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Home My WebLink AboutEAST RIDGE PDP - MODIFICATION OF STANDARD - 33-98C - DECISION - FINDINGS, CONCLUSIONS & DECISIONNo Text City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 9 DECISION The Request for Modifications of the Standards found in Sections 3.4.1(A)(2)(d) and 3.4.1(E)(1) of the Fort Collins Land Use Code are approved. DATED THIS 5TH DAY OF AUGUST, 2004. Linda C. Michow, Hearing Officer LCM\57069.32\481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 8 their nest." City staff concurs with Mr. Craig's report in that the City's buffer standards do not take into account urban settings wherein hawks already coexist with human activity. In the East Ridge case, the fact that the hawks have located within close proximity to Timberline Road and the existing residential development to the west of the Property indicates that the hawks are more than likely "urbanized" and accustomed to human activity. The Hearing Officer further finds that the Modification Request meets Section 2.8.2(H)(3) in that strict application of the 1,320-foot buffer distance would result in exceptional and undue hardship to the Applicant and Owner of the Property. Specifically, as the uncontroverted evidence shows, imposing the 1,320-foot buffer would render more than fifty percent (50%) of the Property undevelopable. This fact, coupled with the existing wetlands area on the Property, which also requires setbacks and mitigation efforts, strongly supports the Applicant's Modification Request. Moreover, the Hearing Officer concurs with Staffs opinion that strict application of the buffer requirement would completely preclude construction of access to the Property and the proposed collector street through the Property. For these reasons, the Hearing Officer approves the Request for Modifications to Sections 3.4. 1 (A)(2)(d) and 3.4.1(E)(1) of the Fort Collins Land Use Code. SUMMARY OF FINDINGS AND CONCLUSIONS The Hearing Officer's Findings and Conclusions are hereby summarized as follows: 1. The Applicant's Request for Modifications of the Standards located in Sections 3.4.1(A)(2)(d) and 3.4.1(E)(1) of the Fort Collins Land Use Code is justified in that granting the Modification would not be detrimental to the public good and strict application of the Standards sought to be modified would result in undue hardship to the Applicant and Owner of the Property. LCM\57069.321481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 7 At the hearing, Doug Moore, environmental planner with the City, testified that the buffer standards are based on wilderness settings only and do not take into account urban settings in which raptors might nest. According to Mr. Moore, a 1,320-foot buffer is more than what the City requires in an urban setting where hawks and other raptors already exist. Hearing Officer Findings The Hearing Officer notes that no evidence was presented at the hearing in opposition to the Modification Request to reduce the buffer zone distance. The Hearing Officer further notes that every proposed development subject to Division 3.42 of the LUC must include buffer zones surrounding natural habitats and features, the purpose of which is "to protect the ecological character of the natural habitat or natural feature from the impacts of the ongoing activity associated with the development." The table ("Table") contained within Section 3.4.1(E) lists the buffer zone standards for natural habitat and features of special concern. Swainson's hawks are identified in the Table as requiring a 1,320 foot buffer distance. The Applicant's Modification Request of this 1,320-foot buffer meets the criteria set forth in Section 2.8.2(H) of the LUC. Specifically, the Hearing Officer finds that the granting of the Modification would not be detrimental to the public good in that the Applicant has incorporated ample mitigation efforts to reduce the likelihood of disturbance of the pair of Swainson's hawks. The restriction on any development activity during the nesting period (April 1 to July 15) as well as the preservation of the row of cottonwood trees where the nest is located are just two examples of how the Project seeks to mitigate any potential disturbance of the hawks' nest. The Hearing Officer also relies on the informational report prepared by Gerald R. Craig titled "Recommended Buffer Zones and Seasonal Restrictions for Colorado Raptor Nests" that the Applicant submitted into the record of the hearing. In this report, Mr. Craig notes that while a quarter mile buffer for nesting Swainson's hawks is recommended, "some members of this species have adapted to urbanization and may tolerate human habitation to within 100 yards of 2 Division 3.4 provides special protections for, among other things, natural habitats and features that are identified as such on the City's Natural Habitats and Features Inventory Map. Raptor habitat features, including nest sites, communal roost sites and key concentration areas are identified as special features warranting special protection under Division 3.4. LCM\57069.32\481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 6 some raptors can "get along" within a one to three hundred -foot buffer within urban settings. The second criterion of approval upon which the Applicant relies is Section 2.8.2(H)(2). Specifically, the Applicant asserts that the East Ridge ODP would substantially address an important community need and the strict application of the buffer zone standard would render the project practically infeasible. The "important community need" identified by the Applicant is the Project's compliance with and furtherance of policies set forth in City Plan as well as the East Mulberry Corridor Plan, the Mountain Vista Subarea Plan and the Transportation Master Plan 2004. The Applicant asserts, for example, that the Project meets the City's policies in that it decreases the potential for dispersed growth; supports effective transit and roadway systems and provides housing close to employment centers, services and amenities. The City's Planning Staff supports the Applicant's Modification Request based on the same criteria of approval identified by the Applicant. More specifically, the Staff Report states that "strict application of [the 1,320-foot buffer] would prevent access to the property from Timberline Road" while "no other opportunities exist to provide access to the site due to the location of the railroad tracks (only a grade separated crossing would be permissible to gain access to the property) or the adjacent private property, which does not include any public access." See Page 5, Planning Staff Report. As Staff notes in the Staff Report, relocating the access to the Property is not recommended because this would create an access point too close to either the intersection of Timberline and Vine Drive or Timberline and Automation Way. Having an access point too close to these intersections poses a safety hazard in that anticipated traffic volumes could not be supported. Staff also concurs with the Applicant in finding that the Modification Request addresses an important community need and that the strict application would render the project practically infeasible. Finally, the Staff Report concludes that the granting of the Modification will not be detrimental to the public good because the site will be permitted to proceed with a development application that is consistent with the development standards contained within the LUC and the Larimer County Urban Area Street Standards. LCM\57069.32\481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 5 • restrict construction of any road or season (April 1 through July 15) purposes; and utility improvements during nesting if the nest is occupied for nesting • maintain a permanent 50-foot buffer zone around the trunk of the tree where the nest is located for the life of the tree. As stated in the Modification Request, the Applicant also will conserve approximately 18 acres of existing wetland, wet meadow and upland habitat to provide additional "habitat and foraging opportunities for any hawks using the nest." The Applicant asserts in its written Modification Request that the Modification request meets two of the criteria for approval under Section 2.8.2(H) of the LUC. First, according to the Applicant, "[b]y reason of extraordinary and exceptional situations, unique to such property, the strict application of the buffers zone standard would result in unusual and exceptional practical difficulties, and exceptional or undue hardship upon the owner of such property." The Applicant argues that "[b]ecause 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." According to the Applicant, the location and alignment of the proposed collector street through the Property is preferred by City staff for safety reasons and is consistent with the City's duly adopted East Mulberry Corridor Plan and Transportation Master Plan 2004. In addition, the Applicant notes that approximately 61 % of the buffer zone circle is located on the Property, thereby resulting in a loss of approximately 77 of the total 152 acres of the site. The Applicant further argues that it will suffer a net loss of close to Five Million Dollars if the 1,320-foot buffer requirement is enforced, even if access were available through the buffer. Lucia Liley, representative of the applicant, testified at the hearing that the 1,320- foot buffer is not based on scientific evidence. She relies on the report titled "Recommended Buffer Zones and Seasonal Restrictions for Colorado Raptor Nests" prepared by Mr. Gerald R. Craig, raptor specialist, which provides that LC M\57069.32\481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 4 Modification Request. In accordance with Division 2.81 of the LUC, the Applicant has requested a modification of the 1,320-foot buffer zone standard required pursuant to Sections 3.4.1(A)(2)(d) and 3.4.1(E)(1) of the LUC for a Swainson's hawk nest located on the Property. More specifically, Section 3.4.1(A)(2)(d) requires application of the buffer zone performance standards where any portion of a development site is within five hundred (500) feet of, among others, a "raptor habitat feature" including nest sites and communal roost sites. The Property contains a hawk's nest in which a pair of Swainson's hawks is nesting. Section 3.4.1(E)(1) imposes a 1320-foot buffer zone specific to certain types of hawks, including Swainson's hawks. The purpose of the buffer zone, as stated in Section 3.4.1(E), "is to protect the ecological character of the natural habitat or natural feature from the impacts of the ongoing activity associated with development." Activities within a buffer zone are limited to restoration work, emergency activities, utility installation, pedestrian trails and recreation features. As stated in the Applicant's modification request dated June 1, 2004 ("Modification Request"), the East Ridge development contemplates a reduction of the required 1,320-foot buffer to a 300-foot buffer around the tree where the nest is located. In addition to maintaining this 300-foot buffer, the Applicant proposes to: • preserve the row of cottonwood trees where the nest is located; • maintain the 300-foot 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 weather events or other natural occurrences; conduct field surveys of the tree every May of each year to verify the nest's use for nesting; Section 2.8.1 provides, in pertinent part, that "[t]he decision maker is empowered to grant modifications to the General Development Standards contained in Article 3 and the Land Use Standards and Development Standards contained in Article 4... for: (1) overall development plans and/or project development plans which the applicant intends to file, provided that such plans are in fact filed with the Director as development applications within one (1) year following the determination of the decision maker on the request for the proposed modification..." LC M167069.32\481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 3 (3) the granting of a modification from the strict application of any standard would, without impairing the intent and purpose of this Land Use Code, substantially alleviate an existing, defined and described problem of city- wide concern or would result in a substantial benefit to the city by reason of the fact that the proposed project would substantially address an important community need specifically and expressly defined and described in the city's Comprehensive Plan or in an adopted policy, ordinance or resolution of the City Council, and the strict application of such a standard would render the project practically infeasible; or (4) by reason of exception physical conditions or other extraordinary and exception situations, unique to such property, including but not limited to, physical conditions such as exceptional narrowness, shallowness or topography, or physical conditions which hinder the owner's ability to install a solar energy system, the strict application of the standard sought to be modified would result in unusual and exceptional practical difficulties, or exceptional or undue hardship upon the owner of such property, provided that such difficulties or hardship are not caused by the act or omission of the applicant; or (5) the plan as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be modified except in a nominal, inconsequential way when considered from the perspective of the entire development plan, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. LC M\57059.32\481600.1 City of Fort Collins — Type 1 Administrative Hearing Findings, Conclusions, and Decision July 22, 2004 Administrative Hearing East Ridge PDP — Modification of Standard #33-98C Date of Decision: August 5, 2004 Page 2 PUBLIC HEARING: The Hearing Officer, presiding pursuant to the Fort Collins Land Use Code, opened the hearing at approximately 5:10 p.m. on July 22, 2004 in the City Administrative Building located at 281 N. College Avenue, Fort Collins, Colorado. NOTICE OF PUBLIC HEARING: Evidence presented to the Hearing Officer established that the July 22, 2004 administrative hearing was properly posted, legal notice mailed and notice published. RECORD OF HEARING: The Hearing Officer accepted into the record the following evidence: (1) Planning Department Staff Report; (2) Modification request, and other supporting documents submitted by the Applicant and the Applicant's representatives; (3) sign -in sheet for public testimony; and (4) an audio tape of the administrative hearing. The City of Fort Collins Land Use Code ("LUC"), and the formally promulgated policies of the City are made part of the evidence and record considered by the Hearing Officer. FINDINGS OF FACT Based on the evidence presented at the hearing, the Hearing Officer finds the following: 1. The Applicant has met the Criteria of Division 2.8 - Modifications of Standards. Modification Criteria. In accordance with Section 2.8.2 of the LUC, a modification of any standard may only be granted where the Hearing Officer finds that: (1) granting of the modification would not be detrimental to the public good, and that one of the following factors exists: (2) the plan as submitted will promote the general purpose of the standard for which the modification is requested equally well or better than would a plan which complies with the standard for which a modification is requested; or LC M\57069. 32\481 600, 1 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: APPLICANT: OWNER: HEARING OFFICER: SUMMARY OF DECISION July 22, 2004 East Ridge Project Development Plan — Modification of Standard; #33-98C Jim Sell Design 153 West Mountain Avenue Fort Collins, Colorado 80524 East Ridge of Fort Collins, LLC 4190 North Garfield Avenue Loveland, Colorado 80538 Linda Michow, Esq. Gorsuch Kirgis LLP Tower I, Suite 1000 1515 Arapahoe Street Denver, Colorado 80202 Approval PROJECT DESCRIPTION AND PROCEDURE The project, East Ridge Project Development Plan (PDP), is a mixed -used development that is subject to an overall development plan containing residential, commercial and parks and open space uses. The Project is located on 152 acres at the southeast corner of Vine Drive and Timberline Road (the "Property"). Prior to formally submitting the East Ridge PDP, the applicant is requesting approval to modify two related provisions of the Fort Collins Land Use Code; Section 3.4.1(A)(2)(d) concerning Raptor Habitat features, and Section 3.4.1 (E)(1) concerning Buffer Zone Performance Standards. This request arises from the discovery on the west side of the Property of a pair of Swainson's hawks nesting in a tree along a stand of cottonwood trees. The modification request is submitted pursuant to Division 2.8, Modification of Standards, of the City of Fort Collins Land Use Code. ZONE DISTRICT: The property is zoned LMN — Low Density Mixed Use Neighborhood Zone District. LCM\57069.324481600.1 281 North College Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6750 • FAX (970) 416-2020