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HomeMy WebLinkAboutWOODLAND PARK PUD - FINAL ..... 8/29/95 CITY COUNCIL HEARING - 19-94C - REPORTS - APPEAL TO CITY COUNCIL0 mitigation by the developer. In approving this proposal, the board supported Staff `s conclusion that the All Development Criteria of the L.D.G.S. pertaining to wildlife habitat protection (A- 1.3) and natural features (A-2.3) have been satisfied. IV. Allegation: Storm Drainage/Water Quality The appellants allege that general area contains underground springs and that the natural drainage outfall, the Fossil Creek Inlet Ditch, is seriously eroding due to the recent high runoff. Stormwater Engineer, Glen Schlueter is quoted as stating the Poudre Ridge homeowners have reason for concern due to drainage issues related to this development. Further, water quality issues were not properly addressed in the review of this P.U.D. As a result, the board improperly failed to receive all relevant evidence offered by the appellant(2-48 [2d]). Staff Response There are three All Development Criteria in the L.D.G.S. which address these allegations: A-3.2 Design Standards A-3.3 Water Hazards A-3.4 Geologic Hazards • The Stormwater Utility has reviewed the Drainage Report, Drainage and Grading Plan, and Erosion Control Plan for Woodland Park Estates Final P.U.D. Eased on review and evaluation, the Stormwater Utility has advised the board that the P.U.D. satisfies the applicable criteria. Evidence presented to the board included a report from Stormwater Utility Engineer Glen Schlueter that the amount of surface runoff entering the Fossil Creek Inlet Ditch will be reduced due to the introduction of a stormwater detention pond. Such a pond will capture developed storm flows at a natural low point and release these flows into the Fossil Creek Inlet Ditch at a controlled rate known as the "two-year historic rate." This rate is less than the undetained "sheet" flows that currently run off the undeveloped property and impact the ditch. In addition, this urban runoff will be conveyed by natural swales, not concrete, allowing sediment and heavier particles to drop out before entering the ditch thus promoting water quality. The attribution to Mr. Schlueter regarding stormwater concerns was made at a point in time prior to full review of a detailed storm drainage analysis of the P.U.D. With subsequent documentation, review, and evaluation, the Stormwater Utility reported to the board that the P.U.D. satisfied the necessary drainage requirements. 5 0 • Woodland Park Estates P.U.D. obtained at total of 75 points on the Residential Uses Point Chart of the L.D.G.S. These points were reviewed and evaluated by the Planning and Zoning Board at the consideration of the Preliminary P.U.D. which was granted on February 6, 1995. The L.D.G.S. requires that no less than 60 points be earned for P.U.D.'s with a density of 6.00 or fewer d.u./acre. The Final P.U.D. has been found by the board to be in substantial compliance with the Preliminary P.U.D. The open space areas that are provided consist of heavily wooded areas that were planted as an agricultural windbreak decades ago. These areas satisfy the L.D.G.S requirement that: "Recreation space shall mean privately owned open space which is designed for active recreational use for more than three families and would qualify as one of the following categories: "A parcel of land not less than 10,000 square feet and not less than 50 linear feet in the smallest dimension." The wooded areas meet the dimensional requirements. The wooded areas will be held in a separate tract and not part of the individual platted lots. Staff evaluated the open space for its qualitative value and determined that opportunities exist for active recreation within the wooded areas. Active recreation does not always have to consist of structured organized play. Rather, non-traditional recreation such as exploring, tree climbing, and hide-and-seek, are equally valid activities. Further, the preservation of the wooded areas represents a valuable resource not usually found in our semi -arid climate. In approving this application, the board concurred with these conclusions. III. Allegation: Effect on Wildlife The appellants allege that an independent wildlife biologist has found that the subject area contains enough wildlife that displacement due to development will put pressure on other nearby areas. Information from personal observation, slides, and photographs documenting the wildlife values were presented to the board for consideration. These concerns were ignored by the board. In addition, the P.U.D. will violate goal statements made in the Natural Areas Policy Plan and the Land Use Policy Plan. The board improperly failed to receive all relevant evidence offered by the appellant (2-48 [2d]). Staff Response Both the Preliminary and Final P.U.D.'s were evaluated for natural resource values by the Department of Natural Resources. On both occasions, the D.N.R. advised the Planning • Department that these 35 acres do not contain sufficient amounts or type wildlife to warrant 4 • I. Allegation: Incompatibility The first allegation is that the P.U.D. is basically incompatible with the Poudre Ridge neighborhood. The P.U.D., at 3.00 dwelling units per acre, is too dense for the surroundings. The appellant's contend that the applicants should have requested, and the board should have considered, a request for a variance from the absolute requirement of the L.D.G.S. that residential planned unit developments be at least 3.00 d.u./acre. This allegation consists of two components: A. The board failed to properly interpret and apply sections of the Intergovernmental Agreement between the City of Fort Collins and Larimer County and the Land Use Policies Plan (appeal criterion 2-48 [1]). The appeal contains language cited from these two documents pertaining to land development and neighborhood compatibility. B. The board substantially ignored its previously established rules of procedure (appeal criterion 2-48 [2d]). The appellants reference an action by the board on another item, known as the Robert Shields Second Annexation and Zoning, in which a 6.07 acre of ground, presently containing two existing dwellings, was recommended to be zoned R-L, Low Density, . Residential, WITHOUT the P.U.D. condition. By not containing the P.U.D. condition, this 6.07 acre parcel is free from the requirement of developing at a minimum of 3.00 d.u./acre and to obtain 60 points on the Residential Uses Point Chart of the L.D.G.S. in order to develop at 6.00 or fewer d.u./acre. The appellants cite this action as evidence that the Woodland Park Estates P.U.D. could have been considered for a similar zoning resulting in a lower density more in keeping with the neighborhood. Staff Response: A. Failure to Properly Interpret Sections of the Code and Charter: The Intergovernmental Agreement is not the regulatory mechanism by which to review residential development within the city limits. The I.G.A. applies only to those parcels located outside the city limits and within the Urban Growth Area. For parcels located within the city, the Zoning Code, the L.D.G.S, and the other adopted plans and policies are the regulatory tools by which to evaluate land development proposals. The document that is used to review and evaluate issues related to neighborhood compatibility is the L.D.G.S. This document is used to regulate land use proposals that are submitted as planned unit developments. The L.D.G.S. is the implementation tool of the Land Use Policies Plan. 2 0 • 0 The L.D.G.S. was substantially modified recently to remove the three previous criteria pertaining to "compatibility" and replace them with the new, expanded All Development Criteria found in the March 1994 Revised L.D.G.S. The Planning and Zoning Board considered the relevant evidence and found that Woodland Park Estates P.U.D. complied with the All Development Criteria of the L.D.G.S.-Gornt laea 77, B. Substantially Ignored Its Previously Established Rules of Procedure: It is true that Woodland Park Estates was zoned with the P.U.D. condition, while Robert Shields Second Annexation and Zoning is recommended to not contain this condition. (The lack of attaching a P.U.D. condition does not constitute a "variance".) The reason is there are significant differences in terms of location and size that merit individual consideration. For example, Woodland Park Estates is 35 acres and borders an arterial street, an industrial park, and rural residential lots. These factors require a sophisticated analysis of compliance with City policies and land development impacts on surrounding properties. Robert Shields Second Annexation, on the other hand, is only 6.07 acres, already contains two dwellings, and is located internal to the square mile, with no adjacent residential properties along its eastern border. In evaluating these differences, the board determined that each parcel is best suited for review by different criteria. This individual consideration of two different parcels by the board does not constitute a failure to follow previously established rules of procedure. II. Allegation: Points for Open Space/Recreation Area The appellants state that there is an ordinance (#142-??) requiring that there be "sufficient on -site recreation areas to protect the adjacent neighborhood." The appellants contend that the P.U.D. does not contain such areas. The open areas for which points were granted do not allow for traditional outdoor play opportunities for children. As such, there will be trespassing on private properties. By granting points on the Residential Uses Point Chart of the L.D.G.S., the board failed to properly interpret the relevant provisions of the Code and Charter (2-48 [11). Staff Response Staff is not aware of any Ordinance that requires each individual filing (straight subdivision or P.U.D.) to provide sufficient on -site recreation areas to protect the adjacent neighborhood. In addition, Staff is not aware of an Ordinance 142-?? that refers to open space. Rather, the City's long-standing policy has been to assess a Parkland Development Fee on a per unit basis to fund acquisition, planning, and construction of a network of neighborhood parks. Such parks are considered to provide a higher level of recreational needs for the neighborhoods than private open space provided by developers on a per filing basis. 0 3 City of Fort Collins DATE: TO: FROM: THRU: RE: Comn0ty i'lanr.;r.cy acd Fnviror.mentrvices Current Planning MEMORANDUM August 21, 1995 Mayor and Members of City Council Ted Shepard, Senior Planner Greg Byrne, Director C.P.E.S. Woodland Park Estates, Final P.U.D., Appeal to City Council The purpose of this memorandum is to respond to the appeal regarding the July 24, 1995 decision of the Planning and Zoning Board granting approval of the Woodland Park Estates Final P.U.D., #19-94C. Section 2-48 of the City Code states: "A party -in -interest may appeal to the City Council the final decision of any board or commission to which this appeal procedure applies in the manner provided in the Division. The • permissible grounds for appeal shall be limited to allegations that the board or commission committed one or more of the following errors: (1) Failure to properly interpret and apply relevant provisions of the Code and Charter; (2) Failure to conduct a fair hearing in that: a. The board or commission exceeded its authority or jurisdiction as contained in the Code or Charter. b. The board or commission substantially ignored its previously established rules of procedure; or C. The board or commission considered evidence relevant to its findings which was substantially false or grossly misleading; or d. The board or commission improperly failed to receive all relevant evidence offered by the appellant. • 281 north College Avenue • P.O. Box 580 Fort Collins, CO 80522-0580 • (970) 221-6750 FAX (970) 221-6378 TDD (970) 224-6002 Citv CIA • CitV of Fort Collins • NOTICE The City Council of the City of Fort Collins, Colorado, on Tuesday, August 29, 1995, at 6:30 p.m. or as soon thereafter as the matter may come on for hearing in the Council Chambers in the City Hall at 300 LaPorte Avenue, will hold a public hearing on the attached appeal from the decision of the Planning and Zoning Board made on July 24, 1995 regarding Woodland Park Final PUD, #19-94C, filed by Sandra Thomas and Scott Courtney for the Poudre Ridge Neighborhood. You may have received previous notice on this item in connection with hearings held by the Planning and Zoning Board. If you wish to comment on this matter, you are strongly urged to attend the hearing on this appeal. Written comments are also welcome. If you have any questions, require further information, or wish to submit written materials, please feel free to contact the City Clerk's Office (221-6515) or the Planning Department (221-6750). Agenda materials provided to the City Council will be available to the public on Thursday, August 24, after 10:00 a.m. in the City Clerk's Office. The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call the City Clerk's Office (221-6515) for assistance. ki1t Wanda M. Krajicek City Clerk Date Notice Mailed: August 15, 1995 cc: City Attorney Planning Department Planning and Zoning Board Chair Appellant/Applicant 300 LaPorte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6515 9 FAX (970' 22-1-o-295 ADMINISTRATION (c) In the event of multiple appeals involving the same decision of a board or commission, the Mayor, in his or her discretion, may modify the procedure contained in subparagraph (a) above so as to expedite the hearing of such appeals. (Code 1972, § 3A-10; Ord. No. 124, 1987, § 2, 9-1- 87; Ord. No. 174, 1988, §§ 2, 3, 12-20-88; Ord. No. 111, 1989, § 4, 8-1-89; Ord. No. 23, 1990, § 7, 4-3- 90; Ord. No. 139, 1990, 1-15-91; Ord. No. 59, 1994, § 4, 4-19-94) Sec.2-56. New evidence; scope of review; alternative actions available to the City Council; date of final ac- tion. (a) The City Council shall consider an appeal based upon the record on appeal, the relevant pro- visions of the Code and Charter and the grounds for appeal cited in the notice of appeal. New evi- dence shall not be considered on appeal except to the extent that such new evidence is offered in support of or in opposition to an allegation under § 2-48(2)c that a board or commission considered evidence relevant to its findings which was substantially false or grossly misleading. Any such new evidenoe shall be limited io that which di- rectly rebuts or supports the allegedly false or mis- leading evidence. The Mayor, upon the advice of the City Attorney, shall determine the admissibil- ity of all evidence at the hearing on appeal, which determination may be overturned by majority vote of the members of the Council present at the hear- ing. (b) In considering an allegation that a board or commission failed to properly interpret and apply the relevant provisions of the Code or Charter as- serted under § 2-48(1), the City Council shall de- termine how such provisions should, in the Coun- csl's judgment, be applied to the evidence con- tained in the record on appeal. § 2-71 (c) At the conclusion of such hearing, the City Council shall uphold, overturn or modify the deci- sion of .the board or commission; provided, how- ever, that the City Council shall instead remand the matter for rehearing if it finds that the appel- lant was denied a fair hearing before the board or commission for any of the reasons stated in § 2- 48(2). No later than the date of its next regular meeting, the City Council shall adopt, by resolu- tion, findings of fact in support of its decision. The date of passage of such resolution shall be the date of final action of the City Council for the purpose of any subsequent judicial review of the decision of the City Council. (Code 1972, § 3A-11; Ord. No. 124, 1987, § 3, 9-1- 87; Ord. No. 23, 1990, § 8, 4-3-90; Ord. No. 67, 1993) § 3, 7-20-93; Ord. No. 59, 1994, § 5, 4-19-94) Secs.2-57-2-70. Reserved. ARTICLE III. BOARDS AND COMMISSIONS* DIVISION 1. GENERALLY Sec. 2-71. Meetings defined, open meetings required; exceptions. (a) The following words, terms and phrases, when used in this Division, shall have the mean- ings ascribed to them in this Section: Meeting shall mean any gathering of a quorum or three (3) or more members, whichever is fewer, of any board or commission of the city, or any committee of such board or commission, at which any public business is discussed or at which any formal action may be taken, but shall not mean any chance meeting or social gathering at which the discussion of public business is not the central purpose. *Charter references -Appointive boards, Art. IV, § 1; Water Board, Art.1QI, § 7. Cross references -Open meetings, § 2.621 et seq.; Liquor Licensing Authority established, § 3-31; Board of Elections cre- ated, § 7-26; Massage Licensing Authority created, § 16-16; Personnel Board created, § 21-26; Board of Trustees of the Firefighters' Pension Plan created, § 2142; Retirement Com- mittee created, § 21-86. Supp. No. 31 163 § 2-51 FORT COLLINS CODE Sec.2-51. Amended notice of appeal per- mitted. An amended notice of appeal may be filed by the appellant at any time prior to the time for mailing by the City Clerk of notice of the appeal to other parties -in -interest as contained in § 2-54. Such amended notice of appeal shall contain all of the information required under § 2-49 for the original notice of appeal. Amendments to the notice of ap- peal need not be limited to those defects, if any, which have been identified by the City Attorney. (Code 1972, § 3A-6; Ord. No. 111, 1989, § 3, 8-1-89; Ord. No. 59, 1994, § 2, 4-19-94) Sec. 2-52. Cost of appeal. In all appeals except those filed by members of the City Council, the appellant shall be charged a fee of one hundred dollars ($100.) for the cost of the appeal, to be paid to the City Clerk at the time of the filing of the notice of appeal. (Code 1972, §. 3A-7; Ord. No. 23, 1990, § 4, 4-3-90) Sec. 2-53. Record on appeal. Any appeal to the City Council shall be an ap- peal on the record of the hearing before the board or commission. The record provided to the City Council shall include the following: (1) All exhibits, including, without limitation, all writings, drawings, maps, charts, graphs, photographs and other tangible items re- ceived or viewed by the board or comma ion at the proceedings; (2) A verbatim transcript of such proceedings before the board or commission. The cost of the transcript shall be borne by the city. (3) If available, a videotape recording of such proceedings before the board or commission. The cost of reproducing any such videotape for review by the City Council shall be borne by the city. Additional copies shall be pro- vided to any party -in -interest requesting the same within a reasonable period of time prior to the date for hearing the appeal, at a cost not to exceed the actual reproduction costs incurred by the city. (Code 1972, § 3A-8; Ord. No. 174, 1988, § 1, 12- 20-88; Ord. No. 23, 1990, §§ 5, 6, 4-3-90; Ord. No. 59, 1994, § 3, 4-19-94; Ord. No. 5, 1995, 2-7-95) Sec. 2-54. Scheduling of the hearing. In the event of an appeal, the City Clerk shall schedule a date for hearing the appeal before the City Council as expeditiously as possible. The City Clerk shall provide the appellant and all other parties -in -interest fourteen (14) days' written no- tice of the date, time and place of the hearing as well as the grounds for the appeal as contained in the written notice of appeal. (Code 1972, § 3A-9) Sec. 2-55. Procedure at the hearing. (a) At the hearing on the appeal by the City Council, the presentation of argument on the mer- its of the appeal shall be made in the following or- der, subject to such limitations in time and scope as may be imposed at the discretion of the Mayor: (1) Explanation of the nature of the appeal and presentation by city staff; (2) Presentation of argument by the appellant and any party -in -interest in support of the appeal; (3) Presentation of argument by any party -in -in- terest who is an opponent of the appeal; (4) Rebuttal presentation by the appellant and any party -in -interest in support of the ap- peal; (5) Rebuttal presentation by any party -in -inter- est who is an opponent of the appeal; and (6) Motion, discussion and vote by the City Council. (b) No person making a presentation to the City Council shall be subject to cross-examination ex- cept that members of the City Council and the City Attorney may inquire of such person for the purpose of eliciting information and for the pur- pose of clarifying information presented. Supp. No. 34 162 no) anm09'IF%V(s).l (6) Zoning Board of Appeals. (Code 1972, § 3A-1) Editor's note —Subsection (4) formerly referred to the Build- ing Contractor Licensing Board, which is no longer in exis. tence, being replaced by the Building Review Board pursuant to Ord. No. 93, 1987. The editor has, therefore, deleted former subsection (4) and has renumbered subsections (5)—(7) as (4)—(6). Cross references —Building Review Board, § 2-117 et seq.; Landmark Preservation Commission, § 2-276 et seq.; Planning and Zoning Board, § 2-351 et seq.; Storm Drainage Board, § 2- 411 at seq.; Zoning Board of Appeals, § 2-441 et seq.; Fire Board of Appeals, §§ 9-2, 9-5. Sec.2-4& Appeal of final decision per- mitted. A party -in -interest may appeal to the City Coun- cil the final decision of any board or commission to which this appeal procedure applies in the manner provided in this Division. Except for ap- peals by members of the City Council, for which no grounds need be stated, the permissible grounds for appeal shall be limited to allegations that the board or commission committed one (1) or more of the following errors: (1) Failure to properly interpret and apply rele- vant provisions of the Code and Charter; (2) Failure to conduct a fair hearing in that: a. The board or commission exceeded its authority or jurisdiction as contained in the Code or Charter; b. The board or commission substantially ignored its previously established rules of procedure; C. The board or commission considered ev- idence relevant to its findings which was substantially false or grossly mis- leading; or d. The board or commission improperly failed to receive all relevant evidence of- fered by the appellant. (Code 1972, § 3A-3; Ord. No. 124, 1987, § 1, 9-1- 87; Ord. No. 23, 1990, § 1, 4-3-90; Ord. No. 59, 1994, § 1, 4-19-94) Sec. 2-49. Filing of notice of appeal. § 2-50 An appeal shall be taken by filing a notice of ap- peal of the final decision of a board or commission to which this Division applies with the City Clerk within fourteen (14) days after the action which is the subject of the appeal. Such notice of appeal shall be signed by all appellants and shall include the following information: (1) The action of the board or commission which is the subject of the appeal; (2) The date of such action; (3) The name, address, telephone number and relationship of each appellant to the subject of the action of the board or commission; (4) For all appeals except those filed by mem- bers of the City Council, the grounds for the appeal, including specific allegations of error and a summary of the facts contained in the record on appeal which support those allega- tions. (Code 1972, § 3A-4; Ord. No. 111, 1989, § 1, 8-1- 89; Ord. No. 23, 1990, § 2, 4-3-90; Ord. No. 67, 1993, § 2, 7-20-93) Sec.2-50. Review of notice of appeal by City Attorney. Within five (5) working days of the date of the filing of the notice of appeal, the notice shall be reviewed by the City Attorney for any obvious de- fects in form or substance. The City Clerk shall notify the appellant in writing by certified mail of any such defect in the notice of appeal, which no- tice shall be mailed no more than ten (10) working days from the date of filing of the notice of appeal and which shall specify the period of time within which any amended notice of appeal must be filed under § 2-51. (Code 1972, § 3A-5; Ord. No. 111, 1989, § 2, 8-1- 89; Ord. No. 23, 1990, § 3, 4-3-90) Supp. No. 34 161 § 2-34 FORT COLLINS CODE or City Council committees for which public notice is required to be given by the provisions of the Code. The posting shall include, where possible, information about the availability of agenda ma- terials. (Ord. No. 91, 1992, § 8, 9-15-92) Sees.2-35-2-45. Reserved. DMSION 3. APPEALS PROCEDURE' See.2-46. Definitions. The following words, terms and phrases, when used in this Division, shall have the meanings ascribed to them in this Section: Appellant shall mean a party -in -interest who has taken an appeal from a board or commission to the City Council by the filing of a notice of appeal. Applicant shall mean the person who or orga- nization which submitted the application to the board or commission whose decision has been appealed. Final decision shall mean the action of a board or commission by a vote of a majority of its mem- bers when no further rehearing is available before such board or commission; provided, however, that a recommendation to the City Council from a board or commission shall not be considered as a final decision of that board or commission. New evidence shall mean any evidence relating to the proposal or application which was the sub- ject of final decision by a board or commission and which was not presented at the hearing before such board or commission. 'Cross references —Appeals from the Liquor Licensing Au- thority, § 3-36; appeals from the Building Review Board may be heard by the City Council. § 5-312; appeals from the decision of the city regarding alarm permits to the City Council, § 15-36; appeals from the determinations of the Building Review Board regarding alarm permits to the City Council, § 15.41(b); disapproval of pawnbroker's license may be appealed to the City Council, § 15-265(c); applicant for license regarding places of entertainment may appeal the decision to the City Council, § 15-298; appeals from the denial of the secondhand dealer's license to the City Council, § 15-318(d); appeals for denial of a license for a mobile home park may be appealed to the City Council, § 18-5(d). Party -in -interest shall mean a person who or organization which has standing to appeal the final decision of a board or commission. Such standing to appeal shall be limited to the fol- lowing. (1) The applicant; (2) Any party holding a proprietary or posses- sory interest in the real or personal property which was the subject of the decision of the board or commission whose action is to be appealed; (3) Any person to whom or organization to which the city mailed notice of the hearing of the board or commission; (4) Any person who or organization which sent written comments to the board or commis- sion prior to the action which is to be appealed; (5) Any person who appeared before the board or commission at the hearing on the action which is to be appealed; (6) The City Council as represented by the re- quest of a single member of the City Council. (Code 1972, § 3A-2; Ord. No. 67, 1993, § 1, 7-20- 93) Cross reference —Definitions and rules of construction gen- erally, § 1-2. Sec.2-47. Certain appeals to be taken to City Council. Appeals from the following boards and commis- sions, permitted under the provisions of this Divi- sion, shall be taken to the City Council in the manner as set forth in this Division: (1) Building Review Board; (2) Fire Board of Appeals; (3) Landmark Preservation Commission; (4) Planning and Zoning Board; (5) Storm Drainage Board; Supp. No. 24 160 • Mayor and Members of City Council August 23, 1995 Page 6 RECOMMENDATION AS TO FINDINGS Since there are allegations made that the Planning and Zoning Board failed to conduct a fair hearing, I would recommend that the Council first address those allegations and, if it determines that the Board did fail to conduct a fair hearing, the Council must remand the matter to the Board for rehearing. If the Council determines that the Board did not fail to conduct a fair hearing, then the Council should address the issue of whether the Board failed to properly interpret and apply the relevant provisions of the Code and Charter, and either uphold, overturn or modify the decision of the Board. If the Council finds that the Board did not properly interpret the Code and/or Charter, it would be necessary to specify the particular Code or Charter provisions that were not properly interpreted and applied. At the next Council meeting, I will have a resolution summarizing the Council's findings and decision. WPE:med Attachment (Appeal Provisions of Code,) cc: Greg Byrne, Director of Community Services and Environmental Planning Bob Blanchard, Current Planning Director Ted Shepard, City Planner Vfi1LU1Lf Ta GorvoatT A FniR HEPft.iN4 , ES leCtIf(n+D FR1LUR.t TD pizec I To Sn1`rby 1r"r nNn MPj,y D}Z 9CWAOT PRovirifws OP TMf COME. A. Urm-o 5, r o01PI C• O r M'UL(j —► C i rr The PARr.tuM(l CODE fEer1 eN Mayor and Members of City Council August 23, 1995 Page 5 RECORD ON APPEAL Section 2-53 provides that the appeal shall be "on the record," which record includes the minutes of the Board meeting, as well as all exhibits received or viewed by the Board, the video tape of the proceeding and the verbatim transcript of the proceedings pertaining to the appeal. Sec. 2-56 of the Code provides that the City Council shall consider an appeal based upon the record on appeal as well as the relevant provisions of the Code and Charter and also the grounds for appeal cited in the notice of appeal. Since there is no allegation that the Board considered evidence relevant to its findings which was substantially false or grossly misleading, new evidence could not be considered by the Council. There are a couple of specific instances in this Notice of Appeal that could result in the improper introduction of new evidence into the record. First, in the opening paragraph of the appeal, the Appellants request that certain correspondence and other documents be "included with this appeal." I have instructed Mr. Ted Shepard to examine carefully the record that was presented to the Planning and Zoning Board and its July 24, 1995 meeting to insure that all items that were given to the Board at that meeting are included in the packet that is presented to the City Council. If anything further should be presented to the Council it would violate Sec. 2-53(1) which limits the items that can be contained in the record on appeal. To the extent that the opening paragraph requests documents that do not fit within that codified definition of the "record on appeal," they should not be received by the Council. Secondly, in the Appellants's discussion of their first issue (pertaining to compatibility/density) they make some allegations regarding statements that were made at the February 6, 1995 Planning and Zoning Board meeting and also at the June 7, 1994, City Council meeting. These statements may or may not be part of the "record on appeal" depending upon whether the arguments were made by the Appellants at the July 24, 1995 meeting. I was not in attendance at that meeting but I will review the tape prior to the City Council hearing so that if a controversy should arise regarding this issue, I will at least have some familiarity with what transpired at that meeting. APPLICABLE LAW In addition to the appeals provisions of the Code, a copy of which is attached to this memorandum, the applicable law for the Council to consider in this appeal consists of the LDGS. • Mayor and Members of City Council August 23, 1995 Page 4 Woodland Park P.U.D. The reason that the Board did not grant the variance was, by the admission of the Appellants, because "this developer never asked for a variance." Whether or not the Board has granted "variances" to others begs the question. The Board must consider the applications that come before it as they are presented. If an applicant does not desire to request a variance, the Board cannot, without the applicant's consent, reduce the residential density of the application and impose upon the applicant, a variance to the law that requires residential density of a lesser magnitude. (As mentioned above, the Board is not, under the terms of the LDGS, at liberty to impose any additional requirements or conditions with regard to layout and density at the time of final plan approval.) Although it is true that the Board can condition its approval upon certain requirements, those conditions must be fashioned for the purpose of insuring that the development will comply with the law. Conditions should not be imposed upon a development without the consent of the applicant, which would require the development to violate the law (in this case, the law requiring a minimum residential density of three dwelling units per acre). The only way that the Board can authorize a "violation" of the law is through the granting of a variance and if the applicant does not desire a variance, the Board cannot impose one unilaterally. PROCEDURE FOR RECEIVING EVIDENCE Section 2-55 of the Code prescribes the following manner in which presentations are to be made, subject to such limitations in time and scope as may be imposed at the discretion of the Mayor: (1) Explanation of the nature of the appeal and presentation by City staff; (2) Presentation of issues by the appellant and presentation of argument by any party -in -interest in support of the appeal; (3) Presentation of argument by any party -in -interest who is an opponent of the appeal; and (4) Rebuttal presentations by the appellant and any party -in -interest in support of the appeal; (5) Rebuttal presentation by any party -in -interest who is an opponent of the appeal; and (6) Motion, discussion and vote by the City Council. Mayor and Members of City Council August 23, 1995 Page 3 the Code or Charter that pertains to the land use approval of a P.U.D. My research has not resulted in the surfacing of any "Ordinance No. 142" that is relevant to this issue. II. Failure to conduct a fair hearing/failure to receive all relevant evidence offered by the Appellants. The first issue raised by the Appellants (the compatibility/density issue) also contains an allegation that the Board failed to receive (and consider) all relevant evidence offered by the Appellants. It appears from the Appellants arguments raised in their first issue that the Board may have "received" all the evidence offered by the Appellants, but that the Appellants believe that the Board did not "consider" some of their evidence. The Council may wish to inquire of the Appellants for clarification on this point, however, Sec. 2-48 of the Code does not allow for a finding of a failure to conduct a fair hearing if the Board simply failed to "consider" relevant evidence offered. The Board must have failed to "receive" this evidence. Another allegation that the Board failed to "consider" relevant evidence which was offered by the Appellants was found in their third issue which pertains to wildlife in the area. Again, the argument is made that two different opinions were given to the Board and that the Board "seemed to ignore the second opinion." The Appellants argue that the Board did not "consider" relevant evidence offered by the Appellants, however, as before, the Board is only required to "receive" all relevant evidence offered. It does not have to agree with all of the evidence offered. The fourth issue raised by the Appellants pertains to storm drainage and also contains an allegation that the Board failed to receive all relevant evidence offered by the Appellants. In this instance, it is alleged that the Board "failed to question Mr. Glen Schluter" about a comment that he had allegedly made to some of the Appellants at a separate meeting. The Board has no legal obligation to develop evidence. It is the obligation of the Applicant and the opponents of the Application to present the evidence to the Board. Furthermore, it appears from the Notice of Appeal that the Board may have had no knowledge of Mr. Schulter's statement and could not have developed evidence even if it had desired to do so. Certainly, sometimes through questioning, the Board does develop evidence but it has no obligation to do so. III. Failure to conduct a fair hearing/ignoring its previously established rules of procedure. The first issue raised by the Appellants (pertaining to compatibility/density) also includes an allegation that the Board did not conduct a fair hearing because it substantially ignored its previously established rules of procedure. This issue is based upon the allegation that the Board had earlier granted some variances to the residential density requirements of the Land Development Guidance System but did not grant a variance to the residential density requirements with respect to the Mayor and Members of City Council August 23, 1995 Page 2 The Land Development Guidance System is part of the City Code and, by reference through Chart A-1.2, the Land Use Policies Plan is integrated into the Land Development Guidance System through the requirement that the development be in accordance with the adopted elements of the Comprehensive Plan. As I have indicated in the past, I believe that the City's Comprehensive Plan as it is presently constituted does not make a legally sound enforcement tool because it was drafted as an advisory document. It is my opinion that, with respect to many of its provisions, the Comprehensive Plan may likely be too vague and overbroad to be used as an enforcement and regulatory tool. Therefore, my advice has been that if a development is to be denied upon the basis that it fails to comply with Chart A-1.2, I would strongly recommend that the Council also attempt to find another criteria of the Land Development Guidance System that can be used to support the denial of the plan, in conjunction with the usage of Chart A-1.2. Perhaps the most important thing to note about the first issue is that it suggests that the Council should overturn the decision of the Planning and Zoning Board on the basis of the residential density approved for the project. Since the project was approved as a final P.U.D. plan, Sec. 29-526(F)(5)(c) becomes applicable. That section is found at the top of page 94 of the Land Development Guidance System and provides as follows: The Final plan shall also comply with all other applicable criteria of the Land Development Guidance System provided, however, that the Planning and Zoning Board shall not impose additional requirements or conditions pertaining to the general layout and densities as shown on the preliminary plan. The Planning and Zoning Board was not at liberty to impose additional requirements or conditions pertaining to general layout and density (from those shown on the preliminary plan) at the time it reviewed the final plan. It seems that the Appellants are, in their first issue, principally questioning the "general layout and density" of the development, which became established at the time of approval of the preliminary plan. If "general layout and density" was intended by the Appellants to be challenged, they should have appealed the Board's approval of the preliminary plan. The second issue raised by the Appellants also seems to address the issue of whether the Board failed to properly interpret and apply the relevant provisions of the Code and Charter. Although the second issue does not specifically cite that allegation, it makes the argument that a criterion regarding on - site recreation areas "has not been met by the developer." The Appellants refer to this criterion as being contained in Ordinance No. 142 without giving the year of enactment of that ordinance. With respect to the second issue which was raised by the Appellants, even though the Notice of Appeal did not cite a specific "allegation of error" as contained in Sec. 2-48 of the Code, I believe that it is permissible for the Council to impute the allegation of error of "failure to properly interpret and apply the Code" from the context of the issue raised by the Appellants. Even so, the fundamental concern that I have with the issue is that the Appellants have not cited an identifiable provision of CONFIDENTIAL MEMORANDUM City of Fort Collins DATE: August 23, 1995 TO: Mayor and City Councilmembersj FROM: W. Paul Eckman, Deputy City Attome� RE: Appeals Procedure— Woodland Park P.U.D. (Planning and Zoning Board Item #19- 94C) A Notice of Appeal has been filed by Dick and Ellie Chinn, et al. with respect to the July 24, 1995 decision of the Planning and Zoning Board ("the Board") approving the Woodland Park P.U.D. Final Plan. (Steve Roy has a conflict of interest regarding this item and will not be attending the meeting, with the disconcerting result that you will have to make do with me.) ISSUES ONAPPEAL: Whether the Board failed to properly interpret and apply relevant provisions of the Code and Charter (Sec. 2-48 (1) of the Code). II. Whether the Board failed to conduct a fair hearing in that it: (A) Failed to receive all relevant evidence offered by the appellants. (Sec. 2-48(2)(d) of the Code). (B) Substantially ignored its previously established rules of procedure (Sec. 2-48(2)(b) of the Code). ANALYSIS: I. Failure to Properly Interpret and Apply the Code. The first issue raised by the Appellants pertains to whether (principally because of its residential density) the Woodland Park P.U.D. is compatible with the surrounding neighborhood. In support of the Appellants' argument, the Intergovernmental Agreement for the Urban Growth Area and the City Council's goals are cited. Neither of these constitute part of the Code or Charter of the City and therefore do not fit within the proper grounds for appeal under the allegation of error that the Board failed to "properly interpret and apply relevant provisions of the Code and Charter." However, the Appellants also refer to the Land Development Guidance System and the Land Use Policies Plan. 300 LaPorte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6520 6oundations axe dug and ew is poured, it w.itl be -too Jeto have .the area. The proposed 5ubd.iv.i,5ion, as it now stands, cuitt be an .isotated devetopment .in the midst o6 a totatty d.io6erent .type o6 neighborhood and w.i,e7 be out o6 "sync" and not congruent with it's surroundings. As the mayor, Ann Azar.i, was tecentty quoted as saying a6ten attending a mayor's con6etenee, "There has aeways been a ptobtem with the one size bits ate mentati,ty. " We ask that .the Fott Cotl.ins City Council not try to make this "size" 6i t this area. This amended notice o6 appea.e .is submitted 14 August 1995 by the paxt.ies-in-.i .tersest who own homes within 500 beet o6 the pnopohed woodland Park 5ubd.i.v.i,5ion, and/ot have tece.ived notice. 06 meetings and hear.ing6 concerning the project, and/ot have appeared at both neighborhood and P. K Z. Board meetings and/or have wtd tten tettM4 to the City coneetn.ing the pro j eet. Dick K Ettie Civnn 3731 E. floxsetooth Road Font Cott u¢s, Cotoxado 80525 (970) 22.3-3214 Scott K Nancy Courtney 3256 Nite Count Font Cott.ins, Cotoxado 80525 (970) 226-5502 Jim K Karen Gleason 3808 S. County Road 9 Fort CotZ.i.ns, Cototada (970) 225-8018 Dan K Sue HendeA,son 3824 Nite Count Fort Cot G.ns, Colorado (970) 225-7225 Sam K Cathy Sands 3816 Nice Court Fort Cot it.6, Cotoxado (970) 226-3292 David K Sandra Thomas 4104 S. County Road 9 Font Cottins, Cotoxado (910) 226-1903 80525 80525 80525 80525 Bitt watxen 3109 Micheete Lane Font Cott.i.ns, Cotoxado 80525 (970) 223-0880 W,7itten tetters to P. K Z. Board Spoke at P. K Z. Board meetings Scott Co ttney /,' Nancy Cou OL tten ettets to P. K Z. Boat Spoke at P. K Z. Board meet.i.ngs 7.i.m Gleason Karen Gleason Wti tten Zettets to P. K Z. Board Attended neighborhood meetings Van _Hend enbon "Sue l(endea5on: Spoke at P. K Z. Board meetings Spoke at P. K Z. Board meetings W,Litte.n Zettens to P. 8 7. Ronnd OcuneA o6 home wd th in 500' o6 proposed zubd.iuiz i,on wti ttennZZettens to P. K Z. Board SpOG� 7/B�IIP. Z. Board meetings G�'— a.c,cx rxen Wxit en tettets to P. K Z. Board Spoke at P. K Z. Board meeting David Robertson ex , 3241 N.ite Count wt.itte titters to P. K Z. Boar Fort Cott.ins, Cotoxado 80525 (970) 223-8630 Any notices that may need to be malted may be sent to either Scoti Sandra Thomas at thew Le,5pective addresses t.isted above. • fLttney or 0 be allowed on that tract o6 A. Once that dec.t6-ion was made P. & Z. Board did not attow .the appeltantz a 6avr hearing on vat-iance and d' not 6ottow prev.iousty estab.P..ushed ptocedure which had just oecuted. (Font Cott.i.nz City Code 2-48 b.) F.i.natZy, at the Font Cottinz City Council meeting o6 07 June 7994 -there was a tengthy discussion on .the Harmony Cort.i.dot Ptan (which .includes a portion o6 our ne.ighbothood) and Counc.i.ewoman Kneeland stated, "Devetopment shoutd 6.i,t .into the ne.ighbothood-s. " The Woodtand Patk subdiviz ion does not 6.i t .into the s neighborhood. The P. $ Z. Board did not 6ottow .the tutes and gui.deP.inez as set 6otth .in .the IGA, the Font Cottinz Land Use Pot.ie.i,es Ptan on the City Council Goats which state that .land use ptans 'lane cons.i.stant with community and neighborhood values. " 2. The City o6 Font Cott.ins Otdinance N142 states that there be 11su66.i,c..ient on -site tecneati.on areas to protect the adjacent neighborhood." This etiter.ia has not been met by the developer and the P. 9 Z. Board erred in apptov.ing the plan as presented. One o6 the areas shown as open space/recteat.ion area .is a thicket o6 trees tunni.ng the length o6 the center o6 the property 6rom west to east. Another area .is on the east side o6 the proposed woodland Park development a shout distance south o6 the thicket o6 trees. This area Z6 a deep depruss.ion (about 8' deep) which cannot be used not can it be bitted .in Got use since this depression continues Got some distance into the adjoining property. A third area deset.ibed by the developer Got open space/tecteat.ion area .Ls on the northwest corner o6 the 5ubd.ivZ,5 ion. HoweveA, this area .us to be taken up almost ent tety with a club house, swimming pool and a day care center. This does not constitute 11su66.i.c..ient on -.bite teeteation areas. " A 6ubdiv.i s.ion o6 th.i s size .i s t.i.kety to have more than 150 children without any true, active open space 6ot teeteation. Many o6 these chi dten ate apt to gtay.itate to the ne.ighboai.ng ptopert.ies where some o6 the home -owners have horses, ponds, etc. 3. These .i s cons.i.detabte witdli.6e in this anew. Someone within the city w.i,ldt.i6e department stated that there i,6 not an appteciabte witdli.6e habitat in this area. How- eveA, we consulted a witdl.i6e b.iotog.ist who .in6otmed us that there is enough witdti6e .in th.iA atea to be concerned. This b.iotogizt's reasoning is that the mote witdt.i6e habitats taken up with to denti.at areas, the mote that witdt.i6e wilt be crowded .into an area too small to suppott the displaced witdl.i6e. Even cons.i,det.ing the area to the ' east o6 the Fos,6it Creek Intet that the city teeentty purchased there iz not su66.ic.i.ent space 6or art the witdt.i je being diAptaced. These ate .two very d.i66er.ing opinions and so, at best, they may be cons.i,deted subjective, but the P. 8 Z. Board seemed to .ignore the second opinion. The Naturat Ateas Pot.iey Plan 6or the City o6 Fott Cottins states (page 1-1), "W.ithin the urban setting o6 Fott Collins, naturat areas ptov.i.de .important habitats Got the conservation o6 ptants and an.i.mats and theia assoc.i.ate.d ecosystems." Further, the pot.icy plan dtates as one goat to "consider the long-range eeotogicat e66eets" and to "-insure that the type, design and tocation o6 new development be eompat.ibte with envitonmentat cons.i.denati,ons." One o6 the City Council Goals as estabt.ushed in Resotut.ion 93-90 ds to "protect and enhance out enuiaonment and to ensure that env.inonmental quality .is an .integtat pact o6 the c tu's Land use ." Atthough the appettanta provided .in6otmatiok 6tom another b.iotog.ist, as weft as slides and photogtaphs, the P. d Z. Board did not consider tetevant evidence o66eted by the appellants. (Fort Cote.inb City Code 2-48 d. ) Out 6outth concern .is with the storm dtainage. Thus area .is butt o6 underground dpt.ing6 as weft as the Fod-sit Creek Intet. Storm drainage water can, and probabty wilt, negatf.vety a66ect the spti.ngs and .i.ntet. Fossdt Cteeh Intet tuns very butt much o6 the time and .i,s eontinuatty being eroded. In the Harmony Road Cott.i.dot Ptan Generat Dtai.nage tequucements it states that .in the Fox Meadows Basin (which .includes this area) "on site detention wilt be 4equi4ed" and that "water quatdty izsues may be a concern". W. Gten SchtueteA, of the City staJ6, totd uz a hew months ago when he was ratted by a member o6 our neighbothood that we "have reason to be concerned and I don't btame you Jon J.ight.ing the development. " However, when he spoke to the P. 8 Z. Board he gave no such comment. The P. B Z. Board bailed to question Mr. Schuetten about thus comment and, • thus, 6a.ited to nece.ive alt tetevant evidence o66med by the appettants. (City Code 2-48 d For the reasons stated heAein and Got the reasons which have been stated .in tetters, minutes and iecotds o6 meetings, which we ask be tev.i.ewed in the appeat process, the undersigned tupectgutty request that the decision o6 the P. & Z. Board o6 24 Juty 1995 to approve the Woodtand Punk subd.ivi,6ion be overturned on reversed by the Font Cott.i.nz City Counc-il so that something mote compatible may be developed .in this area. Once • 14 Alest 7995 �vTtjN Font ColZins City CouncitJ1995 300 evert LaPorte Avenue Font Cottins, Cototado 80521 AUG 1 • NOTICE OF APPEAL CJTY CLF.RK The unde�csigned patt.Les-dn-.i.nteaeh.t, as de6.i.ned by .the City o6 Font ott.i;is code (Section 2-46), hereby submit th.i,5 Notice o6 Appeat to .the Font Cott.Lns City Council. Thin appeal concetns .the action o6 .the City o6 Fott Cotti.ns Ptann.ing and Zoning Board (P. 8 Z. Board) on 24 Juty 1995 .in apptov.i.ng .the Woodtand Path P.U.D. (agenda .item 419-94C). We atso 4espect6utty teques-t that att cottespondence to .the City o6 Fott Cott.ins Ptanning Department (beginning with a tettm dated 22 Apt -it 1994), att cot,%upondenee to the Ft. CotZins City P. B Z. Board, att photogtaphs, att slides, att tetteks to the Fott Cott.i.ns City Councit and att teeotds and minutes 6tom P. 8 Z. Board meetings, City Councit meetings and neighborhood meetings (the 6.inst 06 6out held 22 June 7994) be .inetuded with this appeat. The P. & Z. Board meetings o6 coneenn were 24 October. 1994 (item #18-948), 19 DecembeA 1994 (.item a18-94B), 06 Febtuaty 1995 (-item a18-94B) and 24 Juty 7995 (.item a19-94C). The gtounds Got thus appeat ate based on .Ln6otmation .in the Land Devetopment Guidance System (LDGS), the Intetgovennmentat Agteement (IGA), The City o6 Font Cottim Land Use Poti.c.ies Plan and the City o6 Font Cott.i.ns Council Goats pat 7993-1995 (Resotution 93-90). Out bout main concetns are: 1. Incompatibitity o6 the Woodtand Path subdivision with the suttounding ne.ighbothood. 2. Poi is given Got open space/t ecteatio n area. 3. E66ect on witdZi.6e. 4. Stotm dtainage and the e66eet on the water and ecosystem. 1. Out 6itst concern .is the .i.ncompat.ibZUty o6 th,Lz subdLv.isZon with out neighbor- • hood which has been estabtd.shed 6ot 30 yeats. Unfit 1994 onty one home pet every 2.39 acres was attowed. The proposed subdivizion w.itt .increase the poputation o6 the ne.ighbot- hood by 813%. T6ws is not eompatibte with the naghbothood. The IGA states (Exhibit B, page 4 -- .item 1.A), "New tes.i,dent.iat development .in the Utban Gtowth Atea (UGA) shatt mitigate potentiat negative impacts on adjacent existing tes.i.dent.i.a.t development by maintaining the chatacten and density o6 the exizt- ng development atong common boundt.ies." The City o6 Fott Cottins Land Use Pot.ic.iez Ptan states, "Regutate the use o6 tand on the basis o6 it's impact on the community of suttoundi.ng area." (p. 3) It 6utthet states. ''Bu66ets 6ot Mitigation Putposes: Cettain types o6 tand uses ate .i.nhetentty incompatible (due to no.ize, tra66.ic genetati.on, .iRtum.i.nated tight otate, etc.) and must be shietded of sepatated 6tom each other." (p. 12) These ct.it" i.a ate a pant ob the Land Devetopment Gu.idence System and the P. 8 Z. Board baited to ptopety .i.ntetptet and appty these ctiter.i,a in the A decizion bon the Woodtand Patk 6ubdi,vis.ion and 6aited to teee.ive and cons.Lden att tetevant evidence o66eted by the appettants accotd.ing to the Font Cott.ins C.i.to Code 2-48 d. At the P. g Z. Board meeting on 06 Febtuaty 1995 when both the devetopet and the ne,L.ghbothood presented theiA ptoposats there was cons.idetabte di scuss.Lon by the board. At that time the devetopet ptesented a ptan 6ot a totat o6 110 units 6o4 the subdivision. Members o6 the board stated they woutd give ptetim.inaty apptovat but woutd not give 6inal apptovat .i6 at the next meeting the devetopet did not come back with a eons.i,detabte adjustment so as to ptov.i.de an adequate bu66et area. At the P. B Z. Board meeting on 24 Juty 1995 the devetopet ptesented a ptan with 107 units (a Qeduet.L.on o6 onty 3 units). There was a discussion with the board tasting about an hour and a hat6 but u timatety they approved the ptan. The argument the P. 8 Z. Board made at every meeting was .that the city otdi.nance states that any properties within city t.im-its must have 3 or mote units pet acre. However, there ate seu mat ateas within the city where variances have been attowed. This devetopen never asked Got a vat.i,anee. At this same meeting, 24 Juty 7995, the board apptoved a 6.07 acre patcet (.item a19-94D) in the consent agenda which wilt have a totat o6 six homes on the pateet. That pateet d.iAeetty adjoins the proposed Woodtand Path subd.iva ion. We ate det.ighted with that decision as it seems a 6avc comptomi,se and is mote compatibte with the exi-6ting ne.ighbothood. 16 the vat.ianee can I • 6oundati.ons ate dug and cement .ins pouted, it Witt be .too tate0o save .the area. The proposed subdivision, as it now stands, witt be an i6otated devetopment in the midst o6 a totatty d.t66etent -type o6 ne,ighbothood and wilt be but o6 "sync" and not congtue.nt with .it's suttoundi.ngs. As .the mayor, Ann Azat.i., was tecentky quoted as saying a6tet attending a mayot's con.6etenee, "There has aZways been a ptobtem with the one size 6.its att mental ty." we ask that the Fott Cotti.ns City Counc t not tty to make thdJ "sd,ze" 6.it th.iu area. TW amended notice o6 appeat i.6 submitted 14 August 1995 by the patties-in-i tetest who own homey within. 500 beet o6 the ptoposed woodtand Patk subdivision, and/ot have teee,i.ved notice o6 meetings and heating-6 coneeAndng the ptoject, and/ot have appeared at both ne.i.ghbothood and P. 9 Z. Board meetings and/ot have wti tten t ettens to the City concetn.i.ng the ptoject. /I Dick 9 EtZi.e Chinn 3731 E. Hotsetooth Road Fott Cottins, Cototado 80525 (970) 223-3214 Scott 8 Nancy Couttney 3256 N.ite Count Fott Cot i.ns, CoZotado 80525 (970) 226-5502 Jim & Katen Gt.eason 3808 S. County Road 9 Fott Cotti.na, Cototado 80525 (970) 225-8078 Dan 9 Sue Hendet,son 3824 N.ite Count Fort Cottins, CoZotado 80525 (970) 225-1225 Sam 9 Cathy Sands 3876 N.i to Count Fott Cotti.ns, Cototado 80525 (970) 226-3292 David 8 Sandta Thomas 4104 S. County Road 9 Fott Cott ina, CoLotado (970) 226-7903 Bitt watten 3709 M.Lchettek_Ldne Fott Cottins, CoZotado (970) 223-0880 wtdtten tettets to P. 9 Z. Board Spoke at P. 8 Z. Board meetings Scott Co�ttney � Nancy Coo/ ney wti,tten ettets to P. 8 Z. Boat Spoke at P. & Z. Board meetings ,Sim Gkeason Katen Gxeason wtdtten .eettens to P. 8 Z. Board Attended neighbothood meetings Dan_Hendet6on -Sue tiende Spoke at P. 9 Z. Board meetings Spoke at P. 9 Z. Board meeti.nga wt.itten tettens to P. 9 Z. Board n, ,-David Thomas Sanata inomas 80525 Owners o6 home within 500' o6 ptoposed subd.ivi,6 ion wt.i tten tettets to P. 9 Z. Board SpoG��Z. Board meetings 80525 David Robertson 3241 N.ite Count Font Cotti.ns, Cototado 80525 (970) 223-8630 wtdtKn tettets to P. 8 Z. Board Spoke at P. 9 Z. Board meeting O Any notices that may need to be mailed may be sent to e.ithet Scott Couttney of Sandta Thomas at theit tespect.ive addtesses .Fisted above. be attowed on that tract o9and .then .the P. 9 Z. Boand moby not attow.ing .i,t on the tract bon. the Wood -and Path subdZvizion. F.i.na-ty, at .the Fott Cottinh City Councit meeting o6 07 June 1994 thence wa4 a Lengthy ddscuzs.ion on the Hatmony Cott.i.dot Pkan (which .i.nctudes a pottlon o6 out ne.ighbothood) and Councilwoman Kneetand stated, "Deveropment 6houtd bit .into the ne-ighbothoodb." The Wood -and Patk 6ubd.iv.is.ion does not 6.it into this ne.ighbothood. The P. & Z. Boand did not 6ottow .the tutu and gui.detines ab bet 6onth .in the IGA, the Fott CotL nb Land Ube PoZi.c.i.es P-an of the City Counc t Goats which state that .-and use ptans "ate cona.i stant with community and nedghbothood vatues. " 2. The City o6 Fott Cot ins Otdi.nance #142 states that there be "sud6ic.i.ent on-sZte tecteat.ion areas to protect the adjacent ne,ighbothood." This cti,tet.i.a hab not been met by the devetopen and the P. $ Z. Boand erted .in apptoving the plan as ptesented. One o6 the ateab shown as open space/tecteati.on area .is a thicket o6 ttees tunning the Length o6 the center o6 the pnopeAty 6tom west to east. Another atea .iz on the east side o6 the proposed Wood. -and Patk deve-opment a zhott dZ6tance south o6 the thicket o6 ttees. This area .is a deep deptess.ion (about 8' deep) which cannot be u4ed not can .it be 6i ted .in Got use since this depression continues Got some distance .into the adjoining ptoperty. A third area ducr.ibed by the devetoper Got open space/tecteation atea is on the northwest cotnen o6 the subdivision. However, this area .is to be taken up atmost entirety with a ctub house, sw.imm.ing pool and a day cafe center. This does not constitute 11su66.i.c.ient on -Mite tecteati.on areas." A subdivision o6 th.is size .is t.ikety to have mote than 750 chi,-dnen without any true, active open space Got tecteati.on. Many o6 these chi-.dren ate apt to gtay.itate to the ne,ighbot.ing ptopett.i.es where some o6 the home -owners have hotses, ponds, etc. 3. These .is cons.iderabte witdt.i6e .in this area. Someone within the city witdti6e department stated that there .is not an apprec.i,abte witdt.i6e habitat in phis atea. How- ever, we conbutted a wiidt.i6e b.iotog,i st who ,i.n6otmed us that there .is enough witdtL6e .in this atea to be concerned. TW b.iotog.ist's reasoning .is that the mote witdt.i6e habitats taken up with resddentiat areas, the mote that witdt.i6e wilt be crowded .into an area too smatt to suppott the dizptaced witdt,i6e. Even considet.ing the area to the east o6 the Fossil Creek Inlet that the city tecentty putchased there .is not su66.ic.ient space Got att the witdti, e being di.6ptaced. These ate two veAy d.i.66en.ing op.i.n.i.on4 and so, at best, they may be cons.ideted subjective, but the P. 9 Z. Boand seemed to .ignore the second opinion. The Natutat Ateas Pot.(.cy P.-an bon the City o6 Font CotLLu states (page 1-1), "Within the urban setting o6 Fott Cottdns, natutat areas ptov.ide .important habitats Got the consenvatZon o6 ptants and anima-s and theiA associated ecosystems." Futther, the poti.cy plan states as one goat to "cons.i.det the tong -range ecotogicat e66ect4" and to "insure that the type, design and tocat.ion o6 new devetopment be compat.ibte with envitonmentat cons.i.denati.ons." One o6 the City Council Goats a4 estabt.ushed in Resotuti,on 93-90 is to "protect and enhance out enviAonment and to ensute that envitonmentat quat ty .i s an .i,ntegtat pact o6 the c.i ty's Land use . . . " We do not beti,eve these ctitet.ia and goats have been met and that the P. 8 Z. Boand erted .in gtant.ing apptovat o6 tW devetopment. 4. Our 6outth concern iz with the storm drainage. This area .is 6u-,- o6 under- ground spt.ings as wett as the Foss.it Creek Intet. Stotm dtac:nage water can, and ptobabty wilt, negati.vety a66ect the 6pni.ng.6 and inlet. Foss.it Creek Intet runs very butt much o6 the time and iz continuatty being eroded. In the Hatmony Road Conn.idot Ptan Genera.- Dtainage Requin.ements it states that in the Fox Meadows Basin (which .i.nctudes this area), "on site detent.ian-wilt_ be.tequ red" and that "water . quat i,ty .issues may be a concern . A member o6 the city sta66 .toed us a hew months ago we had reason to be concerned about this pnobtem but neglected to te-t the P. 9 Z. Board about thobe concerns. We have not yet been given .in6otmati.on as to how this drainage wilt be handted and where the detention area wilt be. We believe the P. 8 Z. Boand erted .in not getting 6utthen .in6otmat.i,on on this matter and .in not .i.n6onm.ing the existing neighborhood. Fot the reasons stated hetein and Got the reasons which have been stated .in tettens, minutes and tecotds o6 meetings, which we ash be tev.iewed in the appeat ptoeess, the undens.igned tespeet6u-ty request that the decision o6 the P. & Z. Boand o6 24 Juty 1995 to approve the Woodtand Patk subdivision be overtutned of teversed by the Font Cott -ins City Councit 4o that something mote compatibte may be devetoped .in this area. Once • E • I • • 14 Aug 1 D Font Cott.ins City Council 300 We6t LaPorte Avenue j AU6 1 4 1995 Font Cottin6, Cotorado 80521 a NOTICE OF APPEAL CITY CLERK The under6dgned parties -in -.interest, as de6-i.ned by the City o6 Font CoZLin6 Code (Section 2-46), hereby 6ubm.it this Notice o6 Appeat to the Font Cotti•ns City Counczt. Thin appeal concerns the action o6 the City o6 Font Cottin6 Ptann.ing and Zoning Board (P. & Z. Board) on 24 July 1995 in appnov.ing the Woodland Park P.U.D. (agenda .item a19-94C). We atso re6peet6utty request that att correspondence to the City o6 Font Cottiin6 Ptanndng Department (beginning with a tetten dated 22 Aptit 1994), att correspondence to the Ft. Cot i.n6 City P. 9 Z. Board, att photographs, att 6tides, att 2ette76 to the Font Cottins City Council and att record6 and minutes 6rom P. 8 Z. Board meet.ing6, City Council meeting6 and neighborhood meetings (the 6itst o6 6our held 22 June 7994) be .i.nctuded with this appeal. The P. & Z. Board meetings o6 concern were 24 October 1994 (.item 818-94B), 19 December 1994 (.item N18-948), 06 February 7995 (.item #18-948) and 24 Juty 1995 (item N19-94C). The ground6 6o4 this appeat are based on .i.n6ormation .in the Land Devetopment Guidance Sy6tem (LDGS), the IntergoveAnmentat Agreement (IGA), The City o6 Fort Cott.ins Land Use Pot.ie.ies Ptan and the City o6 Fort Cottin6 Council Goals 6or 7993-1995 (Ruotut.ion 93-90). Our hour main concern6 are: 1. Incompat.i.bit.Zty o6 the Woodtand Park subdi.vizZon with the 6urrounding neighborhood. 2. Points given 6or open space/recreation area. 3. E66eet on witdZi.6e. 4. Storm drainage and the eb6ect on the watm and eco6y6tem. 1 . Our 6it4t concern i,6 the .incompat.ib.i Zity o6 thiz subdZviA ion with our neighbor- hood which ha6 been e6tabtished 6or 30 years. Untie 1994 onty one home per every 2.39 acres was attowed. The proposed 5ubd.ivi6ion wilt .increa6e the poputat.ion o6 the neighbor- hood by 813%. Th.Ls .ice not eompat.ibte with the neighborhood. The IGA 6tates (Exhi.b.it B, page 4 -- item 1.A), "New res.ident.i.at development in the Urban Growth Area (UGA) shatt mitigate potenti.a.t negative .impact6 on adjacent existing res.identiat development by maintaining the character and den6ity o6 the exd,5t.ing development atong common boundr.ies." The City o6 Font Cott.in6 Land Ube Pot.ic.ies Ptan states, "Regulate the use o6 tand on the ba6iz o6 dt'6 .impact on the community or surrounding area." (p. 3) It 6urther 6tate6, "Bu66er6 6or Mitigation Purposes: Cea.ta.i.n types o6 tand u6es are .inherenntty .incompat.ibte (due to noize, tra66.ic genenat.i.on, ittuminated tight gtare, etc. ) and mu6t be 6iuseded or separated 6rom each other." (p. 12) These c,% ten.ia have not been met by the developer and, there6ore, .the P. 8 Z. Board erred by approving the ptan6 6or the Woodtand Park s ubdZv.is.io n. At the P. 9 Z. Board meeting on 06 February 7995 when both the developer and the neighborhood presented their propo6at4 .there wa6 cons.i.denabte d.iscuss.ion by the board. At that time the deveeopet presented a plan 6or a totat o6 110 units 6or the 'Subdivision. Members o6 the board 6tated they woutd give pretim.i•nary approvat but would not give 6.inat approvat 16 at the next meeting the devetoper did not come back with a eons.iderabte adjustment so as to provide an adequate bu66er area. At the P. g Z. Board meeting on 24 Juty 1995 the devetoper presented a ptan with 707 unit6 (a reduction o6 onty 3 uni ts) . There wa6 a dizcu66.ion with the board tasting about an hour and a hat6 but utt.imately they approved the ptan. The argument the P. & Z. Board made at every meeting was that the city ordinance status that any properties within city limits must have 3 or more units per acre. However, there are 5evetat areas within the city where variances have been attowed. This developer never asked 6or a variance. At thus Game meeting, 24 Juty 7995, the board approved a 6.07 acre parcet (.item #19-94D) in the con6ent agenda which wit have a totat o6 s.ixx homes on the parcel. That pareet d.vr.ectty adjo.in6 the proposed Woodtand Park 6ubdZv.isi.on. We are deLLghted with that decizion as it seem6 a bait comprom.i,se and iz more compatibte with the ex.izting neighborhood. 16 the varucnce can City Cler➢ • CiFort Collins August 9. 1995 Scott Courtney/Sandra Thomas 3256 Nite Ct. Fort Collins. CO 80525 Dear Mr. Courtney/Ms. Thomas: This letter is in reference to your appealing the Planning and Zoning subdivision. The City Attorney has findings are set out in the attached wi lI want to pay particular attention memorandum. Notice of Appeal dated July 31. 1995, Board decision on the Woodland Park reviewed the appeal document and his memorandum dated August 8. 1995. You to the recommendations suggested in his Section 2-51 of the City Code provides that an amended Notice of Appeal may be filed by the appellant(s) at any time prior to the time for mailing by the City Clerk of the notice of the appeal to parties -in -interest. The City Council hearing on the appeal has been scheduled for Tuesday, August 29, 1995. at 6:30 p.m., and the Notice of Hearing must therefore be mailed no later than August 15. 1995. An amended Notice of Appeal must be submitted NO LATER THAN 12:00 NOON on Monday. August 14, 1995 to allow sufficient time for legal review and inclusion in the Notice of Hearing to be mailed on August 15. 1995. Sincerely, Wanda Krajicek City Clerk 300 LaPorte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (303) 221-6515 • FAX N(303) 221-6295 Wanda Krajicek, City Clerk August 8, 1995 Page 2 The Notice of Appeal must also include the "grounds" for the appeal, including specific allegations of error and a summary of the facts contained in the record on appeal which support those allegations. The letter which I reviewed did not contain any specific allegations of error and should be amended to include those. The allegations of error that are authorized in the City Code are found in Sec. 2-48, and the Notice of Appeal must specifically allege one or more of those allegations of error as well as a summary of facts that support those allegations. Also, although Ordinance No. 88, 1995, had not yet gone into effect at the time of filing of this appeal, I would recommend that the Appellants comply with the new provision contained in that Ordinance that requires that in the case of an appeal by more than one appellant, the name, address and telephone number of one such appellant who shall be authorized to receive, on behalf of all appellants, any notice required to be mailed by the City to the appellants under the provisions of Sec. 2-50 also be included in the Notice of Appeal. • It is also important to mention that the Appellants are free to amend their Notice of Appeal beyond those items that I have addressed in this Memorandum as being defects in the original Notice of Appeal. Sec. 2-51 of the Code gives specific authority for appellants to so amend their Notices of Appeal. However, any amended Notice of Appeal must contain all of the information required under Sec. 2-49 for the original Notice of Appeal. In short, I think it would be beneficial to the Appellants • for them to carefully examine the provisions of Secs. 2-48, 2-49 and 2-51 of the Code of the City for the purpose of assisting them in filing the Notice of Appeal. WPE:med 0 • • Citv Attornev MEMORANDUM DATE: August 8, 1995 TO: Wanda Krajicek, City Clerk FROM: W. Paul Eckman, Deputy City AttorneyA RE: July 31, 1995 letter from Sandra Thomas and Scott Courtney I have examined the July 31, 1995 letter from Sandra Thomas and Scott Courtney to the Fort Collins City Council which was received by your office on August 4, 1995. Although it does not expressly so indicate, it is obvious that this letter is intended to constitute a "Notice of Appeal" filed pursuant to Sec. 2-49 of the City. As a "Notice of Appeal" it fails to meet the requirements of Sec. 2-49, and the purpose of this Memorandum is to advise you of the findings of my review for obvious defects in form or substance as required pursuant to Sec. 2-50 of the Code. I believe that it will be necessary for the Appellants to file an amended "Notice of Appeal" and, in so doing, I would recommend that they specifically indicate on the form of the Notice that it is a "Notice of Appeal." More importantly, Sec. 2-49 should be carefully followed by the Appellants in completing their Amended Notice of Appeal. First, the Notice of Appeal must be signed by all appellants. With respect to this particular matter, it is indicated in the letter that the Appellant is the "Poudre Ridge Neighborhood." I do not believe that the "Poudre Ridge Neighborhood" is a legal entity capable of filing an appeal. If there is an official homeowner's association or other official duly established association, corporation or other entity that could be shown to constitute a "party -in - interest" as that term is defined in Sec. 2-46 of the City Code, then that entity could file a Notice of Appeal but I am fearful that the "Poudre Ridge Neighborhood" would fail to fit the definition of a "party -in -interest," in which event the appeal could be subject to challenge by its opponents. I would also recommend that the Appellants clearly identify the action of the Planning and Zoning Board which is the subject of the appeal. Reference was made in the letter to the "Woodland Park Subdivision." I would recommend that that reference be amended to indicate the item number on the Planning and Zoning Board agenda and to indicate that the project was a P.U.D. so as to not confuse the project with what we commonly refer to as "standard subdivisions." The letter did indicate the date of the action of the Planning and Zoning Board. The Notice of Appeal must also include the name, address, telephone number and relationship of • each appellant to the subject of the action of the Board. Often appellants fail to include addresses and telephone numbers and it is also important for appellants to include information regarding the "relationship" of each appellant, meaning information regarding how each appellant is a "party -in - interest" capable of filing an appeal. 300 LaPorte Avenue • P.O. Boy 580 • Fort Collins, CO 80522-0580 • (970) 221-6520 • PAGE 3 On July 24, 1995 when the Woodland Park Subdivision came up for final review of the Planning and Zoning Board, we and the developer's representative, Mr. Eldon Ward, again presented our cases. We stated the concerns mentioned herein. Mr. Ward stated that they had to go ahead with the development as submitted because the City would not allow them to build less than three units per acre. However, the developer never asked for a variance to see if the city would allow less. That night there was nearly two hours of questioning by the Board, who seemed to be trying to determine appropriate criteria which would allow them to consider an alternative to the three units per acre. The development was eventually approved, and we were advised that there was no alternative because of the ordinance stating there had to be three units per acre. However, just two hours earlier at that same meeting, in the consent agenda, the Board approved a six -acre tract adjoining the proposed Woodland Park subdivision for five houses on the six acres. We were delighted with that decision for we felt it was a fair compromise to the city ordinance and would be compatible with the neighborhood. If the variance can be allowed there, it can be allowed on the adjoining thirty-five acres. We ask that the City Council respectfully reverse the decision on Woodland Park and permit a variance, so that the development will be more compatible with the established area and neighborhood. Once foundations are dug and cement is poured, it will be too late forever to save the area. All life styles do not fit into the same mold, nor should they, and not all areas are right for a high density subdivision. The Woodland Park Subdivision east of County Road 9 will become an isolated development, out of synch and not congruent with its surroundings. As the mayor, Ann Azari, was recently quoted as saying after attending a mayor's conference, "There always has been a problem with the one size fits all mentality." We ask that the Council not try to make this "size" fit this area. Thank you. Sandra Thomas and�cott Co ney / for the Poudre Ridge Neighborhood • •I PAGE 2 When we met with the developer and asked him to compromise and put homes on acreage in the subdivision, he said he would consider two houses per acre. This is a considerably greater number than we feel is compatible but agreed to go that far to compromise. However, the developer came back to us and said it would not be financially worthwhile to him. We have investigated and know that larger lots are in demand and that they are being sold easily and quickly in both Larimer and Weld counties. People are willing to pay the going rate for just such properties. Unfortunately, those properties are developing even further from the city which adds to the drive time and gasoline consumption which the city wants to reduce. The Woodland Park subdivision property would be ideal for just such a development and the seller and the developer would still make money. We are concerned about questionable points given to the developer of Woodland Park for recreation area. Some of the points granted were for thickets of trees which cannot be used in any way for recreation. On the east side of the development property is a depression approximately 8 feet deep which can be neither used for recreation nor filled in because it continues onto the adjoining property. The other area for which points were given is on the northwest corner of the property where there is to be a club house, a day care center and a swimming pool built. This area leaves very limited open space for children to use for play. A subdivision of this size is likely to have more than one hundred children without any true, active • open space. Many of these children are apt to gravitate to the surrounding properties where some homeowners have horses and ponds. The third concern is for the wildlife. We have been told that someone within the city wildlife department stated that there is not an appreciable wildlife habitat in this area. However, a wildlife biologist has informed us that there is enough wildlife in this area to be concerned. The biologist's reasoning is that the more wildlife habitats taken up with residential areas, the more that wildlife will be crowded into a smaller area that won't support the wildlife which is being displaced. Even considering the area to the east of us that the city recently purchased, there will not be enough area for the displaced wildlife. These are two very differing opinions and so, at best, they may be considered subjective. However, the best measure may not be an expert opinion, but an observation by those of us who live here day in and day out and recognize first hand what is here. The numbers have already increased noticeably and substantially with the building that has occurred to the west of us. Our fourth concern is with the storm drainage. This area is full of underground springs as well as the Fossil Creek inlet. Storm drainage water can, and probably will, negatively affect the springs and inlet. Fossil Creek inlet runs very full much of the time and is continually being eroded. • I • AUG 0 4 1995 31 July 1995 4104 S. County Road 9 CITY CLERK Fort Collins, CO 80525 - Fort Collins City Council 300 W. LaPorte Avenue Fort Collins, CO 80521 Dear Members of the Council, The Poudre Ridge Neighborhood is respectfully appealing the Planning and Zoning Board decision made on July 24, 1995 to grant final approval for the Woodland Park subdivision. Since March of 1994, we have been concerned with the proposed Woodland Park subdivision and the effect it would have on this area of our community. Our four main concerns are as follows: 1. Incompatibility of the subdivision on the surrounding neighborhood. 2. Points for recreation area. 3. Effect on wildlife. 4. Storm drainage and the effect on the water. Our first concern is that we are an established neighborhood where over the years the rule has been only one house per every 2.39 acres. We know this is a county rule and something different applies to the city. We had requested that this area not be annexed to the city and were told by the county planning office not to worry, that we could deal with our concerns just as easily once annexation took place. We wish to utilize the guidelines of the Intergovernmental Agreement and the L.D.G.S. to present our case. We know variances can and are allowed, which is what we are requesting in this case. As stated in the IGA, "New residential development in the UGA shall mitigate potential negative impacts on adjacent existing residential development by maintaining the character and density of the existing residential development along common boundaries." To this end, the neighborhood met on three or four occasions with the developer to try and work out a compromise for a more compatible development, but was unsuccessful. The City of Fort Collins Land Use Policies Plan states there must be buffers because "certain types of land uses are inherently incompatible and must be shielded or separated from each other." This policy guide should be implemented within this development with larger lot sizes than presently planned, especially on the north, east and west sides. There are presently fifteen homes on one hundred and ten acres. The smallest parcels are 2.39 acres. This converts to one house for every seven and one half acres. When the thirty-five acres earmarked for the Woodland Park subdivision is subtracted, the immediate surrounding area will have on the average one house per five and one half acres in the remaining approximately seventy-five acres. We question how the densities of three housing units per acre is in the middle of this neighborhood are considered compatible. AGENDA ITEIPSUMMARY ITESIUMBER: 3 DATE: August 29, 1995 FORT COLLINS CITY COUNCIL STAFF: Ted Shepard SUBJECT: Consideration of the Appeal of the July 24, 1995 Decision of the Planning and Zoning Board Approving, with a Condition, a Proposed Planned Unit Development Known As Woodland Park Estates, Final. RECOMMENDATION: Council should consider the appeal based upon the record and relevant provisions of the Code and Charter, and after consideration, either: (1) remand the matter to the Planning and Zoning Board or (2) uphold, overturn, or modify the Board's decision. EXECUTIVE SUMMARY: On July 24, 1995, the Planning and Zoning Board approved Woodland Park Estates Final P.U.D. The project consists of 77 single family lots, 20 patio home lots, and 10 townhome lots (107 total lots) on 35.05 acres located on the east side of County Road #9, north of Hewlett-Packard. On August 4, 1995, a Notice of Appeal was received by the City Clerk's Office regarding the decision of the Planning and Zoning Board. In the statement of appeal it is alleged that: The Planning and Zoning Board failed to properly interpret and apply relevant provisions of the Code and Charter. The Planning and Zoning Board failed to receive all evidence offered by the appellants. The Planning and Zoning Board substantially ignored its previously established rules of procedure. The attached documents include the Notice of Appeal, an Amended Notice of Appeal, the Planning Department response to the Appeal, and the information packet that was received by the Planning and Zoning Board. In addition, the minutes of the July 24, 1995 Planning and Zoning Board meeting are included. The procedures for considering and deciding the Appeal are described in Chapter 2, Article II, Division 3 of the City Code.