HomeMy WebLinkAboutEAST RIDGE PDP NOVEMBER 2004 - Filed GC-GENERAL CORRESPONDENCE - 2005-04-11J{Ilf SELL DE516N
June 1, 2004
Mr. Bob Barkeen
City of Fort Collins Current Planning Department
P.O. Box 580
Fort Collins, CO 80522-0580
RE: East Ridge Project Development Plan
Request for Modification of Standards
Project No.: 1894.3
Dear Bob:
Attached is a Request for Modification of Standards for the East Ridge Project for the buffer
standards provided in Section 3.4.1(E) of the Land Use Code for raptor nests, prepared by the
office of Liley, Rogers & Martell, LLC. This request is submitted pursuant to Section 2.8.1(2),
which allows for this matter to be scheduled for administrative review by the Director of
Community Planning and Environmental Services. With the request you will find an
Application Form and appropriate fee.
We respectfully request that this matter be scheduled for public hearing as soon as practicable.
Thank you for your consideration of this request.
Sincerely,
Jim Sell Design, Inc.
Kent Bruxvoort, P.E.
Project Manager
cc: George Hart, Progressive Living Structures
Lucia Liley, Liley, Rogers & Martell, LLC
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a LILEY, ROGERS & MARTELL, LLC ■
ATTORNEYS AT L A W
June 1, 2004
Mr. Greg Byrne
Director of Community Planning
and Environmental Services
City of Fort Collins
281 N. College Ave.
Fort Collins, CO 80521
Re: East Ridge Project Development Plan
Request for Modification of Standards
Dear Greg:
This firm represents East Ridge of Fort Collins, LLC ("East Ridge"), the owner and
developer of an approximately 152-acre tract of land located at the southeast corner of East Vine
Drive and Timberline Road in northeast Fort Collins (the "Property"). An overall development
plan ("ODP") for the Property is currently in the City's development review process, and East
Ridge intends to file a preliminary development plan ("PDP") upon approval of this request.
Request for Modification of Standards
East Ridge requests that it be granted a modification of the 1,320-foot buffer zone
standard required for an on -site hawk nest pursuant to Land Use Code ("LUC") Sections
3.4.1(A)(2)(d) and 3.4.1(D) and, in lieu thereof, proposes the following buffer and conditions,
which are largely based on the recommendations of ERO Resources Corporation contained in its
report dated February 12, 2004 attached hereto (the "ERO Report"):
• Modification of the 1,320-foot buffer standard to an on -site buffer zone of
approximately 300 feet around the tree where the nest is located (the "Buffer
Zone"). At this time, we envision that the Buffer Zone will encompass
approximately the area depicted on the attached Sketch Plan with its final shape
and area to be subject to change based on the final alignment of access. In any
event, East Ridge commits that the Buffer Zone will encompass no less 5.8 acres,
which acreage equals the area of a buffer circle with a 300-foot radius.
• Preservation of the row of mature cottonwood trees where the nest is located.
• Maintenance of the "Buffer Zone" for three years after the last verified use of the
nest for nesting, or until the nest is either destroyed or damaged beyond use by
natural forces (weather events).
LUCA A. LILEY a JANIES A. MARTELL a TODD W- ROGERS
THE PETER ANDERSON HOUSE a 300 SOUTH HOWES STREET a FORT COLONS, COLORADO 80521
TELEPHONE. (970) 221-4455 0 FAX (97D) 221-4242
Mr. Greg Byrne
June 1, 2004
Page 2 of 8
• Developer shall have field surveys of the tree conducted in May of each year to
verify- the nest's use for nesting, and shall provide the results to the City's Natural
Resources Department.
• Limits of Development during construction shall be the same area as the final
Buffer Zone.
• City -required improvements to Timberline Road, construction of the collector
street access into and through the Property and the installation of utilities shall be
permitted within the Buffer Zone, however, no construction shall occur between
April 1 and July 15 if the nest is occupied for nesting purposes.
• Maintenance of a permanent 50-foot buffer zone around the trunk of the tree
where the nest is located for the life of the tree.
The 1,320-foot buffer, the proposed Buffer Zone and Limits of Development, and the 50-
foot permanent buffer are shown on the attached Sketch Plan and will be depicted on the ODP
and each POP approved hereafter.
As part of its First Phase PDP plans and as recommended by the ERO Report, East Ridge
will dedicate a small natural area and public park and will conserve and enhance an existing
wetland, wet meadow and upland habitat, totaling more than 20 acres outside of the Buffer Zone,
to provide additional habitat and foraging opportunities for any hawks using the nest. Please see
the Sketch Plan for a depiction of these on -site open lands.
East Ridge submits this modification request for the First Phase PDP it intends to file,
pursuant to LUC Section 2.8.1(2), and requests that this matter be scheduled for administrative
review by the Director of Community Planning and Environmental Services during the third
week of June, 2004.
Facts
1. Property Description. On September 2, 2000, Cedar Creek Associates, Inc.
(`Cedar Creek") prepared an Ecological Characterization Report which contained a very detailed
description of the Property. A copy of the report is attached. According to the Ecological
Characterization Report, the Property is a relatively flat parcel of ground that has been
historically and is currently used for agricultural purposes. There are a number of aging native
and non-native trees on the west side of the Property that were planted as windbreaks for the
original farmsteads. The balance of the Property consists of alfalfa and grass hayfields,
grassland pasture, cultivated row cropland and an overgrazed wetland, all of which have limited
value for habitat or wildlife use in their current condition. The only wildlife habitat feature on
the Property with any potential value is the native trees. Prior to agricultural activities, the
Property was a grass prairie with forage habitat, but without trees or nesting sites.
Mr. Greg Byrne
June 1, 2004
Page 3 of 8
The Property is bounded on the west by Timberline Road; Timberline Road is slated for
improvement to a six -lane major arterial roadway and is designated in the Transportation Master
Plan 2004 as a Power Trail/Enhanced Travel Corridor. Directly across Timberline Road from
the tree where the nest is located is the entrance to the Collins Aire Park, a mobile home
community which is home to approximately 328 families. South of the mobile home park are
several commercial properties including landscaping businesses and warehouse storage. North
of the mobile home park is a heavy industrial steel fabrication use, a railroad switching yard and
the busy intersection of Timberline Road and East Vine Drive. On the north, the Property is
bounded by railroad tracks and East Vine Drive. East of the Property is cultivated farmland with
an approved overall development plan for residential uses. Directly abutting the Property on the
south are the Barker Construction and Barker Gravel businesses.
2. Proiect History. Planning for development of the Property has been ongoing since
1998. The first petition for annexation and Overall Development Plan ("ODP") application were
prepared and then tabled in 1999 while East Ridge negotiated with the neighbor to the south for
drainage easements, since the Property has no natural drainage outfall under normal runoff
conditions. East Ridge submitted a second ODP and petition for annexation in September, 2000,
to avoid the proposed constitutional amendment referred to as the "Smart Growth Initiative" on
the November election ballot. Shortly after failure of the Smart Growth Initiative, these
submittals were refused by the City and both applications were returned to East Ridge while the
City undertook the study of zoning and other planning issues in conjunction with a new subarea
plan, the East Mulberry Corridor Plan. and to allow further discussion about the possible
annexation of the railroad right-of-way adjacent to the north boundary of the Property.
Thereafter, in February, 2002, the Property was annexed without the railroad right-of-
way and, pending finalization and adoption of the East Mulberry Corridor Plan, was placed in
the T-Transition zone and East Ridge closed on its purchase of the Property on November 26,
2002.
In anticipation of the proposed new Low Density Mixed Use Residential ("L-M-N")
zoning designation envisioned by the East Mulberry Corridor Plan, East Ridge began preparation
of a new ODP plan for a combination of single-family, multi -family, commercial and
neighborhood center uses with more than 20 acres of open lands including a wetland, wet
meadow, upland habitat, a natural area and a public park. Development of the Property will also
require the dedication of right-of-way for Timberline Road improvements, construction of the
local share of adjacent Timberline Road improvements, and the payment of street oversizing
fees. During this planning process, it was determined by the City's Natural Resources
Department in April, 2003 that a large cottonwood tree on the western edge of the Property now
contained a Swainson's Hawk nest which might qualify as a Special Feature pursuant to LUC
Division 3.4.1 and thus require the establishment of an appropriate buffer zone. This new issue
came as a surprise to East Ridge, as the City's determination was contrary to all evidence
previously compiled regarding natural features on the Property.
Mr. Greg Byrne
June 1, 2004
Page 4 of 8
East Ridge and its consultants have met with the City's Planning and Natural Resources
Departments' Staff several times specifically to discuss raptor nest site buffers and performance
standards (March 25, 2003, August 14, 2003, February 9, 2004, February 19, 2004, and May 26,
2004). The meetings with Staff were helpful, however, it was agreed over the course of these
discussions that, given the severe impact of the buffer requirements, roadway alignment issues
and other site constraints, a plan for this Property could not come within the bounds of the buffer
and performance standards of Section 3.4.1 and would therefore require a modification of the
standard.
3. Raptor Nest. In connection with its Ecological Characterization Report, Cedar
Creek conducted a field survey of the Property on August 30, 2000. Cedar Creek found that "no
evidence of raptor nesting activity ... was noted in any of the trees on or near the property" and
concluded that "future raptor use of these trees is unlikely because of the proximity of
commercial/residential developments and existing roadways." Later, in March, 2003, Cedar
Creek completed two additional field surveys for raptor nests and, regarding the nest which is the
subject of this request found "no evidence of recent occupation by red-tailed hawk or other
raptor species." See the attached letter from Cedar Creek dated March 31, 2003.
The Colorado Department of Wildlife ("CDOW") map of raptor nest locations in the Fort
Collins vicinity does not identify the Property as having a raptor nest site, but does indicate that
there are a surprising number of nest sites both within Fort Collins and the Growth Management
Area. Please see the copy of the map attached. Also, studies conducted by the City for the East
Mulberry Corridor Plan did not indicate any concern over raptor nests, nor was any concern
about the presence of raptors on the Property raised by City Staff during the conceptual review
meetings for the ODP in either 1999 or 2002.
Swainson's Hawks are not threatened or endangered species which are afforded special
protection by State or Federal law and reputable professionals disagree about recommended
buffer distances. The City's buffer zone standards are not, admittedly, based on conclusive
scientific studies; the Natural Resources Department Staff has in fact stated in recent staff reports
to the City's Planning and Zoning Board and City Council that "very little research has been
performed on raptors nesting in urban environments." It is acknowledged by Gerald R. Craig,
the former CDOW raptor specialist, and a local raptor biologist that many species and/or
individual raptors adapt to urban environments and may tolerate human habitation to within 100
yards (300 feet) of their nest. Please see the FRO Report and the Recommended Buffer Zones
and Seasonal Restrictions for Colorado Raptor Nests prepared by Gerald R. Craig which are
attached, and the April 27, 2004 Memorandum to City Council, the May 20, 2004 Planning and
Zoning Board Staff Report and the June 1, 2004 Item Agenda Summary to City Council.
Finally, raptors and their nesting sites are "moveable" resources; even if a raptor were to leave a
site because of development -related disturbance, the resource is not lost, just relocated.
In any event, the pair of Swainson's Hawks currently nesting on the Property have
already established for themselves a de facto buffer distance with which they are clearly
comfortable. The nest is in a tree that is only 250 feet from Timberline Road, with vehicle,
Mr. Greg Byrne
June 1, 2004
Page 5 of 8
bicycle and pedestrian traffic. The proposed Buffer Zone provides an additional 50 feet beyond
the pair's already accepted buffer distance. It is not necessary, in this case, to provide a larger,
approximated buffer distance based on projections or estimates of hypothetical behavior, it is
clear that the nesting pair have already adapted to significant human activity within 250 feet of
the nest.
Compliance with Review Criteria
For Modification of Standards
In support of its request, East Ridge asserts that two of the alternative standards for
approval of a modification request according to LUC Section 2.8.2(H) have been satisfied as
follows:
(1) By reason of extraordinary and exceptional situations, unique to such property, the
strict application of the buffer zone standard would result in unusual and exceptional
practical difficulties, and exceptional or undue hardship upon the owner of such property,
which have not been caused by the applicant. See LUC Section 2.8.2(H)(3).
A number of unique situations about this Property, combined with the 1,320-foot buffer
requirement for the hawk's nest, result in an almost insurmountable hardship to East Ridge.
The East Mulberry Corridor Plan and the Transportation Master Plan 2004 have
determined that the optimal location for the collector street access to and through the Property is
in alignment with the existing entrance to the Collins Aire Park, midway between East Vine
Drive and International Boulevard. Although alternate alignments have been proposed and
considered by the City, representatives of various City departments came to a consensus at an
interdepartmental meeting on March 18, 2004 that the collector street alignment should not be
moved either north or south because of public safety concerns and the impact that a realignment
would have on other planned improvements to the overall transportation network (i.e., the
completion of International Boulevard and the construction of a grade -separated intersection at
East Vine Drive).
Because the Property's entire frontage on Timberline Road is within the 1,320-foot buffer
zone, strict application of the buffer requirement would completely preclude construction of
access to the Property and construction of the collector street connection through the Property.
Note also that because of the lack of an existing street network, intervening railroad tracks on the
north, wetlands and existing commercial development to the south and undeveloped property on
the east, access is not possible from any other direction.
In addition to these exceptional circumstances, it is significant that approximately 61% of
the buffer zone circle is on -site resulting in the loss of approximately 77 of the 152 acres or 51%
of the total site area. When coupled with the existence of an on -site wetland which requires
certain setbacks and mitigation, the developable acreage is reduced by another 12 acres, leaving
only 65 acres of the 152-acre Property, or roughly 43%, available for development.
Mr. Greg Byrne
June 1, 2004
Page 6 of 8
The inability to construct access renders the entire Property undevelopable and results in
a total loss. Not only will East Ridge lose its initial investment in the Property and all monies
invested in site planning to date, it will lose all of the anticipated investment value of the
Property.
Even if the developer were allowed to construct the collector street from Timberline
Road through the buffer, it would suffer a severe hardship: (i) the East Ridge principals, with
over 30 years of combined development experience in the Fort Collins market, estimate that they
will suffer a net loss of nearly $5,000,000 with the full buffer requirement, even if access were
available (please see the attached spreadsheet which outlines East Ridge's estimated tosses), (ii)
the vast majority of its development costs would remain the same (e.g., significant costs for on -
site and off -site infrastructure, utilities, wetland mitigation and enhancement) or increase (e.g.,
development of the acreage outside of the buffer would require that a second point of access be
provided, given the existing impediments to access, this second connection would also have to
cross the buffer area and would further increase the costs of the development); (iii) ongoing
property maintenance and liability costs will greatly increase (e.g., homeowners' association
responsibility for continued ownership, maintenance and liability associated with a very large
butler area), (iv) the majority of such costs would have to be born by a significantly reduced
number of lots, and (v) the questionable success of a neighborhood center in the interior of the
project.
(2) The East Ridge Overall Development Plan and mitigation proposal would
substantially address an important community need and the strict application of the buffer zone
standard ivould render the project practically infeasible. See LUC Section 2.8.2(H)(2).
The community need test is met if the Property is allowed to develop in accordance with
the direction of the City Plan Principles and Policies, the East Mulberry Corridor Plan, the
Mountain Vista Subarea Plan and the Transportation Master Plan 2004. On the other hand, the
loss of a number of community values will be the result if this 152-acre property close to the
City's core is undevelopable.
Under the "Spirit of Fort Collins' City Plan Principles and Policies," the City recognizes
that the Comprehensive Plan "strives to achieve a fair and proper balance among conflicting
interests, to protect the rights of citizens, and to affirm community values as they have been
expressed by citizens throughout the planning process." These community values include
compact urban form (LU-1.1), land use patterns (T-1.1 and HSG-1.1), new and existing
roadways (T-9.2), infrastructure and capital facilities (ECON-1.3), housing supply (HSG-1.2),
land for residential development (HSG-1.4), development practices (HSG-2.3) and phasing of
development (GNI-5.1). Following is a summary of how the development of this Property will
fulfill these community values:
Mr. Greg Byrne
June 1, 2004
Page 7 of 8
City Plan Polic
Fulfillment of Policy
LU-1.1 Compact Urban
Provides required density for the Property and decreases the
Form
otential for dispersed growth.
T-1.1 Land Use Patterns
Supports effective transit and an efficient roadway system,
alternative transportation modes, and land uses within walking
distance of proposed transit stops.
T-9.2 New and Existing
Includes fair share of Timberline Road enhancement and new
Roadways
internal streets to ensure an acceptable level of service.
ECON-1.3 Infrastructure
Provides access to employment centers and housing for nearby
and Capital Facilities
workers.
HSG-1.1 Land Use
Provides housing close to employment centers, services and
Patterns
amenities.
H5G-12 Housing supply
Helps City maintain an adequate supply of housing.
HSG-1.4 Land for
Maximizes the potential for developable land and promote the
Residential Development
affordability of housing.
HSG-2.3 Development
Critical in achieving project timelines, required densities, and
Practices
predictability of mitigation. costs, and thus housing affordability.
GM-5.1 Phasing of
Promotes an orderly extension of utility infrastructure. The site
Development
is an infill site, with existing development in all four directions.
Without the project, proposed development to the north and east
would be forced to leapfrog.
In addition, many community needs defined in other elements of the Comprehensive Plan
could not be effectively or efficiently met, or perhaps could not be met at all, without the
requested modification of the buffer standards:
East Mulberry Corridor Plan. This specific subarea plan envisions that
development of this Property will contribute to the planned expansion of Timberline
Road to a 6-lane arterial with multi -modal transportation functions, construct the
collector street connection through the Property between Timberline Road and the future
Greenfields Street and provide low density residential and mixed use neighborhood uses.
Mountain Vista Subarea Plan. The Mountain Vista Subarea Plan was prepared to
aid in fulfillment of the City's objective to "steer growth and development to the north'
(See page 2). According to this specific subarea plan, the multi -modal transportation
services provided by the improvement of Timberline Road are a critical link in the overall
transportation network for the northeast quadrant of the City.
Transportation Master Plan 2004. This recently adopted plan describes the future
Timberline Road/Power Trail Corridor as an opportunity to complete the Harmony Road/
College Avenue/Conifer Street/Timberline Road enhanced travel corridor loop, to link
employment and commercial activity on Harmony Road with future development along
Timberline Road and in the Mountain Vista Activity Center.
Mr. Greg Byrne
June 1, 2004
Page 8 of 8
It is clear that a fair and proper balance among conflicting interests is not achieved by a
strict application of this particular element of the LUC that derives from Policy ENV-5-1 and
OL-1.2, but would be applied at the expense of the other policies listed above. In summary, the
identified nest site would be protected under the buffer zone regulation, but with questionable
positive impact to overall species habitat protection, and at great cost to other community values.
Application of the spirit of fair and proper balance must lead to consideration of all the
community values reflected in the Comprehensive Plan, when considering the modification
request for this particular Property, as well as the severe impact of the buffer requirement on this
Property.
Should the buffer zone requirement of the LUC be strictly applied to the Property,
eliminating the only access option and resulting in the loss of over 51% of the total site area, the
mixed -use, residential project planned by East Ridge and envisioned in the City's comprehensive
planning documents would be rendered practically infeasible. Please see the statements of
financial impact set forth in part (1) above which are incorporated into this part (2).
In further support of its request for modification of the buffer standard, East Ridge asserts
that the granting of this request, which will allow the development of a portion of a relatively
small, isolated habitat area, would not be detrimental to the public good particularly since the
map of City raptor nest locations shows a number of hawk habitats surviving in urban settings,
the hawks have adapted well to human intrusion with 250 feet of this nest, and steps will be
taken in the project to preserve and enhance an additional 20 acres of habitat to provide
additional foraging opportunities. In fact, the benefit to the citizens, described in City Plan
Principle OI. 1 as the preservation and protection of open lands to provide habitat for wildlife, is
being well protected by the City's aggressive acquisition of large, undisturbed natural areas
through the Natural Areas Program that will provide, within the City, it's GMA and in more rural
areas, much greater opportunities for significant preservation, enhancement and creation of hawk
habitat which in turn will assure that this resource is never lots, only relocated.
In closing, we request that you give serious consideration to East Ridge's request for
modification of standards. Please let us know if there is additional information we could provide
that would be useful in your evaluation of this request.
Sincerely,
LILEY, ROGERS & MARTELL, LLC
By
Lucia A. Liley
LAL/j pk
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