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HomeMy WebLinkAboutCARRIAGE HOUSE APARTMENTS - MOD - MOD120001 - REPORTS - RECOMMENDATION/REPORT (5)April 3, 2012 _ 0 -5- J ITEM 22 specifically and expressly defined and described in the city's Comprehensive Plan or in an adopted policy, ordinance or resolution of the City Council, and the strict application of such a standard would render the project practically infeasible. The motions made by the Planning and Zoning Board at its February 16 2012 Hearing denying the two stand alone modification of standard requests did not contain any language referencing the word substantial nor did they make any specific findings in relation to the word substantial. The Appellant alleges that the Board failed to properly interpret and apply the Code in that the requested modification of standard and demolition of the Property substantially alleviates existing, defined and described problems of city-wide concern and substantially addresses and benefits important community needs. The motions made by the Planning and Zoning Board at its February 16, 2012 Hearing denying the two stand alone modification of standard requests did not contain any language referencing adopted city policies, the intent or purpose of the Land Use Code or any statements regarding the project in terms of the LUC Section 2.8.2(H)(2). SUMMARY The house at 1305 South Shields Street was determined to be individually eligible for local landmark designation pursuant to the process and procedures contained in Chapter 14 of the Municipal Code. When a building that has been determined to be individually eligible is proposed to be demolished or significantly modified as part of a development plan, then the plan is subject to the standards contained in Section 3.4.7 of the Land Use Code. As proposed, the project did not meet Section 3.4.7 requirements and the Appellant requested a modification of these standards preceding the submittal of a Project Development Plan, which was heard on February 16, 2012. In order to grant a modification request, the Board must make the findings outlined in Section 2.8.2(H) of the Land Use Code. The Board moved to deny both of the request for modifications based on their determination that granting the modifications would be detrimental to the public good. ATTACHMENTS 1. City Clerk's Public Hearing Notice and Notice of Site Visit 2. Notice of Appeal, Filed by Appellant, March 1, 2012 3. Staff Report (with attachments) to the Planning and Zoning Board, dated February 16, 2012, Carriage House Apartments Stand -Alone Modification of Standard, MOD120001 4. Letter from applicant, Charles Bailey, to Planning and Zoning Board dated January 30, 2012 5. Property Information submitted by Applicant at Planning and Zoning Board Meeting: - Rogue Architecture Report - Gebau Structural Review - Landmark Designation Opinion, 1305 South Shields Street, prepared by Oz Architecture 6. Requested Findings of Fact submitted by Applicant to the Planning and Zoning Board on February 16, 2012 7. Information submitted to the Planning and Zoning Board on February 16, 2012, by David Taylor, affected property owner 8. State of Colorado Cultural Resource Survey Architectural Inventory Form, prepared by Dr. Mary Therese Anstey 9. Verbatim transcript of the Planning and Zoning Board Meeting, February 16, 2012 10 Staff PowerPoint presentation to Planning and Zoning Board, February 16, 2012 11. Applicant PowerPoint presentation to Planning and Zoning Board, February 16, 2012 12. Staff PowerPoint presentation to Council 13. Site Visit Summary, March 26, 2012 April 3 2012 a -4- 0 ITEM 22 policy, ordinance or resolution of the City Council, and the strict application of such a standard would render the project practically infeasible. ., The staff report to the Board notes that, "while providing for infill and redevelopment as well as student housing is a goal of City Plan... providing for the protection of historic resources is also required." The Planning and Zoning Board's discussion at the Hearing did not specifically cover policy documents such as City Plan as they relate to the requested modification. In its denial of the two stand alone modification of standard requests, the Planning and Zoning Board did not make specific findings regarding the cited City Plan policies referenced by the Appellant in the Notice of Appeal. The Appellant states that granting the modifications is not detrimental to the public good because the proposed project advances the public good by substantially addressing policies from the West Central Neighborhood Plan as established in three Maps, one Policy and three Housing Objectives. On page 3 of the Notice of Appeal, the Appellant references WCNP Map 4- Zoning District Map. This map was not part of the record and the Planning and Zoning Board did not take the WCNP Map 4 into consideration when moving to deny the two modifications based on the fact that they are detrimental to the public good. As the staff report states on page 2, providing for infill and redevelopment as well as student housing is a goal of the West Central Neighborhood Plan; however, providing for the protection of historic resources is also required. In terms of the public good, the staff report to the Board notes that, "the public good lies within a delicate balance of community values and is inextricably linked to the identity and heritage of an area and its people and a modification to Sections 3.4.7 (B) and (E) to not require the preservation of the individually eligible structure at 1305 South Shields Street could be considered as detrimental to the public good in so much that it could weaken the sense of heritage and area identity." The motions made by the Planning and Zoning Board at its February 16, 2012 Hearing denying the two stand alone modification of standard requests did not contain any language referencing the cited West Central Neighborhood Plan Maps, Policies or Housing Objectives referenced in the Notice of Appeal. The Appellant alleges that the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the Land Use Code in that the proposed project is not detrimental to public good in relationship to the eligibility of the Property and the lack of exterior integrity of Property. In doing so, that the Board failed to properly interpret and apply the Code in that the requested modification of standard. The property was determined to be individually eligible pursuant to the process outlined in Chapter 14 of the Municipal Code. The Planning and Zoning Board did not make a determination of individual eligibility for local landmark designation on February 16, 2012. Additionally, the State of Colorado, Cultural Resource Survey Architectural Inventory Form that the Appellant references on page 4 of the Notice of Appeal was not provided to the Planning and Zoning Board, as the Planning and Zoning Board has no ability to consider, make, or change a determination of eligibility. Land Use Code 3.4.7(C), Determination of Landmark Eligibility, specifically states that the determination of eligibility for local landmark designation will be made in accordance with the process laid out in Chapter 14 of the Municipal Code. The determination of eligibility for the residence at 1305 South Shields Street was made following the process outlined in Chapter 14 of the Municipal Code. The Appellant alleges that the Board failed to apply the proper and commonly understood definition of "substantial." Section 5.1.1 of the Land Use Code gives the Director authority to interpret or define words, terms and phrases not explicitly defined in LUC Section 5.1.2. The definition of substantial, as stated in the staff report, was determined using Webster's Third New International Dictionary (Unabridged) pursuant to LUC Section 5.1.1. The definition provided by staff to the Board was "considerable in amount, value or worth." In context with the complete modification criteria of subsection 2.8.2(H)(2) (below), the definition of the word substantial was appropriately interpreted by staff and subsequently the Planning and Zoning Board. Section 2.8.2(H)(2) states, (2) the granting of a modification from the strict application of any standard would, without impairing the intent and purpose of this Land Use Code, substantially alleviate an existing, defined and described problem of city-wide concern or would result in a substantial benefit to the city by reason of the fact that the proposed project would substantially address an important community need April 3 2012 Go -3- 0 ITEM 22 The HistoryMatters, LLC report, commissioned by private citizens, was sent to the Planning and Zoning Board electronically on February 16, 2012, at the same time as electronic copies of the Appellant's Rogue Architecture and Gebau reports were sent. The Planning and Zoning Board did not review or consider any of these reports in making its decisions on the modifications of standards (transcript, pg.15). The transcript of the February 16, 2012 Planning and Zoning Board meeting reflects that, when asked about the relevancy of these documents to the Board's consideration, the Appellant, Mr. Charles Bailey stated, "The fact of relevancy of these documents is that, again, we're not asking for a declaration that the home isn't eligible, these are just supporting materials that were part of the slide show....... and, "But the Gebau report and the Rogue report, you know, were not asking that your decision hinge on those reports." (Transcript, pg.15). B. Failure to Properly Interpret and Apply Relevant Provisions of Section 2.8.2(H)(2) of the Land Use Code in the Request for a Modification of Section 3.4.7(B) and 3.4.7(E) of the Land Use Code. The Appellant states, "A modification of standard is allowed if granting the modification is not detrimental to the public good" and the Appellant maintains that the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the City Plan, West Central Neighborhood Plan, and the Land Use Code zone district standards in relationship to the eligibility of the property in making its decision that modifications of Standards 3.4.7(B) and 3.4.7(E) would be detrimental to the public good. The question, thus, is do the benefits to the community of retaining the historic structure at 1305 South Shields Street outweigh the benefits to the community of additional student housing at this location. The Appellant states that the granting of the modifications is not detrimental to the public good because the proposed project addresses eleven City Plan policies. Therefore, the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the Land Use Code. On February 16, 2012, the Appellant requested that the Planning and Zoning Board (Board) grant modifications to Section 3.4.7(B) and Section 3.4.7(E) of the Land Use Code. These Land Use Code (LUC) Sections are as follows: Section 3.4.7(B) General Standard If the project contains a site, structure or object that (1) is determined to be individually eligible for local landmark..., then to the maximum extent feasible, the development plan and building design shall provide for the preservation and adaptive use of the historic structure. The development plan and building design shall protect and enhance the historical and architectural value of any historic property that is: (a) preserved and adaptively used on the development site; or (b) is located on property adjacent to the development site... New structures must be compatible with the historic character of any such historic property, whether on the development site or adjacent thereto Section 3.4.7 (E) Relocation or Demolition A site, structure or object that is determined to be individually eligible for local landmark designation ... may be relocated or demolished only if, in the opinion of the decision maker, the applicant has, to the maximum extent feasible, attempted to preserve the site, structure or object in accordance with the standards of this Section, and the preservation of the site, structure or object is not feasible. In order for the Board to approve the modification requests to LUC Section 3.4.7(B) and 3.4.7(E), the Board must find that the modifications are not detrimental to the public good and that one or more of the four criteria outlined in LUC Section 2.82(H) are fully complied with. LUC Section 2.8.2(H) states that: The decision maker may grant a modification of standard only if it finds that the granting of the modification would not be detrimental to the public good, and that: (2) the granting of a modification from the strict application of any standard would, without impairing the intent and purpose of this Land Use Code, substantially alleviate an existing, defined and described problem of city-wide concern or would result in a substantial benefit to the city by reason of the fact that the proposed project would substantially address an important community need specifically and expressly defined and described in the city's Comprehensive Plan or in an adopted April 3 2012 0 -2- 0 ITEM 22 ACTION OF THE PLANNING AND ZONING BOARD At its February 16, 2012, meeting, the Planning and Zoning Board made the following motions: 1. The Board moved to deny the modification request to Section 3.4.7(B) of the Land Use Code based on the fact that the modification would be detrimental to the public good. 2. The Board moved to deny the modification request to Section 3.4.7(E) of the Land Use Code based on the fact that the modification would be detrimental to the public good. The Board considered the testimony of the applicant, affected property owners, the public and staff, and unanimously voted (6-0) to deny the modification of standard requests to Section 3.4.7(B) and 3.4.7(E) of the Land Use Code. QUESTIONS COUNCIL NEEDS TO ANSWER 1. Did the Planning and Zoning Board fail to hold a fair hearing? 2. Did the Planning and Zoning Board fail to properly interpret and apply relevant provisions of the Land Use Code? ALLEGATIONS ON APPEAL On March 1, 2012, the Appellant filed a Notice of Appeal with the City Clerk's Office. The Appellant, who was the applicant before the Planning and Zoning Board, alleges that the Planning and Zoning Board failed to conduct a fair hearing and failed to properly interpret and apply relevant provisions of the Land Use Code when denying the two stand-alone modification of standard requests to Section 3.4.7(B) and 3.4.7(E) of the Land Use Code. A. Failure to Conduct a Fair Hearing in that the Planning and Zoning Board Considered Evidence Substantially False and Grossly Misleading. The Appellant states, "The Board deferred to staff opinion and a prior erroneous determination of eligibility based on substantially false and grossly misleading evidence as was demonstrated to be blatantly incorrect..." The Appellant maintains that the Board considered evidence substantially false and grossly misleading. In support, the Appellant cites the November 9, 2011 staff report to the Landmark Preservation Commission; the initial determination of eligibility; the State of Colorado, Cultural Resource Survey Architectural Inventory Form, prepared by the historic preservation firm HistoryMatters, LLC. The Appellant asserts these contained false information and that the Board relied on the product of this false information in accepting the eligibility determination for the 1305 South Shields structure. The Appellant further details other aspects of these materials, as well as information from a separate report provided by the Appellant, referenced as the Rogue Architects Report, in support of this assertion. The Planning and Zoning Board did not receive nor did they discuss the November 9, 2011 staff report prepared for the Landmark Preservation Commission. The Planning and Zoning Board did not discuss any information contained in said report in connection with its decisions on the modifications of standard request. Similarly, none of the three determinations of eligibility were provided to the Planning and Zoning Board. Land Use Code 3.4.7(C), Determination of Landmark Eligibility, provides that the determination of eligibility for local landmark designation will be made in accordance with Chapter 14 of the Municipal Code. The applicable provisions of Chapter 14 provide for the determination of eligibility to be made by the CDNS Director and LPC Chair, or, in the case of conflicting determinations, by the Landmark Preservation Commission. In this instance, three separate determinations of eligibility were made for the building at 1305 South Shields Street. On each occasion, the CDNS Director and LPC Chair determined that the building is individually eligible for local landmark designation. The factual information that the house at 1305 South Shields Street has been determined to be individually eligible for local landmark designation was provided to the Board on page 3 of the staff report on the modifications of standards. This information was also verbally relayed to the Board at the hearing, as documented in the transcript of the meeting (Transcript, pg.15). DATE: April 3, 2012 STAFF: Courtney Levingston Karen McWilliams Itole] Consideration of the Appeal of the Planning and Zoning Board's February 16, 2012 Denial of Two Stand -Alone Modifications Concerning the Proposed Carriage House Apartments Located at 1305-1319 South Shields Street. EXECUTIVE SUMMARY In January, 2012, Charles A. Bailey, Catamount Properties, Ltd, (Appellant) submitted two stand-alone modification of standard requests: one relating to the general standard in Section 3.4.7(B) of the Land Use Code (LUC) regarding the preservation of structures deemed individually eligible for local landmark designation, and one for the demolition of an individually eligible structure (Section 3.4.7(E)). The Appellant requested to redevelop the properties located at 1305 and 1319 South Shields Street by demolishing two existing single family residences and associated outbuildings and constructing five multi -family buildings with approximately ten units per building. On February 16, 2012, the Planning and Zoning Board considered two Stand -Alone Modification of Standard requests to Section 3.4.7(B) and 3.4.7(E). After testimony from the applicant, the public and staff, the Planning and Zoning Board unanimously denied (6-0) the two modification of standard requests. On March 1, 2012, the Appellant filed a Notice of Appeal with the City Clerk's Office seeking redress of the action of the Planning and Zoning Board. The Appellant alleges that the Planning and Zoning Board failed to conduct a fair hearing because it considered evidence that was substantially false and grossly misleading and failed to properly interpret the relevant provisions of the Land Use Code when denying the two stand-alone modification of standards requests. BACKGROUND [DISCUSSION The existing buildings at 1305 and 1319 South Shields Street are over fifty years old. Therefore, the proposal to demolish these buildings is subject to Chapter 14, Article 4, of the Municipal Code, commonly called the "Demolition/Alteration Review Process." In November 2011, pursuant to Chapter 14 of the Municipal Code, the Community Development and Neighborhood Services (CDNS) Director and the Landmark Preservation Commission (LPC) Chair determined that the house at 1319 South Shields and the outbuildings at 1305 South Shields Street were not individually eligible for local landmark designation. The residence at 1305 South Shields Street was reviewed by the CDNS Director and the LPC Chair on three separate occasions, in September, November, and December, 2011, and each time the dwelling was unanimously determined to be individually eligible for local landmark designation. Additionally, on November 9, 2011, the LPC conducted a Preliminary Hearing on the proposed demolition of the dwelling. LPC Preliminary Hearings are an opportunity for the applicant and the Commission to explore alternatives to demolition or substantial alteration. At this Preliminary Hearing, the Appellant did not discuss or provide any alternatives to demolition, and a mutually agreeable solution to demolition of the home was not identified. The Commission moved that the application proceed to a LPC Final Hearing. An LPC Final Hearing would be scheduled after the receipt of submittal requirements, including approved plans for the redevelopment of the property.. For the Planning and Zoning Board to approve a Project Development Plan, it must comply with all applicable Sections of Article 3 and Article 4 of the Land Use Code. As conceptually proposed, the project does not comply with Sections 3.4.7 (B) and 3.4.7(E), due to the failure to demonstrate either that the plan provides for the preservation of the individually eligible home at 1305 South Shields Street by incorporating the building in his proposal; or by providing evidence that the applicant has, to the maximum extent feasible, attempted to comply with the Code provision and that no feasible and prudent alternative exists and all possible efforts to comply with the regulation or minimize potential harm or adverse impacts have been undertaken. Therefore, the Appellant chose to submit two "stand-alone" modification requests.