HomeMy WebLinkAboutREGENCY LAKEVIEW - PDP & APU - PDP120013 - CORRESPONDENCE - CORRESPONDENCE-HEARING (11)Exhibit - Informal Traffic Study
I did an informal traffic study of the Lemay exits from the church on Sunday, July 15th between 11:40
AM and 12:50PM.
I called the north exit 41 and the south exit #2.
What I found by observation and tallying car behavior is that the church attendees self-select Exit #2 for
left hand turns onto Lemay. I observed from across the street and could see drivers' behavior as they left
the parking lot. Many cars were better positioned to use Exit #1 but maneuvered their cars to Exit #2.
84% of cars headed south on Lemay and leaving from the west side selected Exit #2. And this is on a
Sunday!
The north exit is too congested for left hand turns.
Here's a table showing the observations.
Sunday, July 15,
Exit
Exit
Percent self-
2012
# 1
#2
selecting
exit #2
North on Lemay
(right turn)
13
5
South on Lemay
4
21
84% or 21
(left turn)
of 25
To Scotch Pines
1
4
Total cars
48
observed
18
30
Kathryn Dubiel
0
The Board exceeded its authority as contained in the Land Use Code
The Board substantially ignored its previously established rules of procedure
1.) The Board unlawfully approved the APU and PDP by not requiring compliance with Section
3.6.4 concerning the Pedestrian Level of Service Standards. The Staff Report, page 9, admits
that the development did not reach the pedestrian LOS standards as set forth by the Multimodal
Transportation Level of Service Manual. Pursuant to the Multimodal Transportation Level of
Service Manual "development approval will not be granted for projects which would fail to meet
the minimum LOS standards for pedestrian facilities at the time of issuance of any building
permit." This requirement is mandated pursuant to the LUC section 3.6.4 Thus the Board
approved the development despite non-compliance with the LOS and in violation of the Land
Use Code. While Modification of the Standards under 3.6.4 is possible through the use of LUC
2.8.2, this process has not been done to allow the development an exception to the LOS
standards. Such a process must be done in accordance to section 2.8.1 and 2.8.2, and must be
done before the approval of the development. As there has been no compliance with the
requirements of 2.8.2, the Board does not have the lawful authority to grant the developer an
exception to the LOS standards, and therefore does not have the authority to approve the APU or
PDP.
E
from the church parking lot showed that the result was as the neighbors predicted and opposite the
assumptions made by the traffic engineers. Traffic does tend to move to the southern exit so as to make
taking a left hand turn easier. See attached exhibit, Informal Traffic Study by Kathryn Dubiel. While
people tend to park closest to their destination, in this case on the north side of the parking lot nearest
the church, they intentionally drive through the parking lot to the south exit. It is reasonable to believe
that this trend will continue with the apartment residents despite an attempt to get them to use the
northern Lemay exit because there is nothing to stop them from driving south through the parking lot
and it is safer to make left hand turns farther from the intersection of Drake and Lemay. Thus, the
attempt at mitigating traffic along the southern neighbor's fence line, while well intentioned, will have
little impact.
Adding to issues concerning stated opinions about traffic, was the lack of any delay analysis
of traffic leaving the church or the neighborhood onto Lemay, and there was some confusion during the
Staff rebuttal as to whether the south exit from the church had already been closed. Thus, the lack of
evidence, or observation, concerning actual traffic issues which the neighbors voiced their concerns
about, led to faulty assumptions and opinions being given to the Zoning Board.
M
The Board considered evidence relevant to its findings which was substantially false or grossly
misleading.
1.) Finding "F" on pages 8-10 discuss compliance with section 3.6.4 of the Land Use Code. On page 9,
the Staff Report indicates that the Pedestrian Level of Service Standards could not be achieved. The
Report excuses this fact based on the area being originally developed prior to the current LOS standards,
and claims this is not likely to change since this is a constrained corridor.
Two reasons the development failed to meet the pedestrian LOS standards were a lack of
setback from the road for sidewalks and a lack of medians at Drake and Lemay which would allow for
pedestrian refuge. Mr. Delich, the traffic engineer for the developer, stated during the hearing that
compliance with the LOS criteria would require a median be placed in the intersection of Drake and
Lemay. Mr. Delich went on to state that they could not meet this requirement, that no one could, and
that this was "just the facts of life." Upon questioning by one Board member, the response from the
City engineer was that there was no plan by the City to place a median at the intersection.
While the area may have been developed under older standards, it is grossly misleading to say
the area cannot be improved to meet the new LOS standards. The entire parcel of property on this
corner is owned by the seller. There are several empty acres and a lake directly adjacent to the corner of
Drake and Lemay which could be used to expand the intersection to allow for pedestrian medians, thus
increasing safety and complying with the LOS standards for pedestrians crossing at that intersection.
Similarly, there is space for the sidewalks to be moved back to comply with current LOS standards. The
stated goal of the Multimodal Transportation Level of Service Manual is to increase the infrastructure of
the City by developing safe pedestrian travel. Specifically, it indicates that the goal is to bring the entire
City into compliance by 2015, and that to prevent an increase in backlog, new private developments
must meet the minimum pedestrian levels of service. It further states that development goroval will not
be granted for projects failing to meet the minimum standards. Thus, by misstating the facts concerning
the ability of the seller and developer to address the pedestrian LOS, the findings are in error and not in
compliance with the Land Use Code and the Multimodal Transportation Level of Service Manual.
2.) Finding " T' in the Conclusion and Findings of Fact, page 21, is untrue and in direct conflict with the
Staff Report conclusion, page 9, that the pedestrian LOS was not met. The pedestrian LOS requirement
is as condition to approval of any plan and is a failure to comply with the General Development
Standards of Article Three of the Land Use Code.
3.) Evidence was presented by the traffic engineers concerning their beliefs in traffic patterns coming
out of the development onto Lemay which had no basis or observations from which to support the
conclusion. For instance, one issue concerning traffic flow out of the apartment complex is that
residents who sought to turn south, or left onto Lemay, would use the southern most entrance out of the
church and thus residents would be driving along the fence line of the neighbors on the south side of the
parking lot. To mitigate this, the developer plans to route traffic into the northern driveway in hopes
they will not cut across the parking lot to the southern access point. However, it is clear that people will
continue to cut across the parking lot to use the southern exit because taking a left hand turn closer to the
corner of Drake and Lemay is already difficult, and thus the mitigation by the developer would have no
real effect. In comment, Mr. Delich stated that the main church access to Lemay would be the most
popular. However, there was never any traffic study to demonstrate this conclusion.
This assumption by the traffic engineers is contrary to the common sense approach the
residents of the area expressed during the hearing. In fact, one informal observation of the traffic flow
3
The proper interpretation of 1.3.4(A)(3): More or Adverse Impacts.
The Staff Report addressed this in part 6, pages 7-10. Here, in A-H, the Staff is looking at a
different code criteria (and they list them by number) than the APU. They then conclude that that
because it meets that other criteria, it meets the APU section (A)(3) concerning the creation of more
impacts. For example in section F they focus on traffic and LUC 3.6.4, which looks at whether the
traffic Level of Services is met. What they fail to do is measure the amount of increased traffic for the
"use" compared to the other permitted uses. Thus, they completely ignored the APU standard and
focused on other criteria. Common sense will tell you that tripling the density from that allowed by
single family dwellings will generate more traffic. The Staff downplayed this point during the rebuttal
portion of the meeting, but failed to provide the neighbors with any such reports, nor consider how the
compared uses varied in hours of use and times of year when they are basically shut down. (For
example, schools have limited hours and lengthy periods of non-use due to vacation schedules.) This
same error in evaluation occurs throughout Part 6 of the Staff Report, and by adopting the Report the
Zoning Board has failed to properly interpret and apply the law. They also failed to evaluate "other
adverse impacts" not enumerated in 1.3.4(A)(3), such as a likely decrease in resale value of abutting
properties. Failure to consider other adverse effects is error.
The proper interpretation of 1.3.4(A)(4): Such use is compatible with the other listed permitted uses in
the zone district to which it is added.
The Staff, in section 7, page 10, interpreted this standard to be identical to 1.3.4(B) requiring
compliance with Section 3.5.1 Building and Project Compatibility. The stated purpose of this section is
to focus on the physical and operational characteristics of the buildings, and concerns such things as
architecture, size, privacy, building materials, color, placement and hours of operational functions of the
buildings. Thus the Staff addressed LUC criteria from 3.5.1, 3.2.1, 3.2.2, 3.2.4, 3.4.4 and 3.6.4. This
interpretation is faulty, as it would interpret two different required findings of the APU. Rather, section
3.4.1(A)(4) focuses on "use" rather than building design. Here, the "use" is medium density apartments.
To meet this criteria, there must be an analysis of that use to determine if it is compatible, meaning in
agreement with or congruent, to the permitted uses of the Low Density Residential District. Having
failed to properly interpret section 1.3.4(A)(4) they have failed to properly apply the law.
Section 1.3.4(B): such use would not be detrimental to the public good.
The Staff Report in section 9, page 15, advocates that this Addition of Permitted Use is for the
"public good" because it conforms to a basic principle to develop growth in a mixed -use fashion. While
it may be true that there are mixed uses located next to one another throughout the City, this has been
accomplished through intentional zoning. The City has never had a policy of using the Addition of
Permitted Use, in such large scale and impact, to allow a use appropriate in another zone to be placed
within a zone that prohibits that use. This in effect is rezoning. There was a lack of consideration for
policies promoting predictability, such as the City Structure Plan Map of 2011, the policy and purpose
behind the R-L zone, the effect on neighboring home values, and the precedent set from the findings the
Zoning Board. Nor did it address other issues raised by the citizens.
2.) The Board unlawfully approved the APU and PDP by not requiring compliance with Section 3.6.4
concerning the Pedestrian Level of Service Standards(LOS).
0
Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code and
Charter.
1). The Planning and Zoning board failed to properly interpret the Addition of Permitted Uses (APU),
Section 1.3.4 of the Land Use Code (LUC). This misinterpretation led to a misapplication of the
required findings under Section 1.3.4 (A) and (B).
The proper interpretation of 1.3.4(A)(1): Such use is appropriate in the zone district to which it is added.
The "use" is multi -family dwellings, apartment complexes, with a density of 16 dwelling units
per acre. This density is consistent with an M-M-N zone. This density is double that allowed in the L-
M-N zone pursuant to Division 4.5 (L-M-N) (B) Permitted Uses (2)(a)(4). This "use" applies to each of
the criteria for Section 1.3.4 in this appeal. The term "appropriate" is defined in Webster's Dictionary as
right for the purpose, suitable, fit, proper. The "zone district" is specifically defined in the LUC 5.1.2,
and is a Low Density Residential District (R-L). Multi -family dwellings are prohibited in an R-L zone.
Thus, the proper interpretation: Is the use of multiple multi -family dwellings with a density of 16 units
per acre, appropriate (right for the purpose, suitable, fit, proper) for an R-L Zone? To answer this, one
must determine the purpose of the R-L zone and compare it to the proposed use. The purpose of the
Division 4.4 (R-L) states the R-L zone is designated for predominately single family residential areas.
The policies behind the permitted and prohibited uses, in particular the prohibition against multi -family
dwellings, further point to the purpose and policies behind the R-L zone. The Zoning Board adopted the
findings of the Staff Report, which erroneously focused on factors having nothing to do with an R-L
zone, such as proximity to a shopping center and the mall, as reasons why the use was appropriate for an
R-L zone. Those factors have nothing to do with the R-L zone and thus the interpretation and findings
are in error.
The proper interpretation of 1.3.4(A)(2): Such use conforms to the basic characteristics of the zone
district and the other permitted uses in the zone district to which it is added.
The term "conform" is defined as to make the same or similar. Black's Law indicates that it
is a use in conformity with the permitted uses of the zone classification. Webster's defines
"characteristics" as a distinguishing trait, feature or quality; peculiarity; a quality that is peculiar to,
and helps identify something; distinctive. Peculiar is further stated as something being unique. Thus the
issue is whether the "use" of a medium density apartment complex conforms (the same or similar, in
conformity with those uses permitted) to the basic characteristics (the distinguishing trait or quality
peculiar to and that identifies) of the zone district (Low Density Residential) and the other permitted
uses in the zone district to which it is added. The City failed to interpret and apply the relevant law.
The Board adopted the findings of the Staff Report in section 5, page 5 which improperly focused on the
attributes of the particular parcel of land rather than the characteristics of an R-L zone. In doing this the
Staff came up with two different sets of characteristics, one for the parcel of land and another for the
neighbors, yet both are zoned R-L. Having improperly interpreted the law, the Staff failed to discuss the
Characteristics of a Low Density Residential Zone and those traits and qualities that distinguish it from
the other zones. There is also error in arguing that because the zone could have been rezoned in the past
that this use was conforming to the characteristics of the low density residential zone. This was
improper interpretation of the law and improper analysis.
V
Appellants:
Appellants:
Signature
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Signature
Name
Paul L. Patterson III
Name
Address
2936 Eindborough Dr., Ft Collins, CO
Address
Phone
970-229-5776
Phone
Date
July 31, 2012
Date
Signature
�i—�.� vf-
Signature
Name
Kathryn 1. ubiel
Name
Address
2936 Eindborough Dr., Ft Collins, CO
Address
Phone
970-229-5776
Phone
Date
July 3 t, 2012
Date
Signature
Signature
Name
Name
Address
Address
Phone
Phone
Date
Date
Signature
Signature
Name
Name
Address
Address
Phone
Phone
Date
Date
Signature
Signature
Name
Name
Address
Address
Phone
Phone
Date
Date
Signature
Signature
Name
Name
Address
Address
Phone
Phone
Date
Date
ATTACH ADDITIONAL SIGNATURE SHEETS AS NECESSARY
City of Fort Collins
Alarch 20/7
Appellants:
Address
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Phone
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Date
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Signature
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Name
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Address
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Phone
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Date
1- 31 - 1'2_
Appellants:
Signature d < Signature
Name Name
Address o o Address
Phone 719 — /,/ a D 6 F Phone
Date �— _�/— Z Date
Signature Signature
Name Name
Address
Phone
Date
Signature
Name
Address
Phone
Date
Signature (IlkCl
Name w 1-0 l bor
Address C22,01
Phone 270 - -13 2 - gG 72-
Date �/ 31 / 1 Z
Signature
Name
Address
Phone
Date
Signature
Name
Address
Phone
Date
Signature
Name
Address
Phone
Date
Signature
Name
Address
Phone
Date
Signature
Name
Address
Phone
Date
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ATTACH ADDITIONAL SIGNATURE SHEETS AS NECESSARY
City of Fort Collins
March 2012
Please describe the nature of the relationship of each appellant to the subject of the action of the
Board, Commission or other Decision Maker:
Bob and Marian Swerer - emailed written comments to the Board.
Dan Grider, Mark and Diane Kenning, Dave Roschke, and Andrew Lewis -
received written mailed notice of the hearing, wrote letters and
spoke at the hearing.
Mike Purcell - Received written notice and is president of LLSHOA.
Wendy Wilbor, Cheryl Anderson and Juanette Lewis - received written
notice of the hearing.
Nic and Tara Klinedinst - received written notice and wrote a letter.
Don and Dorthy Martin - received the mailed notice and wrote a letter;
Dorthy also spoke at the hearing.
Paul Patterson and Kathryn Dubiel - wrote letters and spoke at the heart
If appellant has alleged that the decision maker considered evidence relevant to its findings that
was substantially false or grossly misleading, describe any new evidence the appellant intends to
submit at the hearing on the appeal in support of this allegation. NO NEW EVIDENCE WILL
BE RECEIVED AT THE HEARING IN SUPPORT OF THIS ALLEGATION UNLESS IT IS
EITHER DESCRIBED BELOW OR OFFERED IN RESPONSE TO QUESTIONS PRESENTED
BY COUNCILMEMBERS AT THE HEARING.
See attached Exhibit, Informal Traffic Study
RECEIVE®
AUG 2.2012
Action Being Appealed: Approval of the Regency Lakeview request for
the Addition of Permitted Uses and Project Development Plan
Board, Commission, or Other Decision Maker:
Date of Action:
Grounds for Appeal (✓ all that apply):
The board, commission or other decision maker committed one (1) or more of the
following errors: Land Use Code Section 1.3.4 (A) and (B)
Land Use Code Section 3.6.4
19 Failure to properly interpret and apply relevant provisions of the City Code, the
Land Use Code and Charter. List Code and/or Charter sections (by section
number only) below:
U Failure to conduct a fair hearing in that:
® The board, commission or other decision maker exceeded its authority
or jurisdiction as contained in the Code or Charter;
l The board, commission or other decision maker substantially ignored its
previously established rules of procedure;
99 The board, commission or other decision maker considered evidence
relevant to its findings which was substantially false or grossly
misleading; or
❑ The board, commission or other decision maker improperly failed to
receive all relevant evidence offered by the appellant.
(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.)
Appellant Representative (if more than one appellant):
Name, address, telephone number(s), and email address of an individual appellant authorized to receive, on behalf of all
appellants, any notice required to be mailed by the City to the appellants regarding the City Attorney's review of the notice
of appeal (City Code Section 2-50).
Andrew Lewis
2707 Brookwood Court, Fort Collins, CO 80525
(970) 237-1302
andyfishlewis@comcast.net