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HomeMy WebLinkAboutEAST RIDGE PDP - MODIFICATION OF STANDARD - 33-98C - SUBMITTAL DOCUMENTS - ROUND 1 - MODIFICATION REQUESTMr. Greg Byrne June 1, 2004 Page 8 of 8 It is clear that a fair and proper balance among conflicting interests is not achieved by a strict application of this particular element of the LUC that derives from Policy ENV-5.1 and OL-1.2, but would be applied at the expense of the other policies listed above. In summary, the identified nest site would be protected under .the buffer zone regulation, but with questionable positive impact to overall species habitat protection, and at great cost to other community values. Application of the spirit of fair and proper balance must lead to consideration of all the community values reflected in the Comprehensive Plan, when considering the modification request for this particular Property, as well as the severe impact of the buffer requirement on this Property. Should the buffer zone requirement "of the LUC be strictly applied to the Property, eliminating the only access option and resulting in the loss of over 51% of the total site area, the mixed -use, residential project planned by East Ridge and envisioned in the City's comprehensive planning documents would be rendered practically infeasible. Please see the statements of financial impact set forth in. part (1) above which are incorporated into this part (2). In further support of its request for modification of the buffer standard, East Ridge asserts that the granting of this request, which will allow the development of a portion of a relatively small, isolated habitat area, would not be detrimental to the public good particularly since the map of City raptor nest locations shows a number of hawk habitats surviving in urban settings, the hawks have adapted well to human intrusion within 250 feet of this nest, and the project will preserve and enhance additional acreage to provide additional habitat and foraging opportunities. In fact, the benefit to the citizens, described in City Plan Principle OL-1 as the preservation and protection of open lands to provide habitat for wildlife, is being well protected by the City's aggressive acquisition of large, undisturbed natural areas through the Natural Areas Program that will provide, within the City, it's GMA and in more rural areas, much greater opportunities for significant preservation, enhancement and creation of hawk habitat which in turn will assure that this resource is never lost, only relocated. In closing, we request that you give serious consideration to East Ridge's request for modification of standards. Please let us know if there is additional information we could provide that would be useful in your evaluation of this request. Sincerely, LILEY, ROGERS & MARTFiL, LLC LAL/jpk Attachments Mr. Greg Byrne June 1, 2004 Page 7 of 8 City Plan Policy Fulfillment of Policy LU-1.1 Compact Urban Provides required density for the Property and decreases the Form potential for.dis ersed growth. T-1.1 Land Use Patterns Supports effective transit and an efficient roadway system, alternative transportation modes, and land uses within walking distance of pro2osed transit stops. T-9.2 New and Existing Includes fair share of Timberline Road enhancement and new Roadways internal streets to ensure an acceptable level of service. ECON-1.3 Infrastructure Provides access to employment centers and housing for nearby and Capital Facilities workers. HSG-1.1 Land Use Provides housing close to employment centers, services and Patterns amenities. HSG-1.2 Housing Supply Helps City maintain an adequate supply of housing. HSG-1.4 Land for Maximizes the potential for developable land and promote the Residential Development affordability of housing. HSG-2.3 Development Critical in achieving project timelines, required densities, and Practices predictability of mitigation. costs, and thus housing affordability—. GM-5.1 Phasing of Promotes an orderly extension of utility infrastructure. The site Development is an infill site, with existing development in all four directions. Without the project, proposed development to the north and east would be forced to leapfrog. In addition, many community needs defined in other elements of the Comprehensive Plan could not be effectively or efficiently met, or perhaps could not be met at all, without the requested modification of the buffer standards: • East Mulberry Corridor Plan. This specific subarea plan envisions that development of this Property will contribute to the planned expansion of Timberline Road to a 6-lane arterial with multi -modal transportation functions, construct the collector street connection through the Property between Timberline Road and the future Greenfields Street and provide low density residential and mixed use neighborhood uses. • Mountain Vista Subarea Plan. The Mountain Vista Subarea Plan was prepared to aid in fulfillment of the City's objective to "steer growth and development to the north" (See page 2). According to this specific subarea plan, the multi -modal transportation services provided by the improvement of Timberline Road are a critical link in the overall transportation network for the northeast quadrant of the City. • Transportation Master Plan 2004. This recently adopted plan describes the future Timberline Road/Power Trail Corridor as an opportunity to complete the Harmony Road/ College Avenue/Conifer Street/Timberline Road enhanced travel corridor loop, to link employment and commercial activity on Harmony Road with future development along Timberline Road and in the Mountain Vista Activity Center. Mr. Greg Byrne June 1, 2004 Page 6 of 8 The inability to construct access renders the entire Property undevelopable and results in a total loss. Not only will East Ridge lose its initial investment in the Property and all monies invested in site planning to date, it will lose all of the anticipated investment value of the Property. Even if the developer were allowed to construct the collector street from Timberline Road through the buffer, it would suffer a severe hardship: (i) the East Ridge principals, with over 30 years of combined development experience in the Fort Collins market, estimate that they will suffer a net loss of nearly $5,000,000 with the full buffer requirement, even if access were available (please see the attached spreadsheet which,outlines East Ridge's estimated losses); (ii) the vast majority of its development costs would remain the same (e.g., significant costs for on - site and off -site infrastructure, utilities, wetland mitigation and enhancement) or increase (e.g., development of the acreage outside of the buffer would require that a second point of access be provided; given the existing impediments to access, this second connection would also have to cross the buffer area and would further increase the costs of the development); (iii) ongoing property maintenance and liability costs will greatly increase (e.g., homeowners' association responsibility for continued ownership, maintenance and liability associated with a very large buffer area); (iv) the majority of such costs would have to be born by a significantly reduced number of lots; and (v) the questionable success of a neighborhood center in the interior of the project. (2) The East Ridge Overall Development Plan would substantially address an important community need and the strict application of the buffer zone standard would render the project practically infeasible. See LUC Section 2.8.2(H)(2). The community need test is met if the Property is allowed to develop in accordance with the direction of the City Plan Principles and Policies, the East Mulberry Corridor. Plan, the Mountain Vista Subarea Plan and the Transportation Master Plan 2004. On the other hand, the loss of a number of community values will be the result if this 152-acre property close to the City's core is undevelopable. Under the "Spirit of Fort Collins' City Plan Principles and Policies," the City recognizes that the Comprehensive Plan "strives to achieve a fair and proper balance among conflicting interests, to protect the rights of citizens, and to affirm community values as they have been expressed by citizens throughout the planning process." These community values include compact urban form (LU-1.1); land use patterns (T-1.1 and .HSG-1.1), new and existing roadways (T-9.2), infrastructure and capital facilities (ECON-1.3), housing supply (HSG-1.2), land for residential development (HSG-1.4), development practices (HSG-2.3) and phasing of development (GM-5.1). Following is a summary of how the development of this Property will fulfill these community values: Mr. Greg Byrne June 1, 2004 Page 5 of 8 bicycle and pedestrian traffic. The proposed Buffer Zone provides an additional 50 feet beyond the pair's already accepted buffer distance. It is not necessary, in this case, to provide a larger, approximated buffer distance based on projections or estimates of hypothetical behavior; it is clear that the nesting pair have already adapted to significant human activity within 250 feet of the nest. Compliance with Review Criteria For Modification of Standards In support of its request, East Ridge asserts that two of the alternative standards for approval of a modification request according to LUC Section 2.8.2(H) have been satisfied as follows: (1) By reason of extraordinary and exceptional situations, unique to such property, the strict application of the buffer Zone standard would result in unusual and exceptional practical difficulties, and exceptional or undue hardship upon the owner of such property, which have not been caused by the applicant. See LUC Section 2.8.2(H)(3). A number of unique situations about this Property, combined with the 1,320-foot buffer requirement for the hawk's nest, result in an almost insurmountable hardship to East Ridge. The East Mulberry Corridor Plan and the Transportation Master Plan 2004 have determined that the optimal location for the collector street access to and through the Property is in alignment with the existing entrance to the Collins Aire Park, midway between East Vine Drive and International Boulevard. Although alternate alignments have been proposed and considered by the City, representatives of various City departments came to a consensus at an interdepartmental meeting on March 18, 2004 that the collector street alignment should not be moved either north or south because of public safety concerns and the impact that a realignment would have on other planned improvements to the overall transportation network (i.e., the completion of International Boulevard and the construction of a grade -separated intersection at East Vine Drive). Because the Property's entire frontage on Timberline Road is within the 1,320-foot buffer zone, strict application of the buffer requirement would completely preclude construction of access to the Property and construction of the collector street connection through the Property. Note also that because of the lack of an existing street network, intervening railroad tracks on the north, wetlands and existing commercial development to the south and undeveloped property on the east, access is not possible from any other direction. In addition to these exceptional circumstances, it is significant that approximately 61% of the buffer zone circle is on -site resulting in the loss of approximately 77 of the 152 acres or 51% of the total site area. When coupled with the existence of an on -site wetland which requires certain setbacks and mitigation, the developable acreage is reduced by another 12 acres, leaving only 65 acres of the 152-acre Property, or roughly 43%, available for development. Mr. Greg Byrne June 1, 2004 Page 4 of 8 East Ridge and its consultants have met with the City's Planning and Natural Resources Departments' Staff several times specifically to discuss raptor nest site buffers and performance standards (March 25, 2003, August 14, 2003, February 9, 2004, February19, 2004, and May 26, 2004). The meetings with Staff were helpful; however, it was agreed over the course of these discussions that, given the severe impact of the buffer requirements, roadway alignment issues and other site constraints, a plan for this Property could not come within the bounds of the buffer and performance standards of Section 3.4.1 and would therefore require a modification of the standard. 3. Raptor Nest. In connection with its Ecological Characterization Report, Cedar Creek conducted a field survey of the Property on August 30, 2000. Cedar Creek found that "no evidence of raptor nesting activity ... was noted in any of the trees on or near the property" and concluded that "future raptor use of these trees is unlikely because of the proximity of commercial/residential developments and existing roadways." Later, in March, 2003, Cedar Creek completed two additional field surveys for raptor nests and, regarding the nest which is the subject of this request found "no evidence of recent occupation by red-tailed hawk or other raptor species." See the attached letter from Cedar Creek dated March 31, 2003. The Colorado Department of Wildlife ("CDOW") map of raptor nest locations in the Fort Collins vicinity does not identify the Property as having a raptor nest site, but does indicate that there are a surprising number of nest sites both within Fort Collins and the Growth Management Area. Please see the copy of the map attached. Also, studies conducted by the City for the East Mulberry Corridor Plan did not indicate any concern over raptor nests, nor was any concern about the presence of raptors on the Property raised by City Staff during the conceptual review meetings for the ODP in either 1999 or 2002. Swainson's Hawks are not threatened or endangered species which are afforded special protection by State or Federal. law and reputable professionals disagree about recommended buffer distances. The City's buffer zone standards are not, admittedly, based on conclusive scientific studies; the Natural Resources Department Staff has in fact stated in recent staff reports to the City's Planning and Zoning Board and City Council that "very little research has been performed on raptors nesting in urban environments." It is acknowledged by Gerald R. Craig, the former CDOW raptor specialist, and a local raptor biologist that many species and/or individual raptors adapt to urban environments and may tolerate human habitation to within 100 yards (300 feet) of their nest. Please see the ERO Report and the Recommended Buffer Zones and Seasonal Restrictions for Colorado Raptor Nests prepared by Gerald R. Craig which are attached, and the April 27, 2004 Memorandum to City Council, the May 20, 2004 Planning and Zoning Board Staff Report and the June 1, 2004 Item Agenda Summary to City Council. Finally, raptors and their nesting sites are "moveable" resources; even if a raptor were to leave a site because of development -related disturbance, the resource is not lost, just relocated. In any event, the pair of Swainson's Hawks currently nesting on the Property have already established for themselves a de facto buffer distance with which they are clearly comfortable. The nest is in a tree that is only 250 feet from Timberline Road, with vehicle, Mr. Greg Byrne June 1, 2004 Page 3 of 8 The Property is bounded on the west by Timberline Road; Timberline Road is slated for improvement to a six -lane major arterial roadway and is designated in the Transportation Master Plan 2004 as a Power Trail/Enhanced Travel Corridor. Directly across Timberline Road from the tree where the nest is located is the entrance to the Collins Aire Park, a mobile home community which is home to approximately 328 families. South of the mobile home park are several commercial properties including landscaping businesses and warehouse storage. North of the mobile home park is a heavy industrial steel fabrication. use, a railroad switching yard and the busy intersection of Timberline Road and East Vine Drive. On the north, the Property is bounded by railroad tracks and East Vine Drive. East of the Property is cultivated farmland with an approved overall development plan for residential uses. Directly abutting the Property on the south are the Barker Construction and Barker Gravel businesses. 2. Project History. Planning for development of the Property has been ongoing since 1998. The first petition for annexation and Overall Development Plan ("ODP") application were prepared and then tabled in 1999 while East Ridge negotiated with the neighbor to the south for drainage easements, since the Property has no natural drainage outfall under normal runoff . conditions.- East Ridge submitted a second ODP and petition for annexation in September, 2000, to avoid the proposed constitutional amendment referred to as the "Smart Growth Initiative" on the November election ballot. Shortly after failure of the Smart Growth Initiative, these submittals were refused by the City and both applications were returned to East Ridge while the City undertook the study of zoning and other planning issues in conjunction with a new subarea plan, the East Mulberry Corridor Plan, and to allow further discussion about the possible annexation of the railroad right-of-way adjacent to the north boundary of the Property. Thereafter, in February, 2002, the Property was annexed without the railroad right-of- way and, pending finalization and adoption of the East Mulberry Corridor Plan, was placed in the T-Transition zone and East Ridge closed on its purchase of the Property on November 26, 2002. In anticipation of the proposed new Low Density Mixed Use Residential ("L-M-N') zoning designationenvisioned by the East Mulberry Corridor Plan, East Ridge began preparation of a new ODP plan for a combination of single-family, multi -family, commercial and . neighborhood center uses with approximately 18-20 acres of open lands including a wetland, wet meadow and upland habitat. Development of the Property will also require the dedication of right-of-way for Timberline Road improvements, construction of the local share of adjacent Timberline Road improvements, and the payment of street oversizing fees. During this planning process, it was determined by the City's Natural Resources Department in April, 2003 that a large cottonwood tree on the western edge of the Property now contained a Swainson's Hawk hest which might qualify as a Special Feature pursuant to LUC Division 3.4.1 and thus require the establishment of an appropriate .buffer zone. This new issue came as a surprise to East Ridge, as the City's determination was contrary to all evidence previously compiled regarding natural features on the Property. Mr. Greg Byrne June 1, 2004 Page 2 of 8 • Developer shall have field surveys of the tree conducted in May of each year to verify the nest's use for. nesting, and shall provide the results to the City's Natural Resources Department. • Limits of Development during construction shall be the same area as the final Buffer Zone. • City -required improvements to Timberline Road, construction of the collector street access into and through the Property and the installation of utilities shall be permitted within the Buffer Zone, however, no construction shall occur between April 1 and July 15 if the nest is occupied for nesting purposes. • Maintenance of a permanent 50-foot buffer zone around the trunk of the tree where the nest is located for the life of the tree. The 1,320-foot buffer, the proposed Buffer Zone and Limits of Development, and the 50- foot permanent buffer are shown on the attached Sketch Plan and will be depicted on the ODP and each PDP approved hereafter. As part of its First Phase PDP plans and as recommended by the ERO Report, East Ridge will conserve and enhance an existing wetland, wet meadow and upland habitat, totaling approximately 18-20 acres outside of the Buffer Zone, to provide additional habitat and foraging opportunities for any hawks using the nest. Please see the Sketch Plan for a depiction of these on -site open lands. East Ridge submits this modification request for the First Phase PDP it intends to file, pursuant to LUC Section 2.8.1(2), and requests that this matter be scheduled for administrative review by the Director of Community Planning and Environmental Services during the third week of June, 2004. Facts 1. Property Description. On September 2, 2000, Cedar Creek Associates, Inc. ("Cedar Creek") prepared an Ecological Characterization Report which contained a very detailed description of the Property. A copy of the report is attached. According to the Ecological Characterization Report, the Property is a relatively flat parcel of ground that has been historically and is currently used for agricultural purposes. There are a number of aging native and non-native trees on the west side of the Property that were planted as windbreaks for the original farmsteads. The balance of the Property consists of alfalfa and grass hayfields, grassland pasture, cultivated row cropland and an overgrazed wetland, all of which have limited value for habitat or wildlife use in their current condition. The only wildlife habitat feature on the Property with any potential value is the native trees. Prior to agricultural activities, the Property was a grass prairie with forage habitat, but without trees or nesting sites. ■ LILEY, ROGERS & MARTELL, LLC • ATTORNEYS AT LAW June 1, 2004 Mr. Greg Byrne Director of Community Planning and Environmental Services City of Fort Collins 281 N. College Ave. Fort Collins, CO 80521 Re: East Ridge Project Development Plan Request for Modification of Standards Dear Greg: RECEIVgp JIT i 9 dlypm CURKNT PLANNihin' This firm represents East Ridge of Fort Collins, LLC ("East Ridge"), the owner and developer of an approximately 152-acre tract of land located at the southeast corner of East Vine Drive and Timberline Road in northeast.Fort Collins (the "Property"). An overall development plan ("ODP") for the Property is currently in the City's development review process, and East Ridge intends to file a preliminary development plan ("PDP") upon approval of this request. Request for Modification of Standards - East Ridge requests that it be granted a modification of the 1,320-foot buffer zone standard required for an on -site hawk nest pursuant to Land Use Code ("LUC") Sections 3.4.1(A)(2)(d) and 3.4.1(E)(1) and, in lieu thereof, proposes that the following buffer and conditions, which- are largely based on the recommendations of ERO Resources Corporation contained in its report dated February 12, 2004 attached hereto (the "ERO Report") apply or, in the event that buffer zone standards less restrictive than the following are adopted by the City, that such less restrictive standards apply: • Modification of the 1,320-foot buffer standard to an on -site buffer zone of approximately 300 feet around the tree where the nest is located (the "Buffer Zone"). At this time,. we envision that the Buffer Zone will encompass approximately the area depicted on the attached Sketch Plan with its final shape and area to be subject to change based on the final alignment of access. In any event, East Ridge commits that the Buffer Zone will encompass no less than 5.8 acres, which acreage equals the area of a buffer circle with a 300-foot radius. Preservation of the row of mature cottonwood trees where the nest is located. Maintenance of the "Buffer Zone" for three years after the last verified use of the nest for nesting, or until the nest is ;either destroyed or damaged beyond use by natural forces (weather events). LUCIA A. LILEY ■ JAMES A. MARTELL ■ TODD W. ROGERS THE PETER ANDERSON HOUSE ■ 300 SOUTH HOWES STREET • FORT COLLINS, COLORADO 80521 TELEPHONE: (970) 221-4455 • FAX: (970) 221-4242 June 1, 2004 Mr. Bob Barkeen City of Fort Collins Current Planning Department P.O. Box 580 Fort Collins, CO 80522-0580 RE: East Ridge Project Development Plan Request for Modification of Standards Project No.: 1894.3 Dear Bob: LarubcaivAmbitertun &Igbwrrtily &-by,nrnewal &CamnnmityP(mnutq Attached is a Request for Modification of Standards for the East Ridge Project for the buffer standards provided in Section 3.4.1(E) of the Land Use Code for raptor nests, prepared by the office of Liley, Rogers & Martell, LLC. This request is submitted pursuant to Section 2.8.1(2), which allows for this matter to be scheduled for administrative review by the Director of Community Planning and Environmental Services. With the request you will find an Application Form and appropriate fee. We respectfully request that this matter be scheduled for public hearing as soon as practicable. Thank you for your consideration of this request. Sincerely, Jim Sell Design, Inc. (e., d W-� �� - �� — Kent Bruxvoort, P.E. Project Manager cc: George Hart, Progressive Living Structures Lucia Liley, Liley, Rogers & Martell, LLC E,APROJECT FILES\LAND\1894.3\dms\cocresp\BobBarkeen_06.01.04.doc JIM SELL DESIGN. INC. 153 WEST MOUNTAIN AVENUE FORT COLLINS, COLORADO 80524 970484.1921 FAX: 970484.2443 JIMSELLDESIGN.COM