-9863 (970) 204-1027
Pursuant to the requirements of Section 249(5) of the Code of the City of Fort Collins, all mailing of
notices subject to that Section by the City shall be sent to:
David G. Evans
6806 Deerhurst Court
Fort Collins, CO 80525
(970) 223-7957
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 2
Grounds Of Appeal
The following grounds of appeal set forth allegations of error in accordance with the provisions of Section
2-48 (b) (1), Section 2-48(b)(2)a. and Section 2-48(b)(2)b. of the Code of the City of Fort Collins.
I. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager of the Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement") by
and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996,
was specifically reserved by Section 4 of Ordinance No. 41, 1996,to the Mayor and not the City Manager.
The execution of said Purchase Agreement by the City Manager violated the specific requirements of
Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-111(a) of the Code of the
City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a
duly enacted ordinance.
s
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of o f r vincetowne Portner Special Improvement
District #81 and the Fort Collins South Improvement District #86 to PrideMark
Development Company, LLC. Section 2 of 1 , specifically approved the provisions of an -
Agreement of Purchase and Sale of Real Property by and between the City of Fort Collins and Pridemark
Development Company, LLC, dated April 2, 1996. Section 4 of Ordinance No. 41, 1996, provides, "That
the Mayor be, and hereby is, authorized to execute the instruments of conveyance and other documents
necessary for the City to sell and convey the property to PrideMark pursuant to the terms and conditions of
the Agreement." To be valid, it was specifically required by Section 4 that the Purchase Agreement be
executed by the Mayor. The Purchase Agreement was executed by the City Manager. Section 4, nor any
other provision of law empowered the City Manager to execute such an agreement on behalf of the City of
Fort Collins,therefore,the Purchase Agreement is void. The full of Ordinance No. 41, 1996 is incorporated
by this reference as though fully set forth herein
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Contracts executed by municipal corporations in which there is a failure to comply
with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock
Land Bank of Denver, 118 P. 2d 460; Town of Durango v. Pennington, 8 Colo. 257; Cherry Creek
Aviation Inc v City of Steamboat Springs, 958 P. 2d 515. Also,there can be no ratification of an invalid
contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and
where the contract is required to be made in a specified manner,the observance of the same formalities and
provisions necessary to be complied with in the making of a valid contract are required. Town of Durango
v. Pennington, 8 Colo. 257.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 3
R. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First
Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and
between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the
Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First
Addendum could not, as a matter of law,modify an executory agreement.
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement
District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark
Development Company,LLC. Section 2 of Ordinance 41, 1996, specifically approved the provisions of an
Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and between the
City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. Pursuant to
Paragraph 21A. the Purchase Agreement was made expressly contingent upon the City Council approving
the Purchase Agreement by Ordinance No. 41, 1996, which ordinance must be passed by the City Council
. on second reading on or before April 16, 1 e law ten (10) days thereafter as provided
in the City Charter. At the time of the cu ' oe Addendum, the Purchase Agreement was
executory and therefore could not be m as set the First Addendum. As provided in the
Charter of the City of Fort Collins, Ordinance No. 41, 1996 was not legally effective until ten (10) days
after its adoption by the City Council after the second reading, therefore, the act of the City Manager of
executing the First Addendum was invalid and any modification to the Purchase Agreement was void. The
full text of the foregoing summary of Paragraph 21A of the Purchase Agreement as well as the Purchase
Agreement is incorporated by this reference as though fully set forth herein.
It is Appellants contention that the Planning and Zoning Board,lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Contracts executed by municipal corporations in which there is a failure to comply
with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock
Land Bank of Denver 118 P. 2d 460; Town of Durango v. Pennington 8 Colo. 257; Cherry Creek
Aviation. Inc. v. City of Steamboat Springs 958 P. 2d 515. Also, there can be no ratification of an invalid
contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and
where the contract is required to be made in a specified manner, the observance of the same formalities and
provisions necessary to be complied with in the making of a valid contract are required. Town of Durango
V. Pennington, 8 Colo. 257.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 4
III. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City
Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an
improper delegation of legislative discretion which violated the requirements of Section 23-111(a) of the
Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council
pursuant to a duly enacted ordinance.
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement
District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark
Development Company, LLC. Section 2 of Ordinance No. 41, 1996, specifically approved the provisions
of an Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and
between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. The
pertinent term and conditions of said sale were set forth in the recitals of Ordinance No. 41, 1996, which,
in summary provided that, Pridemark Development Company, LLC, would purchase the subject property
for a total purchase price of One Million Eight Hundred Thousand Dollars ($1,800,000) to be paid over
five years as follows: (1) $300,000 downe �2 t0 installment payment due one year after
the date of closing, and (3) eight instalhn pa fW35.34 due semi-annually thereafter. The
full text of the foregoing summary of the pe ent ald conditions is found in Paragraph 4 EC,
4B, 4C and 4D of the Purchase Agreement which said Purchase Agreement is incorporated by this
reference as though fully set forth herein.
Prior to the official enactment of Ordinance No. 41, 1996 by the City Council of the City of Fort
Collins, the City Manager executed , on or about April 12, 1996, an agreement on behalf of the City of
Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter
"First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC,
which purported to add Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April
2, 1996. In summary, Paragraph 27 gave to Pridemark Development Company,LLC the unilateral right to
restructure the Purchase Agreement as an option rather than as a purchase. The full text of the foregoing
summary of Paragraph 27 is set forth in Paragraph 1 of the First Addendum which said First Addendum is
incorporated by this reference as though fully set forth herein.
Thereafter,on or about August 26, 1996,the City Manager executed an agreement on behalf of the
City of Fort Collins entitled "Second Addendum To Agreement Of Purchase And Sale Of Real Property"
(hereinafter "Second Addendum") by and between the City of Fort Collins and Pridemark Development
Company, LLC, which purported to amend the Agreement of Purchase and Sale of Real Property dated
April 2, 1996, by abrogating the terms and conditions of sale as set forth in said Purchase Agreement and
approved in Ordinance No. 41, 1996,by the City Council of the City of Fort Collins granting to Pridemark
Development Company, LLC an option to purchase, which, by its terms, did not obligate Pridemark
Development Company, LLC to purchase any of the real property described therein. The full text of the
foregoing summary of the option to purchase is set forth in Paragraph 1 of the Second Addendum which
said Second Addendum is incorporated by this reference as though fully set forth herein.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999,to approve the Planned Unit Development-
• Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 5
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise,had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Appellants assert that the City of Fort Collins improperly delegated its legislative
discretion to the City Manager wherein it allowed the City Manager to abrogate the Purchase Agreement
and thereafter execute the First Addendum and Second Addendum which created an entirely new
arrangement for the sale of said real property embodied in an option to purchase. It is Appellants position
that the City Council can only effectuate a transaction for the sale of real property as hereinabove described
pursuant to Section 23-111(a) of the Code of the City of Fort Collins through a duly enacted ordinance.
The City Council having failed to enact an ordinance restructuring the sale of real property from an
outright purchase to an option to purchase as required in Section 23-111(a) of the Code rendered the
contract void and vested no legal rights in Pridemark Development Company, LLC nor its successor in
interest Kaufman and Broad of Colorado, Inc. It is well settled in the State of Colorado that a city cannot
commit the exercise of its legislative discretion to the caprice of its officers nor can it commit the exercise
. of its legislative discretion to others. CCur i it p o v. Denver 47 Colo. 221; Fellows v. La
Tronica 151 Colo. 300. In addition, it is vd ll t o cts executed by municipal corporations in
which there is a failure to comply with man atory pro sro of applicable statutes or charters are void.
Swedlund v. Denver Joint Stock Land Bank of Denver 118 P. 2d 460; Town of Durango v. Pennington, 8
Colo. 257; Chem Creek Aviation, Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also, there can be no
ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation
in the first instance, and where the contract is required to be made in a specified manner, the observance of
the same formalities and provisions necessary to be complied with in the making of a valid contract are
required. Town of Durango v. Pennington, 8 Colo. 257.
IV. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to
PrideMark Development Company, LLC of the power to restructure the sale of the real property from a
purchase to an option to purchase pursuant to the First Addendum To Agreement Of Purchase And Sale Of
Real Property, was an improper delegation of legislative discretion which violated the requirements of
Section 23-111(a) of the Code of the City of Fort Collins which vests sole authority to sell real property
upon the City Council pursuant to a duly enacted ordinance.
a. On or about April 16, 1996, the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement
District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark
Development Company, LLC. Section 2 of Ordinance No. 41, 1996, specifically approved the provisions
of an Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement") by and
between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. The
pertinent terms and conditions of said sale were set forth in the recitals of Ordinance No. 41, 1996, which,
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,473-82T
September 3, 1999
Page 6
in summary provided that, Pridemark Development Company, LLC, would purchase the subject property
for a total purchase price of One Million Eight Hundred Thousand Dollars ($1,800,000) to be paid over
five years as follows: (1) $300,000 down payment, (2) $300,000 installment payment due one year after
the date of closing, and (3) eight installment payments of$192,935.34 due semi-annually thereafter. The
full text of the foregoing summary of the pertinent sale terms and conditions is found in Paragraph 4 A,
4B, 4C and 4D of the Purchase Agreement which said Purchase Agreement is incorporated by this
reference as though fully set forth herein.
Prior to the official enactment of Ordinance No. 41, 1996 by the City Council of the City of Fort
Collins, the City Manager executed , on or about April 12, 1996, an agreement on behalf of the City of
Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter
"First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC,
which purported to add Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April
2, 1996. In summary, Paragraph 27 gave to Pridemark Development Company,LLC the unilateral right to
restructure the Purchase Agreement as an option rather than as a purchase. The full text of the foregoing
summary of Paragraph 27 is set forth in Paragraph 1 of the First Addendum which said First Addendum is
incorporated by this reference as though ful�oef)AAer
Thereafter,on or about August 26, 99 executed an agreement on behalf of the
City of Fort Collins entitled "Second Adden t Of Purchase And Sale Of Real Property"
(hereinafter "Second Addendum') by and between the City of Fort Collins and Pridemark Development
Company, LLC, which purported to amend the Agreement of Purchase and Sale of Real Property dated
April 2, 1996, by abrogating the terms and conditions of sale as set forth in said Purchase Agreement:and
approved in Ordinance No. 41, 1996,by the City Council of the City of Fort Collins granting to Pridemark
Development Company, LLC an option to purchase, which, by its terms, did not obligate Pridemark
Development Company, LLC to purchase any of the real property described therein. The full text of the
foregoing summary of the option to purchase is set forth in Paragraph 1 of the Second Addendum which
said Second Addendum is incorporated by this reference as though fully set forth herein.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise,had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Appellants assert that the City of Fort Collins improperly delegated its legislative
discretion to PrideMark Development Company, LLC when it entered into the First Addendum which gave
to Pridemark Development Company,LLC the unilateral right to restructure the Purchase Agreement as an
option rather than as a purchase as set forth in the Purchase Agreement. It is Appellants position that the
City Council can only effectuate a transaction for the sale of real property as hereinabove described
pursuant to Section 23-111(a) of the Code of the City of Fort Collins through a duly enacted ordinance.
The City Council having failed to enact an ordinance restructuring the sale of real property from an
outright purchase to an option to purchase as required in Section 23-111(a) of the Code rendered the
contract void and vested no legal rights in Pridemark Development Company, LLC nor its successor in
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 7
interest Kaufinan and Broad of Colorado, Inc. It is well settled in the State of Colorado that a city cannot
commit the exercise of its legislative discretion to the caprice of its officers nor can it commit the exercise
of its legislative discretion to others. Curran Bill Posting Co. v. Denver. 47 Colo. 221; Fellows v. La
Tronica 151 Colo. 300. In addition, it is well settled that contracts executed by municipal corporations in
which there is a failure to comply with mandatory provisions of applicable statutes or charters are void.
Swedlund v. Denver Joint Stock Land Bank of Denver 118 P. 2d 460; Town of Durango v. Pennington. 8
Colo. 257; Cherry Creek Aviation. Inc. v. City of Steamboat Springs. 958 P. 2d 515. Also, there can be no
ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation
in the first instance, and where the contract is required to be made in a specified manner,the observance of
the same formalities and provisions necessary to be complied with in the making of a valid contract are
required. Town of Durango v. Pennington. 8 Colo. 257.
V. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Plann e s and Ordinance No. 161, 1996 was the
owner of the subject parcel of real prope �i�lfi in . on March 27, 1997, of the Application
with the Current Planning Department requestmg P t Development - Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins.
a. On March 27, 1997, an application was submitted to the Current Planning Department of the
City of Fort Collins on behalf of PrideMark Development Company by Downing, Thorpe, James Inc. The
type of request indicated on the application was for Planned Unit Development-Preliminary Plan and
Preliminary Subdivision Plat. The Application Form stated that the Certification on the reverse side must
be signed. The Certification states that, "I certify the information and exhibits submitted are true and
correct to the best of my knowledge and that in filing this application I am acting with the knowledge,
consent, and authority of the owners of the property . . . without whose consent and authority the requested
action could not lawfully be accomplished. . . . ." It appears that the foregoing Certification was executed
by James J. Weigel, Manager for PrideMark Development Company, LLC. As clearly set forth in the
Certification requirements, the Applicant must have the express consent and authority from the owners of
the property, without which the request for Planned Unit Development-Preliminary Plan and Preliminary
Subdivision Plat approval could not be lawfully accomplished.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
. real property which is the subject of this Appeal as set forth in filing requirements of Section 29-526 -Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 at the time
of the filing on March 27, 1997, of the Application with the Current Planning Department requesting
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 8
Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat
nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application
on behalf of the record owner, the City of Fort Collins. The Certification as executed by the Applicant on
the Application Form is not supported by any official action by the City Council of the City of Fort Collins
as required by Section 6, Article II of the Charter of the City of Fort Collins, Section 8-110 et seq., of
Article IV of the Code of the City of Fort Collins nor as required by Section 38-10-106 of Colorado
Revised Statutes. Appellants assert that Applicant executed the Certification on the Application Form with
full knowledge that Applicant did not have any ownership interest in nor the requisite legal authority to
execute the Application/Certification from the City of Fort Collins at the time of filing the Application. It
is Appellants position that the City of Fort Collins undertook no legal actions to empower Applicant's
representative to execute the aforesaid Application and/or Certification on behalf of the City of Fort Collins
as the fee owner. Therefore,pursuant to the provisions of Section 29-526 et seq. of the Land Development
Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 no proper Application
was before the Planning and Zoning Board as a result of Applicant's action of fraudulently executing the
Certification and no jurisdiction was conferred upon the Planning and Zoning Board to undertake any
action and/or decision relative to the parceCre
aj�1( w ch was the subject of the August 5, 1999,
hearing. The City of Fort Collins is req t d �29-526 et seq. of the Land Development
Guidance System For Planned Unit Developments an r ce No. 161, 1996 to have filed a planned
unit development application that specifically meets all the standards, procedures, and conditions of the
zoning regulations. Applebauah v Board of County Com'rs, 837 P. 2d 304. In addition, the City of Fort
Collins is required to comply with its own zoning ordinance. Clark v. Town of Estes Park 686 P. 2d 777.
Failing to comply with the foregoing requirements, the Planning and Zoning Board was without proper
jurisdiction in this matter.
VI. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et
seq. -Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996.
a. On March 27, 1997, an application was submitted to the Current Planning Department of the
City of Fort Collins on behalf of PrideMark Development Company by Downing, Thorpe, James Inc. The
type of request indicated on the application was for Planned Unit Development-Preliminary Plan and
Preliminary Subdivision Plat approval. Section 7 of Ordinance No. 161, 1996 provides, "That all
applications for approval of. . .,preliminary PUD plans, or preliminary subdivision plats, . . . accepted for
filing before March 28, 1997 . . ., shall be processed and reviewed by City staff and/or the City's Planning
and Zoning Board under the currently existing applicable provisions of the City Code, provided that the
Director has determined that all relevant submittal requirements for such applications have been satisfied
prior to said date. Such applications, once filed, shall not be modified or supplemented by the applicant
without the written approval of the Director . . . ." The record in this matter indicates that the Director did
not make the determination prior to March 28, 1997, as required in Section 7 and as required by Section 9
of Ordinance No. 161, in that, the Applicant did not submit evidence of successful completion of the
applicable criteria, specifically the All Development Criteria and Community Wide Criteria as required by
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 9
the provisions of Section 29-526D(1)(c) and Section 29-5261)(2) respectively, which are mandatory
prerequisites to the determination of the filing of a complete application pursuant to Section 7 of Ordinance
No. 161, 1996 and prior to March 28, 1997 as specified. Additionally, Applicant's request for a variance
to the Solar Orientation Ordinance was not included in the March 27, 1997 filing as required by Section 9
of Ordinance No. 161, 1996. Said Section 9 requires that the Director's determination shall be inclusive of
all items as shown on Exhibit B which specifically requires under Preliminary Planned Unit Development,
Paragraph Le. " . . . . Any variance from the criteria shall be described. In addition, Paragraph 3.
provides that the site plan drawings contain a statement of variances to City design criteria and standards.
Applicants filing failed to meet these required elements for a complete application. In addition, Section 7 of
Ordinance No. 161, 1996 provides that, " . . . . Such applications, once filed, shall not be modified or
supplemented by the applicant without the written approval of the Director . . . ." There are no records of
written approval by the Director permitting the Applicant to modify or supplement the Application as
required in Section 7.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as� o PUD Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort inRPY
entation Ordinance, in that, Applicant nor
it's predecessor in interest, filed, in a timely application as required by Section 29-526
et seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161,
1996. The Planning and Zoning Board cannot exercise jurisdiction over applications which do not meet the
requirements of Section 29-526 et seq. of the Land Development Guidance System For Planned Unit
Developments and Ordinance No. 161. The Planning and Zoning Board is permitted to process only those
applications for a planned unit development that specifically meet all the standards, procedures, and
conditions of the zoning regulations. Applebaueh v. Board of County Com'rs, 837 P. 2d 304.
VII. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application
with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins.
a. The City of Fort Collins and Pridemark Development Company, LLC, entered into a Fourth
Addendum To Agreement Of Purchase And Sale Of Real Property (hereinafter "Fourth Addendum") on
November 25, 1997. Pursuant to the terms and conditions of said Agreement, Purchaser, in accordance
with Paragraph 2.A. thereof, was required to exercise the option to purchase by giving Seller as least ninety
(90) days prior written notice of Purchaser's intent to purchase all or any portion of the Property. In
addition, Paragraph 2.A. provides that, "If the Purchaser fails to so exercise this option for any of these
required purchases,the Agreement shall be automatically terminated and both parties shall be released from
all further obligations hereunder." On December 18, 1997,the City of Fort Collins transferred a 28.33
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, 973-82T
September 3, 1999
Page 10
acre parcel to Pridemark Development Company, LLC. Thereafter, on June 2, 1998, the City of Fort
Collins transferred a 28.33 acre parcel to Pridemark Development Company, LLC. With respect to the
transfer of real property which occurred on December 18, 1997, Purchaser was required by said Paragraph
2.A.to provide written notice of exercise on or before September 19, 1997. A response to a formal request
for the production of public records by the City Clerk revealed that no such exercise of option was received
by the City of Fort Collins. Pursuant to the provisions of Paragraph 2.A. which provides that, "If the
Purchaser fails to so exercise this option for any of these required purchases, the Agreement shall be
automatically terminated and both parties shall be released from all further obligations hereunder" the
Fourth Addendum was terminated. In regard to the transfer of real property which occurred on June 2,
1998, Purchaser was required by said Paragraph 2.A. to provide written notice of exercise on or before
March 3, 1998. A response to a formal request for the production of public records by the City clerk
revealed that a correspondence dated March 14, 1998, was received from Purchaser purporting to exercise
the option on the second parcel. With respect to the foregoing chronology of events, it appears that the
failure of Purchaser to deliver notice of exercise of option as required by Paragraph 2.A. on or before
September 19, 1997, automatically terminated the Fourth Addendum agreement and extinguished the power
of the City of Fort Collins to transfer the n ber 18, 1997. In the event that the
option to exercised survived this failure f first parcel, then, Purchaser's failure to
deliver notice of exercise of option until March 1 1 guished all rights to the transfer of the
second parcel which required that said notice be delivered on or before March 3, 1998, and extinguished
the right to acquire any further parcels at any subsequent date as the Fourth Addendum was automatically
terminated pursuant to the provisions of Paragraph 2.A. The full text of the foregoing Paragraph 2.A. of
the Fourth Addendum and said Fourth Addendum is incorporated by this reference as though fully set forth
herein.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development-
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, 473-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise,had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as set forth in filing requirements of Section 29-526 -Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 at the time
of the filing on March 27, 1997, of the Application with the Current Planning Department requesting
Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat
nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application
on behalf of the record owner, the City of Fort Collins. As stated previously, the Certification as executed
by the Applicant on the Application Form is not supported by any official action by the City Council of the
City of Fort Collins as required by Section 6, Article II of the Charter of the City of Fort Collins, Section
8-110 et seq., of Article IV of the Code of the City of Fort Collins nor as required by Section 38-10-106 of
Colorado Revised Statutes. Finally, the Fourth Addendum requirements for exercise of option pursuant to
Paragraph 2.A. and the automatic termination as provided therein are clear and not ambiguous. It is well
settled that if the meaning of a contract may be determined by the written instrument, parties are bound by
what it says, rather than.by what the parties may say. Also,when evidence of an agreement consists of
• Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 11
documents, as here, the determination of their effect is a matter of law. Colowyo Coal v. City of Colorado
SDrin¢s, 879 P. 2d 438 (Colo. App. 1994); Gardner v. Englewood 131 Colo. 210. It is Appellants
position that the City of Fort Collins is currently the sole owner of the fee interest in the subject parcel of
real property and that Applicant has no legal interest in the subject of the Application as to give Applicant
standing before the Planning and Zoning Board.
VUL No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and
Zoning Board failed to give timely notice of August 5, 1999,hearing.
a. Section 7 of Ordinance No. 161, 1996 provides, "That all applications for approval of . . .,
preliminary PUD plans, or preliminary subdivision plats. . . . accepted for filing before March 28, 1997 . .
., shall be processed and reviewed by City staff and/or the City's Planning and Zoning Board under the
currently existing applicable provisions of the City Code, . . ." Further, Section 10 of Ordinance 161, 1996
provides, "Mat, for the purpose of revie P h ns under the currently existing, applicable
provisions of the City Code, the amendmen to s Development Guidance System contained
in-Ordinance 161, 1995, shall remain in full ce "l all such applications have received final
approval by the City or have been denied by the City and all appeal rights pertaining thereto have been
exhausted." As for the requirements for notice Section 29-526F(4)(b) of the Land Development Guidance
System For Planned Unit Developments provides, "The Planning and Zoning Board shall give written
notice to the owners of record of all real property within five hundred (500) feet(exclusive of public right-
of-way, public facilities, parks, or open space) of the property lines of the parcel of land for which the
planned unit development is proposed. . . . Such written notice shall be delivered at least twenty-eight (28)
days prior to the Planning and Zoning Board hearing date." The hearing date set for this matter before the
Planning and Zoning Board was August 5, 1999. Appellants' notice was mailed on July 20, 1999. The
written notice was delivered only sixteen (16) days prior to the Planning and Zoning Board hearing date.
A copy of the envelope bearing the postmark of July 20, 1999, is attached hereto and submitted herewith
and marked as Exhibit"A".
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, 473-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that,the Planning and
Zoning Board failed to give timely notice as required in the aforementioned Sections. Strict compliance
with provisions for notice of public hearing is required. Holly Development, Inc. v. Board of County
Commissioners, 342 p. 2d 1032.
IX. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the
Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to
confer jurisdiction upon the Planning and Zoning Board.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 12
a. The notice of hearing dated July 19, 1999, failed to set forth, with specificity, the nature of the
project and requested approvals nor did it specifically set forth that the Applicant was seeking a variance to
Section 29-526(2)A-1/A-1.1 Community-Wide Criteria/Solar Orientation of the Land Development
Guidance System For Planned Unit Developments. A copy of the hearing notice dated July 19, 1999, is
attached hereto and submitted herewith and marked as Exhibit"B".
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, the notice of the
Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient as a
matter of law to confer jurisdiction upon the Planning and Zoning Board. To confer jurisdiction on an
agency, a public notice must be clear, definite, explicit and not ambiguous. A notice is not clear unless its
meaning can be apprehended without explanation. In addition, the notice must set forth all information
reasonably necessary to provide adequate warning to all persons whose rights might be affected by the
proposed action. In order to accomplish this purpose, the notice, at a minimum, must give the date, time,
and place of the hearing and apprise theQth matter of the hearing and nature of the
proposed action. The failure to specificall n ce request rendered the notice insufficient.
Fedder v. McCurdy, 768 P. 2d 711 (Colo. 1�,i *k Rudders v. City of Gunnison. 650 P. 2d'
556; Sundance Hills Homeowners Association v Board of County Commissioners, 534 P. 2d 1212;
Resennitter v. Fowler, 290 P. 2d 223. Also, such failure to specifically notice the variance request of
Applicant was a denial of the constitutional principle of procedural due process which requires notice and
opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the
hearing decision be vacated and that the matter be set for a hearing de novo. Fourteenth Amendment.
Constitution of the United States.
X. Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29-
526K of the Land Development Guidance System For Planned Unit Developments requires, "The decision
of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the
minutes of the meeting of the Board."
a. The record of the proceedings clearly are devoid of any statements or explanations setting forth
the substantive elements of the Planning and Zoning Boards decision to grant the Applicant's request for a
variance to the City of Fort Collins Solar Orientation Ordinance. In the motion to grant Applicant's
request for a variance to the solar orientation requirements of Section 29-526(2)A-1/A-1.1 no findings were
discussed by the members of the Planning and Zoning Board nor did the Planning and Zoning Board set
forth in the text of the motion any findings which support the granting of said variance. The failure to
make the required findings on the record renders the decision of the Planning and Zoning Board granting
the variance void.
XI. Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort
Collins Solar Orientation Ordinance, in that, Applicant presented no evidence which would demonstrate
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 13
that the granting of the variance would neither be detrimental to the public good nor impair the intent and
purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was entitled to the variance by reason of
exceptional conditions or difficulties with regard to solar orientation or access, and that undue hardship
would be caused to Applicant by the strict application of the provisions of Section 29-526(2)A-1/A-1.1.
a. On or about March 23, 1999, Applicant's representative submitted to the Fort Collins Current
Planning Department a correspondence "requesting a variance from the City's LDGS All-Development
Criteria A-1.1 'Solar Orientation'." In the Section designated "Justification for Variance Request" the
Applicant set forth the following justification,
"The site plan, which originally achieved 65%solar oriented lots, lost several solar-
oriented lots in the redesign of the Cottage Home Area(Parcel G).
This area was redesigned primarily to improve and simplify the lotting layout by
eliminating several inefficient flag lots used to achieve solar orientation while still taking access of
the public alley. (The City's Narrow Residential Street and Alley Standard limits driveway access
to the public alley only.) As a result, several of the north-south(solar)oriented lots along the east-
west streets (of Benson lane and B ged/reoriented to east west."
Section 29-526(2)All Development and Sp ifi a tena, provides, The information above the
bold line on the following pages constitutes a 'criteri ch are mandatory standards for preliminary
and final plans. . . ." Section 29-526(2)A-1/A-1.1 provides the provisions for the mandatory criterion for
solar orientation as follows, "Do at least sixty-five (65) percent of the lots less than fifteen thousand
(I5,000) square feet in area in single-and two-family residential developments conform to the definition of
a 'solar-oriented lot' in order to preserve the potential for solar energy usage?" Further, Section 29-526 K
provides, "The Planning and Zoning Board is empowered to grant variances to the provisions of this
section. The decision of the Planning and Zoning Board on any application for a variance shall be set forth
in writing in the minutes of the meeting of the Board. Variance requests may be granted if the Board
determines that the granting of the variance would neither be detrimental to the public nor impair the intent
and purposes of this section, and if the applicant demonstrates: . . . . (2) That by reason of exceptional
conditions or difficulties with regard to solar orientation or access, undue hardship would be caused to a
subdivider by the strict application of any provisions of this section,or . . . ."
It is Appellants contention that the Applicant failed to sustain the burden of proof in seeking the
variance to the City of Fort Collins Solar Orientation Ordinance and that the Planning and Zoning Board
failed to make required findings to support the granting of a variance to the City of Fort Collins Solar
Orientation Ordinance pursuant to Section 29-526K of the Land Development Guidance System For
Planned Unit Developments. Under Section 29-526K of the Land Development Guidance System For
Planned Unit Developments, the Planning and Zoning Board has no authority arbitrarily to grant variances
to the Solar Orientation Ordinance, and while the pertinent provisions of Section 29-526K state that the
Planning and Zoning Board can grant variances, such variances may be made only in certain enumerated
cases. The power of the Planning and Zoning Board is limited by the provisions of Section 29-526K, and
. any variance made without compliance with those provisions is beyond the authority of the Planning and
Zoning Board, and void. Cross v. Bilett 122 Colo. 278. The record of the proceedings clearly are devoid
of any statements or explanations setting forth the substantive elements of the Planning and Zoning Boards
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 14
decision to grant the Applicant's request for a variance to the City of Fort Collins Solar Orientation
Ordinance. In the motion to grant Applicant's request for a variance to the solar orientation requirements of
Section 29-526(2)A-1/A-1.1 no findings were discussed by the members of the Planning and Zoning Board
nor did the Planning and Zoning Board set forth in the text of the motion any findings which support the
granting of said variance. The failure to make the required findings on the record renders the decision of
the Planning and Zoning Board granting the variance void. It has been held repeatedly by courts of last
resort that the record and findings of administrative boards must disclose the basis of the conclusions
reached by them. Linder v. Copeland 137 Colo. 53; deKoevend v. Board of Education of West End
School, 688 P. 2d 219; Murray v Bd. of Adiust. Latimer County, 594 P. 2d 596 (Colo. App. 1979).
Appellants also assert that the Applicant failed to sustain the burden of proof in seeking the variance to the
City of Fort Collins Solar Orientation Ordinance. The burden of proof is on the Applicant seeking a
variance from a zoning ordinance. La Plata County Com'rs v. Bd of Adi, 768 P. 2d 1250 (Colo. App.
1988). Applicant's stated justification of the variance was that, "The site plan, which originally achieved
65% solar oriented lots, lost several solar-oriented lots in the redesign of the Cottage Home Area (Parcel
G). This area was redesigned primarily to up rove and simplify the lotting layout by eliminating several
inefficient flag lots used to achieve solar on to �o access of the public alley." It appears
from the,text of the Application for the v s voluntary redesign of the Cottage Home
Area (Parcel G) is a self-inflicted condition which d of the criteria set forth in Section 29-526K
and Section 29-526K(2) entitling the granting of a variance to the mandatory requirements of Section 29-
526(2)A-1/A-1.1. It is well settled that the hardship or practical difficulty upon which the need for a
variance is premised should not be self-created and it must be of a type particular to this property owner
and not shared by others. Murray v Bd. of Adjust., Latimer County, 594 P. 2d 596 (Colo. App. 1979). In
Lew v Board of Adiustment of Arapahoe County, 369 P. 2d 991,the court stated that, "Without deciding
whether 'self-inflicted hardship' is in and of itself an absolute bar to the granting of a variance, it is at the
very least a highly significant fact which, according to the Ardolino case, is a'material element bearing on
the issue and weighs heavily against the owner seeking the variance."' In this instance Applicant
voluntarily made design changes which modified a previously submitted plan which was in compliance with
the provisions of Section 29-526(2)A-1/A-1.1 the solar orientation ordinance criteria thereby reducing the
number of required solar oriented lots which they now seek the granting of a variance. It goes without
saying that the required test is not met solely by a showing of inconvenience or a greater economic benefit
that could be gained if the variance was granted. Baum v City and County of Denver, 147 Colo. 104. In
addition, in their presentation at the hearing the Applicant did not provide any additional evidence which by
reason of exceptional conditions or difficulties with regard to solar orientation or access, undue hardship
would be caused to Applicant by the strict application of any provisions of this Section 29-526(2)A-1/A-
1.1 thereby failing to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar
Orientation Ordinance. The Planning and Zoning Board abused its discretion and exceeded its jurisdiction
in granting the variance.
The following grounds of appeal set forth allegations of error in accordance with the provisions of Section
2-48(b)(2)c. and Section 248(b)(2)d. of the Code of the City of Fort Collins.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,473-82T
September 3, 1999
Page 15
X11 Planning And Zoning Board Considered Evidence Relevant Which Was Substantially False Or
Grossly Misleading & Planning And Zoning Board Failed To Receive All Relevant Evidence Offered By
The Appellants
a. The Planning and Zoning Board received evidence at the hearing that no water would flow from
the proposed development into the drainage system situated on the adjacent property owned by Eagle Tree
at Provincetowne Community Association, Inc.. Applicant's representative, Brock Chapman, testified that
the design incorporated into the existing Preliminary Plan, which was the subject of the approval request,
had included elements which provided that no water would flow from their development onto and/or
through the property and/or drainage system of Eagle Tree at Provincetowne Community Association, Inc..
Subsequent to the closure of the public hearing portion of the meeting, the Planning and Zoning Board
received evidence from staff that water accumulating within the proposed development would in fact flow
upon the property and/or into the drainage system of Eagle Tree at Provincetowne Community Association,
Inc.. The members of the Eagle Tree community were not afforded an opportunity to address this issue and
submit into evidence before the Planning and Zoning Board that the Eagle Tree at Provincetowne
Community Association, Inc. owns in fee ted upon it's real property and has not
given to the Applicant an easement for operty. Appellants were precluded from
presenting to the Planning and Zoning Board a copy oMs Overall Drainage Plan which clearly
identifies areas of drainage which will in fact cross and/or enter the drainage system of Eagle Tree at
Provincetowne Community Association,Inc..
Official/Ouasi-Judicial/Administrative Notice
Appellants hereby request that the City Council take Official/Quasi-Judicial/Administrative Notice
of the Constitution of the United States, the Constitution of the State of Colorado, Colorado Revised
Statutes,the Charter of the City of Fort Collins,the Code of the City of Fort Collins, and the Ordinances of
the City of Fort Collins.
No Waiver
Appellants hereby submit the foregoing and reserve the right to present further argument and
materials at the hearing. The Notice of Appeal by Appellants is not intended to be construed as a
submission to or a waiver of any jurisdictional or such other legally cognizable procedural or substantive
defect occurring during the processing of the Application for Planned Unit Development-Preliminary Plan
approval nor of any determinations and/or actions taken by the City of Fort Collins prior to and subsequent
to the filing of said Application.
Respectfully submitted,
D " G. vans WOSP
enke