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.
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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."
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,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?