HomeMy WebLinkAboutConstituent Letter - Read Before Packet - 10/15/2024 - Memorandum from Heather Walls re Sanctuary on the Green – Applicant ResponseCity Clerk’s Office
300 Laporte Avenue
PO Box 580, Fort Collins, CO 80522
970-221-6515
hwalls@fcgov.com
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MEMORANDUM
Date: October 15, 2024
To: Mayor and City Councilmembers
Through: Rupa Venkatesh, Assistant City Manager
From: Heather Walls, Deputy City Clerk
Subject: Sanctuary on the Green – Applicant Response
Attached is the applicant’s response to the Sanctuary on the Green Appeal.
T 303-333-9810
F 303-333-9786
360 South Garfield Street
Sixth Floor
Denver, Colorado 80209
October 11, 2024
Fort Collins City Council
City Clerk
300 La Porte Avenue
PO Box 580
Fort Collins, CO 80522
RE: Request to Affirm the City of Fort Collins Type 1 Administrative Hearing
Findings and Decision Approving the Sanctuary on the Green Project
Development Plan
Dear Mayor and Council:
We represent Solitaire Fort Collins, LLC (the “Applicant”), with respect to the Sanctuary
on the Green Project Development Plan application (the “Application”) for property owned by
Solitaire Homes LLC and Solitaire Homes East LLC located at the northwest corner of Laporte
Avenue and North Taft Hill Road (the “Property”). This letter is in response to the notice of appeal
(the “Appeal”) filed by the Sanctuary Field Neighborhood Network (the “Appellant”) on August
8, 2024, appealing the approval of the Application by the hearing officer dated July 24, 2024, as
supplemented and confirmed in all respects on July 28, 2024 (together, the “Approval”). In
compliance with the City’s appeal procedures, no new evidence is presented in this letter. The
record for the Approval consists of Attachment A (the July 15, 2024 Staff Report), Attachment B
(Additional Findings and Analysis-NSP) as well as D ocuments #1 through #53 (collectively, the
“Record”) and includes an abundance of evidence supporting the Approval and demonstrating the
Appellant’s allegations are without merit.
Appellant alleges that the hearing officer failed to:
(A) interpret and apply relevant provisions of Sections 1.2.2, 2.2.11, 3.5.1, 4.5(E)(3) and
(4) of the Land Use Code (the “LUC ”) and the Northwest Subarea Plan (the “NSP”); and
(B) conduct a fair hearing in that previously established rules of procedure were ignored;
considered evidence relevant to the Approval which was substantially false or grossly
misleading; and failed to receive all relevant evidence offered by the Appellant.
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A. INTERPRETATION AND APPLICATION OF THE LUC AND NSP
I. The hearing officer properly interpreted and applied Section 1.2.2 of the LUC and
the NSP.
The Appellant wrongly claims that the Application does not comply with the NSP in
violation of Section 1.2.2 of the LUC . As a result of the opinion of the Larimer County District
Court that the Application’s consistency with the NSP should be analyzed, on July 24, 2023 an
order was issued remanding the Application to the hearing officer primarily for such purpose (the
“Remand Order”). The Remand Order specifically directed:
On remand, the Hearing Officer must consider and apply the LUC, as set forth herein, and rely upon and
be guided by the proper and applicable case law as set forth herein. Furthermore, the Officer must
consider, evaluate the criteria of the NWSAP, and apply it within the Officer’s discretion in order to
review evaluate, make findings, and render a well -founded decision based upon the law, which may
include different or new findings and conditions as warranted. See Document #38 (Applicant’s NSP
Analysis).
The hearing on July 15, 2024 was held to comply with the Remand Order, and the hearing
officer followed the direction given above. The extensive evidence in the Record identified below
related to the Application’s consistency with the NSP was properly cons idered, evaluated and
applied by the hearing officer in rendering his Approval, including as it relates to the compatibility
with the existing neighborhood. For brevity, the detailed and thorough analyses contained in the
documents below are referenced for City Council’s review rather than repeated in this letter.
Attachment A City Staff Report (pp 4, 7-13, 17 -20, 52)
Document #38 Applicant NSP Analysis
Document #44 City PowerPoint Presentation (pp 1 6 -21, 53 -55)
Document #45 Applicant PowerPoint Presentation (pp 8 -21)
With regard to the Application’s consistency with the NSP, Appellant makes the false
interpretation in its Appeal that the 2022 hearing officer decision “clearly indicated that the hearing
officer did not believe that PDP200018 complied with the NSP .” The actual statement of the
hearing officer in his 2022 decision was that the “NSP lacks sufficient guidelines or standards on
which to deny the PDP for the Project.” See page 001004 of Document #43 (Certified Record).
Accordingly, the hearing officer’s 2024 Approval is not inconsistent with his previous 2022
decision as argued by the Appellant. The statement made by the Appellant that the hearing officer
“failed to make any findings regarding the NSP” is also inaccurate. As Appellant acknowledges,
the hearing officer incorporated Attachment B (Additional Findings and Analysis – NSP) that was
provided by the Applicant into the Approval findings. Using analysis provided in the Record,
including from the Applicant and City staff, to support the Approval is entirely within the hearing
officer’s discretion and does not equate to him failing to make findings, as the Appellant claims.
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II. The hearing officer properly applied and interpreted Section 2.2.11 of the LUC.
The Appellant incorrectly asserts the Application automatically lapsed on April 16, 2024
pursuant to Section 2.2.11 of the LUC, and the following evidence in the Record substantiates the
Application did not lapse.
• A ppellant acknowledges repeatedly in the Record and the Appeal that the Application has
not changed since the Remand Order, and the Applicant agrees.
• No new or revised Application documents were sent to the City by the Applicant.
o This fact alone brings into question the applicability of Section 2.2.11 of the LUC,
which states in relevant part that an application must be diligently pursued by an
applicant and that the applicant, within 180 days of receipt of comments and notice
to respond form the City on any submittal of an application (or subsequent revision
to a submittal), shall file such additional revised submittal documents as are
necessary to address such comments from the City. See Document #36 (Applicant’s
Extension Request Summary of Evidence).
o The July 15, 2024 hearing was directed by the Remand Order. Although it was a
new hearing, a new or revised Application was not submitted to the City that
required revisions requested by the City. See Document #36 (Applicant’s Extension
Request Summary of Evidence).
• However, if Section 2.2.11 of the LUC does apply, there are several emails in the Record
that show consistency with it, as provided in Document #36 referenced above, Document
#42 (Emails Related to Mercer Ditch) and Appellant’s emails submitted in Documents #50
(Email dated July 18, 2024 after Hearing) and #53 (Public Comment – 342 Pages).
o October 19, 2023 is the original date the City used as the Applicant’s last submittal,
thereby triggering the 180-day clock, with a lapse date of April 16, 2023. See below,
page 45 of Document #53 (Public Comment – 342 Pages).
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o On October 19, 2023, the Applicant did not submit a revised Application or respond
to City comments on the Application, but instead provided documents for the
Record for the hearing to be held on November 2, 2023. These documents consisted
of Document #2 (Project Narrative), Document #43 (2022 Certified Record),
Document #38 (NSP Analysis) and Document #49 (Response to Neighbor
Comments).
o Similarly, on November 1, 2023 in preparation for the same hearing to be held on
November 2, 2023, the Applicant provided its PowerPoint presentation for the
Record at the request of the City. Documentation of such email exchange was later
provided by the Applicant to the City to demonstrate compliance with Section
2.2.11 of the LUC. See below, page 35 of Document #53 (Public Comment – 342
Pages).
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o Contrary to what the Appellant argues in the Appeal, the City never stated that the
November 1, 2023 submittal did not meet the requirements of Section 2.2.11 of the
LUC.
o Before the City responded, the Applicant provided evidence of a more recent
submittal, which related to the Mercer Ditch letter of intent requested by the City
and provided by the Applicant via email on November 27, 2023, with receipt of a
more formal letter of intent by the City acknowledged on November 29, 2023, for
the rescheduled hearing on November 30, 2023. See Document #42 (Emails Related
to Mercer Ditch).
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November 27 Emails
November 29 Email
o The submittals related to the letter of intent on November 27 and November 29
were for the same purpose as the October 19 and November 1 submittals by the
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Applicant – they were submitted for inclusion in the Record for the upcoming
hearing. They demonstrate that when the City requested documents for the hearing,
the Applicant provided them, consistent with Section 2.2.11 of the LUC.
o Appellant’s claim in the Appeal that the document request was “spurred” by the
Appellant is irrelevant since the letter of intent was provided at the City’s request.
• The City’s receipt and acceptance of the formal letter of intent on November 29, 2024,
thereby created a lapse date of May 27, 2024, which was properly extended at the request
of the Applicant pursuant to Section 2.2.11 of the LUC to September 24, 2024. See
Document #35 (City Approved Extension Request).
• In conclusion, the hearing officer had jurisdiction to consider the Application on July 15,
2024.
III. The hearing officer properly interpreted and applied Sections 3.5.1, 4.5(E)(3) and
4.5(E)(4) of the LUC
The Appellant claims the 3-story buildings and small lot sizes are incompatible in violation
of Section 3.5.1 of the LUC. In support of that argument, the Appellant states that the 3 -story
buildings are in violation of Sections 4.5(E)(3) and (4) of the LUC. Contrary to Appellant’s
argument, there is substantial evidence in the Record showing that the 3 -story homes are
compatible in size and mass with the surrounding neighborhood, including the following:
Attachment A City Staff Report (pp 37 -39 )
Document #39 Applicant Response to Neighborhood Comments
Document #44 City PowerPoint Presentation (p p 32 -33, 61)
Document #45 Applicant PowerPoint Presentation (pp 23 -40)
For illustrative purposes, slides from Document #45 (Applicant PowerPoint Presentation)
are provided below to demonstrate the Application’s compatibility related to mass and scale:
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Furthermore, the Application’s consistency with Sections 4.5(E)(3) and (4) of the LUC was
determined in Document #26 (Administrative Interpretation #1-18) specifically for this
Application. It states:
The request was for clarification on which building height standards in Section 4.5(E) of the LUC would be
applicable to a 4 -unit or larger, single -family attached building. The specific question was whether the
maximum building height standards in Section 4.5(E)(3) or Section 4.5(E)(4) would apply for a building with
4 units or more where all units are located on individual, separate lots.
The administrative interpretation concluded that:
Section 4.5(E)(4) would be applicable to buildings containing 4 or more single -family attached units. The
maximum building height, per Section 4.5(E)(4)(d) is 3 stories.
The Applicant relied on the administrative interpretation, and the project is based on it. The
City issued the official administrative interpretation on July 26, 2018 in accordance with City
procedures.
Even if it were determined that the homes proposed in the Application are significantly
visually different than the homes in the surrounding area, Section 3.5.1(H) of the LUC allows the
Applicant to achieve compatibility through the provision of buffer yards and passive open space
to enhance the separation between the uses. The slides below from Document #45 (Applicant
PowerPoint Presentation) show these transitional elements are incorporated in the Application
despite not being required.
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B. FAIR HEARING
I. The hearing officer did not substantially ignore previously established rules of
procedures.
Appellant incorrectly claims that rules of procedure were not followed because in its
opinion the Application lapsed. As explained above in Section A of this letter, which argument is
wholly incorporated herein, it’s unclear whether Section 2.2.11 of the LUC even applies since the
Application was not changed and the new hearing was court-ordered. To the extent it does apply,
Document #36 (Extension Request Summary of Evidence) and Document #42 (Emails Related to
Mercer Ditch) submitted by the Applicant demonstrates the Applicant’s compliance with it.
II. The hearing officer did not consider evidence relevant to its findings which was
substantially false or grossly misleading.
Appellant alleges that substantially false or grossly misleading statements were made by
the Applicant about the reasons for: providing a significant amount of open space; decreasing
density; and eliminating the multi-family component of the project. There is nothing in the Record
to support Appellant’s claims. Document #39 (Applicant’s Response to Neighborhood Concerns)
provides a narrative of the changes made to the Application, and Document #45 (Applicant
PowerPoint Presentation) displays the changes made to the Application, many of them to address
neighbor concerns. However, the Applicant’s reasons for revising the Application are immaterial,
and it’s not a requirement that all neighborhood concerns be addressed. The sole consideration is
whether the Application complies with the LUC and the City’s regulations.
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Appellant also states the following w as substantially false or grossly misleading evidence, but
evidence in the Record indicates otherwise.
• Appellant claim: 3-story buildings are not concentrated to interior of site.
o The Applicant did not claim that all 3-story buildings are concentrated to the interior
of the site. In fact, the slide below from Document #45 (Applicant PowerPoint
Presentation) shows some of the 3-story units on the exterior.
• Appellant claim: Buildings are higher than 39 feet 8 inches.
o When measured from finished grade, which is the correct methodology for
measuring height, the height of the buildings are 39 feet 8 inches.
• Appellant claim: Distant 3-story properties used as comparisons were used to misrepresent
the development existing in the neighborhood and were described falsely as abutting the
site.
o The Applicant did not say that all the comparison properties abut the Property.
Because the Property is surrounded by open space, there are few properties that
directly abut it. See slide below from Document #45 (Applicant PowerPoint
Presentation). The slide below shows the evidence the Applicant provided to the
hearing officer and that no misrepresentations were made.
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III. The hearing officer received all relevant evidence offered by the Appellant.
There is no question that the hearing officer received all relevant evidence offered by the
Appellant as documented in his Approval, specifically the Supplemental Findings and Decision,
dated July 28, 2024, wherein he expressly accepts Document #53 (Public Comment – 342 Pages)
as part of the Record and confirms that he reviewed all such public comment. Receipt of all
relevant evidence by the hearing officer is all that is required by Section 2 -48(b)(2)(d) of the
Municipal Code, and he clearly complied with it. Reviewing the 34 2 pages of public comment is
not as daunting as it first appears. Many of the comments were repetitive and raised previously.
Since there was also substantial verbal testimony both in support and opposition to the Application
at the hearing, it’s not surprising that the additional written public comment did not result in a
change in the hearing officer’s findings and decision. The allegations by the Appellant that the
hearing officer’s decision was pre-determined and that he failed to analyze or otherwise
incorporate the public comments are not supported by the Record and are baseless.
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CONCLUSION
The hearing officer properly interpreted and applied the LUC and NSP and conducted a
fair hearing. As a result, the Approval of the Application should be upheld by City Council.
Thank you for your consideration.
Sincerely,
Kristin A. Decker
for
Foster Graham Milstein and Calisher, LLP