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HomeMy WebLinkAbout403 S WHITCOMB PUD - FINAL - 86-88 - REPORTS - APPEAL TO CITY COUNCILAGENDA ITEM SUMMARY ITEM NUMBER: 35 DATE: February 21, 1989 FORT COLLINS CITY COUNCIL STAFF: Albertson -Clark SUBJECT: Appeal of the Final Decision of the Planning and Zoning Board on January 5, 1989, Denying the 403 S. Whitcomb PUD Preliminary and Final Plan. RECOMMENDATION: Council should consider the appeal based upon the record, and after consideration, either uphold, overturn, or modify the decision of the Planning and Zoning Board. EXECUTIVE SUMMARY: On January 5, 1989 the Planning and Zoning Board denied the 403 S. Whitcomb PUD Preliminary and Final Plan on a 4-2 vote, finding that the proposed use was inconsistent with the City's Comprehensive Plan and, therefore, failed to meet Criteria #5 of the All Development Chart of the Land Development Guidance System. On January 19, 1989, an appeal of that final decision was made for Stephen McGinnis, the Appellant, by Lucia A. Liley of March and Myatt, P.C. Description of Project The 403 S. Whitcomb PUD Preliminary and Final Plan consists of a proposal to construct a 528 square foot addition to an existing garage for the sale of antiques and collectibles at a single family residence. The site is located at 403 S. Whitcomb, which is the southwest corner of the intersection of Whitcomb and Magnolia Street. The site is zoned R-H, High Density Residential. The proposed Preliminary and Final Plan was evaluated against the absolute criteria of the Land Development Guidance System. Based on this evaluation, staff found that the project failed to meet Criteria #5 of the "All Development" Point Chart of the LDGS, which states "Is the development in accordance with the adopted elements of the Comprehensive Plan, including but not limited to: Master Street Plan and other adopted street policies; Open Space Plan and other adopted open space policies?" The elements of the Comprehensive Plan that were reviewed by staff for this project were the Land Use Policies Plan and the Goals and Objectives. The Goals and Objectives document of the Comprehensive Plan states the following objectives for achieving preservation and development of unique qualities and characteristics of all neighborhoods: -2- "Protect against the intrusion of incompatible commercial and business activities which have a significant negative impact upon predominantly residential areas." Other objectives for achieving maximum compatibility between land uses are: "Protect the character of new and existing residential neighborhoods against intrusive and disruptive surrounding development," and; "Protect older residential areas from encroachment by industrial and commercial uses which may impair the viability of the residential neighborhood." These goals and objectives are intended to discourage the premature conversion of property to an inappropriate land use and to encourage the maintenance and stability of viable, older residential neighborhoods. The introduction of a commercial use, regardless of its scale or magnitude, begins to create pressure for the conversion of other residential uses, threatening the area's viability as a residential neighborhood. The Planning and Zoning Board denied the 403 S. Whitcomb Preliminary and Final Plan on a 4-2 vote at the January 5, 1989 Board meeting, finding that it was not in conformance with adopted goals, objectives and policies of the City's Comprehensive Plan. The Appeal The Appellant has filed the appeal on the following grounds: (a) Abuse of discretion, in that the decision of the Planning and Zoning Board was arbitrary and without the support of competent evidence on the record; (b) Failure to properly interpret and apply relevant provisions of the Code and Charter; and (c) Failure to conduct a fair hearing in that the Board exceeded its authority or jurisdiction as contained in the Code and Charter. These grounds of appeal are valid as set forth in Section 2-48 of the Code. Scope of Council Consideration of Appealed Preliminary and Final Plan The issues that the Council must resolve in this appeal are three -fold: 1. Did the Board abuse its discretion, in that its decision was arbitrary and without the support of competent evidence on the record? 2. Did the Board fail to properly interpret and apply relevant provisions of the Code and Charter? 3. Did the Board fail to conduct a fair hearing in that it exceeded its authority or jurisdiction as contained in the Code and Charter? Cite -orney • SIB _�c M E M O R A N D U M Cit-v of Fort Collins DATE: February 17, 1989 TO: City Councilmembers FROM: Stephen J. Roy, City Attorney4( RE: Appeals Procedure/403 South Whitcomb P.U.D. This is an appeal by Stephen McGinnis of a Planning and Zoning Board decision on January 5, 1989, regarding property located at 403 South Whitcomb. APPEALS PROCEDURE Preliminary Considerations The procedure for appeals to City Council is established in the Code at Chapter 2, Article II, Division 3, a copy of which is attached for your reference. Also attached is a copy of Ordi- nance No. 174, 1988, which recently amended the Code regarding the appeals procedures. Any "party -in -interest" may appeal to City Council the final decision of any board or commission to which the appeal proce- dures are applicable. Proper grounds for such appeal, as set forth in Section 2-48 of the Code, must be alleged. The Code provides that any appeal to the City Council is an appeal on the record of the hearing before the board or commis- sion. The record is to include: (1) the detailed minutes of the proceeding before the board or commission; (2) all exhibits received by the board or commission; and (3) a verbatim trans- cript of such proceedings before the board or commission, at the option and expense of any party -in -interest. New evidence is not to be considered on appeal. Prior to the actual consideration of the appeal and after the introduction of the agenda item, the appeal process should be explained to those in attendance. I would be glad to handle that introduction, if the Mayor so desires. Following the introduc- tion, Council should take up the question of whether the stated grounds for appeal are sufficient. This should be done by motion. The determination of the sufficiency of the grounds should be made according to the criteria in Section 2-48 of the Code, which are: ,00 LaPorte Avenue - P. O. Box 580 - Fort Collins, CO 80522-0580 - (303) 221-6520 City Councilmembers • February 17, 1989 Page 2 (1) Abuse of discretion, in that its (the board's) decision was arbitrary and without the support of competent evidence in the record. (2) Failure to properly interpret and apply relevant provisions of the Code and Charter; (3) Failure to conduct a fair hearing in that: a. The board or commission exceeded its authority or jurisdiction as contained in the Code and Charter. b. The board or commission substantially ignored its previously established rules of procedure; C. The board or commission considered evidence relevant to its findings which was substan- tially false or grossly misleading; or d. The board or commission improperly failed to receive all relevant evidence offered by the appellant. The stated grounds in this appeal are as follows: (1) Abuse of discretion, in that the decision of the Planning and Zoning Board was arbitrary and with- out the support of competent evidence in the record. (2) Failure to properly interpret and apply relevant provisions of the Code and Charter. (3) Failure to conduct a fair hearing in that the Board exceeded its authority or jurisdiction as contained in the Code and Charter. It is my opinion that the grounds for appeal appear to conform to Section 2-48 of the Code, but the ultimate determination of this question is up to Council. As provided in Section 2-48 of the Code, if the Council deter- mines that the appeal is founded upon legitimate appealable grounds, the Council should next consider the particular allega- tions of error. Presentations relevant to other allegations should be made in the order of presentation established in Sec- tion 2-55 of the Code. The time for presentations may be limited so as to eliminate presentations or discussions that are inordi- nately time-consuming or unnecessarily repetitious. According to Section 2-55 of the Code, the order of procedure is as follows: 0 • 0 City Councilmembers February 17, 1989 Page 3 (1) Explanation of the nature of the appeal and pre- sentation by City staff. (2) Presentation of argument by the appellant and any party in interest in support of the appellant. (3) Presentation of argument by any party in interest who is an opponent of the appeal. (4) Motion, discussion and vote by Council. Parties -in -interest may designate one or more speakers to present summary and argument on their behalf. All participants must limit presentations to arguments or summary of the evidence presented at the lower board or commission. As mentioned above, new evidence should not be received at the hearing as to any of the grounds for appeal. The same rule should apply to all other parties in interest besides the appel- lant. The applicable law to be applied in making the decision consists of the relevant portions of the LDGS. The LDGS provides, in Section 29-526(D)(5) as follows: 5. Is the development in accordance with the adopted elements of the Comprehensive Plan, including but not limited to, Master Street Plan and other adopted street policies, Open Space Plan and other adopted open space policies? The pertinent portions of the LDGS and the Comprehensive Plan and the Goals and Objectives are attached to or cited in the Agenda Item Summary for your use in making your decision. Upon conclusion of the presentation of the appeal, Council should vote to uphold, overturn or modify the decision of the Board. SJR:sam Attachments • ADMI]NISTRATION 3) Consideration of water and real property acquisitions by the city restricted to con- sideration of appraisals and other value es- timates and consideration of strategy for the acquisition of such property. (c) No Final legislative action shall be taken by the city in executive session. Such final legisla- tive action may be taken only in an open meeting. (d) Executive sessions shall be closed to the general public, but the City Council may permit any person or group to attend such sessions. Code 1972. § 2-2(B)) Charter reference —Executive session, Art. II, § 11. Cross reference —Personnel. pensions and retirement. Ch. 21, Sec. 2-31. Open meetings. Except as otherwise provided 'herein, all regu- lar and special meetings of the City Council shall be open to the public. The City Council shall have the power to cause persons to be removed from a City Council meeting if any person fails to com- ply with the requirements of the presiding officer in maintaining order during the meeting. (Code 1972, § 2.2(C)) Secs. 2-32-245. Reserved. DIVISION 3. APPEALS PROCEDURE' Sec. 2-46. Definitions. The following words, terms and phrases, when used in this Division. shall have the meanings ascribed to them in this Section. 'Croea referenew—Appals from the Liquor Licensing Au- thority. § 3.36; appals from the Building Review Board may be heard by the City Council, 1 5-312; appeals from the deer lion of the city regarding alarm permits to the City Council, § 15.36; appeals from the determinations of the Building Re- view Board regarding alarm permute to the City Council, § 15.411bi; disapproval of pawnbroker's license may be appealed to the City Council- § 15-265(c> applicant for license regard- ing places of entertainment may appeal the decision to the City Council, § 15.298; appeals from the denial of the second- hand dealer's license to the City Council, § 15-318; appeals for denial of a license for a mobile home park may be appealed to the City Council, § lM6. 3upp. No. 1 161 -i 6 .-appellant shall mean a party -in -interest who has taken an appeal from a board or commission to the City Council by the filing of a notice of appeal. .-applicant shall mean the person who or orga- nization which submitted the application to the board or commission whose decision has been appealed. Final decision shall mean the action of a board or commission by vote of a majority of its mem. bers when no further rehearing is available be- fore such board or commission. New evidence shall mean any evidence relating to the proposal or application which was the sub- ject of final decision by a board or commission and which was not presented at the hearing be- fore such board or commission. Party -in -interest shall mean a person who or organization which has standing to appeal the final decision of a board or commission. Such stand- ing to appeal shall be limited to the following: (1) The applicant; (2) Any party holding a proprietary or posses- sory interest in the real or personal prop- erty which was the subject of the decision of the board or commission whose action is to be appealed; (3) Any person to whom or organization to which the city mailed notice of the hearing of the board or commission; (4) Any person who or organization which sent written comments to the board or commis- sion prior to the action which is to be appealed; (5) Any person who appeared before the board or commission at the hearing on the action which is to be appealed; (6) The City Council as represented by the re- quest of a single member of the City Council. (Code 1972. § 3A-2) Cross reference —Definitions and rules of construction gen- erally, i 1.2. 0 • 5 247 FORT COLLINS CODE Sec, 2-47• Certain appeals to be taken to City Council. Appeals from the following boards and commis. sion, permitted under the provisions of this Di- vision, shall be taken to the City Council in the manner as set forth in this Division: (1) Building Review Board; (2) Fire Board of Appeals; (3) Landmark Preservation Commission; (4) Planning and Zoning Board; (5) Storm Drainage Board; (6) Zoning Board of Appeals. (Code 1972, § 3A.1) Editor's note —Subsection (4) formerly referred to the BWld. ing Contractor Licensing Board, which is no longer in exis. tence, being replaced by the Building Review Board pursuant to Ord. No. 93, 1987. The editor has, therefore, deleted former subsection (4) and has renumbered subsections (5)-47) as (47 -46). Cross references —Building Review Board, § 2-101 et seq.; Landmark Preservation Commission, § 2.276; Planning and Zoning Board. § 2.351; Storm Drainage Board, § 2.411; Zon- ing Board of Appeals, § 2.441. Fire Board of A 9.2(1), 9-3. Appeals, 4 § Sec. 248. Appeal of final decision permitted A party -in -interest may appeal to the City Coun- cil the final decision of any board or commission to which this appeal procedure applies in the man- ner provided in this Division. Grounds for such appeal shall be limited to allegations that the board or commission committed one (1) or more of the following errors: (1) Abuse of discretion, in that its decision was arbitrary and without the support of com- petent evidence in the record; (2) Failure to properly interpret and apply rele- vant provisions of the Code and Charter; (3) Failure to conduct a fair hearing in that: C. The board or commission considered evidence relevant to its findings which was substantially false or grossly mis- leading; or d. The board or commission improperly failed to receive all relevant evidence offered by the appellant. (Code 1972, § 3A-3; Ord. No. 124, 1987, § 1, 9.1-87) Sec. 2-49. Filing of notice of appeal. An appeal shall be taken by filing a notice of appeal of the final decision of a board or commis. sion to which this Division applies with the City Clerk within fourteen (14) days after the action which is the subject of the appeal. Such notice of appeal shall include the following: (1) The action of the board or commission which is the subject of the appeal; (2) The date of such action; (3) The name, address, telephone number and relationship of the appellant to the subject of the action of the board or commission, (4) The grounds for the appeal, including spe- cific allegations of error to be considered on appeal. (Code 1972, § 3A-4) Sec. 2.50. Review of notice of appeal by City Attorney. Within five (5) working days of the date of the filing of the notice of appeal, the notice shall be reviewed by the City Attorney for any obvious defects in form or substance. The City Clerk shall notify the appellant in writing by certified mail of any such defect in the notice of appeal within ten (10) working days from the date of filing of the notice of appeal. (Code 1972, § 3A-5) a. The board or commission exceeded its Sec' 251. Amended notice of appeal Permitted. authority or jurisdiction as contained An amended notice of appeal may be filed by in the Code and Charter; the appellant at any time prior to the time for b. The board or commission substantially mailing by the City Clerk of notice of the appeal ignored its previously established rules to other parties -in -interest as contained in § 2.54. of procedure; Supp. No. 1 162 I a -\D.MINISTRATION Such amended notice of appeal shall be :n the -ame form as the original notice of appeal. Code 1972. � 3A-6) Sec. 2-52. Cost of appeal. The appellant shall be charged a fee of seventy- five dollars $75.) for the cost of the appeal to be paid to the City Clerk at the time of the filing of the notice of appeal. Code 1972, § 3A-7) Sec. 2-53. Record on appeal. Any appeal to the City Council shall be an appeal on the record of the hearing before the board or commission. The record provided to the City Council shall include the following: (1) Detailed minutes of the proceedings before the board or commission from which the appeal has been taken; (2) All exhibits received by the board or com- mission at the proceedings; (3) A verbatim transcript of such proceedings before the board or commission, or any por- :on thereof, at the option and expense of any party -in -interest. (Code 1972, § 3A-8) Sec. 2-54. Scheduling of the hearing. In the event of an appeal, the City Clerk shall schedule a date for hearing the appeal before the City Council as expeditiously as possible. The City Clerk shall provide the appellant and all other parties -in -interest fourteen (14) days' written no- tice of the date, time and place of the hearing as well as the grounds for the appeal as contained in the written notice of appeal. (Code 1972, 4 3A-9) Sec. 2-65. Procedure of the hearing. (a) At the hearing on the appeal by the City Council, the following procedure shall be followed. (1) There shall first be a determination by the City Council, by majority vote of its mem- bers, whether the written grounds for ap- peal conform to the requirements of 1248. Supp. No. 4 256 If the grounds do not so conform, the ap- peal shall be denied. (2) If the grounds do so conform, the City Coun- cil shall next consider any allegation that the board or commission improperly failed to receive all relevant evidence offered by the appellant as described in § 2-48(3,d. If the City Council finds that such error oc- curred, it shall remand the matter back to the board or commission for rehearing in light of the previously excluded evidence. (3) If the City Council finds that such error regarding the failure to receive evidence did not occur, it shall then consider the merits of any additional allegations of error which conform to the requirements of § 2-48. (b) The presentation of evidence and argument on the merits of the appeal shall be made in the following order, subject to such limitations, in time and scope as may be imposed at the discre- tion of the Mayor: (1) Explanation of the nature of the appeal and presentation by city staff-, (2) Presentation of evidence and argument by the appellant; (3) Presentation of evidence and argument by opponents of the appeal; (4) Public discussion; (5) Motion, discussion and vote by the City Council. (Code 1972, § 3A-10; Ord. No. 124, 1987, § 2, 9-1-87) Sec. 2458. Alternative actions available to the City Council. The City Council shall consider an appeal based upon the record on appeal and relevant provisions of the Code and Charter. New evidence shall not be considered on appeal. At the conclusion of such hearing, the City Council shall uphold, overturn or modify the decision of the board or commis- sion; provided, however, that the City Council 163 Cl § 2-56 FORT COLLINS CODE may instead remand the matter for rehearing as provided in § 2.55(aX2). (Code 1972, § 3A-11; Ord. No. 124, 1987, § 3, 9.1.87) Secs. 2-57-2.70. Reserved. ARTICLE III. BOARDS AND COMMISSIONS' DIVISION I. GENERALLY Secs. 2-71-2-80. Reserved. DIVISION 2. AIRPORT AUTHORITY Sec. 2-81. Creation. There shall be and is hereby created the Fort Collins -Loveland Airport Authority, pursuant to the state Public Airport Authority Act hereafter referred to in this Division as the authority. (Ord. No. 158, 1986, § 1, 11-4-86) Sec. 2-82. Membership; term. a) Except as otherwise agreed between the cit- ies of Fort Collins and Loveland, the board of commissioners of the authority shall consist of six (6) members. three 13) members to be appointed by the City Council of the City of Loveland and three (3) members to be appointed by the City Council of the City of Fort Collins. Such appoint- ments shall be made by separate resolutions of the respective municipalities. (b) Appointments shall specify the term of of- fice of each individual in order to achieve over - •Charter referencw—Appaiotiw boards, Art. IV, § 1; Water Board. Art. XH. 17. Cross references—Opae anatings, 12.621 st seq.; all meet. ings of boards of the city at which formal action is taken shall be open to the public except certain meetings of the Water Board. the Personnel Board and the Building Review Board, 1 2.656; Board of Elections created, § 7.26; Personnel Board created, § 21-26; Board of Trustees of the Firefighters' Pen. sion Plan, § 2142; Board of Trustees of the Police Officers' Pension Plan created, § 21.57; Retirement Committee creat- ed, § 21.86 et seq.; Liquor Licensing Authority established, 1 3.31 et seq.; Massage Licensing Authonty created, § 16.16 st seq. Supp. No. 4 164 lapping tenure. Each member shall serve a term of four (4) years without compensation. (c) All members shall be subject to removal by each respective City Council. If a vacancy occurs on the authority, it shall be tilled by the respec- tive City Council for the remaining unexpired portion of the term. (Ord. No. 158, 1986, § 1, 11-4.86) Sec. 2-83. Functions. The authority shall exercise all of the powers and perform all of the duties and functions of an airport authority, as set forth in Title 41, Article 3, C.R.S. (Ord. No. 158, 1986, § 1, 11.4.86) Sec. 2-84. Officers. The authority shall elect officers pursuant to the state Public Airport Authority Act. (Ord. No. 158, 1986, § 1, 11-4-86) Sec. 2-85. Right, title and interest to remain with cities. Nothing in this Division shall be construed to assign, convey or otherwise transfer to the au. thority any right, title or interest in the Fort Collins -Loveland Municipal Airport or any im- provements situate thereon, nor to grant to the authority any of the rights, privileges, powers or functions of an authority as they apply to the airport, but all of such matters are hereby re- served unto the cities, except as may hereafter be granted by separate agreement or instrument. (Ord. No. 158, 1986, § 1, 114-86) Sec- 2 M Minutes; annual report; work plan It is required that minutes be kept for each authority meeting and that such mir.,;-es be Filed with the City Clerk of each municipality prior to the next regular meeting of the authority. On or before January 31 of each year, the authority shall file a report with the City Clerk of Fort Collins setting forth the activities of the author- ity for the previous year. On or before November 30 of each year, the authority shall file a work 16 0 • ORDINANCE NO. 174, 1988 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 2-53 AND SECTION 2-55 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO APPEALS PROCEDURE WHEREAS, the Council of the City of Fort Collins has determined that it is it the best interest of the citizens of the City that Section 2-53 and Section 2-55 of the Code of the City of Fort Collins be amended regarding the procedure for the bringing of appeals to the City Council. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Code of the City of Fort Collins is hereby amended as follows: Section 1. That Section 2-53(2) of the Code of the City of Fort Collins is hereby amended to read as follows: (2) All exhibits, including, without limitation, all writings, drawings, maps, charts, graphs, photographs and other tangible items received or viewed by the board or commission at the proceedings; Section 2. That Section 2-55(b) of the Code of the City of Fort Collins is hereby amended to read as follows: (b) The presentation of argument on the merits of the appeal shall be made in the following order, subject to such limitations, in time and scope as may be imposed at the discretion of the Mayor: (1) Explanation of the nature of the appeal and presentation by city staff; (2) Presentation of argument by the appellant and any party in interest in support of the appellant; (3) Presentation of argument by any party in Interest who is an opponent of the appeal; and (4) Motion, discussion and vote by the City Council. Section 3. That Section 2-55 of the Code of the City of Fort Collins is hereby amended by the addition of a new subsection (c), to read as follows: (c) No person making a presentation to the City Council shall be subject to cross-examination except that members of the City Council and the City Attorney may inquire of such person for the purpose of eliciting information and for the purpose of clarifying information presented. 6 ti, • Introduced, considered favorably on first reading, and ordered Published this 5th day December, A.D. 1988, and to be presented for final passage on the 20th day of December, A.D. 1988. Mayor ATTEST: KlJCity Cl Passed and adopted on final reading this 20th day of December, A.D. 1988. Mayor Ll ATTEST: 1 \,e City Clerk DeMopment Services • City of Fort Collins DATE: Planning Department February 16, 1989 MEMORANDUM TO: Members of City until THRU: Tom Pet o"niirector ' James M. Davis, Director of Development Services FROM: Sherry Albertson -Clark, Senior Planner 9 RE: Staff Response to Appeal of 403 S. Whitcomb PUD Preliminary and Final Plan The following is a response to the issues specified in the Notice of Appeal filed on January 19, as well as those supplemental items listed in a February 15 letter from the appellant's attorney. Please note the items that are direct citations from the Notice of Appeal. The staff response to each item is underlined. A. "Abuse of discretion, in that the decision of the Planning and Zoning Board was arbitrary and without the support of competent evidence in the record." Appellant's attorney further alleges the following: "Although the staff cited three specific goals of that document (Goals and Objectives Document) to support their assertion, no competent evidence was introduced to show the relevance of these goals to this specific project." "Statements unsupported by any evidence were made by staff and Boardmembers that commercial uses have a negative impact on older residential neighborhoods." "Moreover, the staff and Board failed to address and consider the issue of the impact on the residential neighborhood of existing renter -occupied structures versus owner -occupied structures with limited commercial uses." Staff Response: The Planning and Zoning Board properly considered the evidence in the record in _making the decision to deny the 403 S. Whitcomb PUD Preliminary and Final Plan. The obiectives cited by staff support the goal of achieving preservation and development of unique qualities and characteristics of all neighborhoods. These goals and obiectives are intended to discourage the premature conversion of 300 LaPorte Avenue • P.O. Box 580 • Fart Collins, CO 80522-0580 • (303) 221-6750 0 • Ms. Wanda Krajicek Re: 403 South Whitcomb February 15, 1989 Page 4 particular areas are located in what I believe is referred to as the buffer area. But the intent in the West Side Plan for conversion areas is to retain those areas primarily for single family uses." Note that, although the staff member informs the Board that the Plan has not yet been fully adopted by the Council, she does not state that it is inappropriate to apply the standards of the West Side Plan and, in fact, goes on to describe in detail why the project does not comply with the Plan. (4) Discussion by Boardmember Kern at the January 5, 1989 Planning and Zoning Board hearing: KERN: "Just in general. While many of the conditions that are necessary for a small business to operate in an RH zone have been met, the reasons for my voting for denial is three fold really - one, it is hard to maintain and regulate on a small scale; secondly, the use resides with the land over which we have no control and third, I think that retail commercial use is incommensurate with both the present zoning and that proposed in the Westside Neighborhood Plan." The initial two reasons cited by Mr. Kern are practical reasons which are not land use standards which need to be met in the LDGS. Of the last two statements - present zoning and the Westside Neighborhood Plan - the first is inaccurate and the last, inapplicable. The property is in the R-H zone which allows any uses approved in a PUD; the issue is not one of inappropriate zoning, but compliance with the LDGS which Mr. Kern does not discuss. The Westside Neighborhood Plan is not an adopted plan and cannot legally be the basis on which a project's approval can be given or withheld. III. Failure to properly interpret and apply relevant Provisions of the Code and Charter. See Nos. 1 and 2 above. 0 LAL/lam cc: Mr. Ms. Sincerely, MARCH & MYATT, P.C. .! Luci A. Li ey Stephen McGinnis Sherry Albertson -Clark property to an inappropriate land use and to encourage the maintenance and stability of viable older residential neighborhoods Conversion of a residential use into a commercial use creates nressure for further conversion of other residential residential owner -occupied uses threatening the neighborhood The or consists of viabilitv consideration rental of units the area's continuation as a of whether the area is is irrelevant Impacts on a neighborhood are not measured by the property ownership patterns but by the existing and proposed land uses of that neighborhood The Whitcomb Street neighborhood as well as other older residential neighborhoods in proximity to the downtown provide an ambiance of appearance and a quality of life than can no longer be recreated These neighborhoods consist of many older structures grid street networks and mature lantln s and landsca In . Such uni ue characteristics rovide an alternative to newer residential areas where it may be appropriate to introduce commercial uses into residential areas• however, the introduction of commercial uses in _ older neighborhoods threatens the viabilitv and stability of these established residential areas, as well as the very characteristics that makes these areas such an appealing part of our community, B. "Failure to properly interpret and apply relevant provisions of the Code and Charter." The appellant's attorney further alleges the following: "The Board exceeded its authority and jurisdiction in allowing the introduction into the record of a substantial amount of information pertaining to the West Side Plan, discussing specific elements of the West Side Plan and taking the West Side Plan into consideration when voting on the project." Staff Response: The Planning and Zoning Board was correct in evaluating this proposal against the All Development Chart of the Land Development Guidance System and denying the 403 S Whitcomb PUD Preliminary and Final Plan for failure to comply with Criteria #5 of the All Development Chart which states "is the development in accordance with the adopted elements of the Comnrehrnsivc Plan including but ^ot limited to: Master Street Plan and other adopted street Dollcies• Open Space Plan and other adopted open pace policies?" The Board's basis for denial of this groiect was the proiect's failure to comply with the All Development Criteria of the Land Development Guidance System The West Side Plan was not cited in the Board's motion to deny this proiect C. "Failure to conduct a fair hearing in that the Board or commission exceeded its authority or jurisdiction as contained in the Code and Charter." Staff Response: The Planning and Zoning Board conducted a fair hearing and was within its authority to deny the 403 S. Whitcomb PUD Preliminary and Final PUD for its failure to comply with the All Development Criteria of the Land Development Guidance System i -2- r • l PLANNING AND ZONING BOARD MINUTES JANUARY 5, 1989 0 The continued 1988, meeting of the Planning and Zoning Board for December 19, was called 300 to order at approximately 6:35 P.M., in the Council Chambers, LaPorte _Avenue, Fort Collins, Colorado. Board members Shepard, Dave present included: Chairwoman Laurie O'Dell, Sanford Kern, Jan Frank Groznik Edwards, Lloyd Jim Klataske, and Alternate Rex Burns. Members and Walker were absent. Staff members present included: Tom Peterson, Joe Frank, Ted Shepard, Linda Ripley, Sherry Albertson -Clark, Rick Ensdorff, Gail Ault, and Paul Eckman. Planning Director Tom Peterson reviewed the remainder of the Discussion Agenda which included 403 South Whitcomb, Harmony Road Access Plan, and The Timan Master Plan. #86-88 403 SOUTH WHITCOMB Sherry Albertson -Clark gave a description of the project. The applicant requested a 528 square foot addition for the sale of antiques. Steve McGinnis, applicant, stated his business involved the purchase and sale of antiques. He needed a variance for the sales. There would be no exterior storage and he would have no more than one employee. The parking problem C was resolved by the addition of two parking spaces in the backyard for personal use. Ms. Albertson -Clark noted the item was reviewed as a PUD not a home occupation due to the retail sales clement and because the RH Zoning District did not permit retail uses. The project met the required 50 percent on the point charts and the issue of parking had been resolved. The project met all requirements except compliance with the comprehensive plan; therefore, staff recommended denial. Member Edwards asked if this was a hardship case. Ms. Albertson -Clark stated we were looking at a PUD review, not a variance, and this was not reviewed on the basis of hardship. Member Kern wondered what the Westside Neighborhood Plan recommended. Ms. Albertson -Clark noted the Plan had not been adopted but this particular area was a "conservation area" and the Plan's intent was to retain single family use in the area. Member Shepard asked if the retail use was limited to the addition and if the approval ran with the land or the owner. Ms. Albertson -Clark noted it ran with the land and it was difficult to regulate the size of retail sales. Mr. Eckman noted that the approval would run with the land. ( There was no public input. J • • City Attorney - 6j"Mft, ���w Cite of Fort Collins M E M O R A N D U M DATE: January 23, 1989 TO: Wanda Krajicek, City Clerk FROM: W. Paul Eckman, Assistant City Attorney o RE: Appeal of Planning and Zoning Board Decision/ 403 South Whitcomb P.U.D. I have examined the appeal of Steven McGinnis with regard to the above -referenced matter and find no obvious defects in form or substance. WPE:whm cc: Tom Peterson, Director of Planning ,00 LaPorte Avenue • P. O. Box 580 • Fort Collins, CO 80522-0580 • (303) 221-6520 MARCH 8e MYATT, P.C. ATTORNEYS AND COUNSELORS AT LAW ART111-114 L. MARCH, JR. 110 EAST OAK STREET RAMSEY D. MYATT ROBERT W. BRANDIES, JR. FORT COLLINS. COLORADO 805242880 RICHARD S. GAST (303) 482-4322 LUCIA A. LILEY TELECOPIER (303) 482-2962 J. BRADFORD MARCH LOUISE F. MILLER January 19, 1989 Ms. Wanda Krajicek City Clerk 300 LaPorte Avenue Fort Collins, Co 80521 RE: Appeal of Planning and Zoning Board Decision on the 403 South Whitcomb PUD Dear Wanda: D JAN19'38 lC1°S'FS�IUR E, MARCH ' Ifl Ofl-1fl8.1 MAILING ADDRESS: P.O. BOX 469 FORT COLLINS. CO 80522 our office represents Stephen McGinnis who desires to appeal. to the City Council the January 5th decision of the Planning and Zoning Board (the "Board") denying a commercial use of his residence. Mr. McGinnis resides at 403 South Whitcomb, Fort Collins, Colorado 80524, telephone number 224-2436. The general grounds for the appeal based on Section 2-48 of the Fort Collins Code are as follows: 1. Abuse of discretion, in that the decision of. the Planning and Zoning Board was arbitrary and without the support of competent evidence in the record; 2. Failure to properly interpret and apply relevant provisions of the Code and Charter; and 3. Failure to conduct a fair hearing in that the Board or commission exceeded its authority or jurisdiction as contained in the Code and Charter. Additional specific information regarding the nature of this appeal will be sent to Council prior to the hearing. h i IQ�loj. t 4 Ms. Wanda Krajicek, City Clerk January 19, 1989 Page 2 It is our understanding that the next Council meeting date at which this appeal most probably could be heard is February 21, 1989. We would appreciate being notified as soon as possible of the final appeal date. Thank you. LAL/mrc Enclosure: $75.00 appeal fee pc: Stephen McGinnis • E Sincerely, MARCH & MYATT,, P.C. By ci A. Li lav • MARCH & MYATT, P.C. ATTORNEYS AND COUNSELORS AT LAW ARTHUR E. MARCH, JR. HO EAST OAK STREET RAMSEY D. MYATT ROBERT W. BRANDIES, JR. FORT COLLINS, COLORADO 80524-2880 RICHARD S. GAST (3031 482-4322 LU CIA A. LILETELECOPIER (303) 482-2962 J. BRADFORD MARCH LOUISE F. MILLER February 15, 1989 Ms. Wanda Krajicek City Clerk 300 LaPorte Avenue Fort Collins, Colorado 80521 ARTHUR E. MARCH 1909-1981 MAILING ADDRESS: P.O. BOX 469 FORT COLLINS, CO 80522 RE: Appeal of Planning and Zoning Board Decision on the 403 South Whitcomb PUD Dear Wanda: The following information is intended as a supplement to the appeal filed with your office on January 19, 1989 in the above -referenced matter. I. Abuse of discretion, in that the decision of the Planning and Zoning Board was arbitrary and without the support of competent evidence in the record: City staff cited Appellant's failure to comply with Criteria #5 of the LDGS as the ground for denial of the project. Criteria #5 requires compliance with the Comprehensive Plan, a part of which is the Goals and Objectives document. Although the staff cited three specific goals of that document to support their assertion, no competent evidence was introduced to show the relevance of these goals to this specific project. Goals cited were: (1) Protect against the intrusion of incompatible commercial and business activities which have a significant negative impact upon predominantly residential areas; (2) Protect the character of new and existing residential neighborhoods against intrusive and disruptive surrounding development; and (3) Protect older residential areas from encroachment by industrial and commercial uses which may impair the viability of the residential neighborhood. r� Ms. Wanda Krajicek Re: 403 South Whitcomb February 15, 1989 Page 2 Statements unsupported by any evidence were made by staff and Boardmembers that commercial uses have a negative impact on older residential neighborhoods. These statements are incompatible with the cited goals and objectives which do not automatically assume any commercial use is inappropriate, but rather require specific evidence and finding of "incompatible use," "significant negative impact," "intrusive and disruptive surrounding development" and uses which "impair the viability" of residential neighborhoods. Moreover, the staff and Board failed to address and consider the issue of the impact on the residential neighborhood of existing renter -occupied structures versus owner -occupied structures with limited commercial uses. II. Failure to conduct a fair hearing in that the Board or commission exceeded its authority or jurisdiction as contained in the Code and Charter. The Board exceeded its authority and jurisdiction in allowing the introduction into the record of a substantial amount of information pertaining to the West Side Plan, discussing specific elements of the West Side Plan and taking the West Side Plan into consideration when voting on the project. The Council should consider the following pertinent facts: (1) From the Staff Report of December 19, 1988: "The policies, goals and objectives have been further refined and supported in the proposed Downtown Plan and Westside Neighborhood Plan. While these plans are not adopted they do provide additional policy refinement for the older core neighborhoods." (emphasis added) Query: How can plans which have not been finalised or legally approved by Lhe CiLy provide "additional. policy ref i nemer t" in judging wliot.her a specific proposed land use legally complies w.iLh existing land use regulations? r -� Ms. Wanda Krajicek Re: 403 South Whitcomb February 15, 1989 Page 3 (2) Discussion of specific provisions of the West Side Plan and Downtown Plan taken from the December 19, 1989 Staff Report: "Both the Downtown Plan and the Westside Neighborhood Plan, identify the block on which the proposal is sought as being for residential land use. Furthermore, the Downtown Plan recommends that a business such as an antique sales be located in the existing retail core of the downtown. The West Side Neighborhood Plan, recommended for adoption by the Planning and Zoning Board in July, identifies this side of Whitcomb Street as a conservation area. The conservation area is intended Primarily for single family residential uses. Other uses allowed in the conservation area are churches, schools and public/quasi-public recreational use accessory dwelling units (basement apartments); group49 homes; and multi -family dwellings." (3) Discussion at the January 5, 1989 Planning and Zoning Board hearing: KERN: "We know that often LDGS is not always convenient for development in established neighborhoods. Its application appears to be for new ones. However, in this case there are guidelines established in the Westside Neighborhood Plan. What do they say relative to this kind of (unintelligible)?" STAFF: "First of all, I would like to clarify that the Westside Plan hasn't been fully adopted by the City Council, so therefore it is not yet an element of our Comprehensive Plan. It was recommended for adoption by your board in July. In the Westside Plan this particular area is identified as a conservation area. Apparently there was some question about that at work session. We have confirmed that i.t is in your our conservation area. the The properties that are directly tj) the east of this on the east side of Whitcomb to familiarize you with the area include Aggie Liquors, a fairly large, two story office building, and what was previously a single family home which appears to have been converted to an insurance sales office. Those Member Kern moved to deny the project based on the staff recommendalinn. Member Klataske seconded. Member Kern added that he voted against the project because it was hard to regulate and _maintain on a small scale. The retail use was not compatihlc with the neighborhood. Member Burns asked if the applicant could pursue this as a variance under the Board of Adjustment. Paul Eckman stated no, because it was a use not a property improvement. Member Burns could not support the dcnial but would support an alternative motion that limited the project. Member Edwards indicated he supported staff because the area needed to stop commercial development at some point. Member Shepard stated she was against denial because she felt the project should be approved with limitations. The other side of the street was commercial. A limited business would not impact the neighborhood adversely, in her opinion. Chairperson O'Dell supported denial to maintain the integrity of the neighborhood. Motion to deny passed 4-2 with Members Shepard and Burns voting against. #87-88 HARMONY ROAD ACCESS PLAN Rick Ensdorff introduced Ruth Clear and Eric Brakkc who will be handling his workload until his position was filled. He described the project as an effort between the City, State, and County which utilized a broad view of transportation planning. The area in question had much vacant ground so the project identified signal locations to provide efficient traffic flow. If approved the next step would be approval if an Intergovernmental Agreement. Neighborhood meetings were held. Member Kern asked if either side of 1-25 was identified for future signals and whether backup of traffic on the interstate would be corrected. Mr. Ensdorff noted signals allowed easier access and would alleviate the backup problem. Member Shepard asked about U turns on Harmony at stop lights. Mr. Ensdorff indicated the option was available. Mr. DeMathcs, the State Highway Department representative, addressed the deeded access questions. He indicated the State began buying land in 1941 to protect major highways/parkways/expressways. There was no public input. Member Edwards moved to approve the Plan. Member Kern seconded. The motion carried 6-0. e -2- 1 Oveir vent Services (� 1 / maa�mw�� Cite of Fort Coi(ins AIENIORANDUhI TO: Planning and "Zoning Board FROM: Sherry .Aibcrson-Clark, Senior City Planner t D.aTE: January 5, 1989 RE: 403 S. Whitcomb PUD Several recent developments in the application for 403 S. Whitcomb PUD have occurred and I wanted to inform you of these changes. The applicant has submitted calculations to substantiate Point Chart E "Business receiving energy conservation point3 for Service additional parking spaces for Uses" (see attached); is providing two his restrictions on the proposed PUD to own parking use and is proposing several mitigate impact on the neighborhood. Point Chart E: Based on a review of the energy calculations with Felix Lee of the Pcrmits and Inspections Division, the proposed addition would exceed the minimum requirements of the nwdcl energy code for non-residential buildings and could provide an average savings of 60",'0. Energy savings arc obtained through the use of' increased insulation and energy -efficient construction materials and through minimizing the amount of glazing in the addition. On this basis, staff is awarding the applicant four points on Point Chart E. This addition provides a total of - 50% on Point Chart E, which meets the minimum requirement for this chart. Thus, Criteria #2 of the Business Service Use category is satisfied. Parking: The applicant is proposing to provide two additional parking spaces at the west edge of the property, along Magnolia Street, for the use of his own vehicles. This parking, along with the proposed three spaces in front of the proposed addition, would provide adequate parking for the project. The Magnolia spaces and driveway cut would be required to be designed to City standards. The existing fence in this location would be relocated, being placed along the front and western sides of the proposed spaces. This would provide some screening of these spaces from the adjacent property to the west. 300 LaPorte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (303) 221-6750 0 ( 0 .- • Page Prnroscd iiusincss Restrictions: Staff has met '.cith the applicant to discuss ways of further rcducin(; the potential impacts of this project on the neighborhood. As a result, the applicant has proposed the following items as ways of further mitigating any impacts on the neighborhood that could result from the introduction of '.'I commercial use into a residential area: I. The retail use would be conducted solely by the inhabitants of the residcr.tial building and limited to one other employee. The retail use would be limited to the proposed 523 square foot addition. 3. No exterior storage of material or equipment used for the retail use would be permitted. The reasons for the staff recommendation for denial of this project were originally based on the project's failure to meet the required points on Point Chart E; failure to meet Criteria #5 of the LDGS, which requires compliance with the Comprehensive Plan; and the project's failure to satisfy Criteria =35 regarding adequate parking. The applicant has now adequately addressed the Point Chart and the parking issues. In addition, the applicant has proposed business restrictions to provide further mitigation of the impacts of the proposed commcrcial use. While staff believes that these business restrictions do mitigate the potential impacts of the proposed project, the issue ol, introduction of a commcrcial use into a residential area still exists. Therefore, staff is still recommending denial of this proposal on the basis that the project fails to meet Criteria #5 of the LDGS, which states "ls the development in accordance with the adopted elements of the Comprehensive Plan, including but not limited to: Master Street Plan and other adopted street Policies; Open Space Plan and other adopted open space policies?" w 3 5. BUSINESS SERVICE USES For All Crltera Criterion a. Transit route b. S. College corridor c. Part of center d. Two acres or more e. Mixed -use f. Joint parking i g. Energy conservation i h. Contiguity i. Historic preservation j. k. I. ' VW — Very Well Done ' POINT CHART E* Appiicable c, I* L illy II II IV IS 'he C:,'erion lac^�h C.rc:e t e Ccuect Scere s ����• ��� 20 X00 Multiplier 2 _ �X:M LIXIX -- LX____ 4 � g X X 2 3 6 X X2 3 d 6 X X X 1 - 2 0 3 3 _ 6 X 2 0 4 g X �( X 1 C 0 5 10 2 0 2 — 1 2 0 1 2 0 1112101 Percentage Earned of Maximum Applicable Points -24- Totals `� VI VN1= v1I 50 % vn 1�1 • PLANNING AND ZONING BOARD MEETING OF December 19,, 1988 . STAFF DEPORT PROJECT: 403 S. Whitcomb PUD, Preliminary and Final - #86-88 APPLICANT: Stephen McGinnis 403 S. Whitcomb Fort Collins, CO 80521 OWNER: Stephen McGinnis 403 S. Whitcomb Fort Collins, CO 80521 PROJECT PLANNER: Sherry Albertson -Clark PROJECT DESCRIPTION: A request for preliminary and final PUD approval for a 528 square foot addition to an existing garage for the sale of antiques and collectibles at a single family residence, located at 403 S. Whitcomb. The site is zoned R-H, High Density Residential. RECOMMENDATION: Denial EXECUTIVE SUMMARY: The applicant proposes to construct a 528 square foot addition to an existing garage, for the sale of antiques and collectibles. The existing residence on the site would remain. The proposal is not supported by Point Chart E "Business Service Uses" nor the "All Development" criteria of the LDGS (more specifically, compliance with the City's Comprehensive Plan and parking capacity requirements). Furthermore, the proposal is not in conformance with adopted goals, objectives and policies of the City's Compre- hensive Plan. OFFICE OF DEVELOPMENT 300 LaPorte Ave. • P 0 Box 580 • Fort Collins. Colorado 80522 • t3C3) _' c- SERVICES. PLANNING DEPARTMENT • 403 S. Whitcomb PUD - Preliminary and Final #86-88 P & Z Meeting - December 19, 1988 Page 2 10 COMMENTS 1. Backeround:* The surrounding zoning and land uses are as follows: N: RH; existing single family residences S: RH; existing single family residences E: BG; existing offices, Aggie Liquors W: RM; existing single family residences The structure located at 403 S. Whitcomb is the residence of the applicant. This proposal is for a 528 square foot addition to the existing garage to house the antique and collectible sales use. The residential use would continue. The site, which is located on the west side of the 400 block of Whitcomb, is zoned R-H, High Density Residential. The R-H District is for areas containing such uses as high density residential (single and multi -family), standard restaurants, medical clinics, office and personal service shops. Retail uses are not permitted in the R-H District. 2. Land Use: The proposed land uses were reviewed against the applicable point chart and the adopted elements of the Comprehensive Plan as follows: 1. The project was evaluated by Point Chart E 'Business Service Uses" and achieved 41% of the applicable points. This category of criteria requires a minimum of 50% of the applicable points be achieved to support the proposed land use change. Points were awarded for applicable criteria as follows: Criterion B. S. College Avenue Corridor - full points were awarded based on the site location outside of this corridor. Criterion C. Part of Center - no points were awarded since the project is outside of the Downtown (defined as the DDA district) nor is it part of a shopping center or office park. Criterion D. - Two Acres or More - no points were given since the site size is less than 2 acres. Criterion E. Mixed -use - no points were given since both the residence and the retail use would be occupied by the same user, therefore the proposed uses fails to meet the requirement that both uses be "significant." Criterion G. Energy Conservation - no points were awarded since the applicant has not sought credit for energy conservation. 1 403 S. Whitcomb PUD - Preliminary and Final #86-88 P & Z Meeting - December 19, 1988 Page 3 Criterion H. Contiguity - full points were awarded for having contiguity to existing urban development on all sides of the property. Therefore, the project fails to achieve the necessary 50% of points and to satisfy Absolute Criterion #2 of the Business Service Uses. The applicant has not provided any justification to grant a variance to this criterion. Therefore, the project is being recommended for denial based on the proposals failure to achieve this absolute criterion. 2. Based on a review of the Goals and Obiectives, Plan, staff does not believe that the or000sed land use is in accordance with the Comprehensive Plan The Goals and Obiectives document of the Comprehensive Plan states the following objective for achieving preservation and development of unique qualities and characteristics of all neighborhoods: "Protect against the intrusion of incompatible commercial and business activities which have a significant negative impact upon predominantly residential areas." Other objectives for achieving maximum compatibility between land uses are: "Protect the character of new and existing residential neighborhoods against intrusive and disruptive surrounding development," and; "Protect older residential areas from encroachment by industrial and commercial uses which may impair the viability of the residential neighborhood." These goals and objectives are intended to discourage the premature conversion of property to an inappropriate land use and to encourage the maintenance and stability of viable, older residential neighborhoods. The introduction of a commercial use, regardless of the scale or magnitude of the use, begins to create pressure for the conversion of other residential uses, threatening the area's viability as a residential neighborhood. The policies, goals and objectives have been further refined and supported in the proposed Downtown Plan and Westside Neighborhood Plan. While these Plans are not adopted, they do provide additional policy refinement for the older core neighborhoods. Both the Downtown Plan and the Westside Neighborhood Plan, identify the block on which the proposal is sought as being for residential land use. Furthermore, the Downtown Plan recommends that a business such as an antique sales be located in the existing retail core of the downtown. The West Side Neighborhood Plan, recommended for adoption by the Planning and Zoning Board in July, identifies this side of Whitcomb Street as a "conservation area." The conservation area is intended primarily for single family residential uses. Other uses allowed in the conservation area are 403 S. Whitcomb PUD - Preliminary and Final #86-88 P & Z Meeting - December 19, 1988 Page 4 churches, schools and public/quasi-public recreational uses, accessory dwelling units (basement apartments); group homes, and multi -family dwellings. Based on a .review of the Goals and Obiectives, staff finds that the proposed plan is not in conformance with adopted City goals and objectives and does not meet Absolute Criteria #5 of the "All Development" chart of the Land Development Guidance System which asks "is the development in accordance with the adopted elements of the Comprehensive Plan, including but not limited to: Master Street Plan and other adopted street policies; Open Space Plan and other adopted open space policies." Furthermore, staff believes that the introduction of a commercial use would be potentially intrusive and disruptive on the adjacent, stable residential neighborhood. 3. Neighborhood Compatibilitv: A neighborhood meeting was held on October 11, 1988 (see attached summary). Concerns raised related to the issue of commercial intrusions in residential i areas and the adequacy of parking. Both issues are discussed separately in the A land use and design sections of this report and are the basis of the staff recommendation for denial. 4. Design: The existing residence and garage are situated on a 7,500 square foot corner lot. The applicant proposes a 528 square foot addition to the front of the garage to house the antique and collectible sales. The addition would retain the same setback from the street as other existing structures in the neighbor- hood and would be finished with the same cedar siding used on the residence. The Whitcomb elevation of the addition would include a garage door, door and window. Signage would be limited to the window of the Whitcomb elevation. All existing landscaping would be retained, with the relocation of one existing plum tree. The City Forester has requested that street trees be added along the site's Magnolia frontage and the applicant has complied. Although the proposed addition would retain a fairly consistent setback with other existing homes in the area, the addition to the garage would change the residential character and appearance of the site. Most garages in the area are placed closer to the back of the lot, as is the existing garage, while the homes are approximately 20' from the back of the sidewalk. With the addition, the front of the garage is shifted 22' closer to the front of the lot. The applicant is proposing two parking spaces in front of the addition for customer parking. The applicant feels this would be adequate for the antici- pated average of one customer per hour and his intended small-scale operation. Staff is concerned that this may not provide adequate parking for customers; furthermore, there is no off-street parking provided for the residence. The only alternative for additional parking to support both customer and resident parking would be on -street. Staff has not supported the use of on -street parking as a way to justify meeting the parking requirements. Providing 1 l ` � 403 S. Whitcomb PUD - Preliminary and Final #86-88 P & Z Meeting - December 19, i 988 Page 5 customer parking on -street would compete with the needs of adjacent residen- tial land uses. Therefore, staff does not believe there is adequate off-street parking provided to support both the residence and the proposed antique and collectible sales and that Criteria #35 of the LDGS ("Does the development satisfy the parking capacity requirements of the City and provide adequate space suited to the loading and unloading of persons, materials and goods") has not been met. 5. Transportation: Both Whitcomb and Magnolia Street are local streets. A traffic impact analysis was not required because the traffic impact is considered insignificant. RECOMMENDATION The proposed commercial land use is not in conformance with adopted goals, and objectives of the City nor is it in conformance with the Land Develop- ment Guidance System in that the project fails to satisfy Criteria #5 of the "All Development" chart which requires compliance with the Comprehensive Plan; fails to satisfy Criteria #35 regarding providing adequate parking, and; fails to satisfy criterion #2 of the Business Service Use category which requires that project earn at least 50% of the points on Point Chart E. Therefore, staff recommends denial of the 403 S. Whitcomb PUD Preliminary and Final, #86-88. 77- 14-01, 11 41 �Ilu �I��tH:�� Al W-1 =I..n q�Im. • PROJECT NUMBER: P -1 je L . _/,�L-- ALL DEVELOPMENT; NUMBERED CRITERIA CHART ALL CRITERIA j APPLICABLE CRITERIA ONLY CRITERION If no, please explain Yes Na NEIGHBORHOOD COMPATABILITY 1 Social CcmocTicil!ry 2 Nelgnocrheoa Character 3 Cana use C,�nTIICTS .. .^Cverse I^''.. ... PLANS AND POLICIES Cr —. __, • ., _ ... PUBLIC FACILITIES & SAFETY o. Street Cc�,ac 10 Sacurity bantlnq 11 Water Hazaras RESOURCE PROTECTION 12. �;;,IS tk �IJ�E riaLara l T2r" . 17 Ecc>-Sersinve t,recs 3. rigrlCWiL'rC: Lcna3 � ENVIRONMENTAL STANDARDS 19 Au Qucni v 20 Water 6 uuniv 21 N-,,se 22 GI:.,e 23. Vioranons IV 24 EkTericr ;_larPf),q 25 Sewcae a wastes SITE DESIGN :2b C mmuni,v 0raon1Z0non 27 Site Orcjarnzonon 28. Natural Features 29. Energy Conservation X;Y 30 Privacy 31. Open Bocce Hrrengernent 32 Kuching re!gnt 33 \, cr .":- .;7 %!l .=mernt 3a venicu.cr Des:gn 35. Pcrklnq 36. Active kecreaTIonal Areas 37 Private uutaccr Areas 38. Peeestrian Convenience 39. Pedestrian Conflicts, !,;:< 40. L anascaornq,Open Areas 41. Lanascaping;Builaings 42 LonascapngrScreenmg X 43. Puolic Access 44 Signs -12- 9 I BUSINESS SERVICE USES i For All Critera i i j Criterion a. Transit route b. S. College corridor c. Part of center d. Two acres or more e,�Iix�ed- Nuseoint parking nergy conservation ontiguitystoricpreseniation' j. k. I. VW — Very Well Done POINT CHART E 1 Applicable Criteria Only II NI IV Circle ...5-a cn The�vm Ccrrec, c ccc e Score ti1u�t pI er ~: nr X 2101 2 IX X 0 4 8 X X 2 3 D 6 X X2® 3 6 X X20 3 D 11 2 0 3 — X- 1 .2 4 B X X 0 5 10 120 2 120 1 2 0 120 Percentage Earned of Maximum Applicable Points -24- Totals I�47vl L f �� VNI = VII Vil � 0 i0 i e e o o� ° a o oo �A Y5• Y � � � �3 :Y.t 6 I raai F Sfep , Ya�f5 Y 6�6 NEIGII13ORII00D MEETING SUNINIARY On Tuesday, October 11, 1988 at 7:00 P.M. at Dunn Elementary School. a nci,h- borhood meeting was held on the 403 S. Whitcomb PUD. In attendance at this meeting was Stevc McGinnis, property owner/developer and Sherri• Albertson - Clark, Project Planner for the City Planning Department. Six resi- dcnts; property owners attended the meeting. The meeting began with an introduction by Sherry Albertson -Clark to the purpose of the meeting and an overview of the planning review process. Mr. McGinnis then provided an overview of the proposed project, after which. questions and comments on the proposed project were addressed. The following summarizes the questions asked and responses given by the developer and his representatives and/or staff, as well as comments made by the residents. Question: If one business goes into a residential area, could others also go in? What would happen to the property values? Response: Staff replied that this is a concern and that the introduction of one commercial use could cause pressure for future conversions to non-residential uses. This area is identified on the West Side Neighborhood Plan to remain in residential use. Many factors play a role in determining property values. Question: Now is parking being handled? Would two spaces be enough? Response: Applicant responded that two would be adequate, based on his anticipated number of customers at any one time. Comment: Parking is a concern to area residents and there is no enforcement on the alley between Mulberry and Magnolia. uestion: Arc apartments inspected to determine the number of people living in them? Response: Staff replied that this type of inspection would only occur with a written complaint. Comment: View this business as having minimal impact. Think area will eventually become commercial. Would be concerned if there would be anv outside display of collectibles or antiques. Comment: If businesses go in, will eventually have to sell home. Then there wouldn't be any incentive to maintain property. Comment: Long-time residents concerned regarding change of use in the area. Response: Mr. McGinnis replied that the proposed addition would be sided with the same material to match the existing house. Question: Why are the units in the 300 block of Whitcomb habitable? • • • Res nonse: Staff replied that didn't know and wasn't familiar with that particular area. Comment: Thinks. business would be okay, an improvement for the area. Comment: Concerned about valuation of property, conversion of home to commercial. Hopes this is not a foothold for bigger businesses to come into the area. Likes the neighborhood. The meeting adjourned at 7:45 P.M. • • No Text • • 0 December 30, 1988 Mr. Felix Lee Buildinq Inspector CITY OF FORT COLLINS Box 580 Fort Collins, CO 80522 GEFROH HATTMAN INC. ARCHI7, ECT;!PLANNERS CCNSTRUCTICN MANAGEMENT 5 �11 .r S..a.'uw Road CO 80525 '13) .... RE: ENERGY CODE COMPLIANCE FOR 22X24 ADDITION TO "03 SOUTH WHITCOMB Dear Mr. Lee: FhQ following information reviews this structure for complirince to the model energy code with the intent of claiming points on the Business Service Point Chart required of the applicant by Lhc Planning Department. The building is wood frame 24.0 X 22.0 totali,rg 528 square feet. We are requesting six out of a possible eight points on the point chart in ques- tion or 75% of the amount available. To achieve these six points we contend that the design of this building, being more thermally efficient, will reduce the consumption of none re- newable fossil -type fuel, thus warranting the point chart consideration. The following summary demonstrates an average savings of 6V over the energy a build that complies with the model energy code consumes through a normal heating cycle. This building is not air-conditioned. Respectfully, GEFROH .ATT INC. F/edric jJ. Hattman Vice President kam `'++ MODEL ENERGY CODE COMPLIANCE 403 SOUTH WHITCOMB BUILDING ENVELOPE Building Footprint 528 Sq. Ft. ?Llildinq Dimensions 24.0 Ft. X 22.0 Ft. Floor to Ceiling Height of Heated Space 12 Ft. Temperature Differential 72° F. Hcat i nrl Season 6600 Dugree Days C01)1. 1,uM1'1.IAN1 Ila;e Unto Isar Ibis Uui Idin,l �r;rble Vnlucs of Surface Aggreqat(.• Walls U = 0.26 Roo F/CeiIind U = 0.07 Slab R _ 5.11 BASE CRITERIA Building U = U 'gall X Area Wall + Uo Roof X Area Roof o _ SPECIFIC BUILDING - Envelope Value Wall SURFACE AREA 0.26 x 1104 + 0.07 X 528 1632 0.198 Cedar Siding R = .8100 Insualled Sheathiriq R = 2.5000 Batt Insulation R = 13.0000 Wood Studs 24 o/c R = 4.3750 Gypsum Board 5/8'' R = .5625 Door Metal lnsUljLed R = 2.1300 Door Overhead R = 5.2600 Assume M of Wall is Solid Wood Framing R = 8.2400 Assume 90°s of Wall is Filled With Insulation R = 16.8700 Glass -Wood Frame and 5/8" Insulation Glass UG= .49oo Wall Surfaces -- Glass 30 Sq. Ft. Glass Wall 96 Sq. Ft. Solid Wall Wall 867 Sq. Ft. Void Wall Door 21 Sq. Ft. Door Door 90 Sq. Ft. Overhead Door Wall Uo = UG X Glass Area & USW X Solid Wall Area + UVW X Void Wall Area + UD X Area Door + U_ X Area Door SURFACE AREA 0.49 X 30 + 0.12 X 96 + 0.059 x 867 + O.19 x 90 + 0.46 X 21 110 14.7 + 1.1.52 + 51.153 + 17.1 + 9.66 104.133 110 = 110 = o.94 • • MODEL ENERGY CODE COMPLIANCE 403 SOUTH WHITCOMB Page 2 :WufiC i1ing 1/2" Cypsum Board R = .450 Truss R = 4.375 stir iinum Insulation Over 'iruss R = 19.000 ' I uiation R = 30.000 Assume 10% of Roof is Frr:ming R = 23.825 Assume 90% of Roof Space is Void R = 30.450 URoof = UR Area Truss + UR X Arca of Intu!,:ticn ROOF AREA = 0.42 X 53 + .032 X 475 52 _ .033 Overall Envelope U Values = U�� X A,� - l � X, ,.�r 5U %FACE Base Data U = 0. 0 ENERGY CONSUMPTION - At design differenti,;l Base Data AS X U X At = BTUH o 1632 X 0.198 X 72 = 23266 BTUH Building as Designed AS X U0 X At = BTUH 1632 X 0.075 X 72 = 8813 3TUH Hourly Savings at Design Temperature Design 8813 BTUH Base 232—a6 BTUH = •37 Savings = 63; ENERGY CONSUMPTION - Seasonal Base Data AS X U0 X DD = MBTU/Season 1632 X 0.198 X 6600 = 2.133 MBTU/Season Building as designed AS X U0 X DD = MBTU/Season 1632 X 0.075 X 6600 = 803 MBTU/Season Design _ 808 MBTU __ Seasonal Savings Base ?..133 MBTU 38% Percent of Fuel Savings 62% Per Season rr j�V-7- - STEPHEN MCGINNIS �.,403- S.WHITCOMB FT COLLINS,CO 303-224-2436 CITY OF FT.COLLINS PLANNING AND ZONING BOARD re: 403-S.WHITCOMB TO WHOM IT MAY CONCERN, I WOULD LIKE TO OPEN A SMALL SCALE ANTIQUE BUSINESS OUT OF MY HOME. I AM UNABLE TO WORK AT A REGULAR JOB DUE TO MY PHYSICAL LIMITATIONS. MY REHABILITATION CONSOLUR,LINDA PLAST ERS, AND I ARE WORKING ON A REHABILITATION PROGRAM TItAT CONSISTS OF A BUSINESS IN MY HOME. DUE TO MY PHYSICAL LIMITATIONS A BUSINESS OUTSIDE OF MY HOME WOULD NOT BE FESIBLE. I NEED TO BE ABLE TO ALTERNATE STANDING AND SITTING EVERY 20 MINUTES OR SO. I HAVE TO BE ABLE TO LAY DOWN WHENEVER NECESSARY. A BUSINESS OUT OF MY HOME WOULD ENABLE ME TO BE PRODUCTIVE AND GIVE ME AN INCOME. I BELIVE MY HOME BUSINESS WOULD NOT CAUSE MORE TRAFFIC PROBLEMS OR PARKING PROBLEMS. I'M ASKING FOR A VARIUNCE FOR MY OWN USE ONLY. I PLAN ON LIVING HERE THE REST OF MY LIFE AND I WANT TO CONTINUE TO KEEP THE QUAILITY OF MY NEIGHBORHOOD AS IT IS NOW. THANK YOU FOR YOUR TIME, �-.-t STEPHEN MCGINNIS 0 • • • 0 MODEL ENERGY CODE COMPLIANCE '10; S>OUTH WH I TCOMB fl,vie .NUOf / (:.-; I 1 I gig 1 /" -,y(),';u,ll Board L;SS it i,iium Insulation Over i"ruF, I i L i )n Assume 10.' of Roof is Frr:mi nd Assumc 9O', of Roof Si: ace is 11c; i U U R�Of = U Area Truss + U R X A,"I ' 1 �)Su i c:lt i 0n <� R I;OOF AREA ---- C.42 X 53 + .032 X 475 ;2 Overall Envelope U Values U,1 X A', U 0 ENERGY CCi;SUMP7ION - At design d i r ti 1 B ,lc D:,ta ,i.. X U X At = BTUH 0 1632 X 0.198 X 72 = 23266 BTUH Building as Designed AS Y, U0 X At = BTUH 1632 X 0.075 X 72 = 8813 3TUH Hourly Savings at Design Temperature Design 8813 BTUH Base 232— ,�6 BTUH = •37 Savings = 63 ENERGY CONSUMPTION - Seasonal Base Data AS X U0 X DD = MBTU/Season 1632 X 0.198 X 6600 = 2.133 MBTU/Season Building as designed AS X U0 X DO = MBTU/SL�ason 1632 X 0.075 X 6600 = 803 t1BTU/Season Design _ 808 MBTU _ Seasonal Savings Base 2.133 MBTU 38"' R = .450 R = 4.375 R = 19.000 R = 30.000 R = 23.825 R = 30.450 Percent of Fuel Savings 62% Per Season STEPHEN MCGINNIS i t 403- S.WHITCOMB -------J F T C O L L i N S, C 0 303-224-2436 CITY OF FT.C�OLLINS PLANNING AND ZONING BOARD re: 403-S.WHITCOMB BR A IT #� CQNGERN, WOULD LIKE TO OPEN A S.•IALL SCALE ANTIQUE $USTNESS OUT OF MY HOME. I AM UNABLE TO WORK AT A REGULAR JOB DUE TO MY PHYSICAL LIMTTAT.I'1., _ My 9FLABILITATION CQNSOLUR,LIND4 PLASTERS, AND I E1LI�'r� IC`. T4AT CONSISTS OF A l'r'::�`�'i'� 1]U ; }1' [CAL LIMITATIONS A BUSINESS u`? ak��i �qf�tu(a I N{LQ TO ii E ABLE Tp ALITE: 1���;� ��r�i?F��N �:U�pI'll 20 rircvurEs OR SO. I HAVE TO BEUQWN WH�.Ljgyr;j, A BUSINESS OUT OF MY HOME WOULD ENABLE ME TO BE PRODUCTIVE AND GIVE ME AN INCOME. I BELIVE MY HOME BUSINESS WOULD NOT CAUSE MORE TRAFFIC PROBLEMS OR PARKING PROBLEMS. I'M ASKING FOR A VARIUNCE FOR MY OWN USE ONLY. I PLAN ON LIVING HERE THE REST OF MY LIFE AND I WANT TO CONTINUE TO KEEP THE QUAILITY OF MY NEIGHBORHOOD AS IT IS NOW. THANK YOU FOR YOUR TIME, . ��j L /L• L. r-.ter STEPHEN MCGINNIS no Z nr�rn C>r OZM COE cl) rn -q z WAX y rn0 yn� �C O� �mn O O M -q m Om r- z Z m i� • 0 o Z v a) cn A W iv cD �' m c=r p n m cj. am 3 ..wc 3 <� _ OD 2 c� o wcOS� c 3cDm =r(9cD °O w� c0ncn aO�iym!CD-00 nc�ioMCD0 CD w21 a ���2.D)o=7 joCDCD sa w c C -� -.a —3 ,, 3 cn 0.0 r:w a 0-3 c m �`� E CCD'- o�� an^- m-0 A O(n cD n Q ,. 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Is the development compatible with and sensitive to the immediate envi- ronment of the site and neighborhood relative to architectural design, scale, bulk and building height, identity and historical character, disposition and orientation of buildings on the lot, and visual integ- rity? 3. Have the conflicts that are presumed to exist between the proposed development and the surrounding land uses, as examined in "Administra- tive Guidelines" pertaining to "Land Use Conflicts," been effectively mitigated in the planned unit development? 4. Is the project designed so that the additional traffic generated does not have significant adverse impact on surrounding development? Plans and Policies 5. Is the development in accordance with the adopted elements of the Com- prehensive Plan, including but not limited to, Master Street Plan and other adopted street policies, Open Space Plan and other adopted open space policies? LJ Public Facilities, Services & Safety 6. Will the project's completion not generate a traffic volume which exceeds the future capacity of the external street system as defined by the City? 7. Is the development served by utilities with adequate capacity or have arrangements been made for extension and augmentation for the following services? 0 Water supply 0 Sanitary sewer 0 Electricity 0 Natural gas 0 Storm drainage 0 contiri-ed No Text • . ✓ .��-� COIL 1� • Fey �ary 15, 1989 City Council of the City of Fort Collins, Colorado Planning and Zoning Board. • Regarding 403 South Whitcomb P.U.D• 1. I am against it. 2. We are zoned as residential. 3. We bought our home 612 W. Magnolia in 1950. 4. Would revaluate our property. 5. Traffic 6. Parking which is impossible now. 7. If approved then anyone could put in a business. a. Please leave our neigborhood zuned as residential. Mrs. Florence M. Butler 612 West Magnolia � f 403 SOUTH WHITCOMB Laurie O'Dell: Sherry will you introduce the first item please. Sherry Albcxts6n-Clark: The first item is the 403 South Whitcomb PUD and this is a request for both preliminary and final approval. This request consists of a 528 s.f. addition to an existing garage located at 403 South Whitcomb. The purpose of the addition is for the sale of antiques and collectibles. The site is zoned R-1t, High Density Residential. O'Dell: Thank you. Is the applicant here to make a presentation. Steve McGinnis: Good evening. My name is Steve McGinnis and I live at 403 South Whitcomb and I would like to propose a small home business. It would be an antique purchasing service and sales. My lot is aircady zoned for business services and I'm asking for a variance for retail sales. My business would consist of a purchasing service. When a client is looking for a specific Piece of antique or collectible merchandise I would try to find the item for them. The retail sales would be small antiques and collectibles; items such as cookie jars, depression and other glass, pottery, toys, etc. This will be a vcry low-key and small-scale business. I have 25 years in the retail sales experience and eight years of antique and collectible experience. I believe this type of service and sales is very marketable. I'll be happy to comply with the home Occupation Code the City of Fort Collins has. On January the 4th I met with • Tom Peterson from the Planning and Zoning staff of Fort Collins and these arc the restrictions that were set forth: The 500 s.f. condition, no exterior storage or no more than one employee, and not a commercial institution. Duc to my disability I will have to have one part-time employee to help with lift- ing and other things I cannot do. My disability prohibits me from working a regular job or having a business outside of my home. Having a home business would enable me to be productive and give me an income. There should be a letter there in your booklet about this, about my disability. And this business will be for my livelihood. One of the main concerns of the neighborhood and the City was the parking problem that we have. During the meeting with Tom Peterson on January the 4th I believe we resolved the problem with three spaces in front for the cus- tomer parking and two spaces in the backyard for my personal use. Referring to the design, second paragraph, page 4 on the staff report: My proposed addi- tion would stay in line with the setback of the existing homes on the block, except for mine. My house sets back 10 foot further than existing houses on the block but my garage sits 30 foot closer to the front of my lot and existing garages on the block in the proposed addition setting in line with the rest of the houses on the block. I don't feel this addition or business would change the character of the residential neighborhood. The addition will be cedar -sided to stay consistent with the existing house and garage. The only sign will be in the window of the proposed addition and we plan to plant three trees on the north side of the lot as requested by the City. I plan on living here the rest of my life and would like to maintain the quality of my neighborhood. I believe my service and sales would be compatible with the rest of the neighborhood. Thank you for your time. O'Dell: Thank you Mr. McGinnis. I'm sure we'll have some questions for you . a little bit later. McGinnis: Okay. O'Dell: Sherry, will you give us the staff recommendation please. Albertson -Clark: One thing I'd like to clarify first of all. This is evaluated as a Planned Unit Development. It has been reviewed that way by staff. The purpose for that, and why this is not being reviewed as a Home Occupation, is due to th-e retail sales element of the proposal. Home Occupations do allow for a number of uses to be conducted in the home and limits things like the number of employees, the extent of square footage committed to a home occu- pation. However, retail uses, retail sales are specifically excluded from the concept of a home occupation. This property is zoned R-H, which is High Density Residential, and in that zoning district retail uses arc not permitted uses. I'll read briefly from the R-H Zone. It does permit such uses as single- family dwellings, two-family dwellings or duplexes, public and private schools, boarding and rooming houses, fraternities and sorority houses, hospitals, stan- dard restaurants, medical and dental clinics, offices and personal service shops, etc. Many of those uses do have to go through what is called a R-H conver- sion site plan and review which requires 2pproval by the P&Z Board. That process allows you to convert what is a residential use to some of these other non-residential uses. Again, retail uses are excluded from that zoning district; therefore, the applicant's only option to pursue this was through a Planned Unit Development. We did evaluate this under Point Chart E of the Land Development Guidance System which is the Business Services Uses Chart and I . have prepared for the Board an updated memo that I've given to you this cvc- ning. Based on recent discussions with the applicant we have been able to meet the required 50 percent on the Business Services Use Chart. We have worked with the applicant to come up with some energy conservation points to give the minimum 50 percent so they have now addressed that particular requirement. A neighborhood meeting was held on this project in October and there were several people that live in the area that were in attendance. The basic issues that were raised at that time were parking and the issue of a non-residential use being introduced into a residential area. As Mr. McGinnis indicated there has been some additional work done on parking since the Board's initial staff memo that you received several weeks ago. The applicant does have three spaces proposed in front of the addition to the garage. Those spaces arc located right in here. The drivecut into the spaces is actually the width of two parking stalls. There is also the potential to park a third car here which conceivably could be for long-term parking, such as an employee. The proposal then would also add two additional spaces for the use of the residences, for their own personal vehicles. Those would be introduced in this location here. Those two parking spaces that would be head in, this is Magnolia by the way along here and this is Whitcomb. In order to accommodate those spaces this fence would be slightly relocated but fencing would still be retained along the front of the spaces and along the sides so that would provide some screening to the property directly to the west. The remaining issue then that was raised at the neighborhood meeting, as well as the concern that staff has had on this project from the beginning, is the concern of land use. The introduction of a non-residential use into what is • essentially a single-family area has concerned staff. In addition to evaluating the land use on the point chart basis from the Land Development Guidance System, we do have other criteria in the Guidance System that require com- pliance with our Comprehensive Plan; that require meeting things like parking, adequate setbacks, landscaping, etc. The project at this point in staff's viewpoint has met all of those requirements with the exception of addressing compliance , wfth our Comprehensive Plan. The Plan, as you're aware, does include such things as the Land Use Policies Plan, other elements such as the Goals and Objectives. It will eventually include the Westside Neighborhood Plan and the Downtown Plan. Based on staff's review of these elements of the Comprehensive Plan we feel that the project is not supported on the basis that it is a proposal to introduce a commercial use into a residential area. On that basis staff ismrecommending-denial of Jhe-project:. ; I would like to make it clear to the Board that we do feel that we have ade- quatcly now addressed the Point Chart Requirements for the minimum 50 per- cent to support the land use from the Land Development Guidance System standpoint, and we also have addressed the parking requirements. The appli- cant, as he indicated, has proposed several other business restrictions we are supportive of. We feel that those restrictions such as limiting the number of employees, indicating that there would be no exterior storage, and also clarifying that the retail use would be limited to that addition, are all things that help mitigate the impacts on the neighborhood; however, we still are concerned about the potential impacts of introducing a commercial use into what is a residential area. Finally, I would add that we have also received one letter of opposition to the project and one phonecall and I've given the Board copies of those as well. O'Dell: Thank you, Sherry. Are there any questions of either staff or the applicant. Dave Edwards: Sherry, I'd like just to reconfirm or clarify that, though the word variance might have been used by one person or another, that we are looking at this as a PUD and not as a variance; therefore, we're not being asked to define hardship or anything like that. Is that correct? Albertson -Clark: That's correct. Sandy Kern: Sherry, we know that often the LDGS is not always convenient for development in established neighborhoods. Its primary application appears to be for new ones. However, in this case, there are guidelines established in the Westside Neighborhood Plan. What would they say relative to this kind of development. Albertson -Clark: First of all I would just clarify that, as the Board is aware, the Westside Neighborhood Plan has not been adopted formally by City Council so, therefore, it is not yet an element of our Comprehensive Plan. It was recommended for adoption by your Board in July. In the Westside Plan this particular area is identified as a conservation area. Apparently there was some question at your worksession about that. We have confirmed that it is in the conservation area. The properties that are directly to the cast of this on the east side of Whitcomb, to familiarize you with the area, include Aggie Liquors, a fairly large two-story office building, what was previously a single-family home that appears to be converted to an insurance sales office. Those 0 • particular areas arc located in what I believe is referred to as the buffer area. r But the intent in the Westside Plan for conversion areas, is 'to retain those areas primarily for single-family uses. Edwards: Sherry, can I" clarify one other point too and that is that a PUD, if granted, runs with the land and not the property owner. Albertson -Clark: That is correct. O'Dell: Any other questions? Jan. Jan Shepard: The retail use you have said will be limited to the addition. What will be the use of the garage behind the addition then? Albertson -Clark: You could ask the applicant to clarify that. McGinnis: The use of the garage behind the addition is simply for my bicycle and things like that. It hangs around in the garage. And my tools and small things. Shepard: Also a question about Dave's comment saying that if we approve this as a PUD that means it runs with the land, not the property owner. The implication of that is if Mr. McGinnis were to move there would be an approved retail use staying with that property. Correct? Albertson -Clark: That is correct and one of the concerns that staff has also raised in our original report is the fact that, although I think the applicant's intent is to keep this fairly small scale, that sort of thing is very difficult to regulate and someone else, if they were to acquire the property either through a lease or through outright ownership, could continue the aspect of retail sales there. The magnitude of that and the expansion of that is difficult for us to keep tabs on or to really regulate until such time as we receive complaints from individuals that might live in the area. In other words, someone could come in and use that square footage, that 528 s.f. area, for a retail use, use the parking that's proposed and maybe existing, and if the use changed slightly and became more impact in terms of the intensity, the numbers of cars there, it could create some negative effects on the neighborhood if there were inadequate parking. We think the parking proposed is adequate for the kind of use that Mr. McGinnis is proposing; however, there is the potential that could expand somewhat if someone else were to own the property. Tom Peterson: If I could just expand on your questions just a minute. If the Board were to approve this in a very limited fashion, in other words, a limita- tion for example such as strictly to an antique shop, then the approval that Sherry talks about would be for antique shop. If, on the other hand, you approve just retail use of the facility then the retail use, which is just about anything, would run with the land so you can be more restrictive. Shepard: Could we approve it with the limitation it apply only to Mr. McGin- nis? Paul Eckman: I don't think that would be a proper limitation really, because it's the nature of the land use you're looking at not the nature of the owner. And that was the one condition that Sherry mentioned is that we could impose, • or you could impose, a condition that it be operated by the occupant and thereby tend to keep it similar to a Home Occupation except that its got that retail component to it. - O'Dell: Any other questions? We'll open it up for public input. Is there any one in the audience who would like to make a comment or ask a question about this proposal? Seeing no one, we'll close the public input portion and bring it back to the Board for final discussion and a motion. Kern: Madam Chairman, I move that we adopt the staff's recommendation of denial for- the 403 South Whitcomb PUD based on the conclusions they have in their recommendation. Klataske: I'll second it. O'Dell: .Any final comments. Kern: Just in general, while many of the conditions that are necessary for a small business in a R-H Zone have been met, the reasons for my voting for denial is threefold, really. One, it is hard to regulate and maintain at a small scale. Secondly the use resides with the land over which we have no control. And third, I think that retail/commercial use is incommensurate with both the present zoning and that proposed in the Westside Neighborhood Plan. Rex Burns: I have a question. If this was denied can this be pursued as a variance under the Board of Adjustment? Eckman: I don't believe it could be pursued as a variance there because it's a basic. Burns: It's not a variance in size, it's rather a basic character sort of thing. Eckman: It's the land use and not the setbacks or location of property, or improvements on the property. Edwards: I'm going to support the motion though somehow the addition of 500 s.f. for this particular use in and of itself may not seem intrusive; however, in that area, and with the changes that have taken place over the last five to ten years and the commercialization that exists there, I think sooner or later we have to say no to additional commercial or retail development in predominantly a single-family residential neighborhood. It's a tough one because this appears to be really just the extension of a home occupation. Nevertheless to approve it would. have that approval run with the land regardless of the intention of this particular applicant and I think, for the protection of the neighborhood as a whole and, unfortunately at this time and on this particular property say that we don't want to see any more intrusion of commercialization into a residential neighborhood, that we have to take that stand now rather than later. Shepard: I'm not going to support the motion. I would rather approve it with limitations that we discussed; such that it be limited to an antique use and owner -occupied. I do have a concern about general commercial intrusion and this land use applying to the land after you're gone, Mr. McGinnis. However, in this particular case I would be willing to make an exception because I feel 0 • that the other side of the street is very commercial and I don't think this is a Significant- addition to any commercial intrusion in the neighborhood. And I would also hypothesize that there's a lot of rentals in the neighborhood and it's not just home owner -occupied. Therefore, I will not support the motion. O'Dell: I will support the motion. I think we need to Support ty of our older acighborhoods and indeed it is right directly across the treet� from some commercial uses but it's clearly on iylr. McGinnis' side of the street sin- gle-family residences. And I think, because this does not comply with our Comprehensive Plan, that I will support the motion. O'Dell: Any other comments? Roll call please. Burns: I was going to say that I will not support the motion and would sup- port an alternative motion with conditions. O'Dell: Now I think we're ready. Kern: Yes Edwards: Yes Klataske: Yes Shepard: No Burns: No O'Dell: Yes O'Dell: The recommendation to deny is passed 4-2. Fe0ary 15, 1989 City Council of the City of Fort Collins, Colorado Planning and Zoning Board. Regarding 403 South Whitcomb P.U.D• 1. I am against it. 2. We are zoned as residential. 3. We bought our home 612 W. Magnolia in 1950. 4. Would devaluate our property. 5. Traffic 6. Parking which is impossible now. 7. If approved then anyone could put in a business. B. Please leave our neigborhood zoned as residential. Mrs. Florence M. Butler 612 West Magnolia FEB 6 «89 I te a , 0 4/ --d �r-. / n �- I-AZI q 0