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HomeMy WebLinkAboutAMENDMENT TO CHAPTER 29 OF THE CITY CODE 2.4.92 CITY COUNCIL HEARING - 54 91 - REPORTS - SECOND READINGAGENDA ITEM SUMMARY ITEM NUMBER: g DATE: February 4, 1992 FORT COLLINS CITY COUNCIL STAFF• Sherry Albertson/ Clark SUBJECT: econd Reading of Ordinance No. 4, 1992, Amending Chapter 29 of the Code of the City of Fort Collins, Pertaining to the Effect of Planned Unit Developments. RECOMMENDATION: Staff recommends adoption of the Ordinance on Second Reading. EXECUTIVE SUMMARY: This Ordinance, which was adopted unanimously on First Reading on January 21, amends Section 29-526 of the City Code, pertaining to the effect of Planned Unit Developments. The change clarifies when a PUD process is necessary and when property that was previously approved as a PUD may be developed in accordance with the underlying zoning as a use -by -right. AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL ITEM NUMBER: 10 DATE: January 21, 1992 STAFF• Sherry Albertson/ Clark SUBJECT: Hearing and First Reading of Ordinance No. 4, 1992, Amending Chapter 29 of the Code of the City of Fort Collins, Pertaining to the Effect of Planned Unit Developments. RECOMMENDATION: Staff recommends adoption of the Ordinance on First Reading. EXECUTIVE SUMMARY: This is a request to amend Section 29-526 of the City Code, pertaining to the effect of Planned Unit Developments. This change clarifies when a PUD process is necessary and when property that was previously approved as a PUD may be developed in accordance with the underlying zoning as a use -by -right. BACKGROUND: The Land Development Guidance System does not presently address the effect a PUD approval has on property when the property has no PUD condition and therefore, may be developed as a use -by -right. In some cases, PUD approval is requested for property that does not have a PUD requirement. This typically happens when greater flexibility is desired for a use -by -right, such as providing reduced building setbacks for a permitted residential use. Several recent development projects, as well as Colorado case law (Penrose Hospital v. City of Colorado Springs), have caused the issue to be raised as properties that were previously approved as PUD's have requested development as a use -by -right. phis proposed Code amendment clarifies the effect a PUD approval has on the underlying zoning as well as the ability to develop as a use -by -right. This amendment also establishes a procedure to "abandon" PUD approval and sets forth criteria for the Planning and Zoning Board to use in evaluating requests for abandonment, amendment or redevelopment of an approved PUD. Section 1. This section adds Subsection 29-527 to the Land Development Guidance System and clarifies that when a preliminary or final PUD has been approved, no other development of the property may occur,including uses -by -right, unless one of the following has occurred: Approval of the PUD has expired (expiration occurs when all public improvements have not been made within three years of final PUD approval); DATE: January 21, 1992 —� -2- ,EM NUMBER: 10 2. The property owner has obtained approval from the Planning and Zoning Board to abandon the right to develop under the approved PUD plan (or a portion of the approved plan); 3. The property owner has obtained approval from the Board or Planning Director to amend the approved plan; or 4. The property owner has obtained approval from the Board to redevelop the property (other than as the approved PUD), when existing improvements constructed under the PUD were destroyed by fire, flood, tornado or other catastrophe. Section 1 also specifies application would be processed and reviewed as an Board or Planning Director to use in abandonment of an approved PUD plan. requirements for items 2-4 (above), which amended PUD and provides criteria for the reviewing an amendment, redevelopment or These criteria are as follows: The application shall be denied if any portion (developed or undeveloped) of the subject property would no longer qualify for approval as a planned unit development under the criteria and requirements of the LDGS, because of the abandonment, amendment or redevelopment of the property. An example of this would be if a PUD amendment proposed to delete open space for which the original PUD received a density credit. Under this criteria, the amendment would be denied because, without the open space, the density would no longer be supported. 2. The application shall be denied if the City's right of ownership or ability to utilize any previously dedicated street, easement, right-of-way or other public area or public property would be denied or diminished. Section 2. This section adds a new subparagraph to which clarifies that only one PUD plan piece of property and that the most previously approved plans. A plan that a new application pursuant to the Land Section 29-526(E), Special Requirements, may be approved at a time for a specific recently approved plan supersedes all has expired may only be revived by filing Development Guidance System PLANNING AND ZONING BOARD RECOMMENDATION: The Planning and Zoning Board voted 7-0 to recommend approval of the changes made by this proposed ordinance at the December 16, 1991 Board meeting. ORDINANCE NO. 4 , 1992 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 29 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO THE EFFECT OF PLANNED UNIT DEVELOPMENTS BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Chapter 29 is hereby amended by the addition of a new section, to be numbered Section 29-527, to read as follows: Sec. 29-527. Planned unit developments, effect of. (a) In the event that a property has obtained development approval of a preliminary or final planned unit development plan pursuant to § 29-526 of the Code, such property may not thereafter be developed in any other fashion, except when such development is for the purpose of continuing or expanding any legal use which existed upon the property at the time of the approval of the planned unit development plan; or upon the occurrence of one of the following events: (1) The right to develop the property in accordance with the approved planned unit development plan has expired pursuant to § 29-514 or § 29-526(H) of the Code, in which event the property may be developed as a use specifically permitted by right, or according to such other planned unit development as may subsequently be approved by the Planning and Zoning Board; (2) The owner of the property has obtained the approval, by resolution, of the Planning and Zoning Board to abandon the right to develop the property (or any portion thereof) in accordance with the approved planned unit development plan, in which event the right to develop other than as a planned unit development shall apply only to the portion of the property which is no longer subject to the planned unit development plan; (3) The owner of the property has obtained permission from either the Planning Director or the Planning and Zoning Board to amend the final development plan in accordance with § 29-526(F)(5), in which event the property shall be developed according to the amended plan; (4) The owner of the property has obtained the approval of the Planning and Zoning Board to redevelop the property (or any portion thereof) in some manner other than in accordance with the approved planned unit development plan because of the destruction of improvements constructed pursuant to the approved planned unit development plan by reason of fire, flood, tornado or other catastrophe, in which event the property shall be developed according to the plan for redevelopment approved by the Planning and Zoning Board. (b) Any property owner seeking to obtain the approval of the Planning and Zoning Board pursuant to § 29-527(a)(2), (3) or (4) shall submit an application complying with the requirements and procedures set forth in § 29-526(F)(5) of the Code pertaining to amendments to planned unit developments. (c) In considering whether to approve any application for abandonment, amendment or redevelopment pursuant to § 29-527(a)(2), (3) or (4), the Planning Director or the Planning and Zoning Board shall be governed by the following criteria: (1) The application shall not be approved if, in so approving, any portion of the subject property remains developed or to be developed in accordance with the previously approved planned unit development plan and, because of the abandonment, amendment or redevelopment, such remaining parcel of property would no longer qualify for approval as a planned unit development pursuant to the criteria and requirements of § 29-526 of the Code. (2) The application shall not be approved if, in so approving, the City's rights of ownership of or practical ability to utilize any previously dedicated street, easement, right-of-way or other public area or public property would be denied or diminished to the detriment of the public good. If the Planning and Zoning Board finds that the foregoing criteria and the criteria pertaining to amendments of final plans generally have been satisfied, the Board shall approve the application. Section 2. That Section 29-526(E), Special Requirements, is hereby amended by the addition of a new subparagraph (3), with subsequent renumbering of all remaining subparagraphs, to read as follows: (3) No more than one (1) planned unit development plan shall be approved for any specific parcel of property at any given time. The most recently approved planned unit development plan shall constitute the valid planned unit development plan (unless rendered invalid in accordance with law) and any prior approved planned unit development plan(s) shall automatically terminate upon the approval of a subsequent planned unit development plan for any specific parcel of property. No planned unit development plan which has been terminated may be revived except by the filing of an application for a new plan pursuant to § 29-526 of the Code. Introduced, considered favorably on first reading, and ordered published this 21st day of January, A.D. 1992, and to be presented for final passage on the 4th day of February, A.D. 1992. Mayor ATTEST: City Clerk Passed and adopted on final reading this 4th day of February, A.D. 1992. ATTEST: er kl ayor P & Z MINUTES December 16, 1991 AMENDMENT TO CHAPTER 29 OF THE CITY CODE - #54-91 Deputy City Attorney Paul Eckman stated that this ordinance was to cover the problem which exists when a planned unit development is approved on the property and yet someone might decide at a later time to develop the property under the uses by right that exist in whatever zone the property might be in. A recent Colorado Supreme Court decision confirmed the right to develop a use by right. If the developer had obtained approval for a planned unit development and instead decided the property was to remain undeveloped, the developer would be prevented from expansion on the property; such as an outbuilding of some sort. The change to the amendment was in paragraph (a) which changed the wording from ....pursuant to any other uses which are otherwise authorized as permitted uses ....except upon the occurrence of one of the following events, to ....as a use specifically permitted by right ....except for the purpose of continuing or expanding any legal use which existed upon the property at the time of the approval of the planned unit development plan. Member Walker moved to recommend approval of the Amendment to Chapter 29 of the City Code. Member O'Dell seconded the motion. The motion to approve carried 7-0. TACO BELL RESTAURANT PUD - PRELIMINARY Ted Shepard gave a description of the proposed project. Staff recommended approval with two conditions that relate to the hours of operation of the restaurant and the treatment of the right turn lane on Prospect Road should the capital project not be constructed. Al Hauser, Architectural One P.C., briefly discussed the design features of the project. The project initially began in November of 1990 when it was brought to conceptual review with a proposal to demolish or move the Wickersham residence and construct a new Taco Bell. That proposal met with resistance from the staff in terms of demolishing the house and it was recommended that the residence be remodeled. 2 PENROSE HOSP. v. CITY OF COLORADO SPRINGS Colo. 1167 Cite u 802 P2d 1167 (ColoApp. 1990) the litigation. In re Marriage of Watters, 782 P.2d 1220 (Colo.App.1989). 161 Mother sought a wage assignment based upon $23,231.97 in arrearages due and not paid under the Colorado order. Father objected to the amount based upon the California order. His objection was permitted under § 14-14-107(9) without a claim that the full amount was not due. See In re Marriage of Watters, supra. On this issue father prevailed. If that were the only issue, the trial court's award of attorney fees to father would have been proper. See In re Mar- riage of Watters, supra. However, since the trial court erred in not issuing a wage assignment for the amount still remaining for arrearages from November 30, 1986, to April 1, 1988, the award of attorney fees to father should be reconsidered in addition to mother's claim that she is entitled to an award of fees and costs as the prevailing patty on the wage assignment issue. The remaining contentions by the parties are without merit. The order of the trial court is affirmed insofar as it determined that the California court order must be given full faith and credit for the amount of arrearages owed by father as of November 30, 1986, reduced by the amounts already paid pursuant to the California wage assignment. In all Other respects, the order is reversed, and the cause is remanded to the trial court for further proceedings to determine arrearag- es due after November 1, 1986, and for such other proceedings the trial court deems necessary consistent with the views expressed in this opinion. TURSI and REED, JJ., concur Gw 0 S ttY NUMetN SYSitM T PENROSE HOSPITAL OF COLORADO SPRINGS, Colorado, a Non -Profit Corporation, Plaintiff -Appellant. V. The CITY OF COLORADO SPRINGS, Colorado, a Municipal Corporation, Defendant -Appellee. No. 89CA2105. Colorado Court of Appeals, Div. A. Oct. 11, 1990. Rehearing Denied Nov. 8, 1990. Property owner appealed order entered in the District Court of El Paso County, James M. Franklin, J., upholding city's re- fusal to approve amendment to develop- ment plan. The Court of Appeals, Ney, J., held that development plan granting prop- erty owner conditional use for operation of hospital did not deprive owner of right to make use of property in accordance with underlying zoning. Reversed and remanded. Zoning and Planning ¢=464.1 Approved development plan authoriz- ing conditional use of property for opera- tion of hospital did not deprive property owner of right to make use of property in accordance with underlying zoning; city zoning code's conditional use provision al- lowed uses in addition to those authorized within zoning category. Donald E. LaMora, P.J. Anderson, Colo- rado Springs, for plaintiff -appellant. James G. Colvin II, City Atty., Jackson L. Smith, Asst. City Attorney, Colorado Springs, for defendant -appellee. Opinion by Judge NEY. Penrose Hospital of Colorado Springs ap- peals the trial court's dismissal of its C.R. C.P. 106 proceeding. We reverse. ;T , 1168 C---,. 802 PACIFIC REPORTER, 2d SE.,IES The trial court upheld the refusal by the Colorado Springs City Council to approve an amendment to the development plan submitted by Penrose. The proposed amendment would have permitted the es- tablishment of a facility for adults suffer- ing from substance abuse, a permitted use of property zoned R-5, but not a use desig- nated on the original development plan filed by Penrose. Penrose contends that it is entitled by right to make use of its property for any principal permitted use authorized in the R-5 zone, in addition to uses allowed by its development plan. We agree. Because a hospital is not a principal per- mitted use within the R-5 zone where its property is located, Penrose, many years ago, sought and received a conditional use for hospital purposes. To obtain that con- ditional use, Penrose, as required by the zoning ordinance, filed a development plan. That development plan denoted a structure on the property in question as a convent. It is this structure, no longer feasible for use as a convent, which the hospital seeks to use as a drug treatment facility. The city contends that the property is zoned "R-5 Conditional Use" and as such is entirely subject to the conditional use provi- sions of its zoning laws as applied in the development plan, independent of any use by right of the R-5 zone. Hence, it argues that the original development plan is con- trolling, and any modification of that plan is subject to the procedures for modifica- tion of a development plan, even if the proposed use is a use by right in the under- lying zoning. Penrose asserts that the property is zoned R-5, with a conditional use granted to operate a hospital on the property. Therefore, the property may be utilized for any purpose permitted within an R-5 zone and, in addition, may be utilized for a hospi- tal facility as permitted by the conditional use authorized by the development plan. We agree that a permitted conditional use adds to, rather than substitutes for, the uses designated for an R-5 zone. The City of Colorado Springs Zoning Code § 144-101, in its Description and Purpose of Conditional Uses, states: "The development and administration o a comprehensive zoning ordinance i based upon the division of the City int zone districts within which districts th use of land and buildings ... are rela Lively uniform. It is recognized, how ever, that there are occasions when it addition to the principal permitted uses, special uses, hereinafter referred to as conditional uses, because of their unique characteristics and because of the uniqueness of their proposed location, may be allowed after careful considera, tion of the impact of the particular uses upon the neighborhood and the public facilities therein." This language allows a use in addition to those previously authorized within a zon- ing category. There is no language to suggest that the conditional use supplants those previously authorized by the zoning. In National Heritage, Inc. v. Pritza, 728 P.2d 737 (Colo. App. 1986), this court stated that: "[A] conditional use requires special permission of the zoning authority; thus, it is a use additional to those generally per- mitted." We conclude that the approved develop- ment plan granting Penrose a conditional use does not deprive Penrose of the right to make use of its property in accordance with the underlying zoning. Since we hold that the use intended by Penrose is permitted by right and is not a matter within the discretion of the city council, we need not address Penrose's as- sertion that the council's finding of the adverse impact upon the surrounding neighborhood was arbitrary and capricious. The judgment is reversed, and the matter is remanded to the district court with in- structions to order the defendant to permit Penrose to utilize the property for any use permitted by right in an R-5 zone. STERNBERG, C.J., and DAVIDSON J., concur. w O 5 KEY NUMBER SYSTEM T A.