HomeMy WebLinkAboutKING SOOPERS #146, MIDTOWN GARDENS MARKETPLACE (FORMERLY KMART REDEVELOPMENT ) - PDP - PDP160043 - LEGAL DOCS - LEGAL COMMUNICATIONo LILEY LAW OFFICES, LLC a
March 1, 2017
Brad Yatabe
Assistant City Attorney
300 Laporte Avenue
Fort Collins, CO 80521
Re: Ki.ng Soopers #146-Midtown Gardens Marketplace,
(formerly Kmart Redevelopment), PDP 160043
Brad:
This �rm represents King Soopers on its applieation for redevelopment of the
former Kmart site at the northwest corner of the interseetion of College Avenue and
Drake Road. The site is in the General Commercial (G-C) zoning district, the Transit-
Oriented Deyelopment (TOD) Overlay Zone; and within the boundaries of the Midtown
Plan area.
Knowing of Kmart's future vacation of the site long in advance, King Soopers
began planning for redevelopment over three and one-half years ago by getting involved
in the Midtown Plan process. Its representatives reviewed drafts of the plan, attended
meetings and interacted with staff regarding the Midtown Plan's intent and impaet on
redevelopment of its site. Of particular concern to King Soopers at that time were the
Midtown Plan's prototype development scenarios and the goals regarding parking and
building placement near the street. King Soopers was assured throughout 1he process,
however, that the Midtown Plan was a policy guide, and that it did not change the Land
Use Code provisions that would be applicable to the redevelopment project. King
Soopers also confirmed that its proposed supermarket use was allowed per the zoning
and that neither the zoning nor the list of permitted uses was changing because of
adoption of the Midtown Plan.
King Soopers went through the Preliminary Design Review Process in May of
2U16 and received suggestions from City staff that they consider adding a multi-family
component to their project to fulfill City Plan and Midtown Plan goals. The
suggestions were couched in terms of opportunity, not as mandatory requirements. See
Attachment 1, Planning Services Comments 1 and 2, PDR Comments dated May 9,
2016, and Attachment 2, email from Ted Shepard to Joel Starbuck and Carl Schinidtlein
dated May 11, 2016.
a LUCIA A. LILEY, ESQ. a JOSHUA C. LILEY, ESQ
■ JANELLE KECHTER, CiA ■
419 CANYON AVENUE, SUITE 220, FORT COLLINS, COLORADO 80521
o TEL�EPHONE (970)449-8720 e FAX (970)682-1440 ■
Brad Yatabe
March 1, 2017
Page 2
Although not required by the Land Use Code, King Soopers made a number of
inquiries and conducted market research; concluding that vertical mixed use with
housing at this particular site was neither financially feasible nor marketable.
King Soopers advised staff of its conclusions and the issue was not raised again.
King Soopers continued to work diligently to design a project that complies with the
Land Use Code and, in addition, worked extensively with staff to incorporate as many
aspeets of the Midtown Plan into its project as possible. As examples of the lengths to
which the development team has gone to cooperate with staff on the Midtown Plan
vision, the changes outlined on Attachtnent 3 were incorporated into the plan.
King Soopers submitted its Project Development Plan in November of 2016. At
the Round One Development Team Review meeting on January 18th, Ted Shepard stated
that since the project was not going to have housing or mixed use, staff would be
paying particularly close attention to architecture and how the project was mitigated,
activated, urbanized and landscaped.
Three days later, on January 21 S`, King Soopers and its planner, Galloway,
received a letter with the staff s written Round One comments (See Attachment 4,
"Staff's Letter"). As you can see, staff is now asking for .m.ulti-family housing based on
City Plan, the Midtown Plan and the purpose statement of the Land Use Code;
notwithstanding that the Land Use Code does not require a mixed use component be
included in a development proposal within this zoning district. King Soopers has asked
me to respond.
Citv Plan
City Plan is not regulatory and a failure or inability to meet its policy
expectations cannot serve as the basis for a project denial. City Plan's Introduction
describes its components as a"vision" with " eneral" direction (City Plan,
Introduction, page 3) (emphasis addec�.
City Plan's Action Plan reeognizes that its adoption is the "first sten in the
implementation process" and that the actions and strategies necessary for
implementation will "take time" (City Plan, Action Plan, page 135) (emphasis addec�.
In City Plan's discussion of the Catalyst Project Areas, it is noted as to these
areas of opportunity, that "City Plan focuses on Citv actions" (emphasis addec� and that
the "timing and pace of activity in these areas will ultimately be determined by market
forces" among other factors (City Plan, Action Plan, page 135): Specifcally as to the
Mason Corridor/Midtown catalyst area, City Plan says that the process to achieve the
Brad Yatabe
March 1, 2017
Page 3
objective of mixed use redevelopment "will be incremental and oceur over an extended
perio.d_of time" and that "Citx staff.will first work to update Citv codes, public
infrastructure, and pedestrian and bicycle access to generate developer interest in
properties along the corridor" (City Plan, Action Plan, page 164) (emphasis addec�.
Clearly, the integration of mixed use is a long term goal yet to be implemented with
corresponding Land Use Code changes.
The Staff Letter cites Principle LIV 5 and Policy LIV 5,2 as critical components
of City Plan that support a mixed use redevelopment. Note however that these
provisions only "nromote" mixed use developmen.t "over time" and not in connection
with or as a requirement of a single project. Other principles and policies specifically
applicable to Districts and General Commercial Districts are equally visionary. See (i)
Policy LIV 31.1 which "encoura�e(sl. a vertical mix of uses, (ii) Policy LIV 34.2 which
states that "the incorporation of a broader mix of uses is desirable over time," and (iii)
Policy LIV 34.3 that "encourage(s) and support(s the �radual evolution" of existing
auto-oriented strip commercial areas to a more compact patter through infill and
redevelopment (emphasis addec�.
Note also that among the policies eneouraging mixed use in Commercial
Districts; City Plan acknowledges in Policy LIV 31.3 that Large Retail Establishments
(which King Soopers is) are permitted and �uropriate in commercial districts subject to
"a base level of architectural variety, compatible scale, pedestrian and bike access and
mitigation of negative impact," and that the addition of multi-family housing is not
listed as an element that determines the appropriateness of the use.
Midtown Plan
Ea.rly in the public process for the Midtown Plan, King Soopers' representative,
Mike Scheckel, received an email fro.m Megan Bolin, City Redevelopment Specialist,
assuring King Soopers that the Midtown Plan would not change the regulations
applicable to the project.
I also want to stress that there aren't any regulation changes because of
this Plan. It has always been envisioned as a policy document, much like
any of our other subarea plans.
(See Attachment 5, email from Megan Bolin to Mike Scheckel dated July 26, 2013)
The Midtown Plan states that it is a policy guide for the City and private
investors, pending adoption of new regulations and incentive programs. (Midtown Plan,
Intro 1-5). The Midtown Plan, while it may be used to help interpret subjective or
Brad Yatabe
Mareh 1, 2017
Page 4
ambiguous Land Use Code provisions, is not regulatory and a failure or inability to
meet its policy expectations cannot serve as the basis for a project denial.
The Staff Letter cites language from page 1-5 of the General Framework
Concepts that prioritizes diverse higher density housing. Let me draw your attention,
however, to the following statement on the same page;
In essence; while more urban; mixed-use development is to be pr.omoted
as a key part of reinvestment in Midtown, there should continue to be
room for many other enterprises, albeit in forms that are more consistent
with the image and form for the design character of the area. (emphasis
addec�
Even the Midtown Plans' Implementation Strategy acknowledges the boldness of
the vision: "the likelihood projects eould be built differentiv due to market conditions
and./or specific site constraints" and "the Plan accommodates flexib'ilitv" (Midtown
Plan, page 7-4) (emphasis addec�.
The minutes of the Planning and Zoning Board hearing to consider the Midtown
Plan on September 12, 2013, reflect the following statements by Megan Bolin, City
Redevelopment Specialist:
She said the Plan is a nolicy level document. The design guidelines and
the development prototypes are conceptual/ideal design scenarios. They
are not regulatory. Bolin said ultimately the Land Use Co.de (LUC) is the
re ulatory document that would dictate what oecurs within.a specific
development proposal. (See Attachment 6, P&Z Minutes, page 3)
(emphasis addec�
The minutes also reflect the following statement by Boardmember Kirsten Kirkpatrick:
"Member Kirkpatrick said the board ea.n only really require what's in the
Land Use Code (LUC). (See Attachment 6; P&Z Minutes� page 4)
The following quotes from the minutes of the City Council hearing on the
Midtown Plan on October 1, 2013 'indicate that the Councilmembers clearly understood
the legal significance of the Midtown Plan goals:
Mayor Weitkunat noted this is a broad picture plan, not specific
implementation. Hendee noted this does not set Code, but accepts a
general vision. (See Attachment 7, City Council Minutes, page 325)
Brad Yatabe
March 1, 2017
Page 5
Councilmember Cunniff expressed concern the plan is not achievable and
requested an acknowledgement from staff that Code_chan eg s. may be.
consider.ed. Hendee replied staff is in agreement. (See Attachment 7,
City Council Minutes; page 325)
Councilmember Campana ... noted this plan is a u�g tool. He
su�ported expediting necessary Land Use Code chan�es. (See Attachment
7, City Council Minutes, page 326)
City Manager Atteberry replied the oVerall vision is presented in the Plan
and he assured Council the details will be complete]y further vetted and
will involve significant stakeholder engagement. (See Attachment 7, City
Council Minu.tes, page 326)
Finally, as desireable as the vision and policies of City Plan and Midtown Plan
are, they are not enforceable as Land Use Code regulations. This precise issue arose at
the January 12, 2016 City Council hearing on the appeal of the Uncommon PDP when I
argued that the City's adopted plans could be used to aide in interpretation of subjective
Land Use Code provisions (in that case the appropriate mass and scale of the project).
While agreeing that such plans could be used in interpreting Land Use Code provisions�
you confirmed that policy documents do not take precedence over the Land. Use Code:
Councilmember Cunniff asked what legal standing the Downtown Plan
and other plans have in land use decisions versus the language of the Land
Use Code. Brad Yatabe, Assistant Cify Attorney, replied the Land Use
Code sets out standards to be met whereas 1p ans such as the Downtown
Plan are more aspirational; however, he noted Council has room to
interpret the Land Use Code in order to. fit some of the aspirational aspect
of those plans into some of its consideration (See Attachment 8, City
Council Minutes, January 12, 2016, page 325) (emphasis addec�
It should be stressed that the King Soopers redevelopment is not a situation
involving subjective or ambiguous Land Use Code provisions; in this ease, the Land
Use Code is very clear that the proposed use is allowed without any requirement to add
a use to make it mixed use.
Land Use Code
An important question then is whether the Land Use Code has been amended to
implement the Midtown Plan goals as specific regulatory provisions and; particularly�
whether the vision of mixed-use and multi-family housing has now become a
Brad Yatabe
March 1, 2017
Page 6
requirement of the Land Use Code. Our review of Land Use Code amendments (and
Attachment 9, email from Ted Shepard dated January 14, 2015) suggest it has not. The
intent of the G-C zone is still primarily for "a wide range of community and regional retail
uses, offices and personal and business services;" and "Secondarily, it can accommodate a wide
range of other uses including creative forms of housing." So, while mixed-use and multi-family
housing remain options for development as permitted uses, neither are mandatory requirements
of the G-C zone. [See LUC Sec. 4.21(A) and (B)(2)]
This may explain why the Staff Letter only cites the purpose of the Land Use Code
at Sec. 1.2,2(A) as support for requiring t_he King Soopers redevelopment project to add
multi-family housing to its plan:
1.2,2 - Purpose
The purpose of this Code is to improve and protect the public health, safety and welfare
by:
(A) ensuring that all growth and development which occurs is consistent with this
Code, City Plan and its adopted components, includ'ing, but not limited to, the
Structure Plan, Prineiples and Policies and associated sub-area plans.
This purpose statement of the Land Use Code - to ensure consistency with the
City Plan Principles and Policies and the Midtown Plan — is not in and of itself a
regulatory provision but rather reflects the accepted legal notion that the land use
regulatory provisions should reflect the applicable plarrs.
This has been the City's consistent interpretation. In fact, just recently, in an
appeal which alleged that a failure to comply with the Land Use Code purpose
statement in Article 1 wa.s cause for denial of th.e project, City staff stated its position
as follows:
Article 1
■ Provides general provisions and purpose statements, which are not
conside�ed regulatory
e Provides a basis for the more prescriptive standards in Articles 2, 3 and 4
(See Attachment ] 0, page 7 of Staff Powerpoint presentation to Council December 6,
2016, Appeal of Brickstone Apartments on Harmony PDP)
Brad Yatabe
March 1, 2017
Page 7
We would appreciate your consideration of this important issue. In the
meantime; Kings Soopers will continue to work on the remaining Land Use Code
complianee issues and hope to stay on schedule for resubmittal of the PDP and
consideration by the Planning and Zoning Board in April.
Finally, because the Staff's recent reversal of its position threatens to completely
prevent King Soopers' redevelopment of this site, its planning frm, Galloway, felt
compelled to provide its own response addressing the Midtown Plan. See Attachment
11.
Sincerely,
:
LILEY LAW OFFICES, LLC
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Attachments (1 — 11)
Pc: Ted Shepard, Senior Planner
Cameron Gloss, Planning Director
Tom Leeson, C.D.N.D. Director
Joel Starbuck, King Soopers
Carl Schmidtlein, Galloway