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HomeMy WebLinkAboutMemo - Read Before Packet - 1/18/2022 - Memorandum From Anissa Hollingshead Re: Item No. 18 Sam’S Club Fuel Station Appeal - Applicant PresentationFort Collins City Council Sam’s Club Fuel Station #MJA200002 –Appeal from Planning Commission Denial APU and PDP Project Team •Sam’s Club: Chelsea Penn •CEI Engineering: John Degunya, Ashley Vandergrift •BHFS: Carolynne White 2 © 2021 Brownstein Hyatt Farber Schreck, LLP www.bhfs.com |3 © 2021 Brownstein Hyatt Farber Schreck, LLP www.bhfs.com |5 Project Compliance •Designed to protect existing,mature landscape •Will add new trees to greenspaces. •Limited visibility from Harmony Road. •Traffic report shows no significant effect on existing traffic patterns. •City staff finds Project meets all the criteria, and recommends approval. © 2021 Brownstein Hyatt Farber Schreck, LLP www.bhfs.com | Nearby Uses: Request Council overturn P&Z Denial OR Remand forProper Hearing P&Z Failed to Conduct a Fair Hearing; and Misapplied the Code © 2021 Brownstein Hyatt Farber Schreck, LLP www.bhfs.com | P&Z Hearing Planning & Zoning Failed to Conduct a Fair Hearing Determined negative impact based on evidence/information not within the purview of the Commission or in the record. –“we know that fuel tanks are always an environmental issue” Transcript p. 14, line 30 –“not what was envisioned when the guidelines were put together” Transcript p. 14 –line 35 –“It produces noise . . . odor, and probably sound spill and stuff . . most gas stations, there’s always some spill there.” Transcript p. 14, line 37 •Board acknowledged that staff report/findings did not support denial –Transcript p. 17, lines 15-25 Planning & Zoning Failed to Conduct a Fair Hearing •Considered evidence not germane to the criteria, such as macroeconomic forces and individual business owner’s decisions. –“This is probably not germane but I’ve seen the retail of gasoline seems to fluctuate with great frequency in our economy. For example, there is a Texaco where they just removed the tanks at North College and Wilcox, there used to be a gas station on Canyon Avenue, there used to be a gas station at College and Stuart, there used to be a gas station on Canyon Avenue, there used to be three gas stations at Lemay and Prospect, and then all of those shut down and then they all went to the convenience stores and then, and then the convenience stores were bought by the oil companies, then they were sold by the oil companies . . . And the economy that we’re in, I think right now there’s a trend that the big box warehouse clubs, they are now the purveyors of gasoline. And so, it’s pretty hard to pin down.” Transcript p. 18, lines 22-30 Planning & Zoning Failed to Conduct a Fair Hearing •Addressed site plan and other criteria and considerations not relevant to the APU to deny the APU and then used the denial of the APU to deny the Major Amendment. –No statement or discussion as to which ones are not met •Motion made to deny Major Amendment to PDP immediately following motion on APU •No discussion whatsoever of Major Amendment criteria •Only evidence in record regarding these criteria is staff’s report, which clearly demonstrates that the criteria are all met •“there has not been a lot of collaboration between Sam’s Club and the other business owners in the owner’s association. I don’t believe that is something that’s under our purview to get in the middle of . . . “ Transcript p. 19, l. 34-36 •Nonetheless, since this was the only negative evidence in the record, it was clearly considered by the Commissioners •None of them cited any other evidence, other than generalized refences to “noise” “spills” and “fuel economy keeps changing” •On this basis alone, the matter should be remanded back to the Planning & Zoning Commission for failure to conduct a fair hearing Planning & Zoning Commission Failed to Property Interpret and Apply the Code: P&ZC improperly disregarded the fact that this property already includes a fuel station, as well as a lube shop, and a car wash. P&ZC improperly considered whether fuel stations should be added to the HC zone district/Regional Shopping Center classification as a whole, rather than just this property. P&ZC did not consider the “location, size and design” of the fuel station use in determining whether such use could be compatible with and have minimal negative impacts on the use of nearby properties. -Focused instead on property owners concerns about common area maintenance. APU Criteria The Planning and Zoning Commission may add the proposed use to the site if the Commission specifically finds that such a use: 1.Conforms to all of the eight criteria listed below; (didn’t address) 2.Would not be detrimental to the public good; (didn’t address) 3.Would be in compliance with the requirements and criteria contained in Section 3.5.1; (didn’t address) 4.Is not specifically listed as a prohibited use in the zone district in which the proposed site is located (criterion met; uncontroverted) Eight Additional Criteria (a)Such use is appropriate in the zone district to which it is added. (b)Such use conforms to the basic characteristics of the zone district and the other permitted uses in the zone district to which it is added. (c)The location, size and design of such use is compatible with and has minimal negative impact on the use of nearby properties. (d)Such use does not create any more offensive noise, vibration, dust, heat, smoke, odor, glare or other objectionable influences or any more traffic hazards, traffic generation or attraction, adverse environmental impacts, adverse impacts on public or quasi-public facilities, utilities or services, adverse effect on public health, safety, morals or aesthetics, or other adverse impacts of development, than the amount normally resulting from the other permitted uses listed in the zone district to which it is added. (e)Such use will not change the predominant character of the surrounding area. (f)Such use is compatible with the other listed permitted uses in the zone district to which it is added. (g)Such use, if located within or adjacent to an existing residential neighborhood, shall be subject to two (2) neighborhood meetings, unless the Director determines, from information derived from the conceptual review process, that the development proposal would not have Planning & Zoning Commission Failed to Properly Interpret and Apply the Code: P&ZC analyzed whether fuel station use would have ANY adverse impacts –not whether it has MORE adverse impacts than the uses normally allowed within the zone district P&ZC “assumed” fuel station would create odor, noise and spills –No evidence in record to this effect –Highly regulated industry Fuel stations ARE permitted in the HC, just not in “Regional Shopping Centers” –designation applied to this center after it was already built P&ZC ignored staff’s explanation of history of HC shopping center designation Planning & Zoning Commission Failed to Properly Interpret and Apply the Code: P&ZC focused on “character” without explaining how or why fuel station use is inconsistent with “predominant character of surrounding areas” as required by the criteria –Concluded, without evidence, that fuel station would change the character –Despite the fact that this very property already has a fuel station as well as several other auto-oriented uses P&ZC concluded, without articulating a basis, that fuel stations are not compatible with other uses allowed in HC –Request was to add to this property, not HC –Already allowed in HC, just not in Regional Shopping Center designation –Requirement is compatibility with “other uses allowed in HC” not existing uses –P&ZC completely misapplied this criterion P&Z Failed to Conduct a Fair Hearing and Misapplied the Criteria Questions? Questions: Traffic Traffic Impact Analysis, dated November 5, 2020, Walter P. Moore and Associates, p. 25, Conclusions and Recommendations •“all intersections will be minimally impacted.” •“After full build-out, all intersections in the proposed AM and PM peak hours operate at the same LOS (level of service) before the proposed development, therefore, no mitigation is recommended due to the new development.” Questions: Stakeholder Outreach Neighborhood Meeting –December 19, 2020 •4 persons attended •Notes in record •Only question –traffic at Boardwalk/Harmony •Answer –traffic study,above P&Z Hearing –May 20,2021 •Properly noticed •Testimony from three persons,all representing Harmony Market Owner’s Association •All related to Owner’s Association specific issues –will address separately Private Maintenance Agreement