HomeMy WebLinkAboutHARMONY MARKET PUD, 1ST FILING - FINAL - 54-87C - CORRESPONDENCE - APPEAL TO CITY COUNCIL (2) •
Developnt Services .
Planning Department
City of Fort Collins
MEMORANDUM
TO: City Council Members
FROM: Ted Shepard, Project Planner
Tom Peterson, Planning Director
THRU: James M. Davis, Director of Development Services
RE: Appeal of the Harmony Market P.U.D., May 30, 1989
There are two appeals to the amended Oak-Cottonwood Farm Master Plan, Harmony
Market Preliminary P.U.D., and the Harmony Market P.U.D., Phase One Final.
The two appeals are referred to as the "multi-party" appeal, and the "Bigelow"
appeal. Both appeals raise a number of issues which merit discussion and
explanation.
There are three relevant sections of the City Code that establish the grounds
for an appeal. The three sections are 2-48 (1), 2-48 (2), and 2-48 (3). Staff has
examined the allegations in both the multi-party and Bigelow appeals for relevancy
to these three Code sections, and to the actions of the Planning and Zoning Board
and the Planning Staff. The various allegations are categorized and addressed
according to the pertinent section of the Code.
Section 2-48 (1):
"Grounds for an appeal shall be limited to the allegation that the board
committed an abuse of discretion, in that its decision was arbitrary and
without the support of competent evidence in the record."
The specific allegations that relate to Section 2-48 (1) are as follows:
1. "We feel Sanford Kern errored (sic) in stating, "Pace really is only the
size of a King Soopers, and will generate less traffic than a King Soopers."
The Project evaluated a Pace Store of approximately 100,000 square feet, far
larger than any King Soopers in Fort Collins. The added traffic impact of a
grocery store in this Project also contributes to the problem." (Multi-party)
RESPONSE: The Planning Staff believes that the Planning and Zoning Board did
not abuse its discretion, and that the board's decision was not arbitrary or
without the support of competent evidence in the record. The board's decision
on traffic impact was based on two All Development Criteria of the Land Devel-
opment Guidance System.
300 LaPorte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (303) 221-6750
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All Development Criteria Number 4: Is the project designed so that the additional
traffic generated does not have significant adverse impact on surrounding
development?
All Development Criteria Number 6: Will the project's completion not generate
a traffic volume which exceeds the future capacity of the external street sys-
tem as defined by the City?
To both of these questions, the Planning and Zoning Board answered yes. Part
of the submittal regulations for a P.U.D. is a traffic impact analysis. It is a
mandatory specification of the Transportation Department that a traffic impact
analysis address trip generation, trip distribution, trip assignment, capacity analysis,
traffic signal warrants, traffic signal progression analysis, and accident analysis.
Tthe study itself assessed the impacts of Harmony Market on the existing (1990)
and future (2010) street system in the surrounding area.
It was the conclusion of the board that the traffic impact study was a valid
analysis that met, the City's submittal standards. Based
on the results of the traffic impact analysis, the Planning and Zoning Board
found that the project met All Development Criteria #4 and #6. Therefore,the
Board did not abuse its discretion, act arbitrarily, or act without the support of the
competent evidence in the record.
2. "I believe Section 2-48 (1) was overstepped by the Planning and Zoning
Board in that they acted without sufficient knowledge or that they were misled
by the preponderance of information provided by the developer. The Board mem-
bers' statements relating to PACE building being no larger or worse than a King
Soopers, and that it was depicted as being "like Toddy's in design nature" is a
misconception." (Bigelow)
RESPONSE: As mentioned above, Staff believes that the board did not abuse its
discretion, act arbitrarily, or without the support of competent evidence in
the record. Therefore, section 2-48 (1) was not violated. If, however, Mr.
Bigelow believed that the board considered evidence which was substantially
false or grossly misleading, then such an allegation would be a ground for
appeal under section 2-48 (3) c which states:
"Grounds for such appeal shall be limited to allegations that the board
failed to conduct a fair hearing in that the board considered evidence
relevant to its findings which were substantially false or grossly mis-
leading."
Under section 2-48 (3) c, Staff believes that the traffic impact analysis was
neither "substantially false or grossly misleading". The Planning and Zoning Board
was not misled by a preponderance of information provided by the developer. The
traffic impact analysis was prepared according to City guidelines, reviewed by the
Transportation Department, & the Board and found acceptable.
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The reference that Pace was like Toddy's in design nature (Bigelow) was an
observation made by board member, Frank Groznik, in the context of his residence
being adjacent to the rear loading area of the Toddy's grocery store. The claim
that Toddy's was comparable in design to Pace was never made by the applicant or
Planning Staff, and is not found in the public record. An observation by a board
member in a public debate is not evidence that was presented to the board on
which it based its decision. The board, therefore, did not consider evidence which
was substantially false or misleading.
3. "The information provided throughout the project by the City Planning
Department was ambiguous and too often misleading. The Planning Department
changed their direction no less than five times at different gatherings throughout
the term as to whether the Amendment to the Master Plan was necessary or not.
Upon the Board directly asking the question of the Planning Department, a very
uncertain "yes" was given." (Bigelow)
RESPONSE: As an allegation cited by Mr. Bigelow under Section 2-48 (1), Staff
feels compelled to respond by stating that the action of the board was not an
abuse of its discretion, in that its decision was arbitrary and without the
support of competent evidence in the record. Perhaps, however, this allegation
would more appropriately fall under Section 2-48 (3) c, which, allows an appeal
based on the board considering evidence relevant to its findings which was
substantially false or misleading.
The information provided to the public throughout the application process was
neither ambiguous or misleading. At the first neighborhood meeting of March 2,
1989, the full 50.90 acre P.U.D. was described. The plan called for the Pace store
as well as two additional retail anchors and associated support retail. The amount
of retail and the configuration of the anchor tenants shifted the focus of the
project away from the Business Services designation allowed with the approved
Master Plan into the definition of a Community/Regional Shopping Center. This
required an amendment to the Master Plan. Staff instructed the applicant to amend
the Master Plan accordingly. Another neighborhood meeting was scheduled to
consider the amendment. The decision and application modification was neither
misleading or ambiguous.
When the scope of the project began generating concern, the applicant expressed
doubt on showing the entire shopping center as a P.U.D. As a result, the comment
was made by the applicant that a "stand-alone" Pace store would not have required
an amended Master Plan. As a "stand-alone", the Pace store would have fit the
definition of a retail shop as allowed under the Business Services designation on
the approved Master Plan. Staff, however, responded that any attempt to withdraw
the request for Preliminary P.U.D. for the 50.90 acre center would not be allowed.
Such a tactic would be viewed by Staff as an "end-run" around the neighborhood
compatibility issue. This disagreement on process between Staff and the applicant
perhaps led to the perception that information was not clear.
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Staff strongly believes that it is a more beneficial and informative planning
process to fully explore large parcels that will be built in phases over a
period of time. By reviewing the entire 50.90 acres of Parcel B-I of the
Oak-Cottonwood Master Plan, transportation, utility, and neighborhood compati-
bility issues are brought up early in the process. This is the theory behind master
planning in general as it allows for the needs of adjacent neighborhoods, utility
providers, and other affected parties to provide input at a time in the process
when such input is the most effective. By requiring the amendment to the Master
Plan, and discouraging the applicant from retreating to a "stand-alone" Pace store,
the planning process was better. Staff believes the board did not consider evidence
which was substantially false or grossly misleading.
Section 2-48 (2):
"Grounds for such an appeal shall be limited to allegations that the board
failed to properly interpret and apply relevant provisions of the Code and
Charter."
The specific allegations that pertain to Section 2-48 (2) are as follows:
1. "The traffic count considerations were not validly determined by not
evaluating the entire proposed project which includes a grocery store and other
high traffic impact uses. The traffic impact was minimized, thereby distorting
the effects on our residential neighborhood." (Multi-party)
RESPONSE: The Planning Staff believes the board did not fail to properly
interpret and apply the relevant provisions of the Code. The traffic impact
analysis was required to analyze the entire 50.90 acres of the P.U.D. and calculate
the effects based on the proposed 332,550 square feet of floor area. The scope of
the study was valid and accurate. The study was not distorted nor did the study
minimize the effects on the surrounding street system. The study met all of the
City requirements for a taffic study. Tthe board decided that the two All
Development Criteria relating to traffic impacts (#4 and #6) were satisfied.
2. "The Project is too intense for the area." (Multi-party)
RESPONSE: The board did not fail to properly interpret and apply the All
Development Criteria of the Land Development Guidance System. The two
applicable All Development Criteria are:
All Development Criteria Number 2: Is the development compatible with and
sensitive to the immediate environment of the site and neighborhood relative to
archtitecutural design, scale, bulk, and building height, identity and histo-
rical character, disposition and orientation of buildings on the lot, and
visual integrity?
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All Development Criteria Number 3: Have the conflicts that are presumed
to exist between the proposed development and the surrounding land uses, as
examined in "Administrative Guidelines" pertaining to "Land Use Conflicts,"
been effectively mitigated in the planned unit development?
The Planning and Zoning Board found that the Harmony Market P.U.D., Preliminary
and Final, satisfied these two criteria. The evidence in the record indicated
to the board that there was substantial citizen input and participation during the
review process, and that the plans evolved to reflect neighborhood concerns. With
the conflicts mitigated, the board found the project to be compatible. Therefore,
Staff believes the board did not fail to properly interpret and apply relevant
provisions of the code and charter.
3. "We question architectural compatibility with the residential neighbor-
hood." (Multi-party)
RESPONSE: By adherence to the requirement of All Development Criteria Number
2, the Planning and Zoning Board did not fail to properly interpret and apply
relevant provisions of the Code and Charter. Based on the evidence in the record,
the board found that the project is sensitive to the immediate environment of the
site and neighborhood relative to architectural design, scale, bulk and building
height.
3. "Noise and pollution considerations." (Multi-party)
RESPONSE: It is Staff's belief that the board did not fail to properly interpret
and apply relevant provisions of the code and charter in evaluating the noise and
pollution considerations.
All Development Criteria Number 19: Will the project conform to applica-
ble local state and federal air quality standards, including, but not limited
to: odor; dust; fumes or gases which are noxious, toxic, or corrosive; sus-
pended solid or liquid particles; or any air contaminant which may obscure an
observer's vision?
All Development Criteria Number 21: Can the proposed land uses and acti-
vites be conducted so that noise generated shall not exceed the minimum per-
formance levels as specified in the City's noise control ordinance? the maxi-
mum noise dB level allowed will be based uponthe land use being proposed rather
than the zoning district category for which it is a part. Detailed plans for
the elimination of objectionable noise may be required before issuance of a
building permit.
The Air Quality study was prepared by the applicant at the request of Staff to
analyze both short and long term impacts. While air pollution from the automo-
bile is not considered a "single source" pollutor, like a smokestack, the
impact study was mandated to satisfy All Development Criteria Number 19. The
results of the Air Quality Study were reviewed by the City's Natural Resources
Department. It was concluded that the anticipated traffic generated by the
Harmony Market P.U.D. would by not be the dominant source of traffic related
pollution. It would contribute on the order of 10% to levels that would otherwise
exist.
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There are currently no state or local standards for auto generated air pollu-
tion. The federal Clean Air Act does not provide the authority to consider
traffic volume in general since it is not single source pollutant. As a
result, the board evaluated the findings of the Air Quality Study, and, based
on the recommendation of the Natural Resource Department, found All Development
Criteria Number 19 to be satisfied.
The required Noise study determined that the largest noise generator in the area
was the existing traffic on Harmony Road. The noise of the roof-top mechanical
equipment will not be perceptible at the property line. The board found that the
Harmony Market P.U.D. would not generate noise levels which exceed the City's
noise control ordinance. (Section 20-23 City Code) Consequently, the board did
not fail to properly interpret All Development Criteria 21 or fail to apply relevant
provisions of the Code and Charter.
4. "The effect on property values of adjoining residential properties.(Multi-party)
RESPONSE: The Land Development Guidance System, the Comprehensive Plan, the
Land Use Policies Plan, and all sections of the Code and Charter do not, by
specific exclusion, allow the Planning and Zoning Board to evaluate property values
as a review criteria for a planned unit development. Therefore, the board did not
fail to properly interpret and apply relevant provisions of the Code and Charter.
5. "The Land Development Guidance System for Planned Development (LDGS) pro-
vides that for a major change to the Master Plan to happen, a specific period
of time needs to take place before other actions being approved under that
amendment." (Bigelow)
RESPONSE: The L.D.G.S. does not contain any provision for a specific time
period to elapse before a Preliminary of Final P.U.D. can be approved under an
amended Master Plan. Staff, therefore, believes the board did not fail to
properly interpret and apply relevant provisions of the Code and Charter, and
that the board did not commit the error as alleged.
6. "A major change is one which has to happen by the Planning and Zoning
Board, where the definition of a minor change is one capable of being made by
the Planning Department." (Bigelow)
RESPONSE: Under Section 29-526-F (2) (c) and (d) (page 41 of the L.D.G.S.),
the Planning Director is given the discretion to approve minor changes to the
Master Plan on an administrative level while major changes must be reviewed by
the Planning and Zoning Board. The amendment to the Oak-Cottonwood Master Plan
was interpreted by Planning Staff to be a major change. Consequently, the
request was forwarded to the board for action.
Staff, therefore, believes the allegation has no merit as the appropriate
procedures as outlined in the L.D.G.S. were followed. There was no failure to
properly interpret and apply relevant provisions of the Code and Charter.
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Section 2-48 (3) b:
"Grounds for such an appeal shall be limited to allegations that the board sub-
stantially ignored its previously established rules of procedure."
The allegations that pertain to Section 2-48 (3) b are as follows:
1. "Although environmental issues are not a part of the governing document,
the so called "environmental" issues were relevant to normal overall City
Planning on this project. For the City not to entertain these issues them-
selves, indicates insufficient planning information to the Board. All of the
"environmental" inputs studied - pollution, traffic, light, noise, odor, etc.
were the Project's information which the City Planners practically took as
presented. Insufficient time was not allotted through the speeded up process
to allow myself and other residents to properly investigate, study, and make
independent information available to counter the Project's data. I believe, as
the "environmental" issues are not part of the planning guide - the Board made
it a part of this planning process by studying it, hearing the issues, and
commenting on these issues. The issues now need more time for proper study by
both sides." (Bigelow)
RESPONSE: There are three issues raised in this allegation. Theses three issues
are the legitimacy of environmental review, the substance of the environmental
inputs, and the time allowed for review.
A. Legitimacy of environmental review:
The Land Development Guidance System is, in fact, the appropriate document to
review environmental issues. Page one of the L.D.G.S., under Purpose, (9) states
that:
"The purpose of this Section is to improve and protect the public health,
safety, and welfare by pursuing the following objectives: (9) To minimize
adverse environmental impacts of development."
Consequently, the board did not substantially ignore its previously established
rules of procedure. By evaluating All Development Criteria 19 through 25 of
the L.D.G.S., the board acted appropriately.
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B. Substance of the Environmental Inputs:
Staff would interpret any appeal on the substance of the environmental impact
studies (traffic, air quality, and noise) to more appropriately fall under the
purview of Section 2-48-2. Without repeating verbatim the relevant All Devel-
opment Criteria, suffice it to say that the Planning Staff believes that the
board accurately evaluated All Development Criteria 19 through 25 and thus
correctly interpreted and applied the relevant provisions of the Code and
Charter. Briefly, All Development Criteria 19 through 25 are as follows:
19. Air Quality
20. Water Quality
21. Noise
22. Glare and Heat
23. Vibrations
24. Exterior Lighting
25. Sewages and Wastes
C. Time Allowed for Review:
The Planning Staff believes that adequate time was available throughout the
seven week process for any citizen to review the impact studies. The author of
the traffic impact analysis made presentations at both public neighborhood
meetings. In fact, the project planner photo-copied the entire traffic impact
analysis on March 6, 1989, the day of submittal, for two residents (Mark Thomas
and Charles Butler). There is precedent with other projects in other neighbor-
hoods having sufficient time to become knowledgeable with the technical
analyses. It is Staff's contention that the process was not speeded up.
Therefore, Staff believes that the board did not ignore its previously established
rules of procedure.
2. "We question the propriety of the commission granting preliminary and
final approval of the Project at the same meeting date, which is not consistent
with prior procedure." (Multi-party)
"I feel the Planning and Zoning Board failed to interpret and apply relevant
(sic) provisions of the Code and Charter by accepting the Planning Departments'
concurrent handling of the Preliminary and Final phases. The LDGS states on
Page 42 - Final Plan -- "Application for a final plan may be made only after
approval by the Planning and Zoning Board of a Preliminary except, however, for
good cause shown, the Planning Director may determine if applicant for the final
plan may be made concurrently with the Preliminary Plan." (Bigelow)
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RESPONSE:
The multi-party appellants did not reference a Code section for this change. Staff
believes it falls under Section 2-48 (3) b. Mr. Bigelow, however, chose to classify
his allegation under 2-48 (2). In so doing, Mr. Bigelow alleges that the board
failed to properly interpret and apply relevant provisions of the Code and Charter.
Under the "Procedures" section of the L.D.G.S. (Section 29-526-F, page 42), the Code
grants the authority to allow a concurrent submittal of a Preliminary and Final
P.U.D. Staff believes, therefore, that the board did not fail to properly interpret
and apply relevant provisions of the Code and Charter.
It is also Staff's belief that Mr. Bigelow's allegation more closely falls under 2-48
(3) b. As such, the allegation must stand the test of whether the board
substantially ignored its perviously established rules of procedure.
The procedures section (29-526-F, page 42 of the L.D.G.S.) allows for the con-
current submittal. In the case of the Harmony Market P.U.D., the applicants
felt very strongly they needed a more timely review process and sought the
approval of the Planning Director for a combined submittal. The request was
approved. However, this approval was conditioned on the applicants providing
complete and accurate information about the project with no guarantee that the
final P.U.D. would be heard at the April P & Z meeting if unresolved issues
still remained. The Planning and Zoning Board has the authority to split
consideration of applications. An authority they have not been reluctant to use in
the past.
The Oak-Cottonwood Farm Master Plan, approved in October of 1989, established
a degree of familiarity with the project. All submittal documents, impact studies,
and revised plans were delivered to the Planning Department before the established
deadlines. The Pace site plan had been reviewed on two previous occasions for
locations on South College Avenue over a period of months. Two affected
neighborhood organization had participated in the review of the second Pace site
on College Avenue. For these reasons, the Planning Director determined that there
was sufficiently good cause to allow a concurrent submittal.
Staff believes the concurrent plan review process is part of the planning process
which did not infringe upon any citizen's right to participate. A number of
non-required meetings were held with the bordering neighborhood, before the Board
undertook consideration. The chronology of those meetings is attached for your
information. The Planning and Zoning Board did not substantially ignore its
previously established rules of procedure.
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