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HomeMy WebLinkAboutMINUTES Town Board 2014-01-14Town of Estes Park, Larimer County, Colorado, January 14, 2014 Minutes of a Regular meeting of the Board of Trustees of the Town of Estes Park, Larimer County, Colorado. Meeting held in the Town Hall in said Town of Estes Park on the 14th day of January, 2014. Present: Also Present: William C. Pinkham, Mayor Eric Blackhurst, Mayor Pro Tem Trustees Mark Elrod John Ericson Wendy Koenig Ron Norris John Phipps Frank Lancaster, Town Administrator Greg White, Town Attorney Cynthia Deats, Deputy Town Clerk Absent: None Mayor Pinkham called the meeting to order at 7:00 p.m. and all desiring to do so, recited the Pledge of Allegiance. PROCLAMATION — 100TH ANNIVERSARY OF NAMAQUA CHAPTER NATIONAL SOCIETY DAUGHTERS OF THE AMERICAN REVOLUTION. Barbara Wilkinson and Mona Worley representing the Namaqua Chapter National Society Daughters of the American Revolution in Loveland were present to receive a proclamation recognizing the 100th Anniversary of the Chapter. PUBLIC COMMENT. None. TOWN BOARD COMMENTS / LIAISON REPORTS. Trustee Ericson stated that in regard to the Town's December 31, 2013, financial statements, the Town's auditors will be reviewing financial procedures in mid -February 2014, and will be back in mid -April to perform year-end testing. The Transportation Advisory Committee will meet on Wednesday, January 15th at noon in Room 202. Topics of discussion include a private trolley historical tour business and downtown employee parking. The Community Development / Community Services Committee meeting is scheduled for Thursday, January 23, 2014, at 8 a.m. in the Town Board room. Mayor Pro Tem Blackhurst noted that a housing needs assessment is being initiated by the Estes Park Housing Authority (EPHA). The study will evaluate needs within Estes Park that may be met by building a residential rental project on property owned by EPHA located on Dry Gulch Road. The study will look at need in the area of 80% of the median income and below for a proposed 45-66 unit complex. The assessment is scheduled to be completed by March 2014, at which time it will be presented to the community. The EPHA is also looking at tax credit financing for the project. The application process includes the needs assessment and a preliminary design and architectural rendering and is being considered at this time due to more favorable rates. Also, the EPHA received an anonymous donation in the amount of $100,000 to be used to address housing needs for low to moderate income individuals within the community. Mayor Pro Tem Blackhurst and Mayor Pinkham stated that this donation is a tribute to the EPHA board and staff and the accomplishments of the organization over the past 12 years, and noted that EPHA currently helps 300 families within the community. Trustee Koenig said that Nick Molle is the new president of the Sister Cities organization, with former president Jim Thompson serving as treasurer. The Rooftop Board of Trustees — January 14, 2014 — Page 2 Rodeo did not receive the mid -sized rodeo of the year award this year, with the award going to Deadwood, South Dakota. The Western Heritage Committee will hold their general meeting on Thursday, January 16th; interested parties are invited to attend. Trustee Norris said the Visit Estes Park Board is continuing their search for a new CEO, and will be holding a strategic planning retreat this week. A Bear Education Task Force meeting is scheduled for Thursday, January 16th at 2 p.m. TOWN ADMINISTRATOR REPORT. 1. Policy Governance Report — Per Town Board Policy 3.3, Town Administrator Lancaster reported on Financial Planning and Budgeting. He stated that the audit is planned, budgeting rules are being followed, and the Town is within the current budget as revised due to the flood. He reported compliance in all areas. 1. CONSENT AGENDA: 1. Special Town Board Minutes dated December 5, 2013, Town Board Minutes dated December 10, 2013, and Town Board Study Session Minutes dated December 10, 2013. 2. Bills. 3. Committee Minutes: A. Public Safety, Utilities, Public Works Committee, December 12, 2013 — Cancelled. B. Community Development / Community Services Committee, December 19, 2013 — Cancelled. 4. Estes Valley Planning Commission Minutes dated November 19, 2013. (acknowledgement only). 5. Resolution #01-14 — Public Posting Area Designation. 6. Resolution #02-14 — Schedule public hearing of January 28, 2014, for a Hotel and Restaurant Liquor License Application filed by Mountain Strong LLC, dba Mountain Strong Restaurant, 361 S. St. Vrain Avenue. It was moved and seconded (Blackhurst/Koenig) to approve the Consent Agenda Items, and it passed unanimously. 2. ACTION ITEMS: 1. INTERGOVERNMENTAL AGREEMENT FOR PERMANENT REPAIRS TO FISH CREEK CORRIDOR. The September 2013 flood resulted in severe damage to the Fish Creek corridor, with the Town of Estes Park, Larimer County, Upper Thompson Sanitation District (UTSD), and the Estes Valley Recreation and Park District (EVRPD) all sustaining damage to their facilities located in the area. Rather than to address repairs individually, the four entities have entered into an intergovernmental agreement (IGA) to partner in reconstruction and restoration activities, and designate Larimer County as the lead entity for the permanent restoration of the Fish Creek corridor. The IGA provides for the issuance of a Request for Proposal (RFP) for a consultant to produce a design to address the reconstruction of infrastructure as well as stream restoration, and determine the scope of the work that needs to be completed. The parties to the IGA have agreed to be responsible for a certain percentage of the cost of the design consultant based upon each party's estimation of its damage in the corridor. The percentages are: Larimer County — 39%; Town of Estes Park — 43%; UTSD — 12%; and EVRPD 6%. The IGA establishes a technical committee with representation from all parties to provide guidance and feedback throughout the process. Dir. Zurn will be representing the Town of Estes Park on the technical committee. Following the design phase, the parties agree to move forward to Phase II — Construction, and Larimer County Board of Trustees — January 14, 2014 — Page 3 will contract for the work on behalf of all parties to get the work done in the most fiscally conservative way as possible. Each entity will determine their scope of work for completion. Discussion is summarized: the community will be kept informed of the process through the Larimer County and Town of Estes Park Public Information Offices; do the costs need to be more exact in order to qualify for reimbursement by FEMA?; the cost estimates in the IGA are for the design of repairs and are reimbursable; the cost estimates have been reviewed and are acceptable to FEMA; once work is done actual dollars spent will be submitted for reimbursement; design process will include component design so each party will be able to determine its costs; and Baja and Xcel Energy will be part of construction process, but are not parties to the IGA. It was moved and seconded (Norris/Blackhurst) to approve the Intergovernmental Agreement for repair of the Fish Creek corridor, and it passed unanimously. 2. APPEAL THE APPROVAL OF THE STANLEY PAVILION BY THE TECHNICAL REVIEW COMMITTEE. Mayor Pinkham: Open the Public Hearing. The formal public hearing will be conducted as follows: • Mayor — Open Public Hearing • Staff Report • Appellant Presentation • Applicant Presentation • Public Testimony • Mayor — Close Public Hearing • Board Discussion & Motion to Approve/Deny. Appeal of the Technical Review Committee's determination that the proposed use complies with the Master Plan for the Stanley Historic District as an ancillary use to the Stanley Historic District, Mountain Creek Townhome Condominium Association/Applicant. Mayor Pinkham asked that Attorney White explain the question before the Board and the process to be followed. Attorney White stated that the appeal arises out of the 1994 Development Agreement for Lot 1 between the Stanley Hotel and the Town of Estes Park and the Stanley Historic District Master Plan which is part of the Development Agreement. The Stanley Historic District Master Plan set up a technical review process to review projects on various components of the Stanley Historic District, including Lot 1. The document includes a sentence that states that a decision of the Technical Review Committee (TRC) may be appealed to the Town Board of Trustees. No further references to an appeal, or the appeal process, are included in the Master Plan document or the Development Agreement. Attorney White stated that this is a very specific appeal with regard to a decision by the TRC that the proposed Stanley Pavilion Project is a use that is allowable under the Stanley Historic District Master Plan and related documents. He emphasized the appeal is solely related to the TRC's decision regarding the use of the property and no other aspects of the project are under appeal. The TRC decision is being appealed by the Mountain Creek Townhome Condominium Association. The townhome development is located on Lot 7 of the Stanley Historic District which abuts the proposed Stanley Pavilion Project: Attorney White stated the procedure will be treated as a de novo hearing and that the Board is free to ask the presenters questions at any time. Mayor Pinkham opened the public hearing. Staff Report: Planner Shirk referenced a letter dated February 2013, from Dir. Chilcott to the attorney for the Mountain Creek Townhome Condominium Association, Mr. Board of Trustees — January 14, 2014 — Page 4 Jack Reutzel, regarding the uses in the Stanley Historic District. He stated that the Stanley Historic District was created in 1994 and the Development Agreement being discussed references the zoning standards that were in place at that point in time. As stated in Dir. Chilcott's letter dated February 6, 2013, the 1994 Municipal Code allowed Commercial Accommodations and customary accessory uses to Commercial Accommodations as permitted uses. In addition, the Master Land Use Plan for the Stanley Historic District also outlined the allowed uses and states: "The existing operation of the hotel is anticipated to expand, and include ancillary uses such as a recreation center, limited retail and restaurants..." This is not an inclusive list, but an example of possible future uses. In reviewing the 1994 regulations, staff determined that this use was contemplated and an allowed ancillary use at that time, and the TRC upheld that staff determination with their findings. Trustee Elrod noted that Dir. Chilcott's letter dated February 6, 2013, was in response to a letter from Mr. Reutzel dated December 28, 2012, requesting a determination as to whether the uses proposed in the Stanley Pavilion application are permitted under the Accommodations Zone District or the Master Development Plan for the Stanley Historic District. He asked if there was a response from Mr. Reutzel to the February 6th letter. Planner Shirk said the next correspondence he is aware of is dated September 26, 2013. Attorney White noted that Mr. Reutzel raised these issues during the TRC meetings throughout the review process. It was noted that during the four public hearings held by the TRC, comment was received from the applicant, the appellant, as well as from the public; some of which was in opposition to the application. The TRC made their determination on September 3, 2013, by focusing on the Stanley Historic District Master Plan which took the standards in Municipal Code Chapter 17.44 and turned them into the overall plan. Planner Shirk stated that it is staffs opinion that all appropriate procedures were followed after the TRC heard from the applicant, the appellant and the public in arriving at their September 3, 2013, determination. In response to a question by Trustee Ericson about the composition of the TRC, Planner Shirk stated that the Master Plan defines the number of people to be included on the TRC as well as their qualifications. He said that when a new application for a property within the Stanley Historic District is received, a TRC is created jointly with the applicant. Appellant Presentation: Jack Reutzel, land use attorney at Fairfield and Woods representing the Board of Directors of the Mountain Creek Townhome Condominium Association, stated that on March 6, 2013, an appeal of staffs decision was sent to the Board of Adjustment. He said that on June 13, 2013, he received a letter from Attorney White advising him that the appeal would not be processed by the Community Development Department and the Estes Valley Board of Adjustments. The letter stated that, if necessary, an appeal of the TRC determination may be made to the Town Board of Trustees. Mr. Reutzel submitted three documents (controlling documents) into the record: the Memorandum of Agreement and the Development Agreement between the Stanley Hotel and the Town of Estes Park dated January 1994 with associated exhibits including the Master Plan and Exhibit F; the Stanley Historic District Master Plan Development Standards and Design Guidelines with pertinent exhibits; and the September 26, 2013, appeal letter from Mr. Reutzel to the Town Board with exhibits. Mr. Reutzel stated that his client's position is that the TRC made a decision they do not have the ability to make, and that the initial decision as to whether this is a permitted land use permeates all other conditions. If it is found that the TRC did not have the ability to make this initial decision, all conditions attached are irrelevant. He said he is aware that development within the Stanley Historic District is governed by different rules and procedures than the rest of the Town, which are set forth in the controlling documents. He stated Board of Trustees — January 14, 2014 — Page 5 the controlling documents must be adhered to, that the agreement is a contract without much flexibility with terms and procedures that must be followed. The TRC was created by the controlling documents to apply the adopted development standards and design guidelines to allow for flexibility in design. The TRC is not a land use authority and is prohibited from modifying permitted uses and densities, and granting use variances. Exhibit F which is an exhibit to the Development Agreement sets forth permitted uses in a complete, unambiguous list that provides no discretion in determining additional land uses. He stated that wedding pavilions and corporate retreats are not part of the listed uses; and noted that ancillary use is not defined within the development documents. The appellant maintains that the controlling documents do not contemplate ancillary uses that are not listed in Exhibit F. He stated that the Development Standards for Lot 1 contemplates ancillary structures presumably to accommodate principle uses and includes a site limitation requiring that the structures be located north of the front facade. He stated that the appellant's argument is not new; the TRC, Dir. Chilcott, and Attorney White have heard about it for over a year. The appellant has not wavered from the principle point that they do not believe the Master Plan contemplates the type of uses proposed by the Stanley Hotel, especially in this location. He also noted that the applicant is not without alternatives, and could seek to amend the Master Plan. Mr. Reutzel requested that the TRC's decision be overturned and requested that the 1994 zoning code and all of the proceedings before the TRC be made part of the record by reference. Trustee Phipps asked if the terms "ancillary uses", "accessory uses", and/or "additional uses", are mentioned in the controlling documents. Mr. Reutzel responded that there is not a reference to additional uses; that there is a reference to accessory structures in the Development Standards; and a reference to accessory uses in the intent statement in the Master Plan. He added that the uses that the Stanley Hotel has proposed in their Pavilion Project are never defined as either permitted, accessory, or ancillary under the Master Plan or Development Standards. Trustee Elrod noted that the review process is not specifically defined as to who can appeal and on what grounds an appeal can be made to the Town Board; and discussed the documents Mr. Reutzel describes as the controlling documents. Mr. Reutzel stated it is his belief and argument that the documents he has defined as controlling documents set forth the process to be used for the Stanley Hotel and that Chapter 17.44 of the Municipal Code is superseded by the Development Agreement. Mr. Reutzel stated that Exhibit F is controlling, notwithstanding what is included in the 1994 zoning code and stated that if a proposed use is not permitted in the Development Agreement, it is prohibited. Trustee Elrod stated that Exhibit F does not have a reference to what is prohibited and is a land use summary. He defines summary as an abridgement, brief, or compendium and contends that Exhibit F was not intended to be an exhaustive list of the only permitted uses. Mr. Reutzel contends that Exhibit F is a list of uses and said that if a proposed use is not on the list, it cannot be done, however, a process to amend the Master Plan to include that use could be undertaken. Trustee Elrod clarified Mr. Reutzel's argument to be that if the Development Agreement does not define ancillary uses nor specifically reference ancillary uses that the TRC could not consider ancillary uses to arrive at their decision; and in the absence of defining ancillary uses or failing to reference ancillary uses in the Development Agreement they may not or cannot be considered. Mr. Reutzel stated he could find legal authority to support his position. Trustee Phipps noted that the Exhibit F does not contain the words "such as" in describing the uses. Trustee Koenig stated Exhibit F is not a list of uses but refers to density, and also stated that in her opinion a summary refers to larger categories. Mr. Reutzel's stated it is his opinion that Exhibit F speaks to the uses of the property as well as the density and intensity. Board of Trustees — January 14, 2014 — Page 6 Greg Vanskiver, Town resident and president of the Mountain Creek Town Home Condominium Association, asked to address the Town Board with concerns about the project as a resident of Mountain Creek. Attorney White stated that he did not believe such comments to be relevant and said comment must be focused on the very specific question before the Board. He said if the speaker is not going to address the specific issue related to the TRC's decision, then the comments are irrelevant. Mr. Vanskiver said he would like to put some context before the Board as to why the appeal was brought forward and express concerns about the project. Mayor Pinkham stated that is not the issue before the Board at this time. However, Mr. Vanskiver received permission to quote excerpts of the Master Plan and give reasons why the project is not appropriate in the proposed location. He said the residents of Mountain Creek do not consider the proposed project to be an "orderly, appropriate and sensitive development" when it is located within 150 to 200 feet of existing residences. He said the impact the proposed development will have on residents of Mountain Creek Condominiums is being ignored and the development is incompatible with the adjacent existing residential buildings and uses. He stated it would be contrary to every principle of reasonable land use, planning and zoning to permit this project. He said the proposed development and a quiet residential neighborhood are incompatible and the project will destroy the quality of life for residents in the Meadow Creek Townhomes. Applicant Presentation: Stewart Olive, representing the Stanley Hotel, presented the grounds on which the Stanley believes the appeal should be denied. First of all is the standing issue, the Development Agreement is a contract between the Town of Estes Park and the Stanley Hotel and Section 11.11 says there are no third party beneficiaries to the Agreement. The Master Plan is Exhibit B to the Agreement and is subject to the parties' rights in the Development Agreement. He said it is for the parties to the contract, and the parties to the contract are the Town and the Stanley Hotel. He stated that no rights were extended either by contract or by ordinance to the homeowner's association in this matter; they are not parties to the contract. As such they are not intended to be beneficiaries to the contract and they have no rights under the contract, including the right to appeal. He stated that the appeal should be dismissed on these grounds alone. Mr. Olive said that Exhibit F is a summary, and that Section 3.02 states that the size, location and configuration of the structures are for illustrative purposes only and that the parties agree that the reasonable application of the guidelines allow the development to the specified density. He stated that prohibited uses are listed on Page 11 of the Master Plan and include mobile home parks, recreational vehicle parks, commercial storage, manufacturing, gas stations, car dealerships, go-kart tracks, waterslides, miniature golf courses, commercial kennels, and adult uses. The proposed uses for the Stanley Pavilion are corporate retreats, small art performances, and weddings, which are already permitted uses; and said the Stanley is rearranging and reconfiguring as allowed and will not change the overall density. He said the Development Agreement and the Master Plan anticipated changes to the Stanley operations. Paragraph 2c states that future development must be designed and planned to accommodate uses and opportunities which were not accounted for in the Master Plan, thus providing flexibility for future development. It also states that the uses for the hotel are anticipated to expand and include ancillary uses such as recreational center, limited retail and restaurants, provided as examples. In regard to the site development, the Master Plan states that the core issue is the preservation of the Stanley Historic District and the economic viability of the Stanley Hotel and notes that expansion of existing facilities and thoughtful addition of new facilities are important to the economic viability of the hotel and the Town. He stated that ancillary uses were expected as part of the hotel property development and the TRC's decision that the pavilion represents that Board of Trustees — January 14, 2014 — Page 7 permitted use under the Stanley Historic District documents is a reasonable application of the guidelines called for in the Master Plan, and on that basis the appeal should be denied. Public Testimony: Charley Dickey, Town resident and neighbor to the Stanley Hotel property, asked that the Board reference his comments made at previous TRC public meetings. Mayor Pinkham closed the public hearing. Trustee Phipps stated that with the amount of new information distributed during the meeting, it would be difficult to make a decision at this point in time. Mayor Pro Tem Blackhurst concurred and said that time is needed to review the information and to ensure that the information is understood. It was moved and seconded (Blackhurst/Phipps) to table the appellate hearing until the first Town Board meeting in February, and it passed. Those voting "Yes" Mayor Pro Tem Blackhurst, Trustees Ericson, Koenig, Norris, and Phipps. Those voting "No" Trustee Elrod. Attorney White asked if Mr. Reutzel and Mr. Olive should be present at the February 11, 2014, meeting to answer questions. The Trustees said that additional questions may arise as they review the information they received during this evening's meeting. Mayor Pro Tem Blackhurst asked Attorney White for clarification on the issue of standing. Attorney White said standing is essentially the legal right to be part of a process. He said that the contract related to Lot 1 is between the Stanley Hotel and the Town of Estes Park. A separate contract exists between Lot 7 and the Town of Estes Park. He said he would provide a statement regarding standing at the February meeting. 3. ORDINANCE #02-14 ESTABLISHING THE ESTES PARK MUNICIPAL COURT AS A COURT OF RECORD. Adoption of Ordinance #02-14 would establish the Municipal Court as a Municipal Court of Record and would require that a verbatim transcript of all court proceedings be maintained by the Court, either by electronic or stenographic means. As a Court of Record, any appeal of a decision of the Municipal Court Judge to Larimer County Court would be based upon the record before the Municipal Court and would not require a new trial. Additionally, adoption of Ordinance #02-14 would increase the maximum fine for violations to $2,650 from the current maximum fine of $300 to provide the Judge with more flexibility in sentencing. The amount of the fine of $2,650 shall be adjusted for inflation annually on January 1st in accordance with the procedure set forth in Section 13-10-113 (1) (b) C.R.S. It is also a requirement of a Court of Record that the Municipal Court Judge be admitted and licensed to practice law in the State of Colorado. Attorney White read Ordinance #02- 14 into the record. It was moved and seconded (Blackhurst/Ericson) to approve Ordinance #02-14 amending sections 2.52.010 and 1.20.020 of the Municipal Code relating to establishing a Qualified Municipal Court of record and increasing the fines for the Municipal Court, and it passed unanimously. Charley Dickey, Town resident, commented that raising the fine would put more teeth in enforcement of the noise ordinance. He asked why audio instead of video recordings of court proceedings are made. Attorney White stated that court proceedings in Colorado courts are not videotaped and noted that a written transcript is required on appeal. 3. REPORTS AND DISCUSSION ITEMS: Board of Trustees — January 14, 2014 — Page 8 1. MULTI -PURPOSE EVENT CENTER (MPEC) & STALL BARN CONSTRUCTION UPDATE. Dir. Zurn reported that work on the stall barn mechanical and electrical systems progressed over the holiday season, despite the cold weather and high winds. He noted that work on the MPEC has suffered due to the severe weather and that progress on the exterior metal building has slowed. He reported that both projects are behind schedule at this point. He is working with the contractor to produce an updated and revised schedule to get the projects back on track. He said budget -wise the jobs are tracking well and noted that the design team is working with the contractor to provide information about interior finishes. Town Administrator Lancaster reported that, in regard to marketing of the MPEC, a website has been established, a marketing plan is being firmed up, and materials are being compiled. Whereupon Mayor Pinkham adjourned the meeting at 8:56 p.m. William C. Pinkham, Mayor Ty� Cynthi Deats, Deputy Town Clerk