HomeMy WebLinkAbout1310 LAPORTE AVENUE - MODIFICATION OF STANDARD - 35-04 - REPORTS - RECOMMENDATION/REPORTSecond Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
Page 9
STAFF RECOMMENDATION:
Staff recommends denial of the request to modify Section 4.6 Neighborhood
Conservation, Low Density District (NCL), (D) Land Use Standards (1) Density of the Land
Use Code.
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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impacts of his or her development, or that actions taken by the city under this Land Use
Code have resulted in a deprivation of due process.
In this situation, there are many viable development alternatives for the property in
question. The dedication of right-of-way is a legislatively mandated regulation, so
there is a reasonable nexus to the potential impacts of the development. The
rights -of -way will be used upon development for bringing sidewalks along all three
sides of the property up to current standards so there is in fact proportionality
between the regulation and the impacts of the development.
To sum up, this request for modification of the minimum lot standard should not be
judged on the basis of whether or not it is a taking. It has been presented as a
request for modification based on 2.8.2(H)(4), in that,
the plan as submitted will not diverge from the standards of the Land Use Code that are
authorized by this Division to be modified except in a nominal, inconsequential way when
considered from the perspective of the entire development plan, and will continue to
advance the purposes of the Land Use Code as contained in Section 1.2.2.
3. Findings of Fact / Conclusion
In reviewing this proposed alternative plan for purposes of determining whether it
accomplishes the purposes of Section 4.6 (D)(1) of the Land Use Code as required, Staff
has determined that:
a) The granting of the modification would be detrimental to the public good
because it would undermine the purpose of the Land Use Code and set a
precedent whereby minimum lot sizes could be calculated before dedication of
rights -of -way, effectively nullifying the minimum lot size standard.
b) The granting of the modification would not be a nominal and inconsequential
divergence from the standards of the Land Use Code because it would set the
precedent for any developer to use the same justification.
c) The modified plan would notcontinue to advance the purposes of the Land Use
Code as contained in Section 1.2.2.
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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There is hereby established the following Vested Rights Determination and Takings
Determination Procedures for the purpose of identifying certain parcels of real property in
the city that should be made exempt, or partially exempt, from the application of any portion
of this Land Use Code. An owner or developer of real property in the city who claims that
certain development rights have vested with regard to such property prior to the effective
date of this Land Use Code may seek a Vested Rights Determination in accordance with the
procedures described in this Division. Furthermore, an owner or developer of real property
in the city who claims that such property has been taken without just compensation or who
claims a deprivation of due process may seek a Takings Determination in accordance with
the procedures described in this Division. With regard to a Takings Determination, the
owner or developer may assert any legally recognized takings claim, including, but not
limited to, a claim that he or she has been deprived of "all economically beneficial use" of
his or her property, that a condition imposed by the city does not have a "reasonable nexus"
to the potential impacts of his or her development, that such a condition is not "roughly
proportional" to the potential impacts of his or her development, or that actions taken by the
city under this Land Use Code have resulted in a deprivation of due process. Such persons
will be provided an opportunity for a public hearing, the right to present and rebut evidence,
a formal record and an impartial Hearing Officer in accordance with the following
procedures. Such Hearing Officer shall be selected and appointed by the City Manager and
shall be an attorney licensed to practice law in the State of Colorado with experience in land
use matters. Subject to the procedures hereinafter provided, the Hearing Officer shall issue
formal findings of fact, conclusions of law and a Vested Rights Determination and/or
Takings Determination, depending on the nature of the claim asserted by the applicant. The
claims shall be reviewed according to the following procedure:
(excerpt) An Application for Vested Rights Determination or Takings Determination shall
be submitted to the Director of Community Planning and Environmental Services (the
"Director") in the form established by the Director. An application fee in the amount of
Two Thousand Five Hundred Dollars ($2,500.00) per application (Le., $2,500.00 for
vested rights, $2,500.00 for takings, whichever is applied for) shall accompany and be part
of the application.
The applicant did not apply for a Takings Determination using the established
procedures as described above in the LandUse Code Division 2.13. Therefore, this
hearing should be judged solely on the criteria of 2.8.2(H)(4).
As a side note, staff's perspective is that it is highly unlikely, in a proper takings
determination process, that this situation would be deemed a taking. In Section
2.13.2 Administrative Process/Hearing Officer, the code states,
With regard to a Takings Determination, the owner or developer may assert any legally
recognized takings claim, including, but not limited to, a claim that he or she has been
deprived of "all economically beneficial use" of his or her property, that a condition
imposed by the city does not have a "reasonable nexus" to the potential impacts of his or
her development, that such a condition is not "roughly proportional" to the potential
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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parking is proposed on Laporte Avenue, 5' of additional right-of-way will be
required, reducing the proposed lot sizes even further.
The applicant proposes that with the modification, the project will continue to
advance the purposes of the Land Use Code as contained in 1.2.2. Staff disagrees
with that assessment and, in accordance with Section 1.2.2, counters that, with
respect to this project or projects for which this would set a precedent, it will not:
(A) ensure that all growth and development which occurs is consistent with this Land Use
Code, City Plan and its adopted components, including but not limited to the Structure Plan,
Principles and Policies and associated sub -area plans.
(C) foster the safe, efficient and economic use of the land, the city's transportation
infrastructure, and other public facilities and services.
(D) facilitate and ensure the provision of adequate public facilities and services such as
transportation (streets, bicycle routes, sidewalks and mass transit), water, wastewater, storm
drainage, fire and emergency services, police, electricity, open space, recreation, and public
parks.
(E) avoid the inappropriate development of lands.
(G) increase public access to mass transit, sidewalks, trails, bicycle routes and other
alternative modes of transportation.
(J) improve the design, quality and character of new development.
(K) foster a more rational pattern of relationship among residential ...uses for the mutual
benefit of all.
(M) ensure that development proposals are sensitive to the character of existing
neighborhoods.
The City acquires additional rights -of -way piecemeal, as development occurs in
order to perpetuate the transportation system. The City has no interest in obtaining
rights -of -way at the expense of poor planning. If this development is not viable, the
rights -of -way will remain as existing until such a time as a viable development is
presented, at which time, again, right-of-way dedications will be required. There are
several other viable development options for this site that would meet all of the
regulations and would not require modification to the standards.
Staff requests that the Hearing Officer take note that this is not the proper venue for
a takings determination. According to Division 2.13 Vested Rights and Takings
Determinations:
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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property, provided that such difficulties or hardship are not caused by the act or
omission of the applicant; or
(4) the plan as submitted will not diverge from the standards of the Land Use Code that
are authorized by this Division to be modified except in a nominal, inconsequential
way when considered from the perspective of the entire development plan, and will
continue to advance the purposes of the Land Use Code as contained in Section 1.2.2.
Any finding made under subparagraph (1), (2), (3) or (4) above shall be supported by
specific findings showing how the plan, as submitted, meets the requirements and
criteria of said subparagraph (1), (2), (3) or (4).
From staff's perspective, the fourth criterion of 2.8.2(H) would not be met by the
applicant's proposal. The plan as submitted does diverge from the standards of the
Land Use Code, specifically:
• 3.3.1 Plat Standards, (B) Lots, (1) which states that,
No lot in a subdivision shall have less area than required under the applicable zoning
requirements of the city,
• 4.6(D)(1) NCL District Land Use Standards —Density states:
...Minimum lot area shall be equivalent to at least three (3) times the total floor area of the
building(s), but not less than six thousand (6,000) square feet.
and,
• 3.3.1.( C)(1) Public Sites, Reservations and Dedications states,
An applicant shall be required to dedicate rights -of -way for public streets, drainage
easements and utility easements as needed to serve the area being platted. In cases where
any part of an existing road is in the tract being subdivided, the applicant shall dedicate
such additional right-of-way as may be necessary to increase such roadway to the minimum
width required under this Land Use Code for such street.
These divergences from the Land Use Code are neither nominal nor
inconsequential in that they would set precedents for any developer to do the same.
The applicant's supposition that "the City is not planning to widen any of the streets
in the foreseeable future" is incorrect. There are attached 3 foot wide sidewalks on
all of the three street frontages of the property in question. With the development of
this site, the City will require the sidewalks to be brought up to code, which would
mean a 5 foot wide sidewalk plus an 8 foot wide parkway on Laporte; a 4'/z foot
wide sidewalk plus a 6 foot parkway on Leland and an increased width sidewalk
along McKinley, the design of which will be determined at the time of PDP review. If
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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development would cause. The loss of the land to the wider street right-of-way, in
this case, reduces the number of lots that are allowed by code, from four to three.
Generally speaking, buildable lots in this neighborhood are conservatively worth
around $80,000 each. The value of the taking is thus approximately $80,000."
The applicant refers to the Supreme Court Decisions in which "nexus" and
proportionality are established in relation to government permits and regulations:
"The "nexus" requirement was established in Nollan v. California
Coastal Commission, 483 U.S. 825 (1987). In Nollan, the United
States Supreme Court held that permit conditions must be
sufficiently related to the government's regulatory interests. The
Court added the "proportionality" requirement in Dolan v. City of
Tigard, 512 U.S. 374 (1994). In Dolan, the Court held that when
governments impose permit conditions, there must be "rough
proportionality" between the condition's requirements and the
impacts of the development."
C. Staff's Analysis of Modification Request
This modification is requested in accordance with the review procedures set forth in
Section 2.8.2(H) of the Land Use Code as follows:
Section 2.8.2(H) of the LUC specifies that in order to approve a modification, the
Administrative Hearing Officer must find that:
... the granting of the modification would not be detrimental to the public good, and that:
(1) the plan as submitted will promote the general purpose of the standard for which the
modification is requested equally well or better than would a plan which complies
with the standard for which a modification is requested; or
(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
policy, ordinance or resolution of the City Council, and the strict application of such
a standard would render the project practically infeasible; or
(3) by reason of exceptional physical conditions or other extraordinary and exceptional
situations, unique to such property, including, but not limited to, physical conditions
such as exceptional narrowness, shallowness or topography, or physical conditions
which hinder the owner's ability to install a solar energy system, the strict application
of the standard sought to be modified would result in unusual and exceptional
practical difficulties, or exceptional or undue hardship upon the owner of such
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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2) The City is not planning to widen any of the streets in the foreseeable
future.
3) If the calculation of lot size is made after the subtraction of additional
rights -of -way that are required to be dedicated, the subdivision fails to
comply with the minimum lot sizes as proposed.
4) The developer is willing to dedicate the additional rights -of -way but does
not wish to be penalized for it. The developer wishes to calculate lot size
before dedication of rights -of -way.
As specified in Section 2.8.2 Modification Review Procedures, (H) (Standards), the
Administrative Hearing Officer may grant a modification of standards only if it finds
that the granting of the modification would not be detrimental to the public good, and
that:
(4) the plan as submitted will not diverge from the standards of the Land Use Code that
are authorized by this Division to be modified except in a nominal, inconsequential
way when considered from the perspective of the entire development plan, and will
continue to advance the purposes of the Land Use Code as contained in Section 1.2.2.
The applicant has proposed that the modification of the standard would not be
detrimental to the public good because, "by granting the modification, the
development is viable, which in turn allows the development to proceed, and would
therefore provide the additional street right-of-way witdths (sic) that the City wants for
Laporte Avenue, McKinley Avenue and Leland Aveunue (sic). Without the
modification, the development is not viable, and is not likely to proceed, therefore,
the additional right-of-way won't be aquired (sic) by the City."
The applicant proposes that it meets the requirements of Section 2.8.2(H)(4) of the
LUC. The applicant asserts that, `The plan as submitted will not diverge from the
standards of the Land Use Code except in a nominal, inconsequential way when
considered from the perspective of the entire development plan. The only reason
the lots are proposed to be smaller than otherwise required is because the property
owner is giving land to the City for potential future street widening projects. None of
the streets that will be gaining right-of-way width from this development are proposed
to be widened any time in the foreseeable future, and therefore deviation from the
standard is inconsequential."
Finally, the applicant states the reasons why the plan will continue to advance the
purposes of the Land Use Code as contained in Section 1.2.2.
The applicant further requests that the Hearing Officer consider that the requirement
for the project to donate land for additional street right-of-way, in this case, is a
"taking". The applicant assserts that, "there is no proportional nexus between the
value of the reduction in allowed development intensity, and the impacts this
Second Modification — Cherry Street Lofts — Filing #29-03A
June 17, 2004 P & Z Meeting
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EXECUTIVE SUMMARY:
The applicant has submitted a request for a modification of standard as allowed by
2.8.2(H)(4) of the Land Use Code. This application is a stand-alone request; illustrative
plans are included for the purpose of displaying general information and anticipated
number and location of buildings on the existing lot. The applicant intends to prepare a
Type I PDP and provide more detailed plans upon approval of this request.
COMMENTS
1. Background
The surrounding zoning and land used are as follows:
N: NCL — Existing residential (Reclamation Village);
W: NCL — Existing residential with LMN beyond;
S: NCL — Existing residential;
E NCL — Existing residential.
2. Modification Request — Pertinent Code Sections
A. Citation — Section 4.6(D)(1) Land Use Standards —Density states:
(D) Land Use Standards.
(1) Density. Minimum lot area shall be equivalent to at least three (3) times the total
floor area of the building(s), but not less than six thousand (6,000) square feet. For
the purposes of calculating density, "total floor area" shall mean the total gross
floor area of all principal buildings as measured along the outside walls of such
buildings and including each finished or unfinished floor level plus the total gross
floor area of the ground floor of any accessory building larger than one hundred
twenty (120) square feet, plus that portion of the floor area of any second story
having a ceiling height of at least seven and one-half (7112) feet located within any
such accessory building located on the lot. (Open balconies and basements shall not
be counted as floor area for purposes of calculating density).
B. Applicant's Justification
The applicant has proposed that the modification requests meet the requirements of
LUC 2.8.2 Modification Review Procedures (H) Step 8 (Standards) (4). The
applicant has provided written justification which is attached. Briefly, the justification
is summarized as follows:
1) The property is bounded on three sides by public rights -of -way.
ITEM NO.
MEETING DATE jd�A
STAFF����.
Citv of Fort Collins HEARING OFFICER
STAFF REPORT
PROJECT: Modification of Standard in Subsection 4.6(D)(1) of the Land Use
Code for 1310 Laporte Avenue (#35-04)
APPLICANT: M. Torgerson Architects, PC.
c/o Troy Jones
211 Jefferson
Fort Collins, CO 80524
OWNER: Mike Jensen
1310 Laporte Ave.
Fort Collins, CO 80521
PROJECT DESCRIPTION:
This is a request for modification of standard set forth in Section 4.6
Neighborhood Conservation, Low Density District (NCL) of the Land Use Code
(LUC), more specifically 4.6(D)(1) Land Use Standards—Densityto allow smaller
lots than the minimum lot size in the NCL zone district. The owner of the existing
residence at 1310 Laporte Avenue intends to submit a PDP application to
subdivide the existing 24,031 sf lot into four lots. One lot will contain the existing
rental rooming house converted back to single family housing. Three new single
family residences will be built on the other three lots. Once dedications of rights -
of -way are made, each of the proposed lots will be below the required 6000sf.
According to the illustrative plan submitted with this application, Lot 1 will be
5805sf, Lot 2 will be 5867sf, Lot 3 will be 5897sf and Lot 4 will be 5589sf. The
property is located on the northeast corner of Laporte Ave. and McKinley Ave. It is
in the NCL-Neighborhood Conservation, Low Density District.
RECOMMENDATION: Denial
COMMUNITY PLANNING AND ENVIRONMENTAL SERVICES 281 N. College Ave. P.O. Box 580 Fort Collins, CO 80522-0580 (970) 221-6750
PLANNING DEPARTMENT