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HomeMy WebLinkAboutPACKET Estes Valley Board of Adjustment 2018-10-16 - Special Meeting - Mountain Coaster Prepared: October 10, 2018 AGENDA SPECIAL MEETING ESTES VALLEY BOARD OF ADJUSTMENT Tuesday, October 16, 2018 4:30 p.m. – Board Room Town Hall 1. OPEN MEETING 2. AGENDA APPROVAL 3. PUBLIC COMMENT The Estes Valley Board of Adjustment will accept public comments regarding items not on the agenda. Comments should not exceed three minutes. 4. MOUNTAIN COASTER APPEAL Appeal of staff determination regarding Development Plan Review assignment to staff rather than Planning Commission (Estes Park Mountain Coaster). 5. ADJOURN The Estes Valley Board of Adjustment reserves the right to consider other appropriate items not available at the time the agenda was prepared. ESTES VALLEY BOARD OF ADJUSTMENT MEETING DATE & LOCATION: October 16, 2018, 4:30 p.m.; Board Room, Estes Park Town Hall, 170 MacGregor Avenue APPELLANT REQUEST: Formal Appeal of Staff Determination Regarding Development Plan Review Assignment to Staff Rather than Planning Commission, in Connection with Development Plan #DP 2018-04, approved Aug. 6, 2018 (Estes Park Mountain Coaster) The appellants have formally appealed a decision of the staff (Community Development Dept.) that the Development Plan was properly assigned to Community Development Department staff, rather than the Estes Valley Planning Commission, in connection with the overall plan review process for the subject property’s proposed development. Staff is recommending the Board find that staff’s determination is correct and the appeal be denied. LOCATION: East Side of Dry Gulch Road., Estes Park, CO, in unincorporated Larimer County within the Estes Valley Planning Area. EXISTING ZONING: RE-1, Rural Estate Zoning VICINITY AND SITE MAP: See attachments APPELLANTS: Peter E. Langer III / Linda W. Langer / M. Marsha Sypher / William V. Hammel / Dennis D. Sohocki / Dena L. Sohocki / Janet Lynn Gelhausen / Kathy Ann Kelley / The Evangelical Lutheran Good Samaritan Society OWNER OF SUBJECT PROPERTY: Yakutat Land Corporation STAFF CONTACT: Randy Hunt, AICP, Community Development Director DESCRIPTION OF PROJECT: The applicant, Yakutat Land Corporation, submitted a Development Plan application for the Estes Mountain Coaster (Project) on April 18, 2018. APPEAL of Staff Determination Regarding Development Plan Review Assignment to Staff Rather than Planning Commission (Estes Park Mountain Coaster) Estes Park Community Development Department, Planning Division Room 210, Town Hall, 170 MacGregor Avenue PO Box 1200, Estes Park, CO 80517 Phone: 970-577-3721 Fax: 970-586-0249 www.estes.org PAGE 2 OF 9 The Project is generally described as a Mountain Coaster, a gravity-driven ride, approximately 1,960 feet in downhill length, with related infrastructure including a coaster storage building, ticketing office, restroom facilities, and parking area. Utilities would be extended to serve the facility, including electric, water and wastewater service. A new driveway access is proposed. Limited onsite parking would be provided, with the majority of riders being transported by shuttle from a parking area located near the existing horseback riding facilities near the intersection of Dry Gulch Road and Highway 34. The location of the base of the coaster is approximately 800 feet to the east of Dry Gulch Road, approximately 0.85 mile north of Highway 34 (see Attachment 3, Vicinity Map). The site is within unincorporated Larimer County, in the Estes Valley Development Code planning area boundary. The property is within an RE-1, Rural Estate Residential Zoning District. DESCRIPTION OF APPEAL: The Notice of Appeal (see Attachment 1) was filed with the Community Development Department on September 5, 2018, and the Supplement to Notice of Appeal (see Attachment 2) was filed with Community Development on September 26, 2018 (collectively, the “Appeals”). The September 4, 2018 dates embedded in the headers on both documents are incorrect; however, staff hereby stipulates that no challenge to the timeliness of appeal is asserted hereby. It is assumed that the Appeal and Supplement are valid as to timeliness and form. The Appeal and Supplement make many arguments in support of the appellants’ position with regard to various elements of the project. Most of the arguments are not directly pertinent to the Board of Adjustment’s scope of authority in this instance. Moreover, the Appeals’ organization, while no doubt suited to the overall appeal purpose, do not fall into cleanly divided categories for the jurisdictions of each respective Board or Commission in the appeal process. This is perhaps not uncommon in complex appeals; notwithstanding, it is necessary to sift through the full Appeals in order to find the segments relevant to the Board of Adjustment’s task today. Staff would suggest to the Board of Adjustment that the entirety of both Appeal documents be read for context. However, our judgment is that the most directly pertinent sections are the Appeal documents section headed “Development Plan” (pp. 5-6); several parallel arguments in the Appeal’s Appendix; Section 6 in the “Basis of Position” segment (pp. 8-10); the section headed “[9] EVDC §3-8 – Development Plan Review – Table 3-3 (pp. 18-19); and, in the Supplement to Notice of Appeal, the section headed “Supplemental to Position on requirement of Planning Commission Review and Finality of Development Plan (pp. 2-3). REVIEW CRITERIA: • Appeal Process for BoA: The relevant sections in EVDC on appeal process ought to be cited first. They are as follows: § 12.1 - APPEALS See also Chapter 2, "Code Administration And Review Roles," §2.1.B. C. Appeals from Final Decisions by Staff. A party-in-interest may appeal a final decision made by Staff in administrating or interpreting this Code. All such appeals shall be taken to the Board of Adjustment, except that appeals from Staff decisions on use classifications and separate PAGE 3 OF 9 lot determinations shall be taken to either the Board of County Commissioners or Board of Trustees, as applicable. (Ord. 8-05 #1, Ord. 13-08 #1) F. Timing of Appeals. Unless a different time frame is set forth in a specific provision of this Code or in applicable provisions of the Colorado Revised Statutes, all appeals shall be in writing and filed within thirty (30) days after the final action or decision being appealed. There shall be no right to appeal any action or decision if a written notice of appeal has not been filed within said thirty-day period. (Ord. 13-08 #1) H. Hearing of Appeals. The hearing before the Estes Valley Planning Commission, Board of County Commissioners or Board of Trustees shall be held within sixty (60) days of filing the written notice of appeal. (Ord. 13-08 #1) I. Form of Appeal. Each written notice of appeal shall state specific grounds for the appeal and cite all relevant Sections of the Estes Valley Development Code. The Board hearing the appeal shall only consider those matters specified in the written notice of appeal. (Ord. 13-08 #1) (Ord. 18-02 #1, 12/10/02; Ord. 8-05 #1, 6/14/05; Ord. 13-08 #1, 8/26/08) • EVDC Sections Relevant to Staff vs. Planning Commission Review of Development Plans: Leaving aside those sections of the Appeals that are not directly pertinent to the Board of Adjustment’s charge, there are generally two chapters of the EVDC that apply to the BoA’s task today: Chapter 3 ((Review procedures and Standards), and Chapter 7 (General Development Standards). In this case, Chapter 7 is tied in to Chapter 3 through Table 3-3, which identifies certain development standards – in particular, parking – to the criteria for determining whether a development plan goes to staff or to Planning Commission. The following EVDC sections in Chapters 3 and 7 seem applicable: § 3.8 - Development Plan Review B. Applicability. All development set forth in Table 3-3 below shall be required to submit a development plan for review pursuant to the procedures and standards set forth in this Section. See also §7.1.B, which requires development plans for all new development on land with slopes steeper than thirty percent (30%) or on land containing ridgeline protection areas. No development, excavation, site preparation or construction activity, including tree/vegetation removal or grading, shall occur on property subject to this Section until a development plan has been approved. [Table 3-3 did not copy and paste well in MS Word, so I have photocopied it from the printed EVDC and includes as the last page in this Staff Report.] PAGE 4 OF 9 C. Development Plan Approval Procedures. Applications for development plan and Special Review development plan approval shall follow the standard development approval process set forth in §3.2 of this Chapter, except for the following modifications: 1. Step 3: Staff Review and Report. All development plans subject to Staff review shall be reviewed by Staff, who shall take final action by either approving, approving with conditions or denying the application. Staff action on a development plan shall not be final and appealable until the Applicant complies with or accepts all conditions of approval. 2. Step 4: EVPC Review and Action. All development plans subject to EVPC review, as shown in Table 3-3 above, shall be reviewed by the EVPC, who shall take final action by either approving, approving with conditions or denying the application. § 7.11 - OFF-STREET PARKING AND LOADING A. Applicability. 1. New Development/Exemption for New Development in the CD District. The off-street parking standards of this Section shall apply to all new buildings, structures and land uses subject to this Code, except that the off-street parking and off-street loading standards of this Section shall not apply to new development and land uses in the CD Downtown Commercial zoning district. 2. Expansions and Alterations. The off-street parking standards of this Section shall apply when an existing structure or use is expanded or enlarged. Additional off-street parking spaces will be required only to serve the enlarged or expanded area, not the entire building or use, provided that in all cases the number of off-street parking spaces provided for the entire use (pre-existing + expansion) must equal at least seventy-five percent (75%) of the minimum requirements established in §7.11.D below. G. Off-Street Parking Alternatives. Staff shall be authorized to approve alternatives to providing the number of off-street parking spaces required by the off-street parking schedule (See §7.11.D above) in accordance with the following standards: 1. Off-Site Parking. Staff may approve off-site parking facilities if the off-site parking complies with the all of following standards: a. Ineligible Activities : Off-site parking may not be used to satisfy the off- street parking standards for residential uses (except for guest parking), restaurants, convenience stores or other convenience-oriented uses. Required parking spaces reserved for persons with disabilities may not be located off-site. b. Location: No off-site parking space may be located more than three hundred (300) feet from the primary entrance of the use served (measured along the shortest legal pedestrian route), unless remote parking shuttle bus service is provided. Off-site parking spaces may not be separated from the use served by a street right-of- PAGE 5 OF 9 way with a width of more than eighty (80) feet, unless a grade-separated pedestrian walkway is provided, or other traffic control or remote parking shuttle bus service is provided. c. Zoning Classification: Off-site parking areas must be located on a site with the same or a more intensive zoning classification than required for the primary use served. d. Agreement for Off-Site Parking: (1) In the event that an off-site parking area is not under the same ownership as the principal use served, a written agreement in a form approved by Staff between the record owners will be required. The agreement must guarantee the use of the off-site parking area for at least ten (10) years. An attested copy of the agreement between the owners of record must be submitted to Staff for recordation. (2) Recordation of the agreement must take place before issuance of a Building Permit or Certificate of Occupancy for any use to be served by the off-site parking area. An off-site parking agreement may be revoked only if all required off-street parking spaces will be provided, in accordance with the off-street parking schedule. (See subsection D above.) No use shall be continued if the off-site parking is removed unless Staff is notified at least sixty (60) days prior to the termination of a lease for the off-site parking and substitute parking facilities are provided. 2. Shared Parking. Staff may approve shared parking facilities for developments or uses with different operating hours or different peak business periods if the shared parking complies with the all of following standards: a. Location. Shared parking spaces must be located within three hundred (300) feet of the primary entrance of all uses served, unless remote parking shuttle bus service is provided. b. Zoning Classification. Shared parking areas must be located on a site with the same or a more intensive zoning classification than required for the primary uses served. c. Shared Parking Study. Those wishing to use shared parking as a means of satisfying off-street parking requirements must submit a shared parking analysis to Staff that clearly demonstrates the feasibility of shared parking. The study must be provided in a form established by Staff and must be made available to the public. It must address, at a minimum, the size and type of the proposed development, the composition of tenants, the anticipated rate of parking turnover and the anticipated peak parking and traffic loads for all uses that will be sharing off-street parking spaces. d. Agreement for Shared Parking. A shared parking plan will be enforced through written agreement among all owners of record. An attested copy of the agreement between the owners of record must be submitted to Staff for recordation in a form established by the Town or County Attorney. Recordation of the agreement must take place before issuance of a building permit for any use to be served by the shared parking area. A shared parking agreement may be revoked only if all required off-street PAGE 6 OF 9 parking spaces will be provided in accordance with the off-street parking schedule. (See subsection D. above.) 3. Other Eligible Alternatives. Staff may approve any other alternative to providing off-street parking spaces on the site of the subject development if the Applicant demonstrates to the satisfaction of Staff that the proposed plan will protect surrounding neighborhoods, maintain traffic circulation patterns and promote quality urban design to at least the same extent as would strict compliance with otherwise applicable off-street parking standards. • Staff Discussion: Here in outline form is the staff’s chain of logic indicating why in our judgment this project is legally classified as a staff-level review and not a Planning Commission review: • Table 3-3 is the heart of the matter. The first three rows in Table 3-3, along with the header row above them, specifies which non-residential projects go to Planning Commission and which are reviewed at the staff level. o Before proceeding with Table 3-3, a minor but important matter needs clarified. Questions have been raised about the meaning of the term “Non-Residential Development” in the Table’s header. Specifically, some assert that the term “Non-Residential Development” does, or should, refer to the zoning district in which a project is built and not to the development project classification. Staff does not see any ambiguity here: a use classification, not a zoning district, is the only logical way to interpret this header. It is true that the Mountain Coaster is a non-residential project proposed in a residential district. A review of the Use Tables in Chapter 4 readily establishes that non-residential development in residential zoning is not an uncommon combination in our Code (Table 4-1); the reverse is also true (Table 4-4). There would be no logic in assigning a zoning district meaning to the header – among other reasons, the Parking section (a key criterion for determining reviewing entity in Table 3-3) does not allocate parking by zoning district; it allocates parking by use classification. • The three applicable rows in Table 3-3 give specific guidance on how to determine which entity reviews a development plan. o The first row deals with number of parking spaces, and the categories in the two columns are clear and mutually exclusive. Non-residential developments with 10 to 20 parking spaces are staff reviews. Non-residential developments with 21 or more parking spaces go to Planning Commission. o The second row deals with construction of gross floor area, which requires building construction. As this row is not at issue in the appeal documents, it need not be discussed further here. o The third row addresses “major alterations”, followed by a rather lengthy and poorly defined list of standards that could be used in determining a “major alteration”, such as drainage, configuration of parking, water, sewer, and so on. No guidance is given as to what “major” means, much less measurable standards. However, one term is not vague or ambiguous in the third row, and that is “alterations”. In planning terminology, an “alteration” refers to changes in a developed site to modify the development thereon – e.g., a building addition, a parking-lot change, rearrangement of infrastructure, and similar elements. Unless specifically stated otherwise, “alteration” never refers to developing an undeveloped or “natural” site. This third row, therefore, would not apply when a site is being developed with built structures from an undisturbed state. PAGE 7 OF 9  Some may suggest that the presence of horse trails on the subject property means it is not in a “natural” or undeveloped state. This suggestion is not a practical guideline. In planning and development, the typical clear dividing line between undeveloped and developed land is when an activity triggers building permits, infrastructure permits such as driveway permits, and the like. To staff’s awareness, none of the horse- trail activity has generated any permit requirements, nor have any been issued. • The Mountain Coaster does contemplate new buildings, but the total gross floor area is well under 10,000 square feet gross floor area; therefore, the second row cannot place review in the Planning Commission’s hands. • As already outlined, the third row cannot apply because there is no alteration to a developed site. • This leaves the first row, dealing with parking spaces. The Coaster project presents an interesting duality in how to count parking spaces, due to the fact that some assigned parking is to be located on the subject parcel and on adjacent/nearby areas that are already used for other parking through shared-use arrangements. The applicants’ Statement of Intent (see Attachment 7) notes that 19 spaces are to be constructed on the subject parcel, and 32 spaces are to be allocated for Coaster use in the existing Sombrero parking lot on the northwest corner of Dry Gulch Road and U.S. 34. One could argue that the parking count for the project could be either 19 spaces or 51 spaces (19 + 32). Which is the legally mandated count in EVDC? o Staff does not see any ambiguity in the answer: It is 19 spaces. Our logic:  Sec. 7.11.A.2 states: “The off-street parking standards of this Section shall apply when an existing structure or use is expanded or enlarged. Additional off-street parking spaces will be required only to serve the enlarged or expanded area, not the entire building or use…”  On October 2, 2018, in a different phase of the appeal process, the Larimer County Board of County Commissioners determined that the current use of the property is the same as the proposed use of the property – namely, a Recreation Facility in the Parks and Recreation category. This is a settled issue and not legally debatable by the Board of Adjustment or another local-government entity.  For this reason, Sec. 7.11.A.2 requires that only the enlarged or expanded area for the use be counted – not all of the area.  It is unfortunately less than clear in EVDC how to correlate the “expanded area” on the subject property with the required minimum parking, due to ambiguities in Sec. 7.11.D (the Minimum Off Street Parking Requirements table – not reproduced here). In this and many similar instances over the years, a traffic and parking study generated and provided by a project applicant has been an accepted substitute for gaps in coverage in Sec. 7.11.D; that was done in the Mountain Coaster case. This substitution is explicitly authorized in Sec. 7.11.G.3, which provides for such studies or plans to demonstrate “… to the satisfaction of Staff that the proposed plan will protect surrounding neighborhoods, maintain traffic circulation patterns and promote quality urban design to at least the same extent as would strict compliance with otherwise applicable off-street parking standards.” Staff is satisfied that the provided traffic / parking plan does exactly that, and that the 19 new spaces, plus shuttling from the 32-space lot at U.S. 34, will not result in identified parking capacity concerns. PAGE 8 OF 9 • As a subsidiary argument, questions have been raised about whether the shuttling arrangement is appropriate and allowable under code. This is not a BoA issue on appeal; however, by way of complete information, staff would point to Secs. 7.11.G.1.b and 7.11.G.2.a, which explicitly provide for shuttling arrangements as alternatives to the larger on-site parking lots as per traditional development standards in Code. In summary, staff has classified the Mountain Coaster development plan as a staff review, not a Planning Commission review, because: a. EVDC Sections 7.11.A.2, 7.11.G.3, 7.11.G.1.b, and 7.11.G.2.a, taken together, mean that only 19 parking spaces are to be counted in connection with this development plan, not 51 or some other number. b. Per Table 3-3, non-residential development, including this one, are reviewed by staff only, inasmuch as only 19 spaces are effectively counted, and the Table’s first row and header state that parking between 10 and 20 spaces constitutes a staff-level review, not a Planning Commission review. (19 is of course between 10 and 20 arithmetically.) Finally, a question has been raised as to whether the staff only review is a mandatory matter, or whether staff could elect to send the development plan to Planning Commission anyway. This is explicitly prohibited in EVDC 3.8.C.1, which states: “All development plans subject to Staff review shall be reviewed by Staff, who shall take final action by either approving, approving with conditions or denying the application.” [emphasis added] The word “shall” in Code does not allow other alternatives to a staff decision in this and similar cases. PUBLIC NOTIFICATION, PUBLIC COMMENTS: Public Notice. A legal notice was published in the Estes Park Trail-Gazette on September 28, 2018. The appeal is posted on the Town’s “Current Applications” webpage. Public Comment. Significant public comment has been received by staff on the overall project proposal; comments include statements regarding the appropriateness of staff review vs. Planning Commission review – i.e., the subject of this Board of Adjustment appeal. Comments have been posted on the “Current Applications” webpage. STAFF RECOMMENDATION: Staff is recommending the Board of Adjustment find that staff’s determination is correct and that it be upheld, and the appeal be denied, incorporating findings as outlined herein. Staff will verbally summarize these findings and elements in verbal form at the October 16 hearing. SUGGESTED MOTIONS: I move to UPHOLD the staff determination regarding the Mountain Coaster Development Plan (#DP 2018-04) review assignment to staff rather than Planning Commission, with findings and conclusions as outlined in the staff report. PAGE 9 OF 9 I move to REVERSE and VACATE the staff determination regarding the Mountain Coaster Development Plan (#DP 2018-04) review assignment to staff rather than Planning Commission, with the following findings (state reasons / findings for Reversal). ATTACHMENTS: 1. Notice of Appeal 2. Supplement to Notice of Appeal 3. Vicinity Map 4. Development Plan Approval Letter 5. Timeline and Process Outline for Appeal 6. Fact Sheet About the Estes Park Mountain Coaster, July 3, 2018 7. Applicant Statement of Intent (for reference) 8. Development Plan Set (for reference) Comments, letters, and emails regarding this application can be found at the following link: www.estes.org/currentapplications Attachment 8 2016 Colorado Revised Statutes Title 30 - Government - County County Planning and Building Codes Article 28 - County Planning and Building Codes Part 1 - County Planning § 30-28-118. Appeals to board of adjustment Universal Citation: CO Rev Stat § 30-28-118 (2016) (1) (a) Appeals to the board of adjustment may be taken by any person aggrieved by his inability to obtain a building permit or by the decision of any administrative officer or agency based upon or made in the course of the administration or enforcement of the provisions of the zoning resolution. Appeals to the board of adjustment may be taken by any officer, department, board, or bureau of the county affected by the grant or refusal of a building permit or by other decision of an administrative officer or agency based on or made in the course of the administration or enforcement of the provisions of the zoning resolution. The time within which such appeal shall be made, and the form or other procedure relating thereto, shall be as specified in the general rules provided by the board of county commissioners to govern the procedure of such board of adjustment or in the supplemental rules of procedure adopted by such board. (b) No such appeal to the board of adjustment shall be allowed for building use violations that may be prosecuted pursuant to section 30-28-124 (1) (b). (2) Upon appeals the board of adjustment has the following powers: (a) To hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision, or refusal made by an administrative official or agency based on or made in the enforcement of the zoning resolution; (b) To hear and decide, in accordance with the provisions of any such resolution, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such resolution to pass; (c) Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the enactment of the regulation or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under this part 1 would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of such property, to authorize, upon an appeal relating to said property, a variance from such strict application so as to relieve such difficulties or hardship if such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning resolutions. In determining whether difficulties to, or hardship upon, the owner of such property exist, as used in this paragraph (c), the adequacy of access to sunlight for solar energy devices installed on or after January 1, 1980, may properly be considered. Regulations and restrictions of the height, number of stories, size of buildings and other structures, and the height and location of trees and other vegetation shall not apply to existing buildings, structures, trees, or vegetation except for new growth on such vegetation. (3) The concurring vote of four members of the board in the case of a five-member board and of three members in the case of a three-member board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official or agency or to decide in favor of the appellant. Disclaimer: These codes may not be the most recent version. Colorado may have more current or accurate information. 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