Loading...
HomeMy WebLinkAboutTHE GROVE AT FORT COLLINS - PDP - 16-10B - DECISION - CORRESPONDENCEFurther, a Code provision is considered a minimum requirement. In the context of a species (foxes) or special feature (fox burrows), it is reasonable to expect that bare minimum compliance may be exceeded so that the intent and meaning of the Council may be carried out. Finally, even if the definition were considered a standard, Section 3.4.1 — Natural Habitats and Features, is significantly more detailed and precise and must be considered the more stringent of the two and thus must be considered to be the prevailing standard. CONCLUSION: The definition of Development contains three sub -sections which must be read in their entirety. The third section speaks to "When in appropriate context, development shall also mean the act of developing." In determining the appropriate context, Section 3.4.1(E) — Natural Habitats and Features, provides clear and unambiguous direction that species and special features are very important to consider in evaluating and reviewing land development applications. The Land Use Code contains numerous provisions. Section 1.4.9 — Rules of Construction of Text, explains that the full meaning shall be applied to a code provision and that where there may be more than one applicable regulation, the more stringent shall apply. While the definitions give meaning to words and phrases, they cannot be considered in isolation. Definitions must be evaluated in conjunction with applicable standards in order to derive fuller meaning so that the full force and effect of the Land Use Code is manifested. Therefore, in the case of The Grove and as to the question of what constitutes "Development,"the filling of fox burrows and abandoned holes is hereby considered to be the "act of developing" and shall not commence until approval of final plans. cc: Steve Olt Paul Eckman 121 Section 3.4.1(E) goes into considerable detail describing how a development proposal shall evaluate the impact on a species or special feature. For example, a development project may offer protection through performance standards, or by providing a 50-foot buffer, or by undertaking restoration and mitigation measures either on -site or off -site at the discretion of the decision maker. During the review of The Grove P.D.P., an Ecological Characterization Study was submitted to Staff in order to evaluate how best to administer Section 3.4.1(E). There is a general consensus that since fox are not listed as a threatened or endangered species by state and federal agencies that removal of the fox burrows may likely be the recommended course of action without provision of a buffer zone or on -site or off -site mitigation. But it is very important to note that while this direction is currently being discussed at the Staff review level, it has not been approved by the Planning and Zoning Board as a component of the P.D.P. Nor have removal of the fox dens proceeded to Final Plan, Development Agreement and Development Construction Permit. Without ratification by the Planning and Zoning Board, any consensus arrived at between Staff and the applicant remains at the discussion level and does not rise to the level of an approved plan. 3. Section 1.4.9(A) — Rules of Construction of Text: This section provides guidance on interpreting the Land Use Code. For example, Section 1.4.9(A) contains the following: "All provisions, terms, phrases and expressions contained in the Land Use Code shall be so construed in order that the intent and meaning of the Council may be fully carried out." "In the interpretation and application of any provision of the Land Use Code, such provision shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of the Land Use Code imposes greater restrictions upon the subject matter than another provision of the Land Use Code, the provision imposing the greater restriction or regulation shall be deemed to be controlling. In other words, the more stringent controls over the less stringent." These sections direct a reader of the Land Use Code to consider broader parameters than merely relying on Section 5.1.2 — Definitions. The definition of Development must be read in the context of Section 3.4.1— Natural Habitats and Features which is comprehensive in scope. 3 INTERPRETATION: In making this Interpretation, the following Land Use Code Provisions are found to be pertinent: Section 5.1.2 — Definition of Development (1-3) Section 3.4.1— Natural Habitats and Features Section 1.4.9(A) —Rules of Construction Section 5.1.2 — Definition of Development 0 — 3): The definition of Development is not a standard per se. The definition is intended to give meaning to a very broad term. For example, the definition includes 10 sub -sections as to what Development includes and six sub -sections as to what Development does not include. Finally, the definition concludes by stating: "(3) When appropriate in the context, development shall also mean the act of developing or the result of development." The context is that there are existing fox burrows located within a parcel that is the subject of a development application for an Overall Development Plan and a Project Development Plan. 2. Section 3.4.1 — Natural Habitats and Features: With regard to fox dens, the Land Use Code is clear. For example, Section 3.4.1(A)(2)(h) Natural Habitats and Features — Special Features specifically lists fox and coyote dens as being features that must be considered when a property is developed. Further Section 3.4.1(B) states that: "The purpose of this section is to ensure that when property is developed consistent with its zoning designation, the way in which the proposed physical elements of the development plan are designed and arranged on the site will protect the natural habitats and features both on the site and in the vicinity of the site." Section 3.4.1(E)(d) goes on to say: "The project shall be designed to protect from adverse impact on species utilizing special habitat features such as fox and coyote dens." 2 ,V�rof t� Collins TO: Interested Parties FROM: Ted Shepard, Chief Planner DATE: December 17, 2010 Planning, Development and Transportation Services Current Planning 281 N. College Ave. PO Box 580 Fort Collins, CO 80522-0580 970.221.6750 970.224.6134 - fax fcgov com/currentplanning SUBJECT: Administrative Interpretation #1-10 regarding the application of Section 5.1.2 of the Land Use Code — Definition of "Development." BACKGROUND: An application, The Grove, has been submitted for an Overall Development Plan and Project Development Plan for a multi -family project on a vacant parcel located generally on the west side of the intersection of Centre Avenue and Rolland Moore Drive (extended), and containing 27.46 acres. According to the Ecological Characterization Study, the parcel presently includes 11 fox burrows and two abandoned holes. The applicant has indicated that they desire to fill these fox burrows in advance of approval of the Overall Development Plan, Project Development Plan, Final Plan, Development Agreement and Development Construction Permit in order to discourage habitation. Such habitation could potentially conflict with future land development activities. Foxes breed in the winter and have their kits in the Spring. The applicant contends that preventing habitation now is better than allowing habitation to occur and then dealing with subsequent complications associated with removal in the Spring after the kits have been born. A request has been received to interpret the definition of Development to ascertain the propriety of filling the fox burrows prior to plan approval. The following question has been proposed for interpretation: Is the filling of the fox burrows, prior to plan approval, considered development as defined in Section 5.1.2 of the Land Use Code?