HomeMy WebLinkAboutSOUTHGLEN PUD, 2ND FILING - MAJOR AMENDMENT - 31-99 - CORRESPONDENCE - CITY COUNCILAs part of Staffs evaluation of the request to remove the swimming and bath house
facility in the South Glen PUD, Second Filing, it was determined that the request would
not violate the requirements set forth in Article 3 — General Development Standards
nor Division 4.4 — Low Density Mixed -Use Neighborhood District in Article 4 — Districts
in the Land Use Code (LUC) and that it would not put the existing project out of
compliance with Section 118-83.J of the Subdivision of Land (the ordinance in effect at
the time of approval of the South Glen PUD, Second Filing).
NOTE: In the Staff Report to the Planning and Zoning Board on December 16,
1999, the relevant section in Section 118-83 — Unit Developments of the
City Code was cited incorrectly. It should have been Section 118-83.J
Substantive Design Standards, not 118-83.K. The Staff Report does
reference "Substantive Design Standards", only the letter designation
was incorrect.
The Planning and Zoning Board, on December 16, 1999, denied the request (on a vote
of 4-3) to eliminate -the existing swimming pool and bath house facility at the east end
of the existing 40 dwelling unit multi -family residential development, with the following
direction:
(1) Give staff direction to investigate and use appropriate processes for the
pool so it -won't be a safety and health hazard.
(2) To refer to staff to follow the appropriate process procedures to review the
pool..
In making this motion, the Board made the following findings and referred, to the
following conditions:
(1) If the Board denies the request to remove the pool then the project is no
longer in compliance with the approved PUD because the pool is not
useable at this point.
(2) Possible loss of open space due to the removal of the pool and the
potential for the recreational amenity to be replaced with single family lots.
or other development.
(3) The owner has an obligation to. take care of the condition of the
recreational amenity, being the pool.
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apartment occupants, and the neighbors all desire the swimming pool to be
removed. The Board received no objection from any quarter to this request.
The City Staff recommended approval. A large amount of the discussion of
the Board's majority centered on whether or not the City could and should
require the pool to become operational. There was no evidence that anyone
desires this to occur. The uncontested evidence was that the pool and pump
house were regularly vandalized, ultimately so severely that they could not be
affordably repaired. They have continued to be vandalized. The neighbors
have been adversely affected by trespassing, noise and disturbance. The
neighbors held a neighborhood meeting to discuss removal of the pool, gave
notice to all of the apartment occupants, and received no objections from
anyone to the removal. This was not a meeting required by the City to be
convened, and so was something extra the neighbors took it upon themselves
to organize for the benefit of themselves and the apartment occupants. The
pool has not been in operation for a long time and it is still a congregating
area for teenagers who disturb area residents and endanger themselves. This
PUD has abundant open space that exceeds all applicable requirements
significantly, with or without the swimming pool, and the close proximity of
Troutman Park means, again, that all applicable City Open space and park
requirements are far exceeded. The Board assumed authority it lacks under
the Code and Charter in so inferring and arriving at conclusions not
supported by any credible evidence and against the considered
recommendation of the Staff.
Staff Response:
The Appellant's request is to eliminate the existing swimming pool and bath house
facility at the east end of the existing 40 dwelling unit multi -family residential
development. A recorded Site Plan was submitted showing the location of the pool area
in the existing development and indicating the intent to remove the swimming pool and
bath house. Accompanying the plan was a letter from the applicant giving reason for
the request to remove the facility. As stated in the letter:
"... The major amendment is to eliminate an existing swimming pool that has
become a nuisance to the existing development.
The swimming pool is currently not in use, as a result of vandalism that has
occurred over the past few years. Currently the swimming pool poses a potential
danger to children that may be playing in the area. Our client has informed the
residents of the apartment complex of the elimination of the pool, and there has
not been any negative response."
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their concerns about vandalism, trespassing, and youth congregating at all
hours around the private pool facility. The uncontested evidence also showed
that the pool has not been filled or in operation for a protracted period of time
for these reasons and, again, because none of the apartment occupants
object to the removal of the facilities. The Board assumed authority not
accorded it under the Code and Charter.
e. The Board's majority apparently felt that the future proposal to plat three
single family lots in the area now occupied by the swimming pool and bath
house was not desirable as removing open space, as mentioned. However,
this was in contravention of the policies and provisions of the City Plan
encouraging housing development where existing infrastructure, including
parks, exists. Thus, while the three lot proposal was not part of this request,
the Board misinterpreted the Code in its consideration of that aspect of the
Appellant's future plans.
f. The motion which passed on a 4-3 vote was to deny the request with the
condition that the Staff be directed to use appropriate processes to work with
the owners to return the pool to functional use. The maker of the motion used
the term "condition", and the person who seconded the motion also used the
term "condition". While the City Attorney observed he felt this was simply
giving direction to the Staff, it was clearly a motion to deny with a specific
condition. The Board is not empowered by the Charter or Code to deny
requests with conditions, and the Board misinterpreted and misapplied the
Code and Charter in this regard.
g. The Board's majority apparently felt that the fact that the swimming pool is not
currently in operation constituted violation by the owner of a City ordinance,
namely the approval ordinance for this PUD under the LDGS (Land
Development Guidance System), as advised by the City Attorney. However,
there was no evidence in the record that the approval ordinance occurred
under the LDGS. In fact, it preceded the LDGS. The Board misinterpreted and
misapplied the Charter and Code in this regard.
h. A review of the hearing indicates that in the totality of the circumstances a
majority of the Board was largely confused as to who owned and controlled
the swimming pool, what the actual request before the Board was (and,
importantly, was not), what the authority of the Board or the City was
generally in requiring the Appellant to do a host of things with regard to the
swimming pool, and what the effect of various alternative actions that the
Board might take would be. Based on nothing in the record, the Board's
majority created an inference that the swimming pool is a desired amenity. All
of the evidence in the record suggested the contrary. The owner, the
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b. The Board's majority apparently felt that removal of the swimming pool would
result in a significant loss of important open space. However, this request is
simply for the removal of the swimming pool and bath house, and nothing in
this request seeks approval of any alternative use for the land area now
occupied by these facilities. In other words, removal of the swimming pool
and bath house will not affect the existing amount of open space in any way.
The Board has misinterpreted and misapplied open space provisions
contained in the Code, and lacked authority under the Code and Charter to
decide the matter on that basis.
C. The Board's majority apparently felt that the possibility of three single family
lots being approved in some of the area now occupied by the swimming pool
and bath house was an inappropriate use and, again, significantly abridged
the PUD's open space. However, while the Staff report mentioned the
applicant's intent to seek approval of the three single family lots in this area,
that proposal was not part of this request. In fact, upon information and belief
the approval of the three lots could have occurred by administrative approval,
and it was only the fact that the swimming pool and bath house were part of
the original PUD plan for Southglen PUD, Second Filing, that the Staff
determined the P & Z Board's approval was needed for the removal of those
aspects of the original plan. The Board therefore assumed authority it does
not possess under the Code and Charter to decide matters not before it.
Additionally, the undisputed evidence was that the PUD today has sixty
percent (60%) open space and, even if three single family lots were approved
for the area now occupied by the swimming pool and bath house, the PUD's
open space would still be over half (51%). This is still an enormous
percentage of open space which far exceeds the requirement in effect at the
time of the PUD's original approval (30%). The Staff has informed the
Appellant that there is no current minimum requirement for open space, so
the Board applied a standardless standard. The undisputed evidence also
indicated that Troutman Park, which is very close to this area, by itself
satisfies Section 4.4(D)(7) of the LUC, regarding required park/open space
proximity, even if there were no open space within this PUD itself. The Board
misinterpreted and misapplied the Code in this regard.
d. The Board's majority apparently felt that the City could and should work with
the Appellant to restore the swimming pool to a functional state. However,
nothing in the Code or Charter empowers or authorizes the City to essentially
dictate to a private property owner whether it should keep open a private
swimming pool. This was in the face of undisputed evidence that serious
vandalism (including puncturing the pool cover and extensive destruction of
the pump house after breaking and entering) was submitted. The neighbors
in letters and testimony, which were uncontroverted, apprised the Board of
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(2) Failure to conduct a fair hearing in that:
a. The board or commission exceeded its authority or jurisdiction as
contained in the Code and Charter;
b. The board or commission substantially ignored its previously
established rules of procedure;
C. The board or commission considered evidence relevant to its findings
which was substantially false or grossly misleading; or
d. The board or commission improperly failed to receive all relevant
evidence offered by the appellant."
The Appeal:
(Note: Bold text represents excerpts from the appeal document)
Appellant: Southglen Partnership, LLC
Building 5, Old Town Square, #216
Fort Collins, CO. 80524
Grounds for Appeal:
On December 30, 1999, a Notice of Appeal was received by the City Clerk's office
regarding the decision of the Planning and Zoning Board. In the Notice of Appeal from the
Appellant Southglen Partnership, LLC, it is alleged that:
The Planning and Zoning Board failed to properly interpret and apply relevant
provisions of the Code and Charter at the Public Hearing on December 16, 1999.
Specific allegations of error include:
a. The Board's majority apparently felt that removal of the swimming pool would
eliminate a valuable and desired recreational amenity. However, all of the
evidence indicated that the pool is private and for the benefit only of the
PUD's apartment occupants, that none of the apartment occupants object to
removal of the swimming pool, that the swimming pool has in fact become a
bother, a danger and a liability to the PUD and the neighborhood generally,
and that the neighbors desire its removal for the best interests of the
neighborhood, as well. The Board lacked authority under the Code and
Charter to arrive at its conclusion in the absence of any credible supporting
evidence.
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Commi, _y Planning and Environmental rvices
Current Planning.
City of Fort Collins
MEMORANDUM
TO: Mayor and Members of City Council
FROM: Stephen Olt, City Planner`%!'"
THRU: Greg Byrne, Director. C.P.E.S.
Bob Blanchard, Current Planning Director
DATE: January 26, 2000
RE: Major Amendment to the South Glen PUD, Second Filing — Final
... Appeal to City Council
The purpose of this memorandum is to respond to an appeal regarding the December 16,
1999 decision of the Planning and Zoning Board to deny a Major Amendment to the South
Glen PUD, Second Filing.-- Final. The request is to eliminate the existing swimming pool
and bath house facility at the east end of the existing 40 dwelling unit multi -family
residential development.
The property is zoned LMN — Low Density Mixed -Use Neighborhood and is located on the
west side of Albion Way, east of Manhattan Avenue, west of the New Mercer Canal and
Burlington Northern Railroad tracks, and approximately %2 mile south of West Horsetooth
Road (see attached Vicinity Map).
Section 2-48 of the City Code states:
"Except for appeals by members of the City Council, for which no grounds need be stated,
the permissible grounds for appeal shall be limited to allegations that the board or
commission committed one or more of the following errors:
(1) Failure to properly interpret and apply relevant provisions of the Code and
Charter;
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