HomeMy WebLinkAboutBELLA VISTA - PDP ..... APPEAL TO CITY COUNCIL - 45-01A - LEGAL DOCS - CITY COUNCILCity of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 12
5. The PDP complies with all .applicable Land Use and Development Standards
contained in Article 4, Division 4.5
DECISION
DATED THIS 24th day of April, 2003
The. Hearing Officer hereby approves the Bella Vista Project Development Plan,
Case No. 45-01A.
Linda C. Michow
0
City of Fort Collins - Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 11
The Applicant recently received approval .to rezone the property from T- Transition to
MMN, Medium Density Mixed -Use Neighborhood. The staff report indicates that
residential and limited commercial uses are permitted within the MMN zone district.
According to Section 4.5(A) of the LUC, the purpose of the. MMN zone district is to allow
for "concentrated housing within easy walking distance of transit and a commercial
district." In addition, the. MMN zone district is intended to serve as. a transition and "a
link between surrounding neighborhoods and the commercial core.". As stated in the
staff report, the Project would provide. "transition from single family, medium density
single family and multi -family, and high density. multi -family residential to business uses
and the commercial corridor along -South College Avenue. See Staff Report, p. 3.
The: Hearing .Officer finds that the Project complies with the. purpose and the
requirements of the MMN zone district. The Hearing Officer further notes that the
Project complies with the land use standards of the MMN zone district,. in that the
Project exceeds the minimum average density requirement of 12 units per net acre.
There was no evidence at the hearing to contradict this .finding;. therefore, the Hearing
Officer concludes that the proposed uses are permitted within the MMN zone district
and the Project complies with all. applicable standards of the MMN zone district.
With regard to the three-story building height limitation, the findings of the Hearing
Officer are set forth .above in.the discussion concerning Article 3.
FINDINGS OF FACT
1. The PDP satisfies the applicable requirements of Article 2:
2. The PDP complies with all applicable General Development Standards contained in
Article 3 of the LUC.
3. The PDP satisfies the "contextual' building height set forth in Section 3.8.17(A)(3). of
the LUC as it proposes building heights between the zone district maximum height
limit and. the height of the adjacent Marriott building.
4. The proposed land uses are permitted in the MMN.— Medium Density Mixed -Use
Neighborhood Zone District of the LUC.
City of Fort Collins —Type 1 Administrative _Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 10
■ In the long range future, given development of Bella Vista, the key intersectionswill
operate acceptably during peak hours.
■ Acceptable level of service is achieved .for pedestrian, bicycle and transit modes
based upon the measures in the multi -modal transportation guidelines.
Traffic .concerns were noted by several residents in the surrounding area. The
testimony of these individuals reflect concerns about the amount of .traffic on Horsetooth
Road, safety of access onto Horsetooth Road, turns into Bella Vista from eastbound
Horsetooth Road, and an increase in traffic noise.. These concerns were addressed by
the City's Traffic Engineer. The City Traffic Engineer testified that the Bella Vista
Project will have minimum traffic impacts compared to the amount of existing traffic on
Horsetooth Road. According to the Traffic Engineer, 30,000 vehicles already travel on
Horsetooth Road, so the addition of 1,000 vehicles per day generated by the Bella Vista
Project is not significant. With regard to the concern. for making. left turns into Bella
Vista, the Traffic Engineer testified that it is difficult to make a left turn on ay. arterial
during peak hours from a stop sign -controlled intersection.. The Traffic Engineer stated.
that the raised medians initially proposed by the Applicant would create offsets in the
travel lanes, and therefore were not. considered safe. .The removal of the raised
medians occurred at the direction of the City. The Traffic Engineer concluded that the
Project conformed to the requirements .of Section 3.6.4 in terms of. level of service and
sufficient capacity at existing, key intersections.
The Hearing Officer finds, based on the testimony of the City Traffic. Eng ineer. and the
Applicant's Transportation. Impact. Study, that the Project complies with Section 3.6.4 of.
the LUC:
3. Article 4. The Project's Proposed. Uses for Residential and Limited.
Commercial are Permitted Uses within the Medium Density Mixed. Use
Neighborhood (MMN) Zone District: The staff report states that the proposed
development is adjacent to the following surrounding zoning and land uses:
N: MMN; Existing multi -family residential (Aspen Leaf Apartments).
S: MMN; Existing residential (Cove Island).
W: C; Existing business, commercial, office uses (South College
Avenue Corridor).
E: MMN; Existing multi -family residential (Aspen Leaf Apartments).
City.of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 9
Similarly, the Hearing Officer finds, based on the evidence and testimony presented,
that the Applicant has satisfied the remaining three criteria set forth in Section 3.5.1(G)
relating to light and shadows, privacy, and neighborhood scale.
For all of the above stated reasons, the Hearing Officer concludes that the Bella Vista
Project complies with the contextual height regulation and special review criteria for.
buildings exceeding 40 feet in height.
Section 3.5.3 Mixed Use, Institutional and Commercial Buildings. Section
3.5.3(B)(1) of the LUC requires that at least one main entrance of a mixed -use building
open onto pedestrian walkways and connecting walkways. According to the staff report,
each of the three buildings has .one or more entrances facing and opening onto
sidewalks and walkways. In addition, Subsection (13)(2) requires that the. Bella Vista
buildings be at least 10' and no more than 25' behind the right-of-way of the adjoining
East Horsetooth Road, and no more than 15' from the right-of-way of Stanford Road.
The staff report indicates; and there was no evidence to contradict, that the Project
meets these requirements.
3.6 Transportation and.Circulation.
3.6.4 Transportation Level of Service Requirements. Section. 3.6.4 provides that a
proposed development must demonstrate that all adopted Level of Service standards
will be achieved for all modes of transportation, including vehicular, pedestrian, bicycle
and transit. In conformance with Section 3.6.4(B), the Applicant submitted a.
Transportation Impact Study, dated November 2001, prepared by Matthew Delich, P.E.,
which. analyzes the projected impacts of the Bella Vista Project on all modes of
transportation. The Study concludes:
■ At full development, Bella Vista will. generate approximately 1097 daily trips with 93
morning peak hour trips and 88 afternoon peak hour trip ends.
■ Current operation at the key intersections (Horsetooth/Stover and
Horsetooth/Stanford) is acceptable.
• Additional signals will not be warranted at any of the key unsignalized intersections.
■ In the short range future, the key intersections will operate acceptably.
City of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 8
was no evidence presented to indicate that there will be a substantial interruption of
views from public places due to the proposed height of the buildings in Bella Vista.
Regarding light and shadow, the Applicant provided a shadow analysis of the Project,
performed on December 21st at 9 a.m., noon and 3 p.m., which shows that the proposed
buildings will cast minimal shade on adjacent buildings. More significantly, the staff
report states that these minimal shadows will not preclude the functional use of solar
energy and will not shade buildings, windows or gardens. The Hearing Officer finds that
no contradictory evidence was presented at the hearing.
The evidence also reflects that the privacy of adjacent public and private properties will
not be affected by the Project. Since the Project is separated from surrounding. land
uses by arterial and collector streets, the distances between the . Project and
surrounding uses are anywhere between 160' and 250'.. The Aspen Leaf Apartments to
the north and east is further buffered by existing parking lots.
The effect of the Project on the neighborhood scale is evaluated by the relative height,
mass, and building scaleto human scale. The evidence presented at the hearing .
reflects that the surrounding buildings vary in height from 40' to 60.5' and that the
proposed buildings will not exceed this contextual height. In addition, the proposed
building footprints are no larger than those in the surrounding area. The. Applicant's
architect also testified that the mass of the proposed buildings is broken up by the use
of articulated facades and stepping of the three buildings.. The building setbacks are
also similar to other residential developments. The architect stated that the proposed
buildings are residential in character through the use of architectural features such as
gables, bay windows, cornices, and dormers.
There was testimony opposing the proposed heights of the buildings based on .its
effects on views and privacy of adjacent residential areas, including Cove Island and
Aspen Leaf Apartments. Yet the materials presented by Mr. Kitze provide that the only
views from Aspen Leaf Apartments affected by the Project are from the recreation area
and parking lots. The Hearing Officer finds that any proposed building on the
Bella Vista site, of even three stories in height, will have some effect on the views of the
foothills. The critical question is whether the proposed buildings will substantially alter
the opportunity for and quality of desirable views. The Hearing Officer finds that this
Project will not have a substantial effect on the opportunity for views from public places,
streets and parks within the area.
City of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and. Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 7
Even assuming for the. sake of argument that adjacency, in the context of Section
3.8.17, means abutting or contiguous, the Marriott building. site can be .considered a
contiguous lot. The Marriott is located on Lot 3 of an existing subdivision that lies
immediately adjacent to Stanford Road. As Mr. Olt, City Planner, testified, while there
may be more than one parcel on Lot 3 for property taxation purposes, these parcels are
not subdivided and are therefore technically considered one lot. Therefore, regardless.
of how "adjacent lot" is interpreted, the Marriott site is on a lot adjacent to the Project
site, exclusive of Stanford Road.
Based on this finding, the Bella Vista Project is authorized, pursuant .to Section
3.8.17(A)(3), .to incorporate buildings with heights ranging between three and six -
stories, subject also to the criteria set forth in Section 3.5.1(G).
Section 3.5.1(G) provides for a special review process to evaluate buildings proposed.to
be in excess of forty feet, requiring that the following criteria be satisfied:,
■ A building shall not .substantially alter the opportunity for;. and quality of, desirable
views from public places, streets and parks within the community.
■ .Buildings shall be designed so as not to have a substantialadverseimpact on the
distribution of natural and artificial light on adjacent public and private property.
Adverse impacts include casting shadows on adjacent property sufficient to preclude
the functional use of solar energy technology, creating glare such .as reflecting
sunlight or artificial lighting at night, and contributing to.theaccumulation of snow
and ice during the winter on adjacent property:
■ Buildings shall be designed to avoid infringing. on the privacy of adjacent public and
private property, particularly adjacent residential areas and public parks.
■ Buildings shall be compatible with the scale of the neighborhoods in which they. are
situated in terms of relative height, height to mass, length to mass, and building or
structure scale to human scale.
With regard to views, the.staff report indicates that the proposed heights of the three
buildings will not substantially alter the opportunity for desirable views of the foothills to
the west. As stated in the staff report, because there is significant earthen berm and
dense mature landscaping in front of the Cove Island residences, only 2-3 homes will be
adversely affected by the proposed buildings in the Bella Vista Project. Moreover, there
City of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 6
Interpretation No. 2-02 should be upheld if.there is any reasonable basis in the record
for such interpretation. Turning to the evidence. in the record, the Administrative
Interpretation cites to Black's Law Dictionary for the common definition of adjacent,
which is "lying near or close to, but not necessarily touching." This definition. makes
sense in terms of the contextual height provision of the LUC, as the term "contextual"
itself implies the surrounding environment or setting.
Mr. Kitze contends, relying on Webster's Dictionary, that "adjacent" means "nothing of a
like kind between articles." Applied to the Bella Vista Project, Mr. Kitze argues that the
Marriott hotel site cannot be considered an adjacent lot because the City's zoning map
shows intervening lots between.the lot on which the Marriott is located and the Project
site. Other testimony in opposition suggested that the Marriott cannot be considered
part of the neighborhood because it is "over one city block away" from the Project. This
strained interpretation fails to consider the most common definition of "adjacent," also
found in the edition of Webster's Dictionary cited by Mr. Kitze, that means "not distant or
far off: nearby but not touching." Mr. Kitze's interpretation would, defeat the purposes of
Section 3.8.17 and Section 3.5.1(G),.which are to provide flexibility and creativity in the
architectural design and height of development projects. Moreover, had the City
intended to allow contextual height only in the case of "adjoining" or abutting. lots, it .
would have. used these more explicit terms rather than "adjacent". Finally, the Marriott
is approximately 500' from the Project, which is, by any definition, in close proximity to.
the Project.
Therefore, the Hearing Officer finds that. there is ample evidence in the record to uphold
Administrative Interpretation No. 2-02 as it defines the term "adjacent relative to
Section 3.8.17. In terms of evaluating what is.an adjacent lot in the Bella Vista Project,
the lot on which the Marriott hotel is located should be considered adjacent. As
Administrative Interpretation No. 2-02 provides, adjacency should be evaluated by
various factors, including topography, existence of large trees, width. of streets and
angles of vision predominately used in observing the building. Photographs of various
views of the proposed Project site illustrate that the Marriott appears "adjacent" when
looking north to the site from the residential development of Cove Island and west
towards the site. These photographs, copies of which are attached to this Decision as
Exhibit A, clearly depict the Marriott, as well as a nearby office building, within the
surrounding area of the Project site. In addition, the staff report statesthat two-story,
three-story and six -story buildings exist in the surrounding, area.
City of Fort Collins —Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista,:Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 5
design within the context of harmonious neighborhood planning and coherent
environmental design, to protect access to sunlight, to preserve desirable views and to
define and reinforce downtown and designated activity centers."
The rules of statutory (and ordinance) construction require that various provisions of a
statute or ordinance be read together with all other provisions relating to the same
subject. See City of Thornton v. Replogle; 873 P.2d 30 (Colo. App. 1993), affd, Ci of
Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). Read together, it is clear from these
building height -related provisions that the intent. of the LUC is to allow for heights
greater than the maximum limits established in Article 4. If this were not the case, then.
Section 3.8.17(A)(3) would be rendered meaningless in most zone districts. Colorado
courts have long recognized that in construing statutes and ordinances, interpretations
that render certain provisions meaningless are to be avoided. See Peoole v. Terry, 961
P.2d 500 (Colo. App. 1997), affd, Terry v. People, 977 P.2d 145 (Colo. 1999);
Commercial Service of Perry, Inc. v. Fitzgerald, 856 P.2d 58 (Colo. App. 1993).
The contextual height provision set forth in Section 3.8.17(A)(3) allows for flexibility in.
building heights regardless of the underlying zone district's maximum building height
restriction. As the term suggests, and as Mr. Olt explained at the hearing, "contextual"
building height implies that building heights will be evaluated based on surrounding
building heights in the area. It requires that a contextual building height fall within any
point between the zone district maximum height limit and the, height of a building that
exists on a lot that is adjacent to the subiect lot. (Emphasis added). At the request of
Mr. Kitze, the Current Planning Director issued: Administrative Interpretation No. 2-02,
dated April 12, 2002, regarding the meaning of "adjacent" in Section 3.8.17(A)(3).
According to this Administrative Interpretation, and based on references to Black's Law
Dictionary and Webster's Third New International, "something adjacent is. located
nearby, but is not necessarily physically touching." The Administrative Interpretation
opines that the term "adjacent" in the context of Section 3.8.17(A)(3) will be.evaluated
on a case -by -case basis, looking at factors such as: topography, existence of large
trees; width of adjacent streets; and angles of vision predominately used in observing
the building(s). In other words, "adjacent" lot does not mean, as certain opponents of
the Project have suggested, a lot that necessarily touches or abuts the lot in question.
Colorado courts have held that an administrative agency's interpretation of its own
regulations is generally entitled to great weight and should not be disturbed on review
unless plainly erroneous or inconsistent with such regulations. See Jiminez v. Industrial
Claims Appeals Office, 51 P.3d 1090 (Colo. App. 2002). Accordingly, Administrative
City of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 4
3.3 Engineering Standards. The staff report summarily states that the Project
complies with all applicable engineering standards, including general plat requirements
and design standards. There was no contradictory evidence presented at the hearing;
therefore, the Hearing Officer finds that the Proposal complies with the Engineering
Standards set forth in Section 3.3 of the LUC.
3.5 Building Standards.
.3.5.1 Building and Project Compatibility. The purpose of this Section is to "ensure
that the physical and operational characteristics of proposed buildings and uses are
compatible when considered within the context of the surrounding area." The staff
report explains that the proposed buildings in Bella Vista will be similar to. those of .
existing buildings in the Aspen Leaf Apartment complex. Stucco and concrete the roofs
used on the proposed buildings will be similar to and compatible with materials used on
existing buildings in the area. There was no testimony or evidence presented to .
contradict the staff report.
3.5.1(G) and 3.8.17 Building Height Review/Contextual Height.. With regard to
building height, according to the staff report, the proposed buildings will range in height
from 48'6" to 61'8" at.the top of the parapet walls on the roofs of the buildings. The
majority of opposition to the Project, as evidenced by the testimony and written
correspondence received at the hearing, focuses on this feature of the Project.
There are several provisions in the LUC that address building height, each of which will
be discussed below in the context of the Bella Vista PDP. First, Section 4.5(E)(1)(d)
imposes a building height limit of three stories on any development within the MMN
zone district. However, Section 3.8.17(A)(3) provides:
I'Meaardless of the maximum building height limit imoosed by the. zone
district standards of this Land Use Code, applicants shall be allowed to
use a "contextual height limit. The allowed "contextual" height may fall at
any point between the zone district maximum height limit and the height of
a building that exists on a lot that is adjacent to the subject lot...
Finally, Section 3.5.1(G) addresses the process by which the decision maker of a
project can evaluate buildings or structures that exceed forty (40) feet in height. The
intent of this provision is to "encourage creativity and diversity of architecture and site
City of Fort Collins — Type.1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 3
Section 3.2. Site Planning.
3.2.1 Landscaping and Tree Protection. The .staff report outlines the PDP's
conformance with Section 3.2.1 concerning landscaping and tree protection.
Specifically, the Project complies with screening requirements in that the on -site parking
areas will be screened from East Horsetooth Road to the south and Stanford Road to
the west by the buildings. The parking area above the underground parking garage will
be screened from the Aspen Leaf Apartments with walls and deciduous and evergreen
trees and shrubs.
There was no evidence introduced at the hearing to contradict the staff report; therefore,
the Hearing Officer finds that the Project complies with Section 3.2.2 of the LUC.
3.2.2 Access. Circulation and Parking. The staff report outlines the Project's
conformance with Section 3.2.2 concerning access, circulation and . parking.
Specifically, the staff report notes that the design of the Project provides for:
bicycle, parking in the amount of 8% of the total number of automobile parking
spaces;
■ direct sidewalk connections from all three buildings to East Horsetooth Road and
Stanford Road.
■ vehicular access via new curb cuts from East Horsetooth Road and .Stanford Road
to the underground parking garage and parking area above -ground.
The staff report indicates that no landscaping is provided for the above -ground parking
garage. Although .Section 3.2.2(M)(1) requires. landscaping. for any parking lot
containing at least 1800 square feet, the City's Current Planning Director issued
Administrative Interpretation No. 03-02, dated June 12; 2002, which finds that the
uncovered parking spaces located on top of the upper deck of the parking garage do.
not have to comply with Section 3.2.2(M)(1). This Interpretation is based on the
reasoning that these parking spaces, located on top of the upper parking garage deck,
are part of a parking garage, rather than a parking lot.
The Hearing Officer finds there is a reasonable basis for this Administrative
.Interpretation, and therefore, upholds Interpretation No. 03-02. See City and County of
Denver v. Board of Adjustment for City and County of Denver, 55 P. 3d 252 (Colo. App.
2002).
City of Fort Collins — Type 1 Administrative Hearing
Findings, Conclusions, and Decision
Bella Vista, Project Development Plan, #45-01A
Administrative Hearing Date: April 10, 2003
Page 2
PUBLIC HEARING: The Hearing Officer, presiding pursuant to the Fort Collins. Land
Use Code, opened the hearing at approximately 6:15 p.m. on April 10, 2003 in the City
Council Chambers at City Hall, 300 West LaPorte Avenue, Fort Collins, Colorado.
RECORD OF HEARING: The Hearing Officer accepted during the hearing the
following evidence: (1) Planning Department staff report, as amended at the hearing;
(2) application, plans, maps, reports and other supporting documents submitted by the
Applicant and the Applicant's agents to the City of Fort Collins; (3) written
correspondence and e-mail correspondence between members of the public and City
staff concerning the Project; (4) photographs taken of the Project; and (5) a tape
recording of testimony provided during the hearing. The Fort Collins Land Use Code
("LUC"), the City's Comprehensive Plan, and the formally promulgated policies of the
City _are all considered part of the evidence considered by the Hearing Officer.
Subsequent to the hearing, Mr. Tom Kitze, who testified at the hearing, informed City
staff that all of his prior e-mail correspondence had not been submitted to the Hearing
Officer for consideration.. Mr. Olt, City Planner for the Project, then contacted the
Hearing Officer to request a determination whether such. additional correspondence
could be admitted into the record. Section 2.2.7(F) of the LUC states that the record
shall consist of. "all exhibits, including without limitation, all writings, drawings, maps,
charts, graphs, photographs and. other tangible items received or viewed by the
decisionmaker at the proceedings..." (Emphasis added). It wouldviolate an applicant's
due process rights to accept evidence after the conclusion of the hearing because the
applicant would be foreclosed from evaluating and/or rebutting such evidence. The
Hearing Officer cannot accept evidence submitted after the conclusion of the hearing.
FACTS AND FINDINGS
1. Article 2. The Bella Vista PDP conforms with the requirements set forth in
Section 2.2 and 2.4. - This Project has been processed according to the standards in
Article 2 of the. LUC in that it is subject to Type I administrative review of a project
development plan.
2. Article 3. General .Development Standards. The Project complies with applicable
provisions of the General Development Standards, as explained below.
City of Fort Collins
Community Planning and Environmental Services
Current Planning
CITY OF FORT COLLINS, COLORADO
ADMINISTRATIVE HEARING OFFICER
TYPE 1 ADMINISTRATIVE HEARING
FINDINGS, CONCLUSIONS, AND DECISION
ADMINISTRATIVE HEARING DATE:
PROJECT NAME:
April 10, 2003 .
Bella Vista, Project Development Plan — Case
No. 45-01 A
APPLICANT: Stanford Development, LLC
c/o Cityscape Urban Design, Inc.
3555 Stanford Road, Suite 105
Fort Collins, Colorado 80525
OWNER: Stanford Development, LLC
419 Canyon Avenue
Fort Collins, Colorado 80521
HEARING OFFICER:
Linda C. Michow, Esq:
Gorsuch Kirgis LLP
Tower 1, Suite 1000
1515 Arapahoe Street
Denver, Colorado 80202
PROJECT DESCRIPTION: The Applicant has requested approval for a mixed -use
project ("Project" or "PDP") on three acres at the northeast corner of East Horsetooth
Road and Stanford Road. The Project Development Plan (PDP).includes a total of 81
residential dwelling units plus an additional 16,000 square feet of limited commercial on
the first two floors of the building closest to the intersection of East Horsetooth Road
and Stanford Road. Consistent with the MMN Zone District, the commercial uses could
include artisan/photography studios or galleries, .short-term lodging (bed and
breakfasts), convenience retail without fuel sales, home occupations, and small food
service spaces..
SUMMARY OF HEARING OFFICER DECISION: Approval.
ZONE DISTRICT: Medium Density Mixed -Use Neighborhood (MMN).
NOTICE OF PUBLIC HEARING AND NEIGHBORHOOD MEETINGS: Evidence
presented to the Hearing Officer established that the hearing was properly noticed in
accordance with the City of Fort Collins Land Use Code. Although not required for a
Type I development proposal, two neighborhood meetings were held on November 14,
2001 and November 13, 2002.
LCM\.57069.251440850.01
281 North College Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970).221-6750 • FAX (970) 416-2020
Pa Eckman - 2-02 Interpretation.doc 4 µ Page 3
contextual height standards in Section 3.8.17(A)(3)?
While it is true that the general provisions of Section 3.1.2 specify that
Article 4 Standards prevail over those contained in Article 3, in the event
of a conflict between the requirements, more specific text found in Section
3.8.17(A)(3) overrides the general provisions. The first phrase found in
this Section, "regardless of the maximum building height limit imposed by
the zone district standards of this Land Use Code", clearly states that
applicant's have the right to pursue approval for building heights greater
than the maximum prescribed under Article 4. Section 1.7.2 specifies that
the more specific standard shall govern or prevail in cases where the code
provisions are conflicting.
Do the Building Size, Height, Bulk, Mass, Scale Standards of Section 3.5.1(C)
apply to this development application if the justification for a building taller than
the maximum permitted within the zoning district is based upon the contextual
building height provisions of Section 3.8.17(A)(3)?
No. The stated Purpose of Section 3.5.1 is that the standards "should be
read in conjunction with the more specific building standards contained in
this Division 3.5 and the zone district standards of Article 4". Similar to
the response to the previous question, Section 3.5.1(G)(1)(c) is more
specific than the general standard of 3.5.1(C); therefore, it would prevail
under Section 1.7.2. Section 3.5.1(G)(1)(c) permits the decisionmaker the
authority to increase or decrease the height limits for specific purposes
listed under that section.
Are other parts of the Land Use Code pertinent in application of Section
3.8.17(A)(3)?
Yes. 3.5.1(13) would also apply. However, it would be considered as
having an equal degree of specificity as 3.5.1(C) and would also not
prevail over Section 3.8.17(A)(3).
CC: Steve Olt
Paul Eckman
Greg Byrne
Planning 8 Zoning Board
Paul Eckman - 2-02 Interpretation.doc Page 2
Are other parts of the Land Use Code pertinent in application of Section
3.8.17(A)(3)?
INTERPRETATION:
In response to the questions asked above:
How is the term "adjacent" defined when it is being applied toward contextual
building height limits?
Two secondary sources of information, Black's Law Dictionary and
Webster's Third New International, have been consulted in an attempt to
further define "adjacent". Both definitions share one thing in common:
something "adjacent" is located nearby, but is not necessarily physically
touching.
Black's Law Dictionary
"Lying near or close to, but not necessarily touching"
Webster's Third New International Dictionary
"Not distant or far off"; "Nearby but not touching"
Like the land use regulations in many jurisdictions, the City's Land Use
Code does not provide a specific definition of what constitutes an
"adjacent" lot or building when evaluating the compatibility of proposed
buildings within their context. To adopt a more specific definition, such as
within 400 feet as suggested in the interpretation request, would be
arbitrary given the myriad of physical factors that can come into play when
determining the appropriate height and spatial relationship between
buildings. Other factors, beyond the sheer horizontal distance between
nearby buildings, may influence whether a proposal is perceived to be
adjacent, such as:
• Topography;
• Existence of large trees;
• Width of adjacent streets; and
• Angles of vision predominately used in observing the building(s);
Based on this interpretation, evaluation of requests to use a "contextual"
height limit, rather than the height limit specified under the zoning district,
will be conducted on a case -by -case basis using these physical factors as
well as those deemed relevant by the City at the time of review.
Does the 3-story height limit found in Section 4.5(E)(1)(d) prevail over the
Paul Eckman - 2-02 Interpretation.doc Page 1
TO: Interested Parties
FROM: Cameron Gloss
Current Planning Director
DATE: April 12, 2002
SUBJECT: Administrative Interpretation #2-02 regarding the application of
Section 3.8.17(A)(3), Contextual Height standards, of the Land Use
Code
BACKGROUND:
Section 3.8.17(A)(3) of the Land Use Code, Contextual Height standards,
permits the use of a "contextual building height" falling between the zone district
maximum height and the height of a building that exists on adjacent lots. The
term "adjacent" is not further defined under this section or within Article 5-Terms
and Definitions. The sole code reference is found in the wildlife habitat protection
standards of Section 3.4.1(F)(2). Under the context of these habitat regulations,
adjacent means "in the region immediately round about" the development site.
Section 5.1.1 gives the Director the authority to interpret words, terms and
phrases not defined in Article 5.
A request has been received to interpret several interrelated sections of the Land
Use Code regarding the use of the contextual building height provisions. The
following four questions have been posed for interpretation:
How is the term "adjacent" defined when it is being applied toward
determining contextual building height limits?
Does the 3-story height limit found in Section 4.5(E)(1)(d) prevail over the
contextual height standards in Section 3.8.17(A)(3)?
Do the Building Size, Height, Bulk, Mass, Scale Standards of Section
3.5.1(C) still apply to a development application if the justification for
additional building height is based upon the contextual building height
provisions of Section 3.8.17(A)(3)?
• The addition of new dwellings on vacant lots and other undeveloped
parcels surrounded by existing residential development
a PweUag uaUs added to existing houses (e.g., basement or upstairs
0 aW detaci .dweMYngR &Q-,** M"ffilrlkka s a witt existing
houses (e.g., "alley houses" or "granny €Pats")
6 Redevelopment of properties
• Neighborhood -related, turn -residential` devo1qpAwnt
Policy EXN-1.5 Introduction of Neighborkood-Related, tiptu-Residential
Development. New services, conveniences. apd/At gathp#pgfO4gpA will 1e supported
in an existing neighborhood that lacks such daei �, pry v* lees performance
and architectural star;dards respecting the yte k"N po4dve characteristics, level
of activity, and parking and traffic conditions.
air. qu,,
andse
a..city.
dFort C
i
= atr qua
'
�
Parks'•c
specific
recreat
•
�Pedesti
City Plan Principles and Policies Existing Neighborhoods
February 18, 1997 162
This includes the many, varlomo oesidentiai d melts, sting wit{ City at the
time of adoption of these City Plan Principles and Policies.
PRINCIPLE EXN-1: Most existing residential developments will remain
largely unaffected by these City Plan Principles and Policies.
Policy EXN-1.1 Changes To Existing Residential Developments. No significant
changes to the character of existing residential developments will be initiated by City
Plan. Changes, if any, will be carefully planned and will result from initiative by
residents or from a specific subarea plan prepared in collaboration with residents.
Other changes may result from specific initiatives intended to improve the quality of
existing neighborhoods, such as improving mobility and access to everyday activities
and services, and the introduction of new neighborhood centers, parks, and small civic
facilities.
Policy EXN-1.2 Collaboration with Surrounding Residents. The City will continue
to ensure that neighbors will be advised of any changes and be requested to comment.
Stated preferences of neighbors will be considered in determining acceptable intensity
and character of infill and redevelopment.
Policy EXN-1.3 Relationship to the Vicinity and the Broader Community.
In determining the acceptability of changes to parcels of land adjacent to existing
residential developments, the adjacent residents' preferences will be balanced with
community -wide interests.
�-� Policy EXN-1.4 Infill Development and Redevelopment. Infill/redevelopment
policies, standards, and procedures will apply to proposals for such activity in
designated areas. Residential development on any parcels over twenty (20) acres will
be subject to the density policies for new neighborhoods. Other policies for new
neighborhoods should be taken into consideration, if applicable. For parcels under
twenty (20) acres, such infill and redevelopment activity will be supported if designed
to complement and extend the positive qualities of surrounding development and
adjacent buildings in terms of general intensity and use, street pattern, and any
identifiable style, proportions, shapes, relationship to the street, pattern of buildings
and yards, and patterns created by doors, windows, projections and recesses.
Compatibility with these existing elements does not mean uniformity. Forms of
potential infill development include:
City Plan Principles and Policies 161 Existing Neighborhoods
February 18, 1997
77
which• many still cling—j.W.Krutch)
Crary word, implies a close sticking hold-
an ascenaing or descending I
expansion or Compression,
,
feet
or
at layers glued or plastered together, a very
of thange'of height; al
adl•ac•tin•lc \:F di,ak;tinik,
indissoluble attachment (the soaked shirt
ulders) <to love one maiden only, cleavr to
transmittingg actinic rays
adl•ag•nos•t1C \%dlag'nusl
of by years of noble deeds —Alfred Tenny-
orig. formed a GJ ad(agnotN
locate eithera physical sticking together in
ct common principle or
distinctly Separated. but ble.
general consistency
ing or uniting; it a plies to the holding to.
I, of parts of a who Pe (the mortar
under the microscope — us
ad•1•an•tunt \,adE'antam\
will cohere
parts of the exposition do not cohere)
(OS also -er- or -Er-\ n -s IF ML;
maidenhair, fr. neut. or adim
capable of being wetted, fr
or F
adhaerentia, fr. L adhaerent-, adhaerens
akin to Gk'deutin to drend
prising the maidenhair fern
aerFre) + -ia] : the act, action, or quality
a : ADHESION (— of to
dark and often polished stip
long
paint wood)
III attachment (as to a party, principle, or
sori borne on the upp
margins of which are refUpr
observance •FIDELITY (fierce ^• IO What
u Lit. Sap
Bog \ a,fBn
d 11 phddaa •S
board instrument resem\bting
Ice\ a •ES `ML adhaerentia] I archaic : the
the quality of being adherent : ADHERENCE
In8 forks instead of steel be
ad•s•aph•o•non \,ad E'afa,nB
thing that adheres
rid, ,ad,hi'r-\ n -5 [adhere + -end (as in
phonon, Heal. of dlaphdnos t
: a keyboard instrument re
'ace to which an adhesive adheres; also
held to another by an adhesive
steel bars instead of strings
adiaphora D1 Of ADIAPHORON
nL -air- also --air•\ adj [ME, fr. MF or L;
adhacrenP, adhaerens, Ares. part.] 1 : hav-
ad.I.JaR•o•rlsm \,ado afa,ri.
• indifference concerning n
Choi : tending to adhere (an �• coating
¢nod with; or related 10; rptici/ :formally
(as points of controversy)
ad•1•Boplt•o•ris1 \-,Hal\ n •3;
aund to or associated with (nations �. W
— g1I•I,gpb,a, ,f]p \1„ ,
Ilion) 3 her t having usu, .separate parrs
i t modifying a'noun and etsndmg before
• ureaI .. mmata In 'tomato
ed•1•Bpkh•0•ran adE'ef>,r9n
_EGk, . neut. o �adlaphosor
soup.. dawn
'. PaY-as•You-Ro in "e paY•as•You•go plan"
'APPOin1VE
ddlaffefence, fr. dieppherein to ce
■difference, fr. dtq• + herein
2,'AT"Buss"a Ia. 1►tig."ATE
•
pa$ot I a matter having n0 Id,
MEyfr. MF adherent, adj., or L adhaerent-.
glass ceremonial or ritual o
affair of the iridivtn„eI -
—a to me a ommunlst' party —J,B.Conanl)
advocate of a Dartjculrt thin idea, idea, or
:'I NDIFFEREN
wrong or he
espective faiths—B.K.Sandwell) (ems to
ter —Vanri Bush) 2 : a person 14
a ad-1-ate \'ad
adlatlon) Ra
:r who has made the Salvation Army his
heir under a ,
Id is listed on Army records but has not
adl•e•ther•m
*ause of reservations or inabilityto comply
money] : imp
an, ad-\ n -s [For L; F adhhlon, fr. L
ed•i•a.tlon \
of entering u
fr. adhaesus (past part. of adhaerilre) +
of adialing
Cady or firm attachment (as to a person,
adl•ba•s1 \,at
idea) : ADHERENCE (unshakable N f0 one
tribes of Ind,
W.Brogan) <— ... to the federal party
: the action or t s ale of adhering; «'
Karin � r 0 U
ad Idem \a'di
merit
of substances (as of glue and wood or
or at a
ref. 10 the
r.
Ito b 3 0 : the abnormal union of tar•
by the formation of new fibrous tissue
in
—i.ence bin
ed•1•enCe \'e
inflammatory
inflammatory process; also ;the newly
pleural ^4 0 : the union of wound
or accept a sl
aril
ego
intention
excu e : something that adheres
of executive functions from certain —s
to,tt .
go to, fr. ad -
adience : hav
with them —Harold Koontz 8 Cyril
I
\.
act joining, taking parr in, or sub-
II countries
tries to a copyright convention]
God,
God, fr. L
L I
farewell
'CONCURRENCE (tile count ry announced
fl : union of separate plant
Saafen\ \n,l
parts or
of
«Y a( Union between parts of different
: a civil or aft
LEAVE-TAKING
naw<en sepals and carpels); compare
Ip or sticking effect produced by friction
adi•gh r VIIcI*
Circassian) :
as of a smooth locomotive be wheel pulling
hn
a: D B
force that must developed to
ea 1 •Dods ¢ n
ignorance]
for
before slip occurs 8 •the molecular
:
to
twe<n the surfaces of bodies in contact
rather than b
arggument)
cohesion 9: the association of apparent-
ad 1um 111 ts11
i'
: in a culture complex
Cal: having or showing adhesion
[L] . intini
!n//fnfrum)
m
t{ ad-, -Ez, -ev\ adi [adhesion + •ire]
adln•1• \aid
close 10ins association with t he �
• —J. C
•lending to persist
whirling
Irh whir
late
e(asre
witticism)
•v witticism) 2 e : lending is adhere
nerd) :having the ability to slick things
of
protozoan
but larking a
\ ad
a-ole;
glut i b : prepared for adhering (as
Dated with a sticky substance) (� [ape]
-ore: akin to C
akin
tom posed chi
a : an adhesive substance rap : a sub-
.IProt prods
cIn•ter•tan
a materials together by adhering to the
le, starch paste, mucilage, rubber latex,
f L] : for the i
said Intoflint \Ih
composition) : CEMENT 2 b : ADHESIVE
far the
: stamp having a gummed back for
[a] matter es distinguished from one
vent Oispositi
research)
cover b : any stamp or seal having a
ea Interim Cop
mdular thread-bearingcell round onlyyears
from the
in t.
sed in ca luring preby adhesion
CEO
aiderioditel
ion \ a,dian
glue Coll, Coil
adhesive manner : with adhesion
on a surface
adl•os \,adF os
.n ed•a(r)\ n •5: an instrument for test.
Idle.), fr, a to
Tries of liquids
\ n -ES I : the quality or state of being
AT, DEITY] — I
adlp• or adIDO
v : the propensity to form and maintain
a
akin to Gk r(j
ransient larval organ situated near the
Ids, Alrican teleosts, and dipnoans and
tissue (adipic)
((adlpamide) (a
BdID•a•mide \a
v to the sea bottom — called also
crystalline din
ADHESIVE TAPE; sometimes -a similar
at sheets
that one derivative best
nc
tivea
made user. of woven cotton of various
ad.l.fiste \'ads,
adipic acid
:Tin with an adhesive mixture and used
industry, manufacturing, and <sp. in
sidling ppI aJ ADE
adlp0s lariat
hold dressings, hold wound edges 10•
a limb or joint
pl
it pasectd \a'
-ED/•ING/-S [L adhib(tus, past part. of
line dI.. bozyli
lion of various
ummon, admit to consultation, apply,
6Frr to hold) — more W HABrr] 1
hezano1 or by
- to
ing) : bring]n 2 : AFFIX (•�. a label)
JISTER <^• an— ad•ht•bl•tion
manufacture of
ad. I.VO•CeI.JU•1,
-S
lulote) : cellulo:
also(')ad-\adv[NL, lit., forthis):for
cork tissue
ad•i•po•Cere \'a
urpose at hand and without reference
' employment (a special member
adip• + else wa
ap•
is to the problem being considered)
unctuous browr
and calcium so
ade, established, acting, or concerned
dead animal fat
Purpose (a coordinated olicy instead
I ad hoc commission of inquiry)
lure — ad•t Dt
add•DO•cyte
sma,nem\ ant INL, lit to the man) ad.l•po•gen•e•sl
caging to one's hearer's
\ a
or reader's
:indices rather than his intellect and
\-a,sez\ (NL, 1
fatty tissue (as i
argument) 2 : marked by attack on 8d•t•po•ge•net•i
rather than by answer to his contain-
\-'pgjanas\ ad%
Ica that his accuser had been in jail) ed•i•po•leu•co•e
erp
y of air is thanggedtiy adiabatic
is about 1.60 F. for each 300
: a curve representing this
k-\ adJ (la• + diactinicI : not
ad] [ISV In- + diagnostic;
J : having the constituents not
rig together in polarized light
of a rock texture
cap (NL, fr. Gk adianion
unwetled, fr. a• za. + disinter
arnern to wet, moisten; prob.
Cep]: a Bonus of Items cIm.
muCr1-mvlded fronds, and ob-
margins of the pinnules, the
:o form indusia
1. k. NL adlaphnaoalt a key.
: adiaphonon but having run.
n -e [NL, fr. in. + Gk dla.
ordant — more at DIAPHONY)
toting the piano but having
i\ n -s [adiaphoron + •ism]',
ions or theological matters
who adheres to adiaphorism
stik\ adJ
'an\ n, pl Bdlapho•ra \. To\
ifferent, fr. a. aa- + diapliora
acrOss. hogs to the end mako
bear —more N4:AR7 State
1 mark or de(a f 2 ; a rell-
rvanu that [a 11oId to be an
aW baCRUx g I neither for.
lure&
I ad] (Gk adlophoros] ohs
zither right or beneficial nor
s (prob. back-formation fr.I
I accept (an inheritance) as
O a 1 1 r n ,a a mir red a n •Es [ a• + dfarher
viousness to infrared radiation
gahan\ n •s Ili
of L adltfan-, ad(r(o ac
an an inheritance —more at A." I :the sic
'busE\ in -s : a member of one of the aborigine
Imp ads (or ant) [ L, to the same] law : in agree
ectm t o minds on a Point • a[ —
po one used '
n g
Ir
of a contract t � (he parties were not ad Idea
n
on(gs\ n -s psychal: a tendency to approach
lulus object or situation — opposed to ablence
ad] IL adienl•, ad(ens, pros. part, of adire to
ire to gD — more at ISSUE] : characterized by
R or showing adience — op osed to ablenl
\ Inters (ME, fr. MF, fr. I to (Pr. Lad) + Diea
Us — more at AT, DEITY] — used to express
adlen21 or adleex \•six\ [ME, ir. adreu, inter'. ]
Ole expsession made upon parting . FARrwELI,
to make one's �-t)
I\ n, pl. edlghe or adlghee usu tap [prob. fr.
RCASStAN
•am \,a unanswerable
a challenge
adv (or ads) EL,
ve
se use of unanswerable challenge to disprove
serious attempt to Drove (an ad IgnoranNam
\;a,dinfa'nIld•am, Ilam also •nf\ adv (or adJ)
. without end or limit (talked on and on ad
ads n r vr car ENL. � L fr. a -
I + Gk din
v or act of
ool + NL -y
dq i a r ] group of primitive Bagel -
in the order Dinofiaggellate having two flagella
msverse groove - edln•I a c \-den\ adJ or n
,oi\ v •s [F, fr. Gk hedlnos close, thick ro F
Kadin enough n more at sap] : a dense rock
IF of quartz end albr being an alteration
:d br contact metamorphism
Oe ing t'em also •nla,rim or-n•IHm\ adv
trV<ning time :TEMPORARILY
•,'(-)\ adJ :made or serving temporarily or
rig : effective or fu netioning pending perni
I : TEMPORARY (ad Interim committees for
:Ight An • a temporary copyright valid for five
.ate of first publication abroad of A book or
English IangUnke
'so •J,Bn \ n -s L adsorbed ton J ;anion adsorbed
ill• AA Inters [Sp adlds (Drab. trans. of F
T. L ad) + Dios God, fr. L Deus — more at
:d to express farewell
comb Jorm (L adip-, adeps, fr. Gk alefpha,
r tat, lard —more at LeevE) 1 •tat : (z«y
.dip
2 : connected with adipic acid
oonitrile)
ipamid, - m!d\ n -s [adlpp- + amide] :the
de Hila I_ -r)X.NIiz of adipic acid
n in the form of its polymerized hexamethyl-
Compare NYLON
il\ n •S ( IS V ad(p- + a salt or ester of
crystal-
IOOC CHrj,COO form dtlby o ide-
ad made usu. by oxidation of cyclo.
sis of adiponitrile for use esp. in the
da(Jpo'selya,lifs\ n -s fadly- + crl-
iated with suberin in the cell walls of
(2)1 n -s [modif. of F adlpocire, fr.
Cora — more at CERATED] : a waxy or
stance consisting chiefly of fatty acids
duced by chemical changes affecting
tide long buried or immerxd in mois-
ls Vad*:Os(a)ras, ,ad>pasiras\ ad/
t\ n -s India- +-cvte):Tenl.un.-vie
the forn
\ ar a
-genous'
I1\ n •S
or I
iy a,uura uor degeneration of single organs (as the
IF'
or liver) Dn
Costs do•10•ro•sts \-don [NL, lit., painful adi-
os] : a condition of generalized obesity characterized by
To In the abnormal deposits of fat
•1108-1-ty \,ada'pgsad•'e\ n -as : the quality or state of
ng tat : OBESITY
-DO•50•gen•t•tal dystrophy \,ada,pos6;jenad•'1-\ n (adi.
e + -a- + Renifoll r A enmhinnlinn nl ..t,..;— -------
sex filands, and changes in secondary sex
daCkg um cn "'• p' suer comets or aalron-
v [Mohawk Hatirdntaks, lit., they eat trees]
1, : the Algonkian people formerly north of the St. Lawrence
river 2 t a member of the Adirondack people
adirOndack blackfly n, usu cap A : a common blackfly
(Prosimulium.hfrlipea) widespread in eastern No. America
adirondack Chair n, Olsen cap A [probso called fr. its popular
use in the Adirondack resort area] : a
wooden slant -back )awn chair the seat of
which usu. is higher at the front than at the
back
AMR \'adll\ n -s (L aditut approach, en-
trance, fr. adlNs, past Dart. of noire to
go to, approach, fr. ad-+ Ire to go — more
11 ISSUE] E.fa pearly horizontal opening
by which a mine Is entered, drained, or ven.
ti1aled —called also funnel: compare DRIFT 6, Adirondack
GALLERY, INOWNE, LEVEL, SHAFT 2:lilt chair
act of Coming to : APPROACH, ADMISSION, ACCESS (gain
to she throne)
(ka \a dishasii\ a-s.ELL, fr. L. approach fr. adflus (past
part.) + -to •ion],Rorrion taw : the Informal acceptance by
an outsider of heirshiVV; broadly : the vesting of the inheritance
In no hair to a testAt or intestate estate Or the entering into
the inheritance
ed•t•ths \ ad6d•as\ n, Pt aditUs or adituses [LI : a passage
or openinaa for entrance
adlve \aidbv\ n •s IF] : CORSAC
ad) abbr I adjacent 2 adjective 3 adjourned 4 adjudged
6 adjunct 6 adjustable; adjusted; adjustment 7 often cap
adbtan
t
ad..ab \'ajab\ n -s (prob. native name in Africa] : NJAVE
ad, a•cence \a 1Es n(t)s\ n -s [ LL ad��,acenria] • ADJACENCY 2
ad• a•con•cy \. nsF, -si\ n •Es [ML adjacentla, Ir. i
LLstate of
being adjacent, fr. L adjacent., ad/acens + -(a -y] I : what-
ever is adjacent in space b : nearby or neighboring Places
—usu. pl. 2
coNn«um 3 (LLJ: the quality or state of being adjacent
: : a radio
or ortelevisionpreceding program
am or an
nounce.
nnoun<e•
merit immediately d by airig u preceding another (his 9:30
program was helped by a popular � at nsity,
adjacency of
affect n : i change o size, density, a other small
prop-
erty of a photographic image enough
to nfl observed when smell
adjacent images are close enough to influence each other and
when such a change is not to be expected from the normal
sitometric properties of the materiel — compare BORDER
EFF HARD EFFECT, MACKIE LINE
Id•Ja•eent nt\ adJ (ME, fr. MF or L; MF, fr. L adjacent.,
e s. part, of adJaclre to lie near, border on, fr.
a - to lie, fr. jace,e to throw —more at JET (to
spout)] 1 6 of distant or far off (the city square and the
scree nearbyp no out inE (the islands and the
mainland uTf;-$'; re A Iva y near and having nothing
Of the same kind intervening: having a common border
: ABUTTING
. TOV CHINO : living near
or sittin
g mg or Standing
relatively near the
close together (hills ... composed n
Dooysren)
shellsm di el inhabitants burn them —Mark van
Doren) o e immediately preceding or following with nothing
samethe same kind intervening 2 of two angles :having the
same vertex and one side in common
3Yn ADJOINING, ABUTTING, CONTIOUOUS, CONTERMINOUS,
COTERMINO Us IUMA POSED: ADJ
ACENT Is Someti
mes merer
I a
synonym for near or for close to the eavlands
Paris --Charles Dickens) (Indian PasshMount MarcyJo to
adjacent mountains —John B) (the safet
urros hs Y, anndd the
8 y of the
western hemisphere and of the seas same t thereto —Fite.
Roosevelt) Applied o things of the same type, it indicates
either side evening proximity or lack of anything of the same
nature intervening (the doors of the adjacent apartment were
opened, and Egmont saw himself surrounded—I.L.—].L.Motley)
a DJOININO is quite similar to ADJACENT in meaning and sug-
sMsfion but may more strongly indicate existence of common
able usage but is likely to
line; it may indicate An
MCDunn were each alone
attests that Marsh was stil
his lab —Edith C. Riven)
contiguous localities, virtt
other —Amer. GWde Serh
need not be contiguous:
string which are not o«up
Penance uneventful patio
TERMINOVS may apply to e
Phis are coterminous
early man was not
man—F.B.Gummere
terminus with the t
PosED indicates place
hood of contrast or
to unbelievable pover
water rights were elm
.e•0003 : ADID
roducing pa
+ leuco• (an —
a,.....on are
tinguishable from each
City) (adjacent events
e may be stretches of a
ids, so the child may ex.
Ie—lames leans) CoN-
strip in common; often
aoundaries for two areas
the two are practically
adelphis county, the
it of the Delaware river
and county of Phi)adel.
v v, , s in Joel. is CO.
Jewry—H.E.Wedeck) JUxTA-
to face and may suggest likeli-
ellldy Clair : so as to be adjacent
\'ajag\ n •s [prob, native name in lava] : a wild dog
jasanicus) found in lava
\djekt, a'-\ yr •ED/-ING/-S (ME adjecren, fr. L adjecrus,
It. of adJicere to throw to, add to, fr. ad- +-Jicere (fr.
to throw) — more at JET (to sppout)) archaic : to add or
JOIN —ad•jec•tlon \.kshan\ n -S archaic
h•val \'ajlk;tivol, -Els.\ adj ('adjective + •a!) I . of
onging to an adjective: functioning as an adjective
TIVE <— phrase) 2 . given to using adjectives (an
t) : characterized by the use of numerous adjectives
Style) <• language) — ad•jec•tl•val•ly Valk-li\ adv
�jLAGKS LA-w `D/cT/OtitAvZY
ad inde
ad inde (ad in-dee), adv. [Law Latin] To that or
them; thereto.
ad infinitum (ad in-fa-nI-tam). [Latin "without
limit"] To an indefinite extent <a corporation
has a duration ad inftnitum unless the articles
of incorporation specify a shorter period>.
ad inquirendum (ad in-kwa-ren-dam), n. [Law
Latin "to inquire"] Hist. A writ instructing the
recipient to investigate something at issue in a
pending case.
ad instantiam partis (ad in-stan-shee-am
pater-tis), adv. [Law Latin] At the instance of a
pSrty
ad interim (ad in-tar-im), adv. [Latin] In the
meantime; temporarily.
adiratus (ad-a-ray-tas), adj. [Law Latin] Lost;
strayed; removed.
adjacent, adj. Lying near or close to, but not
necessarily touching. Cf. ADJOINING.
adjective law (aj-ik-tiv). The body of rules gov-
erning procedure and practice; PROCEDURAL
LAW, — Also termed adjectival law.
."The body of law in a State consists of two parts,
substantive and adjective law. The former prescribes
those rulesaf civil conduct which declare the rights and
duties of all who are subject to the law. The latter relates
to the remedial agencies and procedure by which rights
are maintained, their invasion redressed, and the meth-
ods by which such.results are accomplished in judicial
tribunals." Edwin E. Bryant, The Law of Pleading Un-
der the Codes of Civil Procedure 1 (2d ad. 1899).
adjoining (a-joyn-ing), adj. Touching; sharing a
common boundary; CONTIGUOUS. — adjoin (a-
joyn), ub. Cf. ADJACENT.
adjoining owner. See OWNER.
adjourn (a-jarn), vb. To recess or postpone.
acUourn sine die (si-nee [or sin -ay] di-ee).
[Latin "without date"] To postpone action of
a convened court or legislative body indefi-
nitely.
aejfournatur (aj-ar-nay-tar). [Latin] It is ad-
journed. • This word formerly appeared at the
end of reported decisions,
adjourned term. See TERM (5).
42
urnment (a-jarn-mant), n. 1. A putting off
�,gptlyi session or other meeting or assembly
a 14tar tjjne. 2. The period or interval
during which a session is put off.
adjournment day- See DAY.
adjournment day in error. See DAY.
adjudge (a-jaj), ub. 1. ADJUDICATE (1). 2. To
deem or pronounce to be. 3. To award judicial-
ly.
adjudicate (a-joo-di-kayt), ub. 1. To rule upon
judicially. 2. ADJUDGE (2). 3. ADJUDGE (3).
adjudicates (a-joo-di-ka-tee). Civil law. A pur-
chaser at a judicial sale.
adjudicatio (a-joo-di-kay-shee-oh), n. [Latin]
Roman & civil law. A part of a formula (i.e.,
the praetor's statement of an issue for a judex)
directing the judex to apportion property in a
divisory action such as an actio de communi
dividundo. See FORMULA (1)•
adjudication (a-joo-di-kay-shan), n. 1. The legal
process of resolving a dispute; the process of
judicially deciding a case. 2. JUDGMENT. 3. Scots
law. A method of transferring heritable land to
a creditor as security for or in satisfaction of a
debt.
adjudicative (a-joo-di-ka-tiv), adj. 1. Of or re-
lating to adjudication. 2. Having the ability to
judge. — Also termed adjudicatory; judicatiue.
adjudicative -claims arbitration. See ARBITRA-
TION.
adjudicative fact. See FACT.
adjudicative law. See CASEIAW.
adjudicator (a-joo-di-kay-tar). A person whose
job is to render binding decisions; one who
makes judicial pronouncements.
adjudicatory. See ADJUDICATIVE.
adjudicatory hearing. See HEARING.
ad judicium provocare (ad joo-dish-ee-am
proh-va-kair-ee), ub. [Latin] To summon to
court; to commence an action.
adjunct (aj-angkt), adj. Added as an accompany-
ing object or circumstance; attached in a subor-
Division 3.5, Building Standards
Section 3.5.1(G)
5. protecting access to sunlight;
6. providing conscious direction to the urban form of
the city through careful placement of tall
buildings or structures within activity centers;
7. allowing rooftop building extensions to
incorporate HVAC equipment.
(H) Land Use Transition. When land uses with significantly different visual
character are proposed adjacent to each other and where gradual
transitions are not possible or not in the best interest of the community,
the development plan shall, to the maximum extent feasible, achieve
compatibility through compliance with the standards set forth in this
Division regarding scale, form, materials and colors and adoption of
operational standards including limits on hours of operation, lighting,
placement of noise -generating activities and similar restrictions.
(I) Outdoor Storage Areas/Mechanical Equipment.
(1) No areas for outdoor storage, trash collection or compaction,
loading or other such uses shall be located within twenty (20) feet
of any public street, public sidewalk or internal pedestrian way.
Notwithstanding the foregoing, areas for trash collection may be
located within twenty (20) feet of an internal pedestrian way.
(2) Loading docks, truck parking, outdoor storage (including storage
containers), utility meters, HVAC and other mechanical equipment,
trash collection, trash compaction and other service functions shall
be incorporated into the overall design theme of the building and
the landscape so that the architectural design is continuous and
uninterrupted by ladders, towers, fences and equipment, and no
attention is attracted to the functions by use of screening materials
that are different from or inferior to the principal materials of the
building and landscape. These areas shall be located and screened
so that the visual and acoustic impacts of these functions are fully
contained and out of view from adjacent properties and public
streets.
(3) Conduit, meters, vents and other equipment attached to the
building or protruding from the roof shall be painted to match
surrounding building surfaces.
Article 3, Page 81
Supp. 12
Division 3.5, Building Standards Section 3.5.1(C)
1. a shadow analysis that indicates on the project
development site plan the location of all shadows
cast by the building or structure (with associated
dates of the year);
2. a visual analysis that:
a. identifies the extent to which existing
views may be blocked;
b. depicts in graphic form views before and
after the project, utilizing photographs of
the area and neutral drawings derived
from at least two (2) points from which
the proposal will be commonly viewed,
one (1) of which should be a vista towards
the foothills; and
C. indicates these points of observation on an
inset map or plan of the area; and
3. a summary of the key conclusions of the shadow
and visual analysis, and steps to be taken to
comply with the review standards set forth above.
(c) Modification of Height Limits. To provide flexibility in
meeting the height limits contained in Article 4 of this
Land Use Code, such height limits can be either increased
or decreased by the Director or the Planning and Zoning
Board in the development review process for the
following purposes:
1. preserving the character of existing residential
neighborhoods;
2. allowing architectural embellishments consistent
with architectural style, such as peaked roof
sections, corner turrets, belvederes or cupolas;
3. defining and reinforcing the downtown areas the
major focal point in the community;
4. allowing for maximum utilization of activity
centers;
Article 3, Page 80
Supp. I
Division 3.5, Building Standards Section 3.5.1(G)
2. Light and Shadow. Buildings or structures greater
than forty (40) feet in height shall be designed so
as not to have a substantial adverse impact on the
distribution of natural and artificial light on
adjacent public and private property. Adverse
impacts include, but are not limited to, casting
shadows on adjacent property sufficient to
preclude the functional use of solar energy
technology, creating glare such as reflecting
sunlight or artificial lighting at night, contributing
to the accumulation of snow and ice during the
winter on adjacent property, and shading of
windows or gardens for more than three (3)
months of the year. Techniques to reduce the
shadow impacts of a building may include, but are
not limited to, repositioning of a structure on the
lot, increasing the setbacks, reducing building or
structure mass or redesigning a building or
structure's shape.
3. Privacy. Buildings or structures greater than forty
(40) feet in height shall be designed to avoid
} infringing on the privacy of adjacent public and
private property, particularly adjacent residential
areas and public parks. Techniques to improve
the level of privacy in a neighborhood may
include, but not be limited to, providing
landscaping, fencing and open space, and
changing building or structure orientation away
from adjacent residential development.
4. Neighborhood Scale. Buildings or structures
greater than forty (40) feet in height shall be
compatible with the scale of the neighborhoods in
which they are situated in terms of relative height,
height to mass, length to mass, and building or
structure scale to human scale.
(b) Submittal Requirements. All development plans
proposing building or structure heights in excess of forty
(40) feet shall, at a minimum, include the following
information:
Article 3, Page 79
Supp. 11
Division 3.5, Building Standards Section 3.5.1(E)
(c) Windows shall be individually defined with detail
elements such as frames, sills and lintels, and placed to
visually establish and define the building stories and
establish human scale and proportion.
(F) Building Color. Color shades shall be used to facilitate blending into the
neighborhood and unifying the development. The color shades of
building materials shall draw from the range of color shades that already
exist on the block or in the adjacent neighborhood.
(G) Building Height Review.
(1) Special Height Review/Modifications.
Purpose. The purpose of this Section is to establish a special
process to review buildings or structures that exceed forty (40)
feet in height. Its intent is to encourage creativity and diversity of
architecture and site design within a context of harmonious
neighborhood planning and coherent environmental design, to
protect access to sunlight, to preserve desirable views and to
define and reinforce downtown and designated activity centers.
All buildings or structures in excess of forty (40) feet in height
shall be subject to special review pursuant to this subsection (G).
(a) Review Standards. If any building or structure is
proposed to be greater than forty (40) feet in height above
grade, the building or structure must meet the following
special review criteria:
1. Views. A building or structure shall not
substantially alter the opportunity for, and quality
of, desirable views from public places, streets and
parks within the community. Desirable views are
views by the community of the foothills,
mountains and/or significant local landmarks (i.e.,
Long's Peak, Horsetooth Mountain). Techniques
to preserve views may include, but are not limited
to, reducing building or structure mass, changing
the orientation of buildings and increasing open
space setbacks.
Article 3, Page 78
Supp. 10
Division 3.5, Building Standards
Figure 7
Infill Buildings
Section 3.5.1(C)
rt-.®.i��rd1ima v�
New buildings in historic districts should reflect the historic character of
the neighborhood through repetition of roof lines, patterns of door and
window placement, and the use of characteristic entry features.
(D) Privacy Considerations. Elements of the development plan shall be
arranged to maximize the opportunity for privacy by the residents of the
project and minimize infringement on the privacy of adjoining land uses.
Additionally, the development plan shall create opportunities for
interactions among neighbors without sacrificing privacy or security.
(See Figure 8.)
(E) Building Materials.
(1) General. Building materials shall either be similar to the
materials already being used in the neighborhood or, if dissimilar
materials are being proposed, other characteristics such as scale
and proportions, form, architectural detailing, color and texture,
shall be utilized to ensure that enough similarity exists for the
building to be compatible, despite the differences in materials.
Article 3, Page 76
Supp. 10
Division 3.5, Building Standards
DIVISION 3.5 BUILDING STANDARDS
Sections:
3.5.1 Building and Project Compatibility
3.5.2 Residential Building Standards
3.5.3 Mixed -Use, Institutional and Commercial Building
3.5.4 Large Retail Establishments
3.5.5 Convenience Shopping Center
Section 3.5.1
These building standards should be read in conjunction with the zone district standards contained
in Article 4 of this Land Use Code.
3.5.1 Building and Project Compatibility
(A) Purpose. The purpose of this Section is to ensure that the physical and
operational characteristics of proposed buildings and uses are compatible
when considered within the context of the surrounding area. They should
be read in conjunction with the more specific building standards
contained in this Division 3.5 and the zone district standards contained in
Article 4.
(B) Architectural Character. New developments in or adjacent to existing
developed areas shall be compatible with the established architectural
character of such areas by using a design that is complementary.
Compatibility shall be achieved through techniques such as the repetition
of roof lines, the use of similar proportions in building mass and outdoor
spaces, similar relationships to the street, similar window and door
patterns, and/or the use of building materials that have color shades and
textures similar to those existing in the immediate area of the proposed
infill development. Brick and stone masonry shall be considered
compatible with wood framing and other materials.
(C) Building Size, Height, Bulk, Mass, Scale. Buildings shall either be
similar in size and height, or, if larger, be articulated and subdivided into
massing that is proportional to the mass and scale of other structures on
the same block, or if no buildings exist thereon, then on adjoining blocks.
(See Figure 7.)
Article 3, Page 75
Supp. 10
Division 3.8, Supplementary Regulations
Section 3.8.17(C)
(2) cooling towers, ventilators and other similar equipment that cover
no more than five (5) percent of the horizontal surface area of the
roof;
(3) elevator bulkheads and stairway enclosures;
(4) fire towers;
(5) utility poles and support structures;
(6) belfries, spires and steeples;
(7) monuments and ornamental towers;
(8) solar energy systems.
(Ord. No. 59, 2000 §27, 6/6/00; Ord. No. 177, 2002 §17, 12/17/02)
3.8.18 Residential Density Calculations
(A) Calculation of the gross residential density shall be performed (and
included on the development plan) in the following manner:
i (1) Determining the gross acreage. The gross acreage of all the land
within the boundaries of the development shall be included in the
density calculation except:
(a) land previously dedicated, purchased or acquired for any
public use; and
(b) land devoted to nonresidential uses such as commercial,
office, industrial or civic uses.
(2) The foregoing gross acreage calculation shall be shown in a table
format on the development plan and shall form the basis for
calculating the gross residential density.
(3) The total number of dwelling units shall be divided by the gross
residential acreage. The resulting gross residential density shall
also be shown in a table format on the development plan.
(B) Calculation of the net residential density shall be performed (and
included on the development plan) in the following manner:
Article 3, Page 157
Supp. 13
Division 3.8, Supplementary Regulations
Section 3.8.17(A)
(2) Building Height Measured in Stories. In measuring the height of
a building in stories the following measurement rules shall apply:
(a) A balcony or mezzanine shall be counted as a full story
when its floor area is in excess of one-third (1/3) of the
total area of the nearest full floor directly below it.
(b) No story of a commercial or residential building shall
have more than twenty-five (25) feet from floor to floor.
(3) Contextual Height. Regardless of the maximum building height
limit imposed by the zone district standards of this Land Use
Code, applicants shall be allowed to use a 'contextual" height
limit. The allowed 'contextual' height may fall at any point
between the zone district maximum height limit and the height of
a building that exists on a lot that is adjacent to the subject lot.
This provision shall not be interpreted as requiring greater
minimum heights or lower maximum heights than imposed by the
underlying zone district.
(B) Building Height Regulations.
(1) All dwellings shall be constructed with at least seventy-five (75)
percent of the roof surface higher than seven (7) feet from grade.
(2) It shall be unlawful to construct, build or establish any.building,
trees, smokestack, chimney, flagpole, wire, tower or other
structure or appurtenance thereto which may constitute a hazard
or obstruction to the safe navigation, landing and takeoff of
aircraft at a publicly used airport.
(3) No detached accessory building may exceed eight (8) feet in
height unless such building complies with all of the yard setbacks
for the district in which such building is located.
(C) Exemptions from Building Height Regulations The following
structures and features shall be exempt from the height requirements of
this Land Use Code:
(1) chimneys, smokestacks or flues that cover no more than five (5)
percent of the horizontal surface area of the roof,
Article 3, Page 156
Supp. 13
Division 3.8, Supplementary Regulations
3.8.14 Preemption Uses
Section 3.8. H
Any use that is not permitted under the provisions of Article 4, but that must be
allowed because of preemption by a sovereign jurisdiction or because of a court
order, shall be processed as a Planning and Zoning Board Review (Type 2
review) and shall be approved, with or without conditions, as necessary to ensure
that such use complies with all general standards as set forth in Article 3 and
zone district standards as set forth in Article 4 as are or may reasonably be
interpreted to be applicable to such use, provided that such standards are not
preempted or ordered by a court not to be applied.
3.8.15 Housing Model Variety
An applicant for a Building Permit for a single-family or two-family dwelling
shall affirm and certify in the application that the dwelling which is the subject of
the Building Permit does not adjoin a lot with the same housing model, if on the
same block face. This requirement shall not apply to single-family or two-family
dwellings on lots created pursuant to the zone district and land use regulations in
effect on March 27, 1997.
(Ord. No. 228, 1998 §30, 12/15/98)
3.8.16 Increasing the Number of Unrelated Persons
All residential development approved pursuant to this Land Use Code shall
conform to the definition of "family" as established in Article 5; provided,
however, that with respect to pending applications for multiple -family dwellings
only, the decision maker (depending on the type of review, Type 1 or Type 2)
may, upon receipt of written request of the applicant and upon and finding that
all applicable criteria of this Land Use Code have been satisfied, increase the
number of unrelated persons who may reside in individual dwelling units.
Further, the decision maker shall not increase said number unless satisfied that
the applicant has provided such additional open space, recreational areas, parking
areas and public facilities as are necessary to adequately serve the occupants of
the development and to protect the adjacent neighborhood.
3.8.17 Building Height
(A) Measuring Building Height.
(1) Building Height Measured in Feet. When measured in feet,
building height shall be measured from the average of the
finished ground level at the center of all walls of a building or
structure to the highest point of the roof surface or structure.
Anicle 3, Page 155
Supp. 13
Division L7, Legal Section 1.7.1
DIVISION 1.7 LEGAL
Sections:
1.7.1 Relationship to Code of the City
1.7.2 Conflict with Other Laws
1.7.3 Severability
1.7.1 Relationship to Code of the City
This Land Use Code, although not a numbered Chapter of the Code of the City,
is a part of the Code of the City with the same legal significance as though it
were a numbered Chapter. This Land Use Code may be used, as applicable, to
support the implementation of the Code of the City; and the Code of the City
may be used, as applicable, to support the implementation of this Land Use Code.
Particularly, but without limitation, the provisions of Chapter 1 of the Code of
the City are incorporated into this Land Use Code by reference.
1.7.2 Conflict with Other Laws
Except as is provided in Section 3.1.2, if the provisions of this Land Use Code
are internally conflicting or if they conflict with any other statute, code, local
ordinance, resolution, regulation or other applicable Federal, State or local law,
the more specific standard, limitation or requirement shall govern or prevail to
the extent of the conflict. If neither standard is more specific, then the more
stringent standard, limitation or requirement shall govern or prevail to the extent
of the conflict.
(Ord. No. 90, 1998, 5/19/98)
1.7.3 Severability
It is the legislative intent of the City Council in adopting this Land Use Code that
all provisions hereof shall be liberally construed to protect and preserve the
peace, health, safety and general welfare of the inhabitants of the City. It is the
further intent of the City Council that this Land Use Code shall stand,
notwithstanding the invalidity of any part thereof, and that should any provision
of this Land Use Code be held to be unconstitutional or invalid by a court or
tribunal of competent jurisdiction, such holding shall not be construed as
affecting the validity of any of the remaining provisions.
Article 1, Page 24
Supp. 11
Division 1.4, Interpretations Section 1.4.3(C)
and/or the Zoning Map, whichever is applicable, and render an
interpretation. The Director may consult with the City Attorney and other
City departments before rendering an interpretation.
(D) Form. The interpretation shall be in writing and shall be delivered to the
applicant. Interpretations that are not in writing shall have no force or
effect. Interpretations shall have no precedential value and shall be
limited in their application to the property, if any, identified in the
interpretation.
(E) Official Record. The Director shall maintain an official record of all
interpretations in the Community Planning and Environmental Services
Department. Such official record shall be available for public inspection
during normal business hours.
(F) Appeal. Appeals of any interpretation under this Section shall be made
only in accordance with Division 2.11.
(Ord. No. 90, 1998, 5/19/98; Ord. No. 177, 1998 §4, 10/20/98)
1.4.4 Rules for Interpretation of Boundaries
Interpretations regarding boundaries of zone districts on the Zoning Map shall be
made in accordance with the provisions of this section.
(A) District Regulations Extend to all Portions of Districts Surrounded by
Boundaries. Except as otherwise specifically provided, a district symbol
or name shown within district boundaries on the Zoning Map indicates
that district standards and other district regulations pertaining to the
district extend throughout the whole area surrounded by the boundary
line.
(B) Boundaries. Where uncertainty exists as to the boundaries of zone
districts as shown on the Zoning Map, the following rules shall apply:
(1) Boundaries indicated as approximately following the centerlines
of dedicated streets, highways, alleys or rights -of -way shall be
construed as following such centerlines as they exist on the
ground, except where such interpretation would change the
zoning status of a lot or parcel, in which case the boundary shall
Article 1, Page 12
Supp. 10
Division 1.4, Interpretations
DIVISION 1.4 INTERPRETATIONS
Sections:
1.4.1 Authority
1.4.2 Initiation
1.4.3 Procedures
1.4.4 Rules for Interpretation of Boundaries
1.4.5 Cases. Not Covered by Section 1.4.4
1.4.6 Division of a Lot of Record by a Boundary
1.4.7 Nonregulated Land Transfers
1.4.8 Continuity of Zoning
1.4.9 Rules of Construction for Text
1.4.10 Rules for Measuring Distances
1.4.1 Authority
Section 1.4.1
The Director shall have the authority to make all interpretations of the text of this
Land Use Code and the boundaries of zone districts on the Zoning Map.
1.4.2 Initiation
An interpretation may be requested by any person.
1.4.3 Procedures
(A) Submission of Request for Interpretation. Before an interpretation may
be provided by the Director, a Request for Interpretation must be
submitted to the Director in a form established by him or her.
(B) Determination of Sufficiency. After receipt of a Request for
Interpretation, the Director shall determine whether the request is
complete, specific, clear and ready for review. If the Director determines
that the request is not complete, he or she shall serve a written notice on
the applicant specifying the deficiencies. The Director shall take no
further action on the Request for Interpretation until the deficiencies are
remedied.
(C) Rendering of Interpretation. After the Request for Interpretation has
been determined to be sufficient, the Director shall review and evaluate
the request. in light of the terms and provisions of this Land Use Code
Article 1, Page 11
Sapp. 10
DECISION OUTLINE
Question: Whether the Hearing Officer failed to conduct a fair hearing because she improperly
failed to receive all relevant evidence offered by the Appellants at the hearing.
IF YES: IF NO:
Remand the matter to the Hearing Move on to the next question.
Officer for rehearing.
Question: Whether the Hearing Officer failed to properly interpret and apply relevant provisions
of the Code.
IF YES:
Overturn or modify the decision of
the Hearing Officer.
IN EITHER CASE:
IF NO:
Uphold the decision of the Hearing
Officer.
The Council may remand the decision to the Hearing Officer to
review and consider any additional information with
regard to any issue raised on appeal.
Mayor and City Councilmembers
June 19, 2003
Page 8
cc: John F. Fischbach, City Manager
Greg Byrne, Director of CPES
Cameron Gloss, Current Planning Director
Steve Olt, City Planner
Mayor and City Councilmembers
June 19, 2003
Page 7
• On the question ofwhether the Hearing Officer failed to conduct a fair hearing by improperly
failing to receive all relevant evidence offered by the Appellants, the positive and negative
findings might be as follows:
Positive: The Hearing Officer did not fail to conduct a fair hearing by
improperly failing to receive all relevant evidence offered by the Appellants because
all evidence offered by the Appellants at the hearing was received and became part of
the record.
Negative: The Hearing Officer failed to conduct a fair hearing by improperly
failing to receive all relevant evidence offered by the Appellants.
• On the question of whether the Hearing Officer failed to properly interpret the Code, positive
and negative findings might be as follows:
Positive: The Hearing Officer did not fail to properly interpret and apply the
relevant provisions of the Code, and specifically (but without limitation) Sections
3.5.1(C) and (G) and 3.8.17(A)(3), all of which provisions were properly interpreted
and applied.
Negative: The Hearing Officer failed to properly interpret and apply the
following provisions of the Land Use Code:
[Here the Councilmember making the motion should indicated the
section number ofthe Code provision which the Hearing Officer failed
to properly interpret and apply, which could be one or more of the
sections listed by the Appellants in the Notice of Appeal, and then,
after listing the section number, indicate in the motion how the
Hearing Officer failed to properly interpret and apply that specific
section. For example, the Appellants raise an issue regarding whether
the project complies with the requirements of Section 3.5.1 pertaining
to building and project compatibility. If the Council believes that, for
example, the building size, height, bulk, mass or scale is not
compatible with the surrounding area (see Section 3.5.1 [C]) then the
Councilmember should specifically mention that in his or her motion.
At the next Council meeting, I will have a resolution summarizing the Council's findings and decisions
regarding this appeal.
WPE/SJR:med
Attachments
Mayor and City Councilmembers
June 19, 2003
Page 6
Clerk no later than ten calendar days prior to the date of the hearing. Councilmembers have not
raised any additional issues in this appeal.
While Code Section 2-56(b) generally provides that new evidence shall not be considered in any
appeal, there are two exceptions to this prohibition. The first exception relates to evidence offered
in support or of in opposition to an allegation that the Hearing Officer considered evidence relevant
to her findings which was substantially false or grossly misleading. In this appeal, there is no
allegation that the Hearing Officer considered evidence relevant to her findings which was
substantially false or grossly misleading. The second exception relates to evidence offered by the City
staff or a party -in -interest in response to questions presented by Councilmembers. Therefore, in this
appeal, new evidence can be considered by the Council only if it is offered in response to questions
presented by Councilmembers.
APPLICABLE LAWS:
In addition to the appeals provision of the City Code, the applicable Land Use Code provisions for
the Council to consider in this appeal consist ofthose which are listed in the "Facts and Findings" of
the administrative decision and in the Notice of Appeal. Those Land Use Code provisions listed in
the Notice of Appeal are attached and consist of the following:
Section 1.4.39)
Section 1.7.2
Section 3.8.17(A)(3)
Section 3.5.1(D) and (G)
Policy EXN-1.4 of City Plan (this is not a regulatory policy)
Also your Council packet of information includes is a copy of the Hearing Officer's Findings,
Conclusions and Decision, which I would recommend that you read.
RECOMMENDATION AS TO FINDINGS:
Specific findings that might be considered by the Council in its deliberations are offered below. It is
not necessary that any or all of these findings be stated at the time of the decision Tuesday. Instead,
they can be included in the resolution that will be brought forward at the next meeting in support of
Council's decision. However, some reason should be stated in support ofCouncil's decision Tuesday
night. The purpose of including these possible findings is to give Councilmembers a feel for the kinds
of reasons that might be offered in support of a motion or vote.
Mayor and City Councilmembers
June 19, 2003
Page 5
The Appellants, in their last argument, allege that the application of Section 3.8.17(A)(3) pertaining
to contextual height limitations does not obviate the need to also insure that the project complies with
the compatibility requirements of Section 3.5.1(C). I believe that it is true that the compatibility
requirements of Section 3.5.1(C) must also be met. In this argument, the Appellants refer to Policy
EXN-1.4 of City Plan, a copy of which I have attached. Although this policy is not regulatory, it
may be useful to the Council in determining the intent of the compatibility requirement.
COUNCIL'S STANDARD OF REVIEW:
The Council should determine whether the record shows that the Hearing Officer did or did not (1)
conduct a fair hearing or (2) properly interpret and apply the relevant provision of the Land Use
Code. If the Council determines that the record shows that the Hearing Officer failed to conduct a
fair hearing for any ofthe reasons alleged by the Appellants, then the Council must remand the matter
back to the Hearing Officer for rehearing. However, if the Council determines that the record shows
that the Hearing Officer did conduct a fair hearing, then the Council can move on to the question of
whether the Hearing Officer properly interpreted and applied the relevant provision ofthe Code, and
if it decides that question in the affirmative, then the Council should uphold the decision of the
Hearing Officer. If the Council determines that the Hearing Officer did not properly interpret and
apply the relevant provisions ofthe Code, then the Council should either overturn the decision ofthe
Hearing Officer or modify the decision. Finally, in addition to the mandatory remand if the Council
determines that the Hearing Officer failed to conduct a fair hearing, it should also be noted that the
Council may remand the matter to the Hearing Officer for rehearing if the Council determines that
a rehearing would be necessary in order for the Hearing Officer to receive and consider additional
information with regard to any issue raised on appeal. (Section 2-56(d)(2)). If the Council does
remand the matter for such reconsideration, it would be helpful for the Councilmember making the
motion to identify the particular issue or issues to be addressed by the Hearing Officer on remand.
RECORD ON APPEAL/NEW EVIDENCE:
Code Section 2-53 provides that the appeals shall be "on the record," which record includes the
minutes of the Hearing Officer meeting, as well as all exhibits received or viewed by the Hearing
Officer, any videotape that was made of the proceeding, and the verbatim transcript of the Hearing
Officer's proceedings. Section 2-56 of the Code provides that the Council shall consider an appeal
based upon the record on appeal as well as the relevant provisions of the Code and Charter and also
the grounds for appeal cited in the notice of appeal. Further, Section 2-56 authorizes the Council to
consider the appeal based upon any additional issues identified by a member of the Council prior to
the hearing if the Councilmember has identified those issues in writing and filed them with the City
Mayor and City Councilmembers
June 19, 2003
Page 4
upon the Council. To afford the Council the opportunity to reinterpret the Code as it wishes
would render the appeal process to the Zoning Board of Appeals meaningless. Only if an
appeal had been taken to the ZBA, and then from the ZBA to Council, could Council review
the administrative interpretation of "adjacency."
Our opposing argument might go something like this:
• Any interpretation oftheCodegivenbytheZoningBoardofAppealsunderSection1.4.3(F)
would have been appealable to the Council anyway.
• Since the Council would have had the opportunity to reinterpret the Code had a ZBA
decision been appealed to it, it must surely have the opportunity to reinterpret the Code on
an appeal directly from the P&Z Board or the Hearing Officer. The Council is the
legislative body which adopted the Code and it cannot be deprived of the ability to review
an administrative interpretation on appeal.
I would recommend that the Council not get itself into the situation of having to make this argument
in Court. I believe that Cameron Gloss' interpretation regarding "adjacency" and regarding how
Section 3.8.17(A)(3) prevails over Section 4.5(E)(1)(d) is correct. I believe that the Appellants are
using a strained interpretation of the word "adjacent" to come to a different conclusion. If I had
to litigate a denial of this application (and please understand that I am not begging to litigate this)
I would rather that the denial be based upon a failure to comply with Section 3.5.1(B) and/or (C)
as discussed below (regarding compatibility) than on the interpretation of "adjacency. "
The Appellants also present an argument pertaining to Section 1.7.2 which has to do with conflicts
with other laws. Section 1.7.2 provides that if there is a conflict either inside the Land Use Code or
with an external law, the most specific regulation shall apply, but ifneither regulation is more specific,
then the more stringent regulation shall apply. I do not believe that Section 1.7.2 is instructive on this
issue because there is no conflict between the zone district height limitations as contained in Article
4 and Section 3.8.17(A)(3). That Section provides that "regardless of the maximum building height
limit imposed by the zone district standards of this Land Use Code, applicants shall be allowed to use
a 'contextual height' limit." Accordingly, there is no conflict between Section 3.8.17(A)(3) and
Article 4.
Mayor and City Councilmembers
June 19, 2003
Page 3
II. Proper Interpretation Issues.
The question of whether the Hearing Officer properly interpreted and applied the Land Use Code is
focused primarily upon whether Section 3.8.17(A)(3) was properly interpreted as it relates to the
question of whether the Marriot Hotel is on a lot that is adjacent to the subject lot. The reason that
this is important is that the height of the Marriott Hotel was used to justify the height of the Project,
because of the interpretation that the Marriott is "adjacent" to the Project. Definitions of the word
"adjacent" are attached hereto as contained in both Black's Law Dictionary and Webster's Third New
International Dictionary. Both of those definitions are attached for your reference and are discussed
at length in Administrative Interpretation #2 -02 issued by Cameron Gloss on April 12, 2002, and also
in the "Facts and Findings" as contained in the decision of the Hearing Officer. In examining this
question, I would recommend that you closely read these definitions, the Administrative
Interpretation and the discussion of the Hearing Officer as contained on pages 4 through 7 of the
decision, as well as the arguments posited by the Appellants in the Notice of Appeal. This is truly the
"heart" of this appeal.
The second part of the Appellants' contention that the Hearing Officer failed to properly interpret and
apply the Land Use Code pertains to Interpretation #2-02 of the Planning Director. The Appellants
argue that the Planning Director should have reissued an interpretation that was site -specific to the
Bella Vista project. The Planning Director refused to issue a site -specific interpretation, and in my
judgment his refusal was properly founded because interpretations are for the purpose of interpreting
the Land Use Code, not for the purpose of applying it to specific projects. In essence, the Appellants
disagree with the interpretation ofthe Planning Director as it pertains to the definition of "adjacency'.
The developers attorney has raised some legal issues surrounding the Administrative Interpretation
which you ought to know about. In a nutshell, her position is that the City Council is bound by Mr.
Gloss'interpretation and cannot "reinterpret " the Land Use Code differently. Ithinkthatplausible
arguments go both ways on this issue and that if we had to litigate the question it is kind of a "toss
up " as to who would win. Her argument goes like this:
• First, Section 1.4.3(D) provides that "interpretations shall have no precedential value and
shall be limited in their application to the property, if any, identified in the interpretation ".
Even though this interpretation did not identify any property, the Appellants asked for an
interpretation in the context of the Bella Visa Project and everybody knows that the
interpretation arose out of that project. Therefore, it is implicit that the interpretation has
precedential value as to the Bella Vista Project.
Section 1.4.3(F) provides that appeals of an interpretation shall be made only in
accordance with Division 2.11 of the Land Use Code, which is an appeal to the Zoning
Board of Appeals. The time has passed for filing such an appeal and the Appellants jailed
to file. Accordingly, the administrative interpretation is final, unappealable and binding
Mayor and City Councilmembers
June 19, 2003
Page 2
that the Hearing Officer in her report states that there was no testimony or evidence presented to
contradict the staff report on building and project compatibility. They allege that this statement of
the Hearing Officer is untrue because the packet of information which was presented to her by Mr.
Kitze contains a section showing that the project is not compatible and not in context with the
neighborhood. The Appellants also argue that a Ms. Numiar provided information to the Hearing
Officer on this issue as well. From the allegations in the Notice of Appeal, it appears that the
evidence presented by the Appellants was received by the Hearing Officer although it also appears
that that evidence was not given much, if any, weight by the Hearing Officer. The Code does not
require that all evidence be believed by the Hearing Officer. There is a failure of the Hearing Officer
to conduct a fair hearing, only if she refused to receive it.
The Appellants also argue that in discussing neighborhood scale, the Hearing Officer stated that the
evidence reflects that the surrounding buildings vary in height from 40 feet to 60.5 feet. The
Appellants disagree with this conclusion but it seems to me that this argument goes more to the
question of whether the Hearing Officer properly interpreted and applied the Code, and not whether
the Hearing Officer failed to receive relevant evidence offered at the hearing. This allegation seems
to turn on the question of "adjacency" which is discussed at length by the Appellants in the Notice
of Appeal and by the Hearing Officer in her decision.
Finally, the Appellants allege that the City (Mr. Olt) failed to deliver all pertinent a -mails to the
Hearing Officer. They allege that Mr. Olt had advised Mr. Kitze that all pertinent a -mails would be
submitted when in fact they were not. It is also alleged that, after the hearing, Mr. Kitze requested
Mr. Olt to send copies of those additional a -mails to the Hearing Officer but that they were not
accepted. It is proper that the Hearing Officer not accept additional evidence into the record after
the close of the hearing. If the Appellants had additional information, including e-mails, that they
wished to submit to the Hearing Officer, they should not have relied upon Mr. Olt to submit them,
but rather, should have submitted them themselves. Having said that, there is a solution to this
problem. If the Council desires to receive and consider these e-mails, then Section 2-56(b)(2) offers
that opportunity. That section of the Code allows for new evidence to be considered on appeal when
offered by City staff or parties -in -interest in response to questions presented by Councilmembers.
So, a Councilmember could simply ask to receive into the record the a -mails that Mr. Kitze believes
should be part ofthe record. I have been advised by the attorney for the developer that the developer
is prepared to waive any objection to these a -mails being received into the Council's record and
considered by the Council. The key is that a Councilmember must ask to receive the e-mails.
t
City Attorney
CONFW ENTIAL
MEMORANDUM
City of Fort Collins
DATE: June 19, 2003
TO: Mayor and City Councilmembers
FROM: W. Paul Eckman, Deputy City Attorney
THRU: Steve Roy, City Attorney
RE: Appeals Procedure -- Appeal of Decision of the Administrative Hearing Officer
Approving the Bella Vista P.D.P. #45-01A (the "Project")
BOTTOM LINE:
This appeal has to do with whether or not the Hearing Officer conducted a fair hearing and whether
or not the Hearing Officer properly interpreted and applied the Land Use Code. The most relevant
sections of the Land Use Code are attached. The Appellants in this appeal are adjacent neighbors to
the proposed development.
BACKGROUND:
A Notice of Appeal was filed with the City Clerk on May 7, 2003, with respect to the April 24, 2003,
decision of the Hearing Officer ("Hearing Officer") approving the Project, by Paul Thomas Kitze, et
al., who are parties -in -interest opposed to the Project.
ISSUE ON APPEAL:
• Whether the Hearing Officer failed to conduct a fair hearing in that the Hearing Officer
improperly failed to receive all relevant evidence offered by the Appellants.
• Whether the Hearing Officer failed to properly interpret and apply relevant provisions of the
Code and Charter (Code Section 2-48[b][11).
ANALYSIS:
I. Fair Hearing Issues.
The fair hearing issue raised by the Appellants in this appeal is whether the Hearing Officer failed to
receive all relevant evidence that was offered by the Appellants at the hearing. The Appellants argue
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