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Home My WebLink AboutMULBERRY AND LEMAY CROSSING - PRELIMINARY - PUD - 36-96B - SUBMITTAL DOCUMENTS - ROUND 1 - Citizen Communication (119) RON VAUGHAN SECUIVED ATTORNEY AT LAW DEC 111998 19 OLD TOWN SQUARE, #238 ii FORT COLLINS, CO 80524 F,,15� N13 ,V`gAC- !`! (970) 221 1293 FAX (970) 482 0251 E-MAIL: RONV@FRII.COM November 24. 1998 ITEM#37-Special Review of Mulberry-Lemay Crossing Honorable Ann Azari Preliminary PUD Application Supplemental Written Materials Mayor City of Fort Collins 300 LaPorte Avenue Fort Collins , Colorado Council Members : Bill Bertschy Mike Byrne Chris Kneeland Scott Mason Will Smith Charles Wanner c/o City of Fort Collins 300 LaPorte Avenue Fort Collins . Colorado Re: Compliance with Ordinance No. 161 , 1996 , and Appeal of the Planning and Zoning Board's Denial of Mulberry--Lemay Crossings, Preliminary P. U. D. #36-96B Summary discussion of legal authority regarding applicants compliance with PUD application process : Dear Mayor Azari and Council Members : Following are pertinent portions of Ordinance 161 and a few applicable statutes and cases relevant to the issue of the whether the application in this matter should or should not be reviewed under the terms of the LDGS. 1 . ORDINANCE NO. 161 , 1996 states , in part: Section 2 : . . . except as provided in Section 3, below . . . all preliminary plans for PUDs. . . that prior to March 28, 1997 , were accepted by the City for filing in accordance with Section 6 below. . . Section 3 : . . .Any applications for preliminary . . . PU➢ plans . . . that are timely filed in accordance with the provision of this section shall be process and reviewed by City Staff and/or City' s Planning and Zoning Board under the currently exiting applicable provisions of the City code, provided that the Director has determined that all relevant submittal requirements for such applications have been satisfied. Such applications , once filed, shall not be modified or supplemented by the applicant without the written approval of the Director, and the same shall be reviewed by City staff and/or the Planning and Zoning Board at such times as the Director may deem appropriate unless they have been withdrawn by the applicant. The Director shall permit all such modifications of, or additions to, an application s may be approved by the Planning and Zoning Board, as well as such modifications or additions that the Director determines . . .will better advance the objectives of the currently existing applicable provisions of the City Code or the new Land Use Code. Section 7 : . . .all applications for approval of . . . preliminary PUD plans . . . accepted for filing before March 28, 1997 . . . shall be processed and reviewed by City staff and/or the City's Planing and Zoning Board under the currently existing applicable provisions of the City Code provided that the Director has determined that all relevant submittal requirements for such applications have been satisfied prior to said date . Such application, one filed, shall not be modified or supplemented by the applicant without the written approval of the Director and the same shall be reviewed by City staff and/or the Planning and Zoning Board at such times as the Director may deem appropriate unless they have been withdrawn by the applicant. The Director shall permit all such modifications of , or additions to, an application s may be approved by the Planning and Zoning Board, as well as such modifications or additions that the Director determines . . .will better advance the objectives of the currently existing applicable provisions of the City Code or the new Land Use Code . Section 9 : . . . for the purposes of the Director's determination as to whether all relevant submittal requirements have been met under the provisions of Section 2 and 6 above, the submittal requirements . . . shall be as shown on Exhibit "B, " attached hereto and incorporated herein by this reference . 2. Heading of document referenced as "Exhibit B" : EXHIBIT "B" Submittal Requirements for Ordinance No. 161, 1996 3 . Legal treatise points from 83 Am Jur 2d ZONING & PLANNING Section 532 . . . where subdivision regulations have been adopted, the reviewing agency is generally bound by such regulations . . . approval of a subdivision plat based upon current subdivision regulations does not vest in the landowner a permanent right to proceed consistently with the approval (Dwyer v. NcTygue 137 Misc. 2d 18, 519 NYS 2d 630 holding, in part, that unless the landowner proceeds within a reasonable time to develop the land in question, the landowner is not immune to changes in the subdivision regulations) . Section 698 Where creation of planned unit development is authorized, the applicant must meet the standards of the ordinance ( ci ting: Chandler v Krauss 291 Minn 196, 190 N. W. 2d 472) Section 702 . . . the widely recognized principle ( is) that the terms of the ordinance will be given their plain and ordinary meaning . . . (no Colorado cases cited on point) Section 704 Another widely accepted guiding principle and one which clearly affects the application of the rule of strict construction, is that the primary object in interpreting a zoning ordinance is to give effect to the intention of the legislative body as disclosed by the language used. (no Colorado cases cited on point) Section 705 In determining the meaning of a zoning ordinance, the courts give weight to the construction of the ordinance by those whose duty it is to administer it (Neighbors for a Better Approach v NEPA 770 P. 2d 1390 (Colo. App. ) ( " . . . so long as that construction is consistent with the statutory mandate and follows the policy that the legislature sought to implement. " Buck v. Dep't of Housing Preservation & Dev. , 133 Misc. 2d 626, 509 NYS 2d 285) ] . The same rule applies to the construction of planning regulations . . . . 4 . Cases/statutes relevant to issue include : Villa at Greeley, Inc. v. Hopper 917 P. 2d 350 (Colo App 1996) There is no fixed formula for determining whether or not common-law right has vested; however, general rule applies that common-law right to develop does not vest until party has taken substantial steps in reliance on building permit. Marshall v Ci ty of Aspen 892 P. 2d 394 The issue of vested rights is relevant only once a permit has been granted and has no bearing on the application process itself. Coleman v. Gromley 748 P.2d 361 A planned unit development must meet all standards, procedures and conditions of the planned development ordinance. Shoptaugh v. Ed of County Comm 'rs of El Paso County 543 P.2d 524, 37 Colo. App. 391 (1975) Subdivider seeking county approval of preliminary subdivision plat was required to first meet zoning regulations . Applebaugh v. Bd of County Comm 'rs of San Miguel County, State of Colo. 837 P. 2d 304 (Colo App 1992) Developer's failure to apply for final development plan approval for commercial portion of land zoned as planned unit development was sufficient basis to order rezoning of land to it previous zoning designation. C.R.S. 24-68-103 (1) A vested property right shall be deemed established with respect to any property upon the approval , or conditional approval, of a site specific development plan . . . the local government C.R. S. 30-28-101 (6) "Preliminary Plan" means a map of a proposed subdivision and specific supporting materials, drawn and submitted in accordance with the requirements of adopted regulations to permit the evaluation of the proposal prior to detailed engineering and design. Submitted for consideration on December 11 , 1998 . by : Ron Vaughan