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HomeMy WebLinkAboutASPEN HEIGHTS STUDENT HOUSING PDP - CITY COUNCIL APPEAL - PDP110018 - REPORTS - RECOMMENDATION/REPORTOctober 30, 2012 -6- ITEM 4 The appellant asserts that having already ruled in the affirmative in the original hearing, the Hearing Officer is, therefore, biased and unqualified to consider the PDP in the remanded hearing. Hearing the same case a second time, regardless of differing testimony, it would be extremely hard to issue a decision contrary to the original. Further, Section 2.2.7(A) gives no indication that "the Director % as the "designated decision maker," can delegate the role. Finally, Section 2.2.7(D)(1) requires that "the Director" (not "the designated decision maker) close the public hearing. The Hearing Officer read into the public record a memorandum prepared by staff. The relevant subsection of this memorandum is found in the verbatim transcript which states on page 2, lines 24 - 34: Mr. Lopez: "One of these allegations challenged the legitimacy of the City of Fort Collins using a Hearing Officer. In response, please note the following from Section 1.4.9(E) (emphasis added): "(E) Delegation of Authority. Whenever a provision appears requiring the Director or some other City officer or employee to do some act or perform some duty, such provision shall be construed as authorizing the Director or other officer or employee to designate, delegate and authorize professional -level subordinates to perform the required act or duty unless the terms of the provision specify otherwise. With respect to the review of development applications eligible for Type 1 review, in addition to or in substitution for delegation to subordinates as above authorized, the Director may engage the services of an attorney with experience in land use matters." ATTACHMENTS 1. City Clerk's Public Hearing Notice and Notice of Site Visit 2. Notice of Appeal, Tom Lawton, filed August 30, 2012 3. Administrative Hearing Officer Findings, Conclusions and Decision, August 16, 2012 4. Staff report, with attachments, provided to Hearing Officer for August 7, 2012 Hearing 5. Materials submitted by Applicant to the Hearing Officer 6. Materials submitted by Citizens to the Hearing Officer at the August 7, 2012 Hearing 7. Verbatim transcript 8. Site Visit summary, October 22, 2012 9. Staff powerpoint presentation to Council October 30, 2012 -5- ITEM 4 D. The Hearing Officer failed to conduct a fair hearing in that he exceeded his authority or jurisdiction as contained in the Land Use Code or ignored its previously established rules of procedure in failing to consider City Plan in his decision. The appellant does not provide a Land Use Code citation regarding this allegation. The appellant asserts that two policies from City Plan were not properly considered by the Hearing Officer: • Policy LIV 7.7 —Accommodate the Student Population "Plan for and incorporate new housing for the student population on campuses and in areas near educational campuses and/or that are well -served by public transportation." • Policy LIV 37.3 — Supporting Uses and Housing "Include student -oriented housing, retail services, and entertainment designed to function as part of the Campus District. Form strong pedestrian and bicycle linkages throughout the district and provide connections to city systems beyond the campus." The Hearing Officer stated on page 18 of his decision that the PDP complied with Section 3.6.5(B) — Location of Existing Transit Routes due to the fact that the PDP is located along Transit Routes 8/81 which serves Conifer Street in both directions. The Hearing Officer included in his decision on pages 3 and 4, six excerpts from the North College Corridor Plan. This is a geographically specific sub -area plan that formed the basis of the C-C-N zone district and includes the subject property. An adopted sub -area plan is considered a component of City Plan. The Hearing Officer concluded on page 19 that the decision that the PDP complied with the 2007 North College Subarea Plan. E. The Hearing Officer failed to conduct a fair remanded hearing by substantially ignoring previously established rules of procedure by reason of the Hearing Officer already having decided the case in the original hearing. Lands Use Code Section 2.2.7(A) reads as follows: "2.2.7 Step 7: Public Hearing (A) Decision maker. (1) Administrative Review (Type 1 review). An administrative review process is hereby established wherein certain development applications shall be processed, reviewed, considered and approved, approved with conditions, or denied by the Director pursuant to the general procedural requirements contained in Division 2.1, and the common development review procedures contained in Division 2.2. For those development applications that are subject to administrative review, the Director shall be the designated decision maker. (2) Planning and Zoning Board Review (Type 2 review). A Planning and Zoning Board review process is hereby established wherein certain development applications shall be processed, reviewed, considered and approved, approved with conditions, or denied by the Planning and Zoning Board pursuant to the general procedural requirements contained in Division 2.1, and the common development review procedures contained in Division 2.2. For those development applications that are subject to Planning and Zoning Board review, the Planning and Zoning Board shall be the designated decision. maker." October 30, 2012 -4- ITEM 4 As to mailed notice, the verbatim transcript states on page three, lines 10 — 13: Mr. Lopez: "Also in compliance with Section 2.2.6(A), mailed notices advertising the public hearing of August 7, 2012 were mailed to affected property owners within the specific notification area fourteen days prior to the public hearing date. The notification letter was mailed out on July 25, 2012, thus complying with the standard." B. The Decision Maker failed to conduct a fair hearing by considering grossly misleading evidence in the hearing due to disingenuous presentation of the proposal. The appellant does not provide a Land Use Code citation regarding this allegation. The appellant alleges that the applicant's presentation indicated that the PDP would contain 600 bedrooms. The developer, in fact, will construct 712 bedrooms. The developer has indicated that, at some point after issuance of a Certificate of Occupancy, a request for a variance or a waiver will be made to convertthe single family homes to Extra Occupancy Rental Houses. Therefore, the applicant's presentation to the Hearing Officer was disingenuous, suggesting a pattern of occupancy which is not that which is intended. The Hearing Officer stated in his decision on page 18: "16. Section 3.8.28 — Extra Occupancy Rental House Regulations. After issuance of Certificates of Occupancy, the single family detached dwellings will seek conversion to Extra Occupancy Rental Houses to allow four to five tenants per unit. This request is not before the Hearing Officer at this time." The verbatim transcript states on page 45, lines 15 — 19: Mr. Shepard: "I think the last one before Ward or Mark come up here is the, to again reference that the three -unrelated and how we get more than three into a dwelling unit. That's originally part of the Code that was adopted even before the Land Use Code when Fort Ram Village on Plum Street desired that. It's been expanded now to allow extra occupancy rental house, which is in 3.8.16. It's a basic development review, it is not a modification, it's not a variance as was stated." C. The Hearing Officer failed to properly interpret and apply relevant provisions of the Land Use Code in that the Hearing Officer or the City of Fort Collins conducted an Administrative Hearing when the PDP should have been considered by the Planning and Zoning Board. The appellant does not provide a Land Use Code citation regarding this allegation. The appellant asserts that the Development Review Guide, as found on the Current Planning website, indicates that while the zoning of the proposed development site is not residential, the surroundings of the site on two sides are. As such, this application matches almost exactly the City's example development requiring a Type 2 review. The Hearing Officer stated in his decision on pages 5 and 6: "1. Section 4.19(B)(2)(a) — Permitted Use. This standard lists the permitted uses in the CCN District, subject to administrative review. Residential uses including single family, two-family, single family attached, multi -family dwellings, group homes, extra occupancy rental house and mixed use dwellings are permitted per subsection (a)." The verbatim transcript states on page 45, lines 1 — 5: Mr. Shepard: "There was a comment about some vagueness as to a Type I or Type II review. It's not vague, it's a hard and fast rule, it's very strict. The Land Use Code, in Article IV, very explicitly says either you are a P and Z review, or you are an Administrative Hearing Officer review. There's no crossing over. The only way that you can cross over requires a text amendment which has to go to the Planning and Zoning Board and then two readings by Council." October 30, 2012 -3- ITEM 4 Minimum Notice Radius Sign Size Developments proposing 800 feet 12 square feet more than fifty (50) and less than one hundred (100) single-family or two-family lots or dwelling units. Developments proposing 800 feet 12 square feet more than twenty-five (25) and less than one hundred (100) multi -family dwelling units. Nonresidential 800 feet 12 square feet developments containing more than twenty-five thousand (25,000) and less than fifty thousand (50,000) square feet of floor area. Developments proposing 1,000 feet 12 square feet one hundred (100) or more single-family or two-family lots or dwelling units. Developments proposing 1,000 feet 12 square feet one hundred (100) or more multi -family dwelling units. Nonresidential 1,000 feet 12 square feet developments containing fifty thousand (50,000) or more square feet of floor area. Nonresidential 1,000 feet; plus, 12 square feet developments which with respect to propose land uses or neighborhood activities which, in the meetings, judgment of the Director, publication of a create community or notice not less than regional impacts. seven (7) days prior to the meeting in a newspaper of general circulation in the city. Zonings and rezonings of 800 feet 12 square feet forty (40) acres or less. Zonings and rezonings of 1,000 feet 12 square feet more than forty (40) acres. The appellant does not provide any specific allegation with regard to Section 2.2.6(D). October 30, 2012 -2- ITEM 4 ALLEGATIONS ON APPEAL On August 30, 2012, Tom Lawton filed an appeal alleging that the Hearing Officerfailed to properly interpret and apply relevant provisions of the Land Use Code and that the Hearing Officer failed to conduct a fair hearing. THE QUESTIONS COUNCIL NEEDS TO ANSWER 1. Did the Hearing Officer fail to properly interpret and apply relevant provisions of the Land Use Code? 2. Did the Hearing Officer fail to conduct a fair hearing in that the Hearing Officer exceeded his authority or jurisdiction as contained in the Land Use Code or Charter? 3. Did the Hearing Officer fail to conduct a fair hearing in that the Hearing Officer substantially ignored his previously established rules of procedure? 4. Did the Hearing Officer fail to conduct a fair hearing in that the Hearing Officer considered evidence relevant to his findings which were substantially false or grossly misleading? ALLEGATIONS ON APPEAL A. Failure to Conduct a Fair Hearing and/or Failure Properly Interpret and Apply Relevant Provisions of the Land Use Code Specifically Section 2.2.6(B)(D). Land Use Code Section 2.2.6(B) reads as follows: "(B) Posted Notice. The real property proposed to be developed shall also be posted with a sign, giving notice to the general public of the proposed development. For parcels of land exceeding ten (10) acres in size, two (2) signs shall be posted. The size of the sign(s) required to be posted shall be as established in the Supplemental Notice Requirements of Section 2.2.6(D). Such signs shall be provided by the Director and shall be posted on the subject property in a manner and at a location or locations reasonably calculated by the Director to afford the best notice to the public, which posting shall occur within fourteen (14) days following submittal of a development application to the Director." The appellant alleges that the property was not posted with a sign in a timely manner and that the location of the sign that was posted was not in a sufficiently prominent location. The appellant asserts that the intention of the Development Review Guide, as found on the City of Fort Collins Current Planning website, was not followed. On page three, lines 4 — 9 of the verbatim transcript, the following was read into the record by the Hearing Officer: Mr. Lopez: 'The common development review procedures are codified in Section 2.2. The submittal of the PDP is step three; the public hearing is step seven. As per City Council Resolution 2012-064, the PDP was remanded back to the public hearing, step seven, not back to the submittal, step three. The project was submitted on December 14, 2011. City records indicate that two signs were posted by December 27, 2011." Land Use Code Section 2.2.6(D) reads as follows: D) Supplemental Notice Requirements. Minimum Notice Radius Sign Size All developments except as described below. 800 feet 12 square feet DATE: October 30, 2012 AGENDA ITEM SUMMAR STAFF: Ted Shepard FORT Consideration of an Appeal of the Hearing Officer's August 16, 2012 decision to approve Aspen Heights Project Development Plan, #PDP110018. EXECUTIVE SUMMARY In December 2011, Breckenridge Land Acquisition, LLP, submitted a Project Development Plan (PDP) for a combination of single family detached, two-family and multi -family dwellings in the C-C-N, Community Commercial North College zone district. As proposed, the project consists of 220 dwellings on 31 acres located south of Conifer Street, west of Redwood Street and north of Old Town North subdivision. On August 7, 2012, the Hearing Officer conducted a public hearing inconsideration of Aspen Heights PDP. On August 16, 2012, after consideration of testimony from the applicant, the public and staff, the Hearing Officer issued a written decision approving the PDP. with one condition ensuring proper submittal of a landscape plan for the clubhouse. On August 30, 2012, Tom Lawton filed a Notice of Appeal seeking redress of the Hearing Officer's decision. The appeal alleges that the Hearing Officer failed to properly interpret and apply relevant provisions of the Land Use Code and that the Hearing Officer failed to conduct a fair hearing. BACKGROUND / DISCUSSION This is a request for 220 dwellings on 31 acres located south of Conifer Street, west of Redwood Street and north of Old Town North subdivision. The dwellings, and the number of bedrooms, would be divided in the following manner: 82 Single Family Detached (3 bedrooms per unit) 62 Two Family (duplexes) (2-3 bedrooms per unit); 76 Multi -Family (row -houses, 3 — 6 units per building) (2-3 bedrooms per unit). There would be a total of 600 bedrooms each of which would be leased individually. (The applicant has indicated that there is a potential for all 82 single family detached dwellings to be converted to Extra Occupancy Rental Houses featuring a mix of 4-5 bedrooms per unit at some point in the future. Such conversion would be subject to the procedures and standards of Section 3.8.16 and could possibly increase the total bedroom count to 720. Such conversion is not the subject of this PDP.) All dwellings would be two-story. There would be 786 off-street parking spaces. The project includes a clubhouse, pool, outdoor sport court and leasing office. Blue Spruce Drive and Lupine Drive are two public streets that would be extended to serve the site. Blue Spruce Drive would not be extended south to Blondell Street. Redwood Street would be extended south to connect with the existing Redwood Street so there would be a complete roadway between existing East Vine Drive and Conifer Street. A segment of the new, re -aligned Vine Drive would be constructed along the project's southern property line but will not extend to North College Avenue. ACTION OF THE HEARING OFFICER At the public hearing, the Hearing Officer considered the testimony of the applicant, affected property owners, the public and staff. The Administrative Review process allows the Hearing Officer ten working days to render a written decision. On August 16, 2012, the Hearing Officer provided a written decision approving the PDP. with the one condition as recommended by staff that a landscape plan be provided for the clubhouse.