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HomeMy WebLinkAbout909 CENTRE AVE - CORRESPONDENCE - 12/12/2006City of Fort Collins qrq ceolk-e A,,e City Manager's Office DECISION OF CITY MANAGER REGARDING APPEAL OF COLUMBINE MANAGEMENT SERVICES, INC. WHEREAS, a Notice of Appeal was filed with the City on August 28, 2006, pertaining to Building Permit No. B0403110 by Columbine Management Services, Inc. and the refusal of the City to issue a permanent Certificate of Occupancy; and WHEREAS, having heard the testimony and received the exhibits of the appellant (Exhibits "A" through "K"), Wendy E. Williams, the Hearing Officer acting on behalf of the City Manager in this appeal, makes the following findings and conclusions: Findings of Fact 1. That the Notice of Appeal was timely filed and in proper order for consideration by the City Manager in accordance with Section 2-545 of the Code of the City and Section 7.5-23 of the Code of the City. 2. That on Wednesday, November 1, 2006, at 9:00 a.m. a hearing was held with regard to the above -referenced appeal and that within fourteen (14) days following the hearing the Hearing Officer, acting on behalf of the City Manager, shall provide a copy of such decision to all appellants and the administrative decision maker. 3. That the City Code defines a dwelling unit as containing a single kitchen intended for occupancy as quarters for the exclusive use of a single family for living, cooking and sanitary purposes but does not define the types of appliances that must be included in a dwelling unit in order to make up a kitchen. 4. That in June 2004, Terry Drahota, general contractor for the Winslow and Ted Davis, consultant for J. Robert Wilson, owner of the Winslow, met with Felix Lee and confirmed that non-residential building permit fees would be assessed against the Winslow project, which fees were paid in July 2004, with regard to the issuance of footings and foundation permits and in September 2004, with regard to the remainder of the fees. 5. In reliance upon the conversations that Messrs. Drahota and Davis had with Felix Lee, the kitchens which were planned to be included in the Winslow were removed from the project, at potential financial detriment to the marketability of the project and the Winslow was constructed without ranges or stoves, but rather with microwave ovens. 300 LaPorte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6505 • FAX (970) 224-6107 • TDD (970) 224-6001 www.fcgov.com 6. On May 21, 1990, James M. Davis, then Director of Development Services for the City, forwarded a memorandum to the City Council and City Manager indicating that "a kitchen is defined as having a stove for cooking, a microwave oven is considered an appliance not a cooking stove". J. Robert Wilson, owner of the Winslow, is also the owner of the "Worthington" which was originally proposed to include kitchens with stoves, but was later redesigned without the stoves, whereupon the City agreed that the Worthington residential units would not constitute "dwelling units" because they did not contain a kitchen. The Winslow was designed in the same manner as the Worthington, and in reliance upon the City's assurances that the Winslow would be considered and assessed fees comparable to the Worthington. Appellants Exhibit "E" constitutes the building permit for the Worthington whereon it is noted that "no ranges or range hoods may be installed in any individual unit without first obtaining an administrative change to the PUD and paying any applicable additional fees." The Hearing Officer finds that the reason that the aforesaid note was placed on the building permit for the Worthington was to insure that, if the parkland and other residential fees were not to be assessed against the Worthington, there must be no ranges or range hoods in the units, implying that microwave ovens would not serve to make a kitchen. Conclusions 1. Columbine Management Services, Inc. reasonably relied upon the statements and assurances of Felix Lee and other representatives of the City in constructing the Winslow without cooking ranges, but rather with microwave ovens under the assumption that such construction would not create individual dwelling units which would be subject to the fees in question and as identified on appellant's Exhibit « C„ 2. The City's past practice with regard to the "Worthington" and also with regard to the Parkwood Retirement Village had interpreted kitchens to require a range, and not just a microwave oven. As is shown in appellant's Exhibits "D", "G" and "I", the appellant inquired of the City about the question of microwave ovens and the City agreed that in regard to the building permit, the fee was established on the basis that the Winslow contain no kitchens. At a later time, the City changed its position with regard to the kitchen issue in the Winslow and sought payment of additional fees. 3. From the testimony and exhibits given at the hearing, it appears that the statements that were made by the City with regard to the Winslow at the time of issuance of the building permit were not misrepresentations of the City's policy, but were actual representations of the City's past policy, particularly as it pertained to the Worthington and to Parkwood. 4. Since the City's definition of a dwelling unit is not clear when it refers to the dwelling unit as having a "kitchen", the appellants could not have determined from reading the definition itself whether they would be liable for multiple fees or multiple dwelling units, or not. The inquiry made to the City resulted in a conclusion that the property was not composed of multiple dwelling units, thereby reducing the fees accordingly. The appellant's reliance upon those statements was reasonable, particularly given past practice of the City, and the statements made by the City were not misrepresentations of the City's policy, but were representations of the City's actual policy and therefore, the City is equitably estopped from taking a contrary position later with regard to the collection of additional fees under the ruling of the Colorado Court of Appeals in Kohn v. City of Boulder, 919 P.2d 822 (Colo. App. 1995). NOW, THEREORE, in consideration of the testimony and exhibits provided at the hearing and based upon the estoppel theory espoused by the appellants at the hearing, I hereby determine that the appeal of Columbine Management Services, Inc. should be granted and a Certificate of Occupancy should be issued by the City without the payment of any additional fees. Wend E. Williams, Hearing Officer cc: Darin Atteberry, City Manager Felix Lee, Building and Zoning Director Peter, Barnes, Zoning Supervisor Lucia Liley, Esq.