HomeMy WebLinkAboutTHE SUMMIT ON COLLEGE PARKING GARAGE - MJA/FDP ..... 9/04/2014 REMAND HEARING DECISION - FDP130056 - REPORTS - APPEAL TO CITY COUNCILAgenda Item 16
• 2.2.10(B)(1)
• 3.2.2
2.8.2
The Hearing Officer's Decision notes:
The Alternative Design satisfies the Article 3 General Development Standards set forth at Section 3.4.1(1) and
3.5.1(J). The Alternative Design satisfies all other applicable Article 3 and Article 4 standards, as more fully
analyzed and set forth in the March 19, 2014 decision, which is incorporated herein by reference. To the extent
of any conflict between this written decision and the March 19th decision, the conditions of this September 9th
decision shall control.
Staff has not identified any new evidence from the Remand Hearing related to any of the Land Use Code
Sections noted above.
ATTACHMENTS
1. City Clerk's Public Hearing Notice and Notice of Site Visit (PDF)
2. Notice of Appeal-Councilmember Ross Cunniff (PDF)
3. Notice of Appeal, Jeffrey Leef, et al (PDF)
4. Administrative Hearing Officer Decision (PDF)
5. Staff report (with attachments) provided to Administrative Hearing Officer (PDF)
6. Staff materials presented at the Administrative Hearing (PDF)
7. Applicant Materials presented at the Administrative Hearing (PDF)
8. Materials Presented to the Hearing Officer at the Administrative Hearing (PDF)
9. Verbatim Transcript of Hearing (PDF)
10. Powerpoint presentation to Council (PDF)
Item # 16 Page 7
Agenda Item 16
improve the view corridors from the Spring Creek Park.
Did the Hearing Officer fail to properly interpret and apply 3.5.1 of the Land Use Code? As alleged:
"Land Use Code (LUC) Section 3.5.1: Assessing compatibility of the physical characteristics of a proposed
building within the context of its surrounding area must include a comparison with other buildings in the area.
Similarity of building mass and proportion are critical. Whether or not the existing architectural character is
definitively established, comparison of building mass and proportion with existing area buildings must be
made. That comparison, in this case, should not be made only with the other buildings recently constructed by
the applicant; rather, it must take into account the long -existing buildings in the immediate area, some of which
have been remodeled according to the same mass and proportion as they existed before. The existing
buildings in the area apart from the applicant's recently constructed large, angular apartments, are
predominantly one story in height and of much lesser mass."
And,
"LUC 3.5.1: Despite undisputed evidence that the proposed structure will completely
block views of the mountains from pre-existing, adjacent buildings whose owners and occupants highly value
such views, the hearing officer made no determination concerning the applicability or inapplicability of code
provisions protecting such views. He did, however, describe the Alternate Design for the proposed structure as
having an "overall" height of two and one-half stories (with one stair tower extending considerably higher), and
that it would consist of three parking levels, including parking on the roof. The clear intent of the Code is to
protect views of the mountains. The 40' standard prompts an automatic review, but if a structure is under 40'
the Code does not provide that views will be ignored. View protection is a central component of building
compatibility. Moreover, without reserving the general power to protect views, the City by enforcing the 40'
standard alone would be regulating completely irrationally. This is because there is no horizontal distance
element to the bare 40' standard (by contrast, the shadow standard requires examination of a 25' wall on
property lines). Thus, a structure 39' in height that is 25' from a property line won't be reviewed, but a 41' high
structure in the middle of a mile section will be. Obviously, each case is different, and the distances between
other buildings and uses are vitally important in assessing view compatibility. The code allows the City to do
so, whether a structure is over 40' or not."
The Hearing Officer's finding of fact and decision regarding compatibility is the same as the previous
allegation: Paragraph 11 and 12 of the Findings of Fact and Conclusions of Law on page 4 of the Decision.
Did the Hearing Officer fail to properly interpret and apply other cited provisions of the Land Use
Code? As the appellant alleges for the following sections:
Land Use Code Section:
• 4.21(b)
• 5.1
• 3.10
• 5.1.2
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Agenda Item 16
parking structure will only materially exacerbate the project incompatibility. Architecture is just one of many
important factors contributing to compatibility, as the code (Section 5.1) defines: "Compatibility shall mean the
characteristics of different uses or activities or design which allow them to be located near or adjacent to each
other in harmony. Some elements affecting compatibility include height, scale, mass and bulk of structures.
Other characteristics include pedestrian or vehicular traffic, circulation, access and parking impacts. Other
important characteristics that affect compatibility are landscaping, lighting, noise, odor and architecture.
Compatibility does not mean 'the same as.' Rather, compatibility refers to the sensitivity of development
proposals in maintaining the character of existing development."
The Hearing Officer's finding of fact and decision regarding compatibility strictly addresses the amount of
parking spaces and does not address height, scale, mass etc... follows:
11. Section 3.5.1(J) of the LUC reads as follows:
(J) Operational / Physical Compatibility Standards. Conditions may be imposed upon the approval of
development applications to ensure that new development will be compatible with existing neighborhoods and
uses. Such conditions may include, but need not be limited to, restrictions on:
(7) location and number of off-street parking spaces
12. The Hearing Officer concludes that City Council intended that the Hearing Officer interpret and apply
Section 3.5.1(J)(7) of the Land Use Code to analyze the potential reduction in the number of parking spaces in
the structure to a number closer to the minimum parking requirements codified at Section 3.2.2(K)(1)(a) of the
Land Use Code. Applying the parking spaces per dwelling unit ratio set forth in subparagraph 3.2.2(K)(1)(a)(1)
of the Land Use Code, the Hearing Officer concludes that a minimum of 358 parking spaces would be required
for the 665 bedrooms (in 220 units) in the Summit on College Development. The Original Design contains 440
parking spaces in the structure (for a total of 535 parking spaces). The Alternative Design contains 345 parking
spaces in the structure (for a total of 442 parking spaces). The Hearing Officer concludes that the total of 442
parking spaces included in the Alternative Design is closer to the minimum parking requirement set forth in
Section 3.2.2(K)(1)(a) of the LUC.
At the hearing, the applicant's consultant, Mr. Engineer, discussed slides from the presentation (Attachment 7)
depicting the size of the original proposal versus the alternative proposal on page 7, line 35 - page 8, line 21 of
the verbatim transcript:
Okay, this view is really taken from the South College Avenue, and again it kind of depicts the three elevated
levels, which was proposed in ... original scheme. And you can see the mass and scale of the structure and you
can compare that with the next slide that we have over.. this is the mass and scheme for the two elevated
alternative design as viewed from the same viewpoint from the South College Avenue. And... the next slide has
a better depiction of the comparison of the original scheme versus the alternate scheme. You can see
significantly the smaller size of the garage, of the two elevated levels versus the three elevated levels, keeping
in mind that we have kept everything else the same in terms of architecture, aesthetics, and visuals.
This is the elevation from the Spring Creek Park on the south side, which we felt was an important elevation
based on the concerns that were raised by the City Council and by the others ... at the City Council hearing.
The first elevation, the top elevation, represents the alternate design, two elevated levels, versus the three
elevated original design. And one thing you can see ... again, the texture and visuals are pretty much we have
kept the same; the flavor of the garage has not changed in terms of the exterior aesthetics, but we have added
significant green screening as ... requested by the Council. You can see the density of the green screen,
significantly more than the original design. Let's move on to the next one.
Well, I just want to say, can you go back to the original slide please ... the one before it ... l think there are some
important things that I want to bring up regarding the architectural aesthetics and the visuals. Like I said ... I
want to re-emphasize this point over here, that we are maintaining the natural colors that were proposed in the
original scheme, as in the elevated design. We are keeping the siding, the windows, the cornices and
overhangs similar to The Summit residential complex, similar materials as The Summit development, and the
most important thing is we have reduced the scale, the height and mass of the structure significantly, to
Item # 16 Page 5
Agenda Item 16
for the 665 bedrooms (in 220 units) in the Summit on College Development. The Original Design contains 440
parking spaces in the structure (for a total of 535 parking spaces). The Alternative Design contains 345 parking
spaces in the structure (for a total of 442 parking spaces). The Hearing Officer concludes that the total of 442
parking spaces included in the Alternative Design is closer to the minimum parking requirement set forth in
Section 3.2.2(K)(1)(a) of the LUC.
Did the Hearing Officer fail to conduct a fair hearing in that he exceeded his authority as contained in
the Code or Charter? As alleged:
"I. The hearing officer exceeded his authority and jurisdiction by not adhering to the intent of the City Council in
its remand. Because of the ambiguity of the term "closer" in the Council's remand instructions concerning
reducing the number of parking spaces in the parking structure to a number closer to that contained in the
City's interim TOD parking ordinance for minimum parking, the undisputed evidence of the City Council's intent
was that the hearing officer approve a number that was the same as or extremely close to the minimum
parking space number in the interim ordinance. In addition, although the 442 total parking spaces proposed by
the Alternative Design is closer to the minimum number of spaces called for in the interim ordinance, the
decision does not conclude it is enough of a reduction to be compatible with existing neighborhoods and uses,
as it must be."
The Hearing Officer's finding of fact and decision regarding the number of parking spaces in relation to the
TOD parking requirements and the City Council's "intent" is the same as the previous allegation: Paragraph 12
of the Findings of Fact and Conclusions of Law on page 4 of the Decision.
Did the Hearing Officer fail to conduct a fair hearing in that he exceeded his authority as contained in
the Code or Charter? As alleged:
"J. While the evidence may have shown that the Alternative Design was better than
the original design in protecting the viewsheds, it did not show that the Alternative Design best achieves it, as
the hearing officer, exceeding his authority and jurisdiction, and as unsupported in the record, so determined."
The Hearing Officer did not reference the alternative design in terms of being a "better" design as it relates to
protecting the viewsheds. However, the decision does note that the alternative design "will best protect the
Spring Creek viewsheds on the site and in the vicinity of the site," and "best complements the visual contest of
the Spring Creek Corridor."
Did the Hearing Officer fail to conduct a fair hearing in that he considered evidence relevant to his
findings which were substantially false or grossly misleading? As alleged:
"A. The applicant submitted a grossly inaccurate, obviously staged photograph in an attempt to minimize the
effect of the proposed structure on the view of the mountains from appellants' leased property. When attacked
during the hearing about the cynicism of this attempt, the applicant quickly asked to withdraw the photograph.
Another member of the audience suggested that it should not be allowed to be withdrawn, as proof of the
insincerity of the applicant. The hearing officer made no ruling and the photograph continued to be part of the
record, so far as is known. It was relevant to the decision the hearing officer made not to apply the view
protection standards."
All material submitted by the applicant are included in Attachment 5 as attachments to the staff report and
Attachment 7 as a presentation. The photograph cited in the allegation was not presented at the remand
hearing.
Did the Hearing Officer fail to conduct a fair hearing in that he considered evidence relevant to his
findings which were substantially false or grossly misleading? As alleged:
"D. The hearing officer received and considered evidence from the applicant that the "project" was compatible
under applicable zoning even though the basis for the statement was simply a few architectural features. The
existing project is incompatible with the surrounding area in terms of enormous massing, and the proposed
Item # 16 Page 4
Agenda Item 16
that ... as you're viewing it ... from Spring Creek. Those green screens are going to be composed of vines.
There's a couple different types of vines... they're living vegetation ...they will be on there year-round; they don't
die back. But, some of the species will lose leaves; others will retain them through the winter. They won't
remain green through the winter, but they turn a nice red, bronzy color for that time period. And then, we've
selected a range of vines that will flower throughout the season; some will flower early spring, mid -spring to
late summer, and then another that will go in late summer as well. So ... kind of keep that interest happening.
The ones that flower early will green up early; the ones that flower late will stay green later, so that kind of
bridges that season. Also, we want to emphasize that the structural lighting will be improved from the current
surface parking lot. The protection of the night sky will have no spillover into Spring Creek. Now we can go to
the next slide.
So these are a couple views showing the existing vegetation from Creekside Park. These really... we've done
two renderings, but really these kind of show the rest of the park and what you see in both the right ... the upper
right and then the lower two on the center and the right, are ... that's the path and those are looking towards our
building. So you can see that there's a fair amount of vegetation already existing on the... that's on the south
side of the creek between the path and the creek. So those ... that's the view today and you can see, then,
some of these are the ones that we actually used for the renderings. This is the first rendering that we've
done ... this is from the southeast corner of the building --- or, sorry, this is from Spring Creek looking at the
southeast corner of the building. These are ... they're not the specific plants since we didn't do a specific plan
for the fee in -lieu; however, these are the plants ... these plants are shown in the locations of the approved fee
in -lieu exhibit. The shrubs and the trees you can see really run the full gamut from Spring Creek all the way
back to our garage. And you can see how ... how really that the garage is really no more visible than the other
buildings that are...that are over there, and really we feel like creating any more dense of a screen than that
would really provide a buffer that wouldn't really be appropriate for this ... for this area. You know, it's a park in
an urban area. If we were to do a really strong vegetative buffer, it's never going to be a hundred percent, but
really we feel like this is the most appropriate and, you know, working through it with City staff, they've agreed.
Can we go to the next slide?
So this one is a little bit further west, standing on the path looking directly head on at our building. And you can
see that, in the original picture that's inset in the bottom corner, you know, there's some existing vegetation.
That vegetation will also continue to mature, but we haven't shown that; we've shown the existing vegetation in
the current state. So really this view would crowd in with the existing vegetation and then the proposed
vegetation would further buffer the building.
LEEF APPEAL
The remand hearing was limited in scope to the presentation of questions before the Hearing Officer as it
relates only to Sections 3.4.1(1)(2) and 3.5.1(J) of the Land Use Code. Many of the allegations of the Leef
appeal go beyond the limited scope. The allegations cited in this section are only those that pertain to the
relevant sections of the remand hearing.
Did the Hearing Officer fail to conduct a fair hearing in that he exceeded his authority as contained in
the Code or Charter? As alleged:
"D. The hearing officer received no land -oriented justification for the number of parking spaces to exceed the
new TOD parking requirement, which the hearing officer approved
although the intent and purpose of the TOD is to have limited parking and vehicle use."
The Hearing Officer's finding of fact and decision regarding the number of parking spaces in relation to the
TOD parking requirements follows:
12. The Hearing Officer concludes that City Council intended that the Hearing Officer interpret and apply
Section 3.5.1(J)(7) of the Land Use Code to analyze the potential reduction in the number of parking spaces in
the structure to a number closer to the minimum parking requirements codified at Section 3.2.2(K)(1)(a) of the
Land Use Code. Applying the parking spaces per dwelling unit ratio set forth in subparagraph 3.2.2(K)(1)(a)(1)
of the Land Use Code, the Hearing Officer concludes that a minimum of 358 parking spaces would be required
Item # 16 Page 3
Agenda Item 16
screen and soften visual impacts on the Spring Creek viewshed
On September 4, 2014, the alternative design parking structure was reviewed by the Hearing Officer who
considered additional evidence related to the two Land Use Code sections cited above. The Hearing Officer
issued a decision of approval on September 9, 2014.
SUMMARY OF ALLEGATIONS ON APPEAL
CUNNIFF APPEAL
Did the Hearing Officer fail to properly interpret and apply Section 3.4.1(1)(2) of the Land Use Code?
Specifically the appellant asks, "does the proposed design comply with LUC 3.4.1(1)(2) 'Projects shall be
designed to minimize the obstruction of scenic views to and from the natural features within the site'? If so,
what evidence supports this finding?"
The Hearing Officer's finding of fact and decision regarding the impact on the Spring Creek viewshed follows:
10. The Hearing Officer concludes that both the Original Design and the Alternative Design have an impact on
Spring Creek viewsheds. The Hearing Officer concludes the Alternative Design includes additional green
screening along the southern elevation of the proposed structure and removes the top level of the parking
structure, and therefore has a significantly reduced impact on the viewsheds to and from Spring Creek. The
Hearing Officer finds that the Alternative Design best achieves the purpose of Section 3.4.1 of the LUC, in that
the Alternative Design will best protect the Spring Creek viewsheds on the site and in the vicinity of the site.
The Hearing Officer finds that the character of the existing views to and from Spring Creek are somewhat
degraded by the existing development and surrounds Creek Side Park, including but not limited to the mini -
storage and auto repair located south of the Park. The Alternative Design will enhance existing views to and
from the Spring Creek Corridor by providing increased green screening, landscaping, trees and other plantings
(with some landscaping to be installed by the City utilizing the Applicant's fee -in -lieu contribution). The Hearing
Officer further finds that the Alternative Design best complements the visual context of the Spring Creek
Corridor and that the Applicant's architectural design, choice of colors, building materials and other aspects of
the project design that appear in the record as specifically pertains to the Alternative Design, including but not
limited to the reduced overall height and the additional green screening, will sufficiently blend with the natural
visual character of the area. The reduction in height of the garage and the additional green screening on the
southern elevation of the structure (facing Creek Side Park) minimizes the scale of the parking structure and
significantly minimizes the obstruction of scenic views to and from the Spring Creek Corridor.
At the hearing, the applicant's consultant, Mr. Williamson, discussed slides from the presentation (Attachment
7) depicting the landscaping and views from Spring Creek on page 11, line 9 - 21, and page 12, line 12 - page
13, line 11 of the verbatim transcript:
This is a rendering that we have prepared of the garage. It shows, to the north, which is on the right hand side
of the screen, the existing Summit building, and then center in the rendering is the garage. You'll see the
landscaping that we're showing on the north and east sides of the garage and then... what I'd like to call your
attention to is what's happening on the south side of the garage. If you'll look, you can see the path that runs
through Creekside Park there, and there's two red dots where we have done some simulated viewpoints from.
And then, on the north side of the creek, you can see the buffer planting that has been proposed through a fee
in -lieu opportunity with the City. Really the impetus behind that is that, right now that's in a fioodplain and the
City is currently working on kind of reshaping that area. So, rather than have us go in and make any
improvements to that area that would eventually be just torn out, we're going to say, these are the reasonable
improvements that we've worked through with City staff, and Capstone is going to pay for those improvements,
and then they'll be installed when the City makes the larger -scale improvements to the area.
This is a slide that we've looked at before, and I just want to call attention to the green screen that Hoshi had
pointed out. We've basically doubled the green screen that's on the face of the garage. Part of that is that the
garage has shrunk in overall height, but we have added multiple panels that really will... will disguise more of
Item # 16 Page 2
Agenda Item 16
STAFF
Seth Lorson, City Planner
SUBJECT
Consideration of two Appeals of the Administrative Hearing Officer's September 9, 2014 Remand Hearing
Decision to Approve the Summit on College Parking Structure, Major Amendment.
EXECUTIVE SUMMARY
Two separate parties filed a Notice of Appeal; the grounds for appeal are as follows:
Appellant Councilmember Cunniff:
• Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code and
Charter.
Appellant Jeffrey Leef et al.:
• Failure to conduct a fair hearing in that:
o The board, commission or other decision maker exceeded its authority or jurisdiction as
contained in the Code or Charter;
o The board, commission or other decision maker considered evidence relevant to its findings
which was substantially false or grossly misleading.
• Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code and
Charter.
BACKGROUND / DISCUSSION
On May 20, 2014, Council provided direction regarding interpretation of the Land Use Code and remanded the
project back to the Hearing Officer to consider the following issues:
1. Whether Section 3.4.1(1)(2) of the Land Use Code was properly interpreted and applied with regard to
impacts on the Spring Creek viewshed; and
2. Whether Section 3.5.1(J) of the Land Use Code was properly interpreted and applied with regard to
the number of off-street parking spaces.
Council remanded the decision to the Hearing Officer to consider the possible reduction of number of parking
spaces to a number closer to the minimum parking requirement in the TOD Overlay Zone (358 total parking
spaces), and consider the impact on the Spring Creek viewsheds and a possible reduction in the parking
structure's size.
In response to the direction from City Council, the applicant submitted an alternative design for consideration
at the remand hearing. The alternative design removes one story from the parking structure consisting of 345
parking spaces (442 total) reduced from 440 parking spaces (535 total). It is proposed to be built over the top
of the existing surface parking lot resulting in a net gain of 251 spaces over existing conditions. The parking
structure consists of 3 levels, reduced from 4 levels, including parking on the roof, for an overall height of 2 '/2
stories. Additional vertical vegetation has been proposed at the south aspect of the parking garage to help
Item # 16 Page 1