HomeMy WebLinkAbout2017CV01 - HOFFMAN & HUNT V. CITY OF FORT COLLINS, ET AL - 001 - COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF' I
FORT COLLINS MUNICIPAL COURT
215 N. Mason
Fort Collins, CO 80521
Phone (970) 221 6800
RECEIVED
City Clerk's Office
j -~ '/j)(f
Plaintiffs: Colleen Hoffman, Rick Hoffman, Ann Hunt
v.
Defendant: THE CITY COUNCIL OF THE CITY OF FORT
COLLINS, the governing body of a Colorado municipal
corporation; and THE ADMINISTRATION BRANCH OF THE
CITY OF FORT COLLINS, by and through its City Manager,
Darin Atteberry.
Parties without attorney
Colleen Hoffman, pro se
1804 Wallenberg Drive
Fort Collins, CO 80526
(970) 484 8723
cohoff@comcastnet
Rick Hoffman, pro se
1804 Wallenberg
Fort Collins, CO 80526
(970) 484 5154
rick-hoffman@comcast.net
Ann Hunt, prose
1800 Wallenberg Drive
Fort Collins, CO 80526
(970) 484 5242 ~
ARH4@COMCAST.NET
.& COURT USE ONLY .&
Case Number:
COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF
Plaintiffs, Colleen Hoffman, Rick Hoffman and Ann Hunt, in this Complaint
alleging abuse of discretion by the City Council of the City of Fort Collins and
request for injunctive relief, hereby state and allege as follows:
Introduction
The City of Fort Collins (the City) is a home rule municipality in the state of
Colorado. Pursuant to authority granted Article XX section 6 of the Colorado
Constitution, the City of Fort Collins has adopted a City Charter. By adoption of a
home rule City Charter (the Charter), the City has claimed authority over all
planning and zoning issues in the City. All powers of the city and the
determination of all matters of policy pertaining to planning and zoning are vested
in the Defendant City Council. See Charter Article II section 5 (b) (8).
The powers of the City in the field of planning and zoning include the
exclusive authorization for the construction of improvements on real property
within the corporate limits of the City and no improvements may be constructed
without such authorization. The process of granting authorization for the
construction of improvements, also referred to as vested rights, is generally known
as development review and is defined and controlled by the laws of the City of Fort
Collins as adopted by Ordinance of the Council and amended from time to time in
the City Code, the Land Use Code and the zoning map.
The development review process grants vested rights upon a public hearing
held by a decision maker, who thereafter makes a determination as to whether or
not the proposed development conforms with standards for development and use
found in the Land Use Code and the zoning map. Such public hearing and
resulting decision are quasi-judicial and may be appealed to the Council in
accordance with procedure established in the City Code. The City Council's
review of a decision from a lower tribunal is also quasi-judicial in nature. As such,
an abuse of discretion by the City Council is subject to appeal to a court of
competent jurisdiction. This complaint is such an appeal.
Article VII section 1 of the Charter states, in relevant part: ·
There shall be a Municipal Court vested with original jurisdiction of all causes
arising under the City's Charter and ordinances ....
Rules of procedure, costs and fees shall be enacted by the Council upon
recommendation of the Municipal Judge.
The Supreme Court of the State of Colorado has ruled that language substantially
similar to that of Article VII section 1 means precisely what it says. The
Municipal Court of the City of Fort Collins has exclusive original jurisdiction over
this matter. See Town of Frisco v Baum, 90 P. 3d 845 (Colo 845). However,
despite the existence of the plain and simple language requiring that the Council
enact rules of procedure for the Municipal Court, which has been extant in the
Charter since adoption in 1954, the Council has never adopted rules for
adjudicating causes arising under the City's Charter and ordinances except for
those infractions of Ordinances in which a suminons has been served on an
individual.
In the absence of such rules as required by the Charter, this complaint is
submitted to this court in the form and style that best match other rules of civil
procedure, such as the rules for district and county courts of the state of Colorado.
In this regard, this complaint takes the form of an alleged abuse of discretion
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similar to C.R.C.P. Rule 106 (a)(4) and a requestfor a temporary injunction for the
pendency of this matter similar to C.R.C.P. Rule 65. However, the adoption of this
convention and a good faith effort to adhere to existing rules of civil procedure
adopted in other courts does not bind this procedure to those rules. For example,
this complaint and its request for relief from the Municipal Court is authored with
the intent of filing with the Municipal Court no more than 28 days from the final
action of the lower tribunal as prescribed by C.R.C.P. Rule 106. However, the
failure of the Defendant City Council to adopt any rules regarding a statute of
limitations of the tolling of time for such matters, despite the responsibility to do so
lying in mandamus for over half a century, does not enforce upon this proceeding a
de facto statute of limitations.
In fact, the Plaintiffs have speculated that there may be no due process
available in this matter because of the absence of rules required by the City
Charter. This complaint is reasonably the most suitable process available.
However, the filing of this complaint does not indicate in any way that the
Plaintiffs believe that this process is adequate process and may not be construed as,
a stipulation or representation of trust in this process.
The complication of adjudicating an allegation of abuse of discretion by a
lower tribunal without adequate rules of procedure is not the only irregularity
present in this matter. The City of Fort Collins has, for a long period of time,
conducted its administrative and quasi-judicial affairs in the arena of development
review with a general disregard for rule of law. The legislative intent of the
standards for development review and the very modest protections that such
standards provide the citizens of Fort Collins are ill observed. The present case
brought before the Municipal Court brings the bad faith and exploitation into view
and exposes various deficiencies in process at the same time. The failure to refine
and evolve process and the absence of fidelity to the purpose of the ordinances that
control development review may be traced to an administrative paradigm that has
lost sight of the public interest.
Parties
1. The City of Fort Collins is a home rule municipality located in
Larimer County, Colorado and organized by a City Charter adopted in accordance
with Article XX section 6 of the Colorado constitution. The Defendant
Administrative Branch of the City of Fort Collins is under the supervision and
control of the City Manager, Darin Atteberry, pursuant to Article III of the Charter.
In particular, the administrative affairs of the Defendant Administrative Branch
include the granting of final vested rights in development review proceedings
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including but not limited to the execution of a development agreement with the
City, re-platting of land and the approval of a Final Development Plan (FDP).
2. The Defendant City Council of the City of Fort Collins is the
governing body of the City of Fort Collins pursuant to Article II of the charter. In
particular, the Defendant City Council's review of appeals from development
review hearings conducted by the Planning and Zoning Board lies in mandamus
and is quasi-judicial in nature.
3. The Plaintiffs are citizens of Port Collins. All own property in the
vicinity of the property considered for vested development rights by the
Defendants. All were interested parties in the review of the application for vested
rights by the Fort Collins Planning and Zoning Commission. Plaintiffs Ann Hunt
and Colleen Hoffinan were appellants before Defendant City Council in the quasi-
judicial proceeding that precedes this action in Municipal Court.
Venue and Jurisdiction
4. The Municipal Court of the City of Port Collins has original
jurisdiction of all matters arising from the Charter and ordinances of the City of
Fort Collins. (See Introduction and Article VII of the Charter). All matters
complained of and all requests for injunctive relief here arise from the Charter and
ordinances of the City. All actions of the Defendant City Council complained of
herein are matters of exclusively local interest. All controlling laws in this matter
are local laws that have been duly adopted in a field of exclusively local interest.
All administrative actions of the Defendant Administrative Branch sought to be
enjoined and restrained by the Plaintiffs are exclusively matters of local control.
Venue is proper in this court.
5. The Plaintiffs herein allege an abuse of discretion by the Defendant
City Council in failing to ensure that the laws of the City of Fort Collins applicable
to review of a proposed construction of improvements on property within the city
limits were applied uniforritly and fairly. Said laws create for the Plaintiffs a
legally protected right. The Plaintiffs further allege that this abuse of discretion
will deprive Plaintiffs of property rights and quality of life. The Municipal Court
of the City of Port Collins has subject matter jurisdiction over this dispute.
6. The Defendant Administrative Branch of the City of Port Collins is
required by Article III section 2 (f) to enforce the laws and ordinances of the city.
The award of vested development rights to a party for a proposed construction of
improvements that is inconsistent and incompatible with the standards of the Land
Use Code is a failure to enforce the laws and ordinances of the city. The
Municipal Court of the City of Port Collins has jurisdiction over the Defendant
Administrative Branch in this dispute.
4
7. The decisions of the Defendant City Council of the City of Fort
Collins, when acting in a quasi-judicial capacity for the purposes of reviewing
matters of exclusively local interest is subject to further judicial review by a
superior court. The Municipal Court of the city of Fort Collins is superior court
by virtue of Article VII of the Charter as established in Town of Frisco v. Baum,
supra. The Municipal Court of the City of Fort Collins has personal jurisdiction
over the Defendant City Council in this dispute.
General allegations
8. On November 10, 2016, the Planning and Zoning Board (the "Board")
reviewed and approved the inappropriately named Landmark Apartments
Expansion Project Development Plan PDP#160013 (the "PDP" or "Project").
9. Two separate Notices of Appeal of the Board's approval of the PDP
were filed with the City Clerk on November 22, 2016 pursuant to Chapter 2,
Article II, Division 3, of the City Code; one by Per Hogestad, the Hogestad
Appeal, and the other by Plaintiffs Colleen Hoffman and Ann Hunt, the Hoffman-
Hunt Appeal. See exhibits 1 and 2.
10. Generally, the appeals noted in the preceding paragraph alleged that
the Planning and Zoning Board had failed to apply relevant standards of the Land
Use Code that require a buffer around city owned natural areas or floodways and
standards for compatibility of new construction with existing development in
adjacent parcels. The appeals also alleged that the procedure utilized by the city
for review of the proposed construction of improvements was incompatible with
the known circumstances of the land ownership and prior awards of vested rights.
11. On January 31, 2017, the City Council, after notice given in
accordance with Chapter 2, Article II, Division 3, of the City Code, consolidated
and considered both Appeals, reviewed the record on appeal and the applicable
LUC provisions, and heard presentations from the Appellants and the opponent of
the Appeals, the applicant for the PDP. As is the custom of Defendant
Administrative Branch, the staff of the City of Fort Collins planning department
participated in the appeal process in a substantial capacity with an undisputable
bias shown to the position of the opponent of the Appeals.
12. The activities of the Defendant City Council during the appeal hearing
may be reasonably and accurately described as ignoring the substance of the
grounds for the appeals that were brought by the Plaintiffs. Two examples that
support this statement are provided in the following two paragraphs. These
examples do not complete the totality of avennents that support the relief requested
in this petition, but are sufficient for the purposes of granting the relief requested.
5
\
13. The Plaintiffs and co-appellant upon consolidation had averred that
the 50' foot buffer required by Section 3.4.1 of the Fort Collins Land Use Code
would not be preserved by the proposed construction of improvements and that the
Planning and Zoning Board had failed to adequately apply this requirement to their
decision to grant approval of the PDP. This fact cannot be disputed upon
examination of the facts and the law, but the Defendant City Council, in a manner
not inconsistent with prior actions in similar quasi-judicial actions, chose to ignore
the requirements of the LUC and overlook the failure of the IOwer tribunal to
ensure these requirements were satisfied.
14. Plaintiffs and co-appellant upon consolidation had also averred that
the proposed construction of improvements and anticipated use of the new
development could not be reasonably deemed compatible with the adjacent, long-
established single family neighborhood pursuant to the requirements for
compatibility adopted by ordinance in Section 3.5.1 of the Land Use Code. Such
averment is wholly supported by the cursory examination of the density and
intensity of use inherent in the PDP. In this case, improvements and use with
indisputably higher density and intensity than the existing Landmark Apartment
complex, to which the PDP is purported to be an expansion of, are proposed to be
sandwiched in between the existing Landmark Apartment complex and a single
family neighborhood. No reasonable definition or understanding of compatibility
could hold that a development of very high density and intensity could be
positioned between two existing developments, one of relatively high density and
intensity (existing Landmark Apartments) and one of low density and intensity
(Sheely and Wallenberg single family homes). Yet, that is precisely what the
Defendant City Council held.
15. A further deficiency in process and result was averred by the Plaintiffs
and was similarly ignored by the Defendant City Council. In its procedural
advancement of the PDP, Defendant Administrative Branch had apparently held
that the construction of new improvements should be considered an expansion of
the existing Landmark Apartments development. As such, certain requirements of
the Land Use Code that would be applicable to a stand-alone PDP for a multi-unit
development were automatically deemed to have been satisfied by existing
amenities and appurtenances of the existing Landmark Apartments. However,
there is no support for the conclusions drawn by using this approach. The platting
of the parcels involved and the nature of the application that originated this
development review do not, in any way, support the conclusions drawn. In the
alternative, it is conceivable that the construction of new improvements and future
use might have been reviewed by the Planning and Zoning Board as a major
amendment to an existing, approved Overall Development Plan (ODP), but that
6
was not the approach used and the decisions of the Planning and Zoning Board
could not be based upon the possibilities of this approach.
16. When approving this project, the Defendant City Council relied on
information from a flawed Ecological Characterization Study (ECS) that
downplayed the importance of the city owned open space (storm drainage canal) as
a wildlife movement corridor. The study was too short to accurately assess the
value of the open space as a wildlife movement corridor. The study failed to detect
or failed to report many species of wildlife that move through, hunt, and reside in
the area at least part of the year. Section 3.4.1 D of the LUC states the ECS shall
describe without limitation the wildlife use of the area showing the species of
wildlife using the area, times and seasons of use, and value the area provides for
such wildlife. These requirements were not met by the ECS.
17. Upon conclusion of the hearing in the quasi-judicial matter of the
appeal, Defendant City Council's decision was made by motion. The practical
effect of that decision was made official pursuant to City Code by the adoption, at
its next regular meeting held on February 7, 2017, of RESOLUTION 2017-011 OF
THE COUNCIL OF THE CITY OF FORT COLLINS ADOPTING FINDINGS OF FACT AND
CONCLUSIONS REGARDING THE APPEAL OF THE PLANNING AND ZONING BOARD
DECISION APPROVING THE LANDMARK APARTMENTS EXPANSION, PDP#160013.
See exhibit 3, the Resolution.
First claim for relief
18. The Plaintiffs incorporate the General Allegations as if fully set forth
herein.
19. In making and adopting what Resolution 2017-011 termed its 'fmdings
of fact and conclusions', the Resolution stated in (4):
That the Board did not fail to properly interpret and apply LUC Division 3.5-
Building Standards, including but not limited to LUC §3.5.1-Building and
Project Compatibility, when the Board approved the PDP on.November 10,
2016, except that .... the Board's decision approving the PDP shall be
modified to include the additional six conditions,
20. In making and adopting what Resolution 2017-011 termed its 'fmdings
of fact and conclusions' , the Resolution also stated in (5):
That the Hogestad Appeal and the Hoffman-Hunt Appeal are without merit and are
denied.
21. The logical failing of these two adjacent conclusions is absurd. The
appeals could not have been without merit and yet have resulted in the imposition
of six conditions upon the development proposal. Such idiosyncrasies are not
uncommon. This matter must be. remanded on appeal to the Defendant City
7
Council for further proceedings consistent with a finding that the appeals had
merit.
Second claim for relief
22. The Plaintiffs incorporate the General Allegations and the first claim for
relief as if fully set .forth herein.
23. The Defendant City Council made no findings of fact concerning any of
the other specific allegations made in the Appeals other than that noted in the First
claim for relief.
24. Section 3.4.l (E) (2) (c) of the Land Use Code enumerates purposes for
which the buffer zone of a Natural Habitat of Feature may be disturbed. The
Defendant City Council failed to correctly ascertain that Planning and Zoning
Board had failed to apply this standard to the development proposal as alleged by
the Plaintiffs in their appeals. This was an abuse of discretion by the Defendant
City Council. This matter must be remanded with instructions to find that the
LUC requirements under section 3.4.1 are not satisfied by the development
proposal, the Planning and Zoning Board did not properly apply the requirements
of the LUC and to take appropriate actions.
Third claim for relief
25. The Plaintiffs incorporate the General Allegations and the first and
second claims for relief as if fully set forth herein.
26. The Defendant City Council made no findings of fact concerning any of
the other specific allegations made in the Appeals other than that noted in the First
claim for relief
27. Section 3.4.l of the Land Use Code justifiably creates a clear
expectation that new development adjacent to existing development comply with
minimal standards of compatibility. It is axiomatic that transitions from areas of
high density and intensity to areas of lower density and intensity are required by
the Land Use Code. A development that introduces a density and intensity higher
than adjacent development on either side cannot be construed to be consistent with
a transitional compatibility standard. A progression from high to higher to low
density is not consistent in any way with the Land Use Code's requirements for
compatibility. The Defendant City Council made no finding of fact regarding
matters of public interest to explain or justify the failure of the development
proposal to comply with the LUC's compatibility requirements. This was an abuse
of discretion. This matter must be remanded with instructions that the Defendant
City Council find that the development proposal is not compatible with existing
development under the LUC, that the Planning and Zoning Board did not properly
apply the requirements of the LUC and to take appropriate actions.
8
Fourth claim for relief
28. The Plaintiffs incorporate the General Allegations and the first, second
and third claims for relief as if fully set forth herein.
29. The Defendant City Council abused its discretion by failing to find that
the Planning and Zoning Board had not applied section 3.8.30 Multi Family
Dwelling Development Standards. The development proposal put forth by the ·
PDP was described in the title of the PDP as an expansion of the Landmark
Apartments. Yet, on the basis of land title and platting, the new construction is a
new multi-family unit that may be sold independently. The two developments at
issue here are separate parcels with different legal descriptions that were purchased
separately at different time periods and may be sold independently. Yet, the
requirements of the section 3.8.30 (C) of the Land Use Code for open space was
not satisfied under the erroneous presumption that the open space of the existing
adjacent development satisfied the requirement. This allows for a more dense and
intense development as was previously claimed as a deficiency and abuse of
discretion in the Third Claim for relief, rather than requiring that the 'expansion'
meets the requirements of the LUC on its own merits.
30. This case must be remanded with instructions to determine that the
Planning and Zoning Board failed to properly interpret and apply the provisions of
the Land Use Code and to take appropriate actions.
Fifth claim for relief
31. The Plaintiffs incorporate the General Allegations and the first, second,
third and fourth claims for relief as if fully set forth herein.
32. In making its decision to approve the PDP, the Planning and Zoning
Board utilized a flawed and deficient Ecological Characterization Study (ECS).
Upon appeal, the Plaintiffs alleged that the ECS was deficient in terms of
adequately describing wildlife species present on the site from time to time and
was authored without an understanding of the range of uses throughout the entire
year. The ECS asserts that the site is lacking in wildlife value which is incorrect.
33. The Defendant City Council abused its discretion by failing to fmd that
the Planning and Zoning Board had considered evidence that was substantially
false or grossly misleading. This matter must be remanded with instructions
commensurate with this claim.
Sixth claim for relief
34. The Plaintiffs incorporate the General Allegations and all previous
claims for relief as if fully set forth herein.
9
35. The Plaintiffs are at risk of injury should the Defendant Administrative
Branch execute a development agreement or grant approval of a Final
Development Plan (FDP) on the basis of the deficient approval of the PDP by the
Planning and Zoning Board and the abuse of discretion of the Defendant City
Council complained of herein.
36. The Defendant Administrative Branch must be enjoined and ordered to
refrain from any administrative action that would further the construction of
improvements as have been unlawfully granted approval by the actions of the City
of Fort Collins during the pendency of the resolution of this complaint.
Prayer for relief
WHEREFOR, the Plaintiffs respectfully request that this Court determine that the
Defendant City Council abused its discretion on the occasion of an appeal brought
by Plaintiffs as described in the claims above and so remand the case to the City
Council for the making of findings of fact and conclusions consistent with the
claims expressed here,
And
The Plaintiffs request injunctive relief in the form of a temporary injunction
enjoining and barring certain administrative actions completing the grant of vested
rights to development during the pendency of resolution of all claims made herein.
Respectfully submitted this 7th day of March, 2017
1804 Wallenberg Dr.
Ft. Collins, CO 80526
Address of Lead Plaintiff
10
Ann Hunt
~
.. - i
ATTACHMENT 1
·City Clerk's
Public Hearing· Notice
and
Notice of Site Visit
-_ ~.Fort.._.City .- of _Collins _ '-'--,·-__ - _ ·-. ____ _
r· -~-'- .... ----··.: ~
PUBLIC HEARING NOTICE
City Clerk
300 LaPorte Avenue
POBox580
Fort Collins, CO 80522
970.221.6515
970.221-6295 ·fax
fcgov.comlcityclark
Appeal of the Planning and Zoning Board Decision regarding -
the· Landmark Apartments Expansion,
located at the southeast quadrant of Shields/Prospect intersection
The Fort Collins City Council will hold a public hearing on the enclosed appeal.
Appeal Hearing Date: Tuesday, January 31, 2017
Time:
Location:
Agenda Materials:
6:00 pm (or as soon thereafter as the matter may come on for hearing)
Council Chambers, City Hall, 300 LaPorte Avenue, Fort Collins, CO
Available after 2 pm, January 19, 2017, in the City Clerk's office and at
fcgov .com/agendas.
• Why am I receiving this notice? City Code requires a Notice of Hearing to be provided to
Parties-in-Interest, which means you are the applicant of the project being appealed, have a
possessory or proprietary interest in the property at issue, received a City mailed notice of the
hearing that resulted in the decision being appealed, submitted written comments to City staff
for delivery to the decision maker prior to the hearing resulting in the decision being appealed,
or addressed the decision maker at the hearing that resulted in the decision being appealed.
• Can I submit any written materials for this appean New evidence is only permitted under City
Code Subsection 2-55(b)(1) or (2). If you have evidence that is admissible under these two
subsections, it must be submitted in writing to the City Clerk's Office by 5:00 pm, Tuesday,
January 24, 2017. Further information is available in the Appeal guidelines on line at
fcgov .com/appeals.
If you have questions regarding the appeal process, please contact the City Clerk's Office
(970.221.6515). For questions regarding the project itself, please contact Tom Leeson, Community
Development and Neighborhood Services Director (tleeson@fcgov.com or 970.221.6287).
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 at 970.221.6515 (VITDD: pial 711 for Relay
Colorado) for assistance.
Wanda Winkelmann, City Clerk
Notice Mailed: January 13, 2017
Cc: ~:Z,~~~~%artment ljilf-IHfNm-.-
Planning and Zoning Board
.· Fort City of Collins
~.,.······.·"····.,
NOTICE OF SITE INSPECTION
City Clerk
300 LaPorte Avenue
POBox5BO
Fort Collins. CO 80522
970.221.6515
970.221-6295 - fax
fcgov.comlcityclerk
An appeal of the Planning and Zoning Board decision of November 10, 2016, regarding the
Landmark Apartments Expansion will be heard by the Fort Collins City Council on Tuesday,
January 31, 2017.
Pursuant to Section 2·53 of the City Code, members of the City Council will be inspecting the
site of the proposed project on January 25, 2011, at 3:00 p.m •. Notice is hereby given that this
site inspection constitutes a meeting of the City Council that is open to the public, including the
appellants and all parties-in-interest. The Project is located at the southeast quadrant of the
Shields/Prospect intersection. The gathering point for the site visit will be at the east end of
Hobbit Street.
The purpose of the site inspection is· for the City Council to view the site
and to ask related questions of City staff to assist Council in ascertaining
site conditions .. There will be no opportunity during the site inspection for
the applicant, appellants, or members of the public to speak, ask
questions, respond to questions, or otherwise provide input or information,
either orally or in writing. Other than a brief staff overview and staff
responses to questions, all discussion and follow up questions or
comments will be deferred to the hearing on the subject appeal to be held
on January 31, 2017
Any Councilmember who inspects the site, whether at the date and time above, or
independently shall, at the hearing on the appeal, state on the record any observations they
made or conversations they had at the site which they believe may be relevant to their
determination of the appeal.
If you have any questions or require further information, please feel free to contact the City
Clerk's Office at 970-221-6515.
Notice Mailed: January 13, 2017
Cc: · City Attorney
Planning
I 11/> _ A .. /.--.·[ ';--11. · .. · ., P:-.,~ ..#... ·.. ~··· . .·
{/(/tUVJl$l tf/~kPl.i}t;;.;-....
Wanda Winkelmann, City Clerk
ATTACHMENT 2
Notice of Appeal
- Notice of Appeal filed by Per
Hogestad, November 22,
2016
· iActlon Being Appealed: . Date of Action:
Landmark Apartments Expansion PPP#160013 ... Nov. 10,2016
.·Decision Maker (Board, Commission, or O'ther):
Pl~nning i;u1d ?cmil1g Boa~d
''Appellant/ AppellanfRepresentative .(if more than one appellant):-Name,addrw,'telephor¥n'~lnber(sl,·and email a if dress ot in ;· ·•
:lndlvlduafap ellant authorized to receive, on behalf of all a. pellarit5, an .notice re ulred to be malled b. the t1 .. to the a ellants.
-Name: • Ptione #:
•Per Hogestad 970-481-4469 970-484-5027
Address:
1601 f)heely Dr. Fort Collins.CO. 80526
·Email: ·
.Per.Hogestad@comcast.net
GROUNDS FOP, 1\PPEAL
The Decision Maker committed one (1) or more of the following errors (check all that apply):
O Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code, and Charter.
list relevant Code and/or Charter provlsion(s) here, by specific Section and subsection/subparagraph:
(Attach additional sheets as necessary)
Failure to conduct a fair hearing in that:
D The Board, Commission, or Other Decision Maker exceeded its authority or jurisdiction as contained in
the Code or Charter;
DThe Board, Commission, or Other Decision Maker substantially ignored its previously established rules
of procedure;
r71The Board, Commission, or Other Decision Maker considered evidence relevant to its findings which
l!.Jwas substantially false or grossly misleading. Describe any new evidence the appellant intends to
submit at the hearing on the appeal in support of these allegations2
:. _________ _
RE· Summecy sheets attached
DThe Board, Commission, or Other Decision Maker improperly failed to receive all relevant evidence
offered by the appellant.
r-Trhe Board, Commission, or Other Decision Maker was biased against the appellant by reason of a
1--\:onfllct of Interest or other close business, person or social relationship that interfered with the
Instructions:
decision maker's Independence of judgment. Describe any new evidence the appellant intends to
submit at the hearing on the appeal In support of these allegations
2
: ---------
1. For each allegation marked above, please attach a separate summary of the facts contained in the record
which support the allegation. Each summary is limited to two pages, Times New Roman 12 point font. Please
restate allegation at top of first page of each summary.
2. No new evidence will be received at the hearing in support of these allegations unless it is either described
above or offered In response to questions presented by Councilmembers at the hearing.
LUC 3.4.6 has not been satisfied. The Planning and Zoning board considered misleading
testimony based on personal opinion represented as fact.
(LUC; 3.4.6 requires effective screening of glare)
The appellant is seeking an eight foot high fence, two feet higher than the city standard
six foot fence. We believe that the taller fence will help mitigate the light spill issue and
bring the project closer to compliance with LUC 3.4.6.
The City Planner presented unfounded personal opinion as fact to the Planning and
Zoning board. The planner states without evidence that the distance that separates the
proposed project from the existing residential neighborhood will mitigate light spill and
glare on adjacent properties. The planner further states that a standard six foot high fence
is adequate to reduce light spill on the adjacent single family neighborhood with no bas,i~
for this assertion.
The appellant will demonstrate that a standard six foot high fence will not effectively
screen light spill and glare created by adjacent head-in parking and poorly aligned drive
isles. The appellant will present photographic evidence depicting light spill and glare
based on the proposed plan. The evidence will support the allegation that LUC 3.4.6 has
not been satisfied and that the board considered misleading testimony based on opinion
represented as fact.
Neighborhood representatives have repeatedly asked the development team for an eight
foot high fence without success. The unwillingness of the development team to work with
the neighborhood has been typical throughout the design process.
LUC 3.5.1 D has not been satisfied. The Planning and Zoning board considered
misleading testimony based on personal opinion represented as fact.
(LUC 3.5.1 D; minimize infringement of privacy of dissimilar land uses)
The appellant is seeking the removal of all balconies facing the single family
neighborhood. This will help to mitigate the lack of compatibility and privacy by
reducing the intensity of use.
The City Planner presented unfounded personal opinion as fact to the Planning and
Zoning board. The planner states without any evidence that the distance that separates the
proposed project from the existing residential neighborhood will mitigate privacy and
noise concerns satisfying LUC 3.5.1 D. The planner further states without evidence that
the grade differences of the proposed development will cause the elevation of the
proposed balconies to be the same or lower than the existing neighborhood decks and
patios.
The appellant by testimony will demonstrate that based on current conditions the
proximity of the proposed project will not mitigate privacy concerns and does not meet
the requirements of LUC 3.5.1 D.
The appellant will present testimony that the grades of the northwest Sheely property
(1601 Sheely) are affectively the same as that of the proposed project. Given the similar
grades then the proposed balconies will be substantially higher than the Sheely property.
The testimony will support the allegation that LUC 3.5. l D has not been met and that the
board considered misleading testimony based on opinion represented as fact.
Neighborhood representatives have repeatedly asked the development team to remove
balconies that face the single family residential neighborhood without success. It is
disappointing that the development team chose to ignore neighborhood concerns.
LUC3.4.1 has not been satisfied. The Planning and Zoning board was not given complete
and current information.
LUC 3.4.l (F) (2) Provide new wildlife connections across the site to allow for
continuance of existing wildlife movement between habitats.
This LUC requirement has not been met.
The appellant is seeking a council review of LUC 3.4.1 (E). The city planning staff has
approved a reduction of more than 50% of the required natural habitat buffer zone,
The staff report and the Planning and Zoning Board agenda package did not contain the
up-dated Ecological Characterization.Study. The Planning and Zoning Board based its
decision on outdated and incomplete information. The board should have had the benefit
of the 2016 updated ECS report, the West Central Plan and the Nature in the City
document. Together these documents clearly define the City's goals for Natural areas.
City staff stated that the wetlands are the only feature that requires protection. This is
incorrect. LUC 3.4.1 requires the restoration of existing wildlife corridors. The
requirement has not been met.
The appellant will present testimony and photographs that will demonstrate that there are
established wildlife corridors on the project site.
LUC 3.8.30 has not been satisfied. The Planning and Zoning board considered
misleading testimony based on personal opinion represented as fact.
(LUC 3.8.30 required 25' Buffer Yard)
The appellant is seeking the relocation of the paved emergency driveway/pedestrian walk
encroaching into the required buffer zone. The relocation of the driveway/pedestrian
walk will satisfy LUC3.8.30 and will help to mitigate the intensity of use at the edge of
residential property. The action will also assure the consistent and equitable application
of the buffer zone requirement over all of the multiple residential property lines.
The City Planner presented unfounded personal opinion as fact to the Planning and
Zoning board. The planner states without evidence that the emergency drive is a low
impact seldom used component. The planner asserts that because of the low impact the
emergency driveway can be located in the no build buffer zone that is intended
exclusively for landscape buffering. The planner falsely implies that the pavement would
be some sort of non-pavement looking material. The planner further states that the
driveway would only be used occasionally by a few bicycles.
The appellant will present testimony and photographs and diagrams that will demonstrate
that the drive way clearly encroaches on the no-build twenty-five foot wide buffer zone.
We will demonstrate that the driveway will be the primary route to and from CSU and
will carry most if not all of the current apartment building population as well as the
proposed development population. This will greatly add to the intensity of use directly
· adjacent to the residential properties. Photographic evidence of current pedestrian
movement will illustrate desire lines that indicate future pedestrian movement. The
appellant will also provide written testimony that unlike the planner's opinion will
definitively identify conventional paving requirements as proscribed by Poudre Valley
Fire Authority's requirement for heavy equipment.
The unwillingness to respect the 25' Buffer is indicative of the development team's lack
of commitment to work with the neighborhood.
ATTACHMENT 3
Notice of Appeal
- Notice of Appeal filed by Colleen
Hoffman and Ann Hunt, November
22,2016
The Decision Maker committed one (1) or more of .t.he foil owing errors (check all that apply):
Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code, and Charter.
List relevant Code and/or Charter provision(s) here, by specific Section and subsection/subparagraph:
~e o.fu,.s-hed , ·
·.,;,.
g Failure to conduct a fair hearing in that: (Attach additional sheets as nece5Sary)
D The Board, Commission, or Other Decision Maker exceeded its authority or jurisdiction as contained in
the Code or Charter;
DThe Board, Commission, or Other Decision Maker substantially ignored its previously established rules
of procedure; ·
DThe Board, Commission, or Other Decision Maker considered evidence relevant to its findings which
was substantially false or grossly misleading. Describe any new evidence the appellant intends to
submit at the hearing on the appeal in support of these allegations2
:. _________ _
"71The Board, Commission, or Other Decision Maker improperly failed to receive all relevant evidence
~ffered by the appellant. ·
lilrhe Board, Commission, or Other Decision Maker was biased against the appellant by reason of a
L-.lconflict of interest or other close business, person- or social relationship that Interfered with the
Instructions:
decision maker's Independence of judgment. Describe any new evidence the appellant intends to ·
submit at the hearing on the appeal in support of these allegatlons2
: ----------
1. For eac:h allegation marked above, please attach a separate summary of the facts contained in the record
which support the allegation. Each summary is limited to two pages, Times New Roman 12 point font. Please
restate allegation at top of first page of each summary.
2. No new evidence will be received at the hearing in support of these allegations unless it Is either described
above or offered in response to questions presented .by councilmembers atthe hearing~ .
..... ··: - .. -
APPELLANTS
Date:
.~
other Decision Maker:
Name: Date:
Signature: Email:
Address: Phone#:
Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
Name: Date:
Signature: Email:
Address: Phone#:
Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
Name: Date:
Signature: Email:
Address: Phone#:
Please describe the nature of the relationship of appellant to the subject of the action of the Board, Commission or
other Decision Maker:
ATTACH ADDITIONAL SIGNATURE SHEETS AS NECESSARY
FAILURE TO PROPERLY INTERPRET AND APPLY RELEVANT PROVISIONS OF THE LAND
USE CODE
3.5 Compatibility
3 .5 compatibility is not the same as 3 .4. 7 which is the LPC historic compatibility. The comer off the SE comer
of this parcel is owned by the Wallenberg neighborhood HOA and Will be affected by the higher density,
intensity of use, increased noise, lack of privacy, traffic, and parking. The proposal claims to be an expansion
of the current Landmark Apartments on Shields (8 acres, 15.2/units per acre) to 18-23 units/acre on this new
site. We ask for clarification on the units per acre since the City owns almost an acre drainage and wetland
crescent through the SW portion of this property and should not be included in the calculations of the dwelling
units per acre. By removing City-owned property, the density of this proposed development is 23 units/acre
which is substantially higher than the existing Landmark Apartments and therefore does not allow the needed
passive green space per code. The proposed development states that because it's an "expansion," it will use
the existing pooVclubhouse and drainage canal for this new project. The code cannot be applied willy-nilly~·•·
either this is an expansion of the current Landmark Apartments and the density should match OR be lower as
it approaches the single family areas to the east and the entire parcel re-platted to be one property to prevent
a sell off in the future of just this one legal description that is relying on the other existing property to meet code
via amenities/green space. The proposal allows access to the site via the existing Landmark Apartments
parking lots, which is challenging. In the future, an access easement could be granted by the owner to facilitate
the sale of the property.
If this is not an Expansion Project and re-platted to one property, then the project should meet code with the
necessary streets, ingress/egress, 25' setbacks including egress driveway, and 50' setback from the wetland
as a stand-alone, new development project. The property was recently purchased, has a separate legal
description and could easily be sold individually in the future, so it should be considered as a new development
and not an expansion to a current property. We ask Council to apply the code as such. Density is still a
concern and a transition needs to be made from existing Landmark to a lower density to be compatible with
the existing homes to the east and southeast. The City Planner stated that the density question wasn't even
considered. There is a need for a lower density transition project from the existing 15/units per acre to single
family homes. This project is an increase in overall density and is, therefore, not compatible and does not
provide an adequate transition . which does affect . neighborhood livability. Since the Wallenberg HOA owns
the previously mentioned comer, we request an 8' fence from the Sheely property line comer to the
wetland/canal in order to prevent the future occupants of this site from walking/biking across the conununity
property. People tend to use the path of least resistance and will short cut to the street or bike path and could
hang out/congregate on HOA property. AJso, there is not enough parking currently for the existing Landmark
Apartments and residents park in the open field to the south or on Hobbit Future occupants will attempt to
drive from West Prospect to this area via our neighborhood. Based on previous experience, when drivers
discover there is no street access, our circular streets become a virtual racetrack as they try to find a way back
to West Prospect. And/or they will park on Wallenberg Drive and access this property via the bike path or the
HOA-owned comer property decreasing privacy and increasing congestion, noise, and creating an unsafe
condition at the Northwest comer of Wallenberg Drive. Adequate parking is a must.
In summary: the owner/developer cannot have it both ways. Either this is an actual expansion with a re-plat
to one legal description to prevent a sell-off of one parcel in the future that doesn't meet code requirements, that
actually resembles the current property with lower density, increased open space, and amenities OR it is a new,
stand-alone project and must meet the requirements for set-backs from the wetlands, adequate passive green
space, ingress/egress, and streets, building heights, etc.
THEBOARDIMPROPERLYFAILEDTORECEIVEALLRELEVANTEVIDENCEOFFEREDBYTHE
APPELLANT
Neighborhood residents were allowed two minutes per person, not enough time to present information on the
wetland area or discuss the recent submittal of a recently updated ecological study of which the neighborhood
was not aware, and which may not have been included in the packet for the evening,s discussion (it was
mentioned that the document was "on-line" during the meeting). Planners admitted that the 50' setback was
not being required~ in fact it is closer to 40' overall. We ask Council to apply "Nature in the City" to the
citya0WI1ed property that bisects this project and require the 50' setbacks. The cumulative effects of many new
developments on West Prospect that are surrounding and towering over our neighborhood make any green
space critically important and, therefore, this wetland area should not be compromised. In addition, the
buildings and parking lot do not provide for water absorption when the rainfull exceeds the canal's ability to
handle the increased water. There are many eyewitnesses to the 1997 flood that devastated our neighborhood.
We need to insure that there is adequate drainage through the wetland area and canal. The city owns this parcel
for a reason. Let's be sure it can function fully.
When this property was bank owned, the neighborhood approached the city to purchase this site since the city
was already a part owner of this property, in order to keq> it open for a pocket park which our area does not
have, or more "Nature in the City," but the request was denied. The developer/owner has their hired staff and
City staff to present a complete picture on behalf of the property owner. We are volunteers, with limited
experience trying to make our views known and get totally upstaged and virtually ignored, even admonished
by a P&Z member. We, therefore, rely on our elected officials to take another look at this proposal to minimize
the neSative effi:cts on our neighborhood and our quality of life.
l' --
Agenda Item 1
STAFF
Clark Mapes, City Planner
SUBJECT
Consideration of Two Appeals of the Planning and Zoning Board Decision on November 10, 2016, Approving
the Landmark Apartments Expansion Project Development Plan.
EXECUTIVE SUMMARY
The purpose of this item is to consider two appeals of the Planning and Zoning Board decision, on November
10, 2016, approving the Landmark Apartments Expansion Project Development Plan. On November 22, 2016,
two separate Notices of Appeal were filed.
APPEAL#1
To aid discussion of the two appeals, the appeal filed by Per Hogestad is referred to as Appeal # 1 in this
agenda item summary.
Appeal # 1 alleges that the Decision Maker committed the following error:
• Failure to conduct a fair hearing in that The Board considered evidence relevant to its findings, which was
substantially false or grossly misleading.
The allegation involves issues regarding:
• Environmental protection per Land Use Code (Code) Section 3.4.1, with an emphasis on a habitat buffer
along a drainage channel, and other wildlife corridors on the site.
• Glare from headlights, per Code Section 3.4.6.
• Privacy considerations as an aspect of compatibility, per Code Section 3.5.1 (D).
• Encroachment into a required 25-foot buffer yard along an abutting single-family lot, per Code subsection
3.8.30(F)(1 ).
APPEAL#2
An appeal filed by Colleen Hoffman and Ann Hunt is referred to as Appeal #2. It alleges that the Decision
Maker committed the errors of: ·
• Failure to properly interpret and apply relevant provisions of the Land Use Code, and
• Failure to conduct a fair hearing.
Regarding failure to properly interpret and apply relevant provisions of the Land Use Code, the allegation
involves issues regarding:
Project density.
Project portrayal as an "expansion" of the existing Landmark Apartments.
Project tenants parking, walking and bicycling in the existing neighborhood.
Item # 1 Page 1
Agenda Item 1
Regarding failure to conduct a fair hearing, the allegation cites evidence regarding:
"' Improper failure to receive all relevant information offered by the appellant. Neighborhood residents
were allowed two minutes per person, not enough time to present and discuss information.
BACKGROUND I DISCUSSION
On November 10, 2016, the Planning and Zoning Board considered the application for the Landmark
Apartments Expansion Project Development Plan. The project was approved on a vote of 5-0 (Kirkpatrick,
Carpenter absent} based on the findings of fact and information contained in the Staff Report. The Staff
Report is provided as Attachment 4.
APPEAL#1
The question for City Council regarding the first appeal is:
Did the Planning and Zoning Board fail to conduct a fair hearing, in that the Board considered evidence relevant
to its findings which was substantially false or grossly misleading?
The appeal cites evidence related to several Land Use Code (Code} Sections, listed below.
Code Section 3.4.1 - Natural Habitats and Features
The appeal asserts that the Board's decision was based on outdated and. incomplete information because the
Staff Report included an attached 2012 Ecological Characterization Study (ECS} for the site, rather than a
2016 update to the 2012 ECS.
Specific information cited in the appeal involves the habitat buffer zone along the drainage channel through the
site, and wildlife connections that the Appellant finds on the site which the Appellant contends must be
restored or provided for by Code. ·
The 2016 ECS update was included in the materials provided for the record and posted online prior to the
Board hearing.
The information in the 2012 ECS is not outdated. It is replicated in the 2016 update-its information is the
current ecological characterization of the site. ·
Habitat Buffer Zone. The only additional information in the 2016 update is a recommendation for meeting
performance standards to allow for a reduction in a general 50-foot buffer requirement along the channel. The
recommendation states:
"Mitigation can best be accomplished by plantings of native shrub and tree species as well as select
herbaceous species ... and that these plantings would increase overall vegetation structural and wildlife
habitat diversity, provide visual screening between developed sites and the buffer zone, and improve
water quality of surface runoff before it enters the existing wetland drainage." ·
The staff report explains the recommendation, and the plan fully incorporates the information with native trees,
shrubs, grasses, and herbaceous species to be added to the channel buffer where non-native grasses and
weeds currently exist.
Pertinent evidence includes:
Staff Report, bottom of Page 7 through Page 8, regarding staff's use of the ECS to ensure mitigation
measures in the plan to meet the required performance standards.
Item # 1 Page 2
Agenda Item 1
Verbatim Transcript Page 16 line 43 through Page 17 line 18, regarding the components of the plan
that respond to the ECS.
Wildlife Connections. The appeal notes the presence of wildlife connections, or corridors, across the site,
and contends that they must be protected. The ECS found that the project area has low ecological value and
·supports no important habitat features beyond the wetlands in the drainage channel. This information is the
same in the ECS in the Board's agenda materials, and the ECS update noted in the appeal.
Staff has conducted numerous site visits at different times of the year and concurs with this assessment. Staff
stated at the hearing that the wetlands and channel itself are the only features that warrant protection through
Code requirements. Staff acknowledged that the site is providing habitat as an open field at this point, but that
the wetlands are the only feature that requires protection.
Pertinent evidence includes:
ECS pages 16 and 17 of 25 in the pdf document, regarding habitat value of the site.
Verbatim Transcript Page 17 lines 20-26, regarding staff comments on habitat value of the site
relative to Code requirements.
Code Section 3.4.6 - Glare or Heat
The appeal contends that staff provided misleading testimony based on opinion represented as fact regarding
light spillover from headlights and the effectiveness of a six-foot high fence.
Specific assertions in the appeal are that:
"The planner states without evidence that the distance that separates the proposed project... will
mitigate light spill and glare on adjacent properties."
"The planner further states that a six foot high fence is adequate to reduce light spill on the adjacent
single family neighborhood with no basis for this assertion."
Pertinent evidence includes:
Verbatim Transcript Page 12 lines 16-17, regarding the Appellant's testimony in regard to a fence.
Verbatim Transcript Page 17 lines 30-38, regarding staff comments on headlight mitigation.
Verbatim Transcript Page 18 lines 27-35, regarding staff comments on fence height.
Staff Report Page 6, top bullet item and the first paragraph below the bullets, regarding staff findings
on parking lot screening.
Findings on parking lot screening are part of evaluation of landscaping under Code Section 3.2.1 which
requires parking lot screening; and also evaluation of Section 3.5.1 which requires project compatibility.
Code Section 3.4.6 is not mentioned in the record, and has never been considered by staff with respect to
parking lot screening for typical vehicle headlight impacts. Rather, this Section has always been found to
pertain to operations of buildings or machinery that generate intense glare.
·To help understand the allegation regarding Section 3.4.6, the Code language is shown below:
"3.4.6 - Glare or Heat
(A) Purpose. This Section is intended to protect the community and neighborhood from glare, defined
as a harsh, uncomfortably bright light. Glare can inhibit good visibility, cause visual discomfort and
create safety problems. This Section is also intended to protect the neighborhood from the adverse
effects of reflected heat that could be caused by a proposed land use.
(8) General Standard . If the proposed activity produces intense glare or heat, whether direct or
reflected, that is perceptible from any point along the site's property lines, the operation shall be
Item # 1 Page 3
Agenda Item 1
conducted within an enclosed building or with other effective screening sufficient to make such glare
or heat imperceptible at the property line.
(C) Glare From Manufacturing Sources . Manufacturing processes that create glare, such as
welding, shall be conducted within an enclosed building or be effectively screened from public view. If
the source of the glare is proposed to be screened with plant material, then the applicant must show
that the screening will be effective year-round."
Regardless of technicalities of interrelated Code Sections, the essential issue of headlights in proposed
parking lots is a matter that is addressed in the plan and Staff Report.
Code Section 3.5.1(0) - Building and Project Compatibility, Privacy Considerations
The appeal contends that staff provided misleading testimony regarding balconies in the plan which would
have privacy and noise impacts; and specifically regarding grade differences of the proposed development
causing proposed balconies to be placed lower than decks and patios on existing neighborhood houses.
A specific allegation involves the northernmost property in the Sheely neighborhood.
Pertinent evidence includes:
Verbatim Transcript, Page 10 lines 23-27 comprising neighbor comments on noise from partying.
Verbatim Transcript, Page 12 lines 20-25 comprising neighbor comments on balconies in the plan.
Verbatim Transcript, Page 17 lines 39-41 through Page 18 lines 1-9, regarding staff comments on
the balcony issue and specifically regarding the northernmost Sheely property.
Applicants presentation, slides 39-44, showing the balconies in the architectural design and the
relative grades of the project and the existing neighborhood.
Code Section 3.8.30(F)(1) - Orientation and Buffer Yards
The appeal contends that staff provided unfounded personal opinion as fact regarding an emergency access-
only drive connection to Prospect Road at the north edge of the project.
The issue is that a 25-foot buffer yard is required in multifamily residential developments where they abut
existing single-family development. In the plan, the outer 5 feet of a 20-foot emergency access drive extends
into the required 25-foot buffer yard area (thus making the buffer yard only 20 feet wide rather than 25 feet
wide for the outer 50-foot portion of the 260-foot property boundary with the ~butting lot.)
This issue had not been recognized by staff or the applicants prior to the hearing.
Pertinent evidence includes:
Verbatim TranscriptPage 20 line 4 through Page 21, line 3, regarding staff comments on the issue.
The appeal is seeking relocation of the facility, and the applicants have informed staff that they have a
proposed solution in response to the appeal, for consideration at the appeal hearing.
APPEAL#2
Appeal #2 presents two questions for City Council:
1. Did the Planning and Zoning Board fail to properly interpret and apply relevant provisions of the City Code,
the Land Use Code, and the Charter?
2. Did the Planning and Zoning Board fail to conduct a fair hearing, in that the Board improperly failed to
receive all relevant evidence offered by the appellant?
Item # 1 Page 4
Agenda Item 1
First question from Appeal #2
This question, about failure to properly interpret and apply the Code, involves several issues noted below.
Density. The appeal compares the density of the proposed plan to the density of the existing Landmark
Apartments and contends that the proposed density should not be allowed.
Pertinent evidence, in the Verbatim Transcript, includes:
Page 11, lines 2-4 summarizing comments from a neighbor.
Page 11, lines 34-38 comprising comments from a neighbor, who is the appellant.
Page 13, lines 7-17 summarizing comments from a neighbor.
Page 18, lines 10-26 comprising staff comments.
Page 23, lines 21-29 comprising applicant comments.
Page 24 lines 8-17 comprising staff comments.
Page 24, lines 20-26 comprising applicant comments.
Page 26, lines 36-40 comprising a Board member's comments.
Page 27, lines 7-29 comprising a Board member's comments.
Expansion of Existing Landmark Apartments. The appeal raises questions about components of the plan
that are based on joint use with the existing Landmark Apartments; and concerns about those components if
ownership would change.
Pertinent evidence includes:
Staff Report Page 15, sixth paragraph, which states:
"Notes or a Minor Amendment to Landmark Apartments plans will be included with a Final plan to
confirm the joint accessibility of all facilities."
This approach is typical for projects that involve changes to previously approved plans-Le., the previously
approved plans are amended as needed to reflect new circumstances, and to ensure that development
functions as approved regardless of any changes of ownership.
Increased Traffic, Parking, Walking, and Bicycling in the Existing Neighborhood. The appeal describes
concerns about occupants of the proposed development entering the existing neighborhood via a path
connection to Wallenberg Drive. The path connection crosses a drainage easement owned by a neighborhood
HOA.
Pertinent evidence includes:
Verbatim Transcript Page 10 lines 5-7, and Page 11 lines 31-33 comprising comments from a
neighbors.
Verbatim Transcript Page 16, lines 1-14 comprising staff comments.
Second question from Appeal #2
This question, about failure to conduct a fair hearing by failing to receive all relevant evidence offered by the
appellant, involves a primary allegation that neighborhood residents were allowed two minutes per person, and
that was not enough time to present information on the wetland area or discuss the recent submittal of a
recently updated ecological study of which the neighborhood was not aware, and which was not included in the
Board's packet.
The Board chair did allocate two minutes per person based on 15 people who wanted to speak.
Item # 1 Page 5
I '
Agenda Item 1
Pertinent evidence includes:
- Verbatim Transcript Page 9 lines 19-20, regarding the Chair's allocation of time per person.
As noted previously, staff unintentionally attached a 2012 ECS to the Staff Report, and not a 2016 ECS update
which was available. The 2016 update of the ECS was posted online and included in the hearing record.
The attached report contains the same information as the update, with the exception of a recommendation to
add native trees, shrubs, and other plantings along the drainage channel to meet Code standards for a habitat
buffer. The recommendation is thoroughly incorporated into the plan and the Staff Report.
ATTACHMENTS
1. City Clerk's Public Hearing Notice and Notice of Site Visit (PDF)
2. Notice of Appeal filed by Per Hogestad (PDF)
3. Notice of Appeal filed by Colleen Hoffman and Ann Hunt (PDF)
4. Staff Report (with attachments) provided to the Planning and Zoning Board (PDF)
5. Materials provided to the Planning and Zoning Board before the hearing (PDF)
6. Applicant presentation to the Planning and Zoning Board (PDF)
7. Verbatim Transcript (PDF) ·
8. Powerpoint presentation (PDF)
Item # 1 Page 6
..
RESOLUTION 2017-011
OF THE COUNCIL OF THE·CITY OF FORT COLLINS
ADOPTING FINDINGS OF FACT AND CONCLUSIONS REGARDING THE
APPEAL OF THE PLANNING AND ZONING BOARD DECISION
APPROVING THE LANDMARK. APARTMENTS EXPANSION, PDP#l60013
WHEREAS, on Nove_mber 10, 2016, the Planning and Zoning Board (the "Board")
reviewed and approved the Landmark Apartments Expansion Project pevelopment Plan
PDP#160013 (the "PDP" or "Project"); and
WHEREAS, pursuant to Chapter 2, Article II, Division 3, of the City Code, two separate
Notices of Appeal of the Board's approval of the PDP ·were filed with the City Clerk on
November 22, 2016; one by Per Hogestad (the "Hogestad Appeal") and the other by Colleen
Hoffman and Ann R. Hunt (the "Hoffman-Hunt Appeal") (Hogestad, Hoffman and Hunt are
referred to collectively as the "Appellants"); and
WHEREAS, jhe Hogestad Appeal asserts that the Board failed to conduct a fair hearing
because it considered evidence relevant· to fts findii:igs th~t was substantially false or grossly
mi~leading related to standards. set forth in the Land Use Code (the "LUC") in rendering its
decision, specifically LUC Sections 3.4.:1 (related to natural habitats and features), 3.4.6 (related
to glare or heat), 3.5.l (related to privacy as a component of compatibility) and 3.8.30 (related to
compliance with standards regarding a 25 foot side-y~rd buffer); and
WHEREAS, the Hoffman-Hunt Appeal asserts that Board: (1) failed· to conduct a fair -
hearing because it improperly failed to receive all relevant evidence offered by tl).e appellant; and
(2) failed to properly interpret and apply LUC Section 3 .5 regarding compatibility; and
WHEREAS, on January 31, 2017, the City Council, after notice given in accordance with
Chapter 2, Article II, Division 3, of the City Code, consolidated and considered both Appeals,
reviewed the record on appeal and the applicable- LUC provisions, and heard presentations from
the Appellants and the opponent of the Appeals, the applicant for the PDP (the "Applicant"); and
WHEREAS, after discussion, the City Council found and concluded based on the
evidence in the record and presented at the January 31, 2017, hearing (the "Appeal Hearing")
that:
1. The Board did conduct a fair hearing on November 10, 2016 in its consideration of
the PDP atid did not consider evidel)ce relevant to its decision that was substantially
false or grossly misleading or improperly fail to receive all relevant evidence offered
by the Appellants; and
. '
2. The Board properly interpreted and applied the provisions of the City Code and LUC
when it approved the PDP, except that pursuant to City Code Section 2-55(f), the·
Board's decision approving the PDP ·shall be modified to include the following
additional conditions, as proposed or agreed by the Applicant at the Appeal Hearing:
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or'additionaJinfoririation or an:officiai copy, p_lea8e'i:ontict City Cli:rk's.office City Jlall West300 LliPorteAvenue··Foit Collln8; co'sosti:USA'':
i. The Applicant must.install signage requesting that drivers dim lights to reduce
headlight glare into surrounding residential windows;
n. The Applicant must add landscaping and other features to the Project as
reasonably feasible to mitigate headlight glare into surrounding residential
windows;
m. The Applicant must remove all balconies from the east side of Building A;
iv. The Applicant must remove any balconies that would extend into any natural
area buffer;
v. The Applicant must shift the emergency access road on the Project five feet to
the west from the location shown on the plans approved by the Planning and
Zoning Board; · .
vi. The applicant must add landscaping and other features to the Project to
discourage pedestrian traffic on the voluntary trail that currently exists to the
east of the proposed emergency drive; ·
These conditions are intended to address issues raised in the Hoffman-Hunt Appeal
regarding compatibility of the proposed buildings and uses included in the Project
when considered in the context of the surrounding area; and
3. Except as so stated, based on the evidence in the record and presented at the Appeal
Hearing, the Hogestad Appeal and the Hoffman-Hunt Appeal are without merit and
are denied. -
WHEREAS, City Code Section 2-55(g) provides that no later than the date of its next
regular meeting after the hearing of an appeal, City Council shall adopt, by resolution, findings
of fact in support of its decision on the Appeal~. .
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE· CITY OF
FORT COLLINS that, pursuant to Section 2-55(g) of the City Code, the City Council hereby
makes and adopts the following findings of fact and conclusions: ·
I. That the grounds for appeal stated in the Hogesiad Appeal and the Hoffman-Hunt Appeal
conform to the requirem~nts of Section 2-48 of the City Code.
2. That based on the evidence in the record and presented at the January 31, 2017, Appeal
Hearing, the recitals set forth above are adopted as findings of fact. .,
3. That the Board did not fail to conduct a fair hearing on November 10, 2016 when it
approved the PDP and it did not consider evidence relevant to its decision that was
substantially false or grossly misleading or improperly· fail to receive all relevant
evidence offered by the Appellants.
4. That the Board did not fail to properly ·interpret and apply LUC Division 3.5-Building
Standards, including but not limited to LUC §3.5.1-Building and Project Compatibility,
when the Board approved the PDP on November 10, 2016, except that pursuant to City
Code Section 2-55(f), the Board's decision approving the PDP shall be modified to-
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·s unofficial copy WJlS downloaded on Mar-07-201 '{from the CitY ofFort CollinS Public Rei:(/rds Website: htt1d/citydocs.fcgov.com _ -
or additional information or _an official copy, please contact City Clerk's Office City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 USA
include the additional six conditions, as proposed or agreed by the Applicant at the
Appeal Hearing, set forth above in the recitals, which conditions are intended to address
issues raised in the Hoffman-Hunt Appeal regarding compatibility of the proposed
buildings and uses included in the Project when considered in the context of the
surrounding area.
5. That the Hogestad Appeal and the Hoffman-Hunt Appeal are without merit and are
denied.
6. That adoption of this Resolution shall constitute the final action of tJ?.e City Council in
accordance with City Code Section 2-55(g)~
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 7th
day of February, A.D. 2017.
ATIEST:
City Clerk
\.
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., s unofficiai c~py w~ dowriioade(i on Mar-07~2017 p:;;ffi the City offort C!>llms Publi6 Re6'ords Websit~: httl':/1cityd~cs.fcgov.c9m' .· ' : ,' • ·. .
or additfonal mformatii'in or.an offi.cial copy, p!ea5e 'contact' Cify Clerk's Office City Hall West 300 LilPorte A~emre }'.ort Collins; ¢o'·sos21 vskD