HomeMy WebLinkAboutMINUTES Estes Valley Board of Adjustment 2016-02-22 - Special MeetingRECORD OF PROCEEDINGS
Special Meeting of the Estes Valley Board of Adjustment
February 22, 2016 9:00 a.m.
Board Room, Estes Park Town Hall
Board: Chair Don Darling, Members Pete Smith, Wayne Newsom, John Lynch,
and Jeff Moreau
Attending: Chair Darling, Members Smith, Lynch, and Moreau
Also Attending: Planner Carrie McCool, Interim Community Development Director Karen
Cumbo, Town Attorney Greg White, Recording Secretary Thompson
Absent: Member Newsom
Chair Darling called the meeting to order at 9:00 a.m. There were approximately 20
people in attendance. He introduced the Board members and staff.
The following minutes reflect the order of the agenda and not necessarily the chronological
sequence.
1. PUBLIC COMMENT
None.
2. CONSENT AGENDA
The consent agenda has been tabled to the next regular Board of Adjustment meeting.
It was moved and seconded (Smith/Moreau) to table the Consent Agenda as
presented and the motion passed unanimously with one absent.
3. ROCKY MOUNTAIN PERFORMING ARTS CENTER; LOTS 17-19, BLOCK 5, A
PORTION OF LOTS 33 & 34, RIVERSIDE 2ND, AND A PORTION OF LAND
WITHIN THE BANKS OF FALL RIVER, 116 E. Elkhorn Avenue
Planner McCool reviewed the staff report. The variance requests are from Estes Valley
Development Code Section 4.4, Table 4-5 – Height, Section 7.6.E.1.a.(3) – River
Setback, and Section 7.9.D.1 – Exterior Lighting. She provided background of the
proposed project.
The proposed Rocky Mountain Performing Arts Center (RMPAC) is to be built on the 0.6
acre lot where the Park Theater Mall burned down in 2009. It is a through lot with
frontages on two public streets. The north frontage is on Elkhorn Avenue, the second
frontage is on Rockwell Street. The northern portion of the site currently holds the Barrel.
The southern portion of the site is currently vacant, containing approximately 7,775
square feet and a portion of the Fall River.
The applicant, Estes Performance Inc. (EPIC), is proposing construction of a 750-seat
performing arts center with a publicly accessible river garden, hotel & spa, and restaurant
& accessory uses. Applicant submitted concurrent reviews and processing of the
following: (1) a Special Review to allow for a performing arts center in the CD-Commercial
Downtown zone district; (2) an Amended Plat; and (3) three Variance requests. The
Amended Plat was to consolidate the lot, incorporate a portion of a Town-owned parking
lot and to dedicate a river easement to allow for the incorporation of Fall River into the
building design. The Planning Commission reviewed the Special Review and Amended
Plat, recommending approval to the Town Board. The Town Board approved these
applications on January 26, 2016.
Planner McCool stated there are three variance requests being brought before this board.
The first is a height variance request to exceed the maximum 30-foot height limit by
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28’10”. This request is to accommodate a full flight gallery necessary for stage crews to
perform certain activities during performances. The project architect is in attendance and
will provide additional comments. The second request is to the requirement for all
buildings and accessory structures to be set back at least twenty (20) feet horizontally
from the annual high-water mark of stream or river corridors. The applicant proposes to
encroach entirely into the river setback and incorporate Fall River and associated
riverwalk into the building design. The last variance request is to the requirements for no
exterior lighting to add more than one (1) foot-candle to illumination levels at any point off
site. The applicant requests to allow exterior lighting to bleed into the surrounding area
exceeding the maximum limit.
Planner McCool stated that the Estes Valley Development Code (EVDC) outlines very
specific review criteria pursuant to Section 3.6.C. All applicable variances shall
demonstrate compliance with the applicable standards. She went through each of the
review criteria and staff findings that relate to the particular review.
Staff Findings
1. Special circumstances or conditions exist:
- Building height: The subject4 lot does not include any physical particularities
that would require deviation from the prescribed 30-foot height limit. However,
in this case, the “special circumstances” are the proposed use of the property
and unique design characteristics. The applicant has stated that a fly gallery is
essential to the 760-seat, state of the art performing arts center component of
the proposed structure, the hallmark of the project. The subject lot is a 0.68-
acre through lot with street frontage on both East Elkhorn Avenue and Rockwell
Street, and is positioned in the community’s dense downtown core in close
proximity to key gateways into the town. As such, the unique configuration of
the subject lot makes it a comparably more appropriate location for height
beyond that permitted in other parts of the community.
The Estes Valley Comprehensive Plan identified the Commercial Downtown
district as a district allowing many uses with the purpose of establishing the
downtown as the retail, cultural, and entertainment center of Estes Park. Staff
finds that the proposed development, considering mixture of uses, its potential
for tourist attraction, and its unique design scheme, is consistent with the long-
range planning policies related to land use, community design, mobility and
circulation and economics.
- River setback: The previous building on this lot was constructed over a culvert
that allowed the river to flow under the building. The proposed design of the site
has two connected buildings through a “winter garden” area and would contain
the Riverwalk inside the building. This is a very unique design feature that
would constitute a “special circumstance” that is not common to other buildings
in the community. Strict compliance with the river setback would result in the
redesign of the structure into two separate buildings which would be practically
difficult.
- Exterior lighting: The subject proposal includes a high-intensity, mixed-use
structure with frontage on two streets and a public pedestrian walkway along a
portion of Fall River. The configuration of the prposed development significantly
increases pedestrian access; therefore, requiring increased lighting to augment
safety and security for guests to the performing arts center, hotel and
restaurant, and pedestrians using the public walkway along Fall River.
Staff finds that practical difficulty may result from strict compliance of the
exterior lighting standards in that subject property is located in the downtown
core where most buildings have zero lot lines. Further, granting the variance
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would not impair the intent and purposes of either the specific standard or the
Comprehensive Plan.
2. In determining “practical difficulty”:
a. Whether there can be any beneficial use of the property without the
variance;
- Building height: The northern portion of the lot is home to The Barrel, a
seasonal wine and spirits garden. The southern portion of the site
remains vacant and the riverwalk disconnected. The property could be
put to beneficial use without the variance; howeer, it would not be
possible to build the community a premier, fully functional auditorium
without the variance. The key component of the auditorium is
construction of a full fly gallery. The proposed full fly aallery must be able
to raise (or fly) full height decorative flats (same height as the
proscenium arch) completely out of view. NOTE: An example can be
viewed in the staff report.
The applicant has stated they will not pursue construction of the RMPAC
without the height variance, which could jeopardize the provision of a
state of the art performing arts center in the town.
- River setback: There are two large areas on either side of the river
within the lot that could be used for two separate buildings. Each would
have adequate land area to adhere to the 20-foot river setback; however,
the economic and societal benefit of the property to the Town and to the
community at large could be significantly diminished without the
proposed unique design feature to have the riverwalk inside the building.
- Exterior lighting: The requested variance is not necessary to develop
the property, however the proposed variance will effectively improve
safety and security for patrons accessing the facility, walking nearby, or
visiting nearby businesses.
b. Whether the variance is substantial;
- Building height: The variance request includes a maximum deviation of
28’10” above the thirty (30) foot height limit, with the greatest nehgith
located on the downhill side of the proposed structure along the
Rockwell Street frontage. The applicant proposes a height of 43’1” for
the hotel and restaurant portion proposed for the north portion of the site
fronting East Elkhorn Avenue. As such, the variance requested is
substantial.
- River setback: The applicant is requesting a zero-foot setback from the
river instead of the required 20-foot river setback. Staff finds that the
variance request is substantial.
- Exterior lighting: The variance request includes a maximum deviation
of 8.3 foot-candles above the maximum one foot-candle requirement. As
such, staff finds that the variance request is substantial. The applicant
has mitigated potential negative impacts by proposing indirect, downcast
light fixtures, which will prevent glare.
c. Whether the essential character of the neighborhood would be substantially
altered or whether adjoining properties would suffer a substantial detriment
as a result of the variance:
- Building height: The Historic Park Theater Mall, the former occupant of
a portion of the subject site, exceeded the maximum 30’ height limit. The
proposed structure is significantly taller than the mall had been.
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However, the Town’s preliminary planning efforts for the Downtown
Core, the most dense, pedestrian-centric part of the community, suggest
that this area will be designated to accommodate taller buildings in the
future. “Smart growth” planning principles encourage denser
development in Downtown Core areas, promoting pedestrian
engagement and circulation, facilitating efficient utility and public service
provision, and maintaining lower density development and open space
on the town’s periphery. Though public comment for the project to date
has been limited, a number of downtown business owners have
expressed support for the project. One business owner has expressed
concern regarding the proposed structure’s height in relationship to other
buildings in the neighborhood, which primarily conform to the maximum
30’ height limit. Staff finds that height is not typically a factor that impacts
the economic viability of a business.
- River setback: While natural hazards like the flood event of 2013 cannot
be prevented from occurring, mitigation planning can help reduce the
impact of such events when they do occur. There is always a potential
for greater than a 100-year flood event, which has a 1% annual change
of occurring.
The applicant stated that “special hydrological engineering which
indicated that major flood waters can be accommodated through the
structure without damage” has been accomplished. Staff has confirmed
the project is designed to convey the post-flood Colorado Department of
Transportation 100-year flood discharge calculations, which is the
current best available data. However, the Town is now conducting a
hydrology study to more accurately determine flood discharges along
Fall River. The capacity to carry the 100-year flood discharge, as
determined by the new hydrology study, must be incorporated into the
building design for floodplain development permitting purposes. Staff
notes if the the proposed river channel through the building is designed
to convey a 100-year flood event, a greater flow could cause
backwatering of floodwater upstream of the building, potentially
damaging other structures. Further, if debris carried in the floodwater
cannot pass through the building, it could back up and create a debris
dam on the upstream side of the building, which could cause
backwatering and flooding upstream. In addition, opportunities to
maximize flood risk mitigation should be identified and implemented
where possible to limit potential negative impacts to nearby properties.
- Exterior lighting: The primary intent of the section of the EVDC which
governs exterior lighting is to minimize potential negative impacts on
surrounding properties, while ensuring that a proposed project’s
“functional and security needs” are met. As previously stated, the
applicant has selected high-quality, downcast, and indirect lighting
fixtures in order to prevent potential negative impacts on surrounding
land uses. Additionally, the applicant’s request to exceed the one foot-
candle requirement will serve to meet the functional, security, and safety
needs of the proposed development, as intended by the provisions set
forth in Section 7.9 of the EVDC.
d. Whether the variance would adversely affect the delivery of public services
such as water and sewer;
- Building height and Exterior lighting: The requested variances would
not adversely affect public service delivery.
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- River Setback: The only possible adverse effect on public utilities would
be if public utilities had to be relocated due to the rechanneling of the
river. Otherwise, the requested variances would not adversely effect
public service delivery.
e. Whether the applicant purchased the property with knowledge of the
requirement;
- Building height: The 30-foot maximum height limit is applicable
throughout the town; not properties with entitlements for a higher
maximum height exist within the boundaries of the EVDC. The applicant
purchased the property with the knowledge that a height variance would
be necessary to construct a quality performing arts center as proposed.
- River setback: All buildings and accessory structures in the CD zoning
district shall be set back at least twenty (20) feet horizontally (plan view)
from the annual high-water mark of stream or river corridors. The
applicant had knowledge of the river setback variance approval
necessary to construct the proposed unique site design as proposed.
- Exterior lighting: The maximum one foot-candle requirement is
applicable throughout the town; however, the intent of Section 7.9 states
certain needs of a proposed development, such as safety, security, and
functional needs, should be evaluated during the review process. The
applicant purchased the property with the knowledge that exceeding the
one foot-candle requirement may be necessary in order to meet such
needs.
f. Whether the applicant’s predicament can be mitigated through some
method other than a variance;
- Building height: Staff finds the applicant’s proposal cannot be
accommodated through any other method except a variance. The
applicant has explored the possibility of sinking the proposed performing
arts center 28’10” into the ground in order to meet the 30-foot height
limit; however, this alternative is rendered an impossibility due to the
bedrock and water levels that exist beneath the ground soil.
- River setback: The applicant could construct two separate buildings so
the river was not flowing through the buildings and maintain the required
river setback; however, that design would not result in unique design
characteristics as proposed.
Another method to consider would be to increase the design channel
capacity from the required 100-year discharge rate to a greater flow
capacity to handle a significantly larger flood event which would preserve
and enhance the important hydrologic functions that a 20-foot river
setback provides.
- Exterior lighting: Staff finds the applicant’s proposal cannot be
accommodated through any other method except a variance as it is
impractical for in-fill development to meet the exterior lighting standards
in the downtown area. Most of downtown Estes Park has a zero lot line
configuration, while there are a variety of light poles, fixtures and lamps
on both public and private properties including streets, pathways, parking
areas, and other public spaces that exceed the one foot candle
maximum illumination levels off site.
3. No variance shall be granted if the submitted conditions or circumstances affecting
the applicant’s property are of so general or recurrent a nature as to make
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February 22, 2016
reasonably practicable the formulation of a general regulation for such conditions
or situations;
- Building height, River setback, Exterior lighting: Staff finds the applicant’s
request for a variance is due to the particular use conceptualized for the subject
property, a state of the art, 760-seat performing arts center. As such, staff finds
the circumstances are unique to the applicant’s proposal, and are not of so
general or recurrent a nature as to make it reasonable for the regulation to be
changed to accommodate similar circumstances.
4. No variance shall be granted reducing the size of lots contained in an existing or
proposed subdivision if it will result in an increase in the number of lots…
- Building height, River setback, Exterior lighting: The variance requests will
not result in a reduction in the size of lots contained in an existing or proposed
subdivision.
5. Is the variance the least deviation that will afford the applicant relief?
- Building height: The applicant has demonstrated the proposed fly gallery can
be accommodated by a minimum height of 58’10”, or a 28’10” variation from the
30’ height limit. A potential option to limit the variance requested would be to
minimize the height on the northern portion of the site, the proposed lcation of
the hotel and restaurant, to the 30-foot maximum. However, the applicant has
indicated this would likely severely limit the ability of the performing arts center
to economically self-sustain through the commercial revenue generated from
the hotel and restaurant space.
- River setback: The applicant is requesting elimination of the 20-foot river
setback so the river can be built over, similar to the situation where the original
building “bridges” the river. The applicant maintains that “special hydrolocial
engineering has been accomplished, which indicates major flood waters can be
accommodated through the struct4ure without damage.” Staff finds the
requested elimination of the river setback is a complete deviation from the
regulations.
- Exterior lighting: The applicant has indicated the lighting proposed is the
minimum needed to meet the safety, security, and functional needs of the
proposed development. As it is impractical for new in-fill development to meet
the exterior lighting standards in the downtown area, staff finds the requested
variance represents the least deviation from the regulations that will afford
relief.
6. Under no circumstances shall the Board of Adjustment grant a variance to allow a
use not permitted, or a use expressly or by implication prohibited…
- Building height, River setback, Exterior lighting: The varainces requested
will not permit a use prohibited or not expressly permitted in the CD-
Commercial Downtown zone district.
7. In granting such a variance, the Board of Adjustment may require such conditions
as will, in its independent judgment, secure substantially the objectives of the
standard so varied or modified.
- Building height: Staff has included possible conditions of approval for the
Board’s consideration relating to the requirement of submitting a height
certificate at the time of the foundation and framing inspection., This is a
standard requirement for buildings over 25 feet tall.
- River setback: It is important to note the granting of a river setback variance
does not relieve the applicant from the requirement to mitigate flood hazards.
An integral step in the process is to ensure approval of a Floodplain
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February 22, 2016
Development Permit. As such, staff has provided a condition of approval for the
Board’s Consideration.
- Exterior lighting: No conditions of approval needed.
Conditions of approval are listed below.
Planner McCool explained the voting options for the Board: They can vote on all of the
variance requests as a whole, or split out each variance request and vote on them
individually. The options are as follows: (1) The applicant substantially meets the criteria
and approve the variance requests with no conditions; (2) The applicant meets the criteria
with conditions of approval; (3) The application does not meet the criteria; or (4) Request
a continuance.
Staff and Member Discussion
Comments included but were not limited to:
Member Smith: If the river setback is approved, prior to any construction, the applicant
would have to get a floodplain permit and the design at the time would be in compliance
with the state requirements at the time of permit application.
Chief Building Official (CBO) / Floodplain Manager Will Birchfield: The applicant will have
to obtain a floodplain from the Town, and also a permit from the United States Army
Corps of Engineers (USACE) because they are working in the channel. Our current
floodplain regulations are current with the state. What is unknown are the flows for the 1%
annual chance flood because the hydrology study is currently underway. The CDOT
numbers are the best available data at this time. The building and floodplain permits
would be issued according to current criteria required at the time of application. If they
choose to use alternate methods to the building codes, a Board of Appeals hearing would
be required. To his knowledge, the applicant does not have plans for alternative methods
or desire a variance from current floodplain regulations.
Applicant Presentation
REVIEWED TO HERE
Stan Black (910 Rambling Drive): He is the board chair of EPIC. Thanked the Board for
the special meeting. This project has been in the works for several years. A big part was
the special review from the Planning Commission and Town Board. Both involved a lot of
public comment and a lot of time. He stated the public sentiment during those meetings
was expressed, and the design was subsequently altered. The project would not happen
without these three variances. His team is Roger Thorp (architect), David Bangs
(engineer), and Lucia Liley (attorney).
Roger Thorp (architect): The project started before this building burned down in October
2009, Thorp worked with the owners on a remodel project for the Park Theater Mall. The
mall building was built many years ago, and built across the river before there were
floodplain regulations. The portion across the river was a concrete culvert, built to what
they thought were safe and prudent design standards for the time. When the building
burned, remodel plans were dismissed, and the property owner explored other projects.
EPIC approached the property owners to consider a performing arts center. EPIC has
always wanted to provide a performance venue in town so that performers nation-wide
would be impressed with it and want to perform here, along with local performing arts
groups. The original design was just for the Park Theater Mall area, but the proposed
theater was too small. During discussions with the Town, the idea was raised to expand
into the parking lot. The Town has always wanted to have a continuous riverwalk, and the
Park Theater Mall had always been an impediment. EPIC worked with the property
owners and the Town to allow a project that included a continuous riverwalk. This granted
them enough room to design with enough room to create an appropriately sized
performing arts center. He showed a brief video of the architectural drawings. This plan
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received unanimous approval from the Estes Valley Planning Commission and the Town
Board. Historically, for the last 150 years, the river had gone under the previously existing
building, and the most damage from the 2013 flood came from the water coming down
Elkhorn Avenue. The culvert was able to handle the water going through it during the
flood. The backwater occurred at bridges upstream of the culvert. They wanted to widen
the river as it flowed through town, abiding by the USACE and floodplain regulations. The
existing culvert is about 20 feet wide, the proposed building would expand it to
approximately 37 feet wide. He explained that they would not build an unsafe building.
They will obtain all permits required. But to proceed, they need the approval of the
variances. The lot is unique because the owners own the entire property from Elkhorn to
Rockwell, including both sides and underneath the river. The intent of the river setback
easement requirement is to “promote, preserve, and enhance the important hydrologic,
biological, ecological, aesthetic, recreational, and educational functions that stream and
river corridors, associated riparian areas and wetlands provide.” The existing culvert is
unappealing. The riverwalk easement will connect through the building, 24/7. They want
to provide educational opportunities for that portion of the river, making it come alive
again. They hope to bring in ecologists, foresters, etc. to provide on-site public talks
regarding the ecology of the river, and what happens to the fish in the river. This can be
done year round, regardless of the river being iced over in other areas of town, and
regardless of weather conditions. The Town requested a second easement across the
entire width of the river as it flows through the building, which they are wiling to work with
them on that. They know they need a management plan, to establish long term protection
of this portion of the river, which is to their advantage to protect the aesthetic, recreational
and educational aspects of that river. The river corridor is proposed to be enlarged to
handle not just the 100-year flood, 2.5 times what they were planning on before the 2013
flood, but they are also allowing 1.5 foot of freeboard above that. This project will not
affect existing utilities. The Town is expecting them to install utilities along Rockwell as
part of the agreement to go forward. The river setback easement they are requesting has
nothing to do with flooding issues. They have to design for that, and that is an issue to be
dealt with with FEMA, USACE, the State and the local floodplain manager. The river
setback easement is to try to enhance and promote the wonderful river character, which
they intend to do. Four entrances to the building – two on the riverwalk, one on Elkhorn
and one on Rockwall. Riverwalk will be along the river, and elevated as it is now.
Exterior lighting: Along the east property line that faces toward the parking lot, there are
two streetlights that will be removed with the proposed building. Their intent is to replace
that lighting with downcast lights that will be more appealing than replacing the
streetlights. They are providing lighting for the sidewalks of the riverwalk, Elkhorn and
Rockwell streets to be more secure and safe. Without it, they would have to add more
streetlights. Streetlights are bright with the glass globe and less beautiful. The proposed
lighting on the building will be downcast with a warm glow from the red brick which should
be more appealing.
Building height: Intent and purpose are called out in the codes. There is not an intent in
the EVDC for height, they just defined it as 30 feet. As Estes Park continues to grow and
thrive, the intent is to create more density in the downtown area instead of spreading it
outside of the downtown area. The existing Park Theater tower is 70 feet high, and the
proposed project is 15 feet lower than that tower. This includes a parapet wall to allow for
solar panels that would be shielded from view by this wall. The highest area would be
buffered from ground view, as the highest portion of the building is setback from the
exterior wall at ground level. He uses strong horizontal elements to minimize the feeling of
the height. He showed a photo simulation of what the roofline would look like from Hwy 34
coming into the downtown area. The reason for the height is the proscenium arch, and to
be able to allow for 20 foot sets to be completely out of view to the audience with a grid
iron which can be used to drop down other performance items. This height allows for a
balcony for larger performances with good sightlines. This is not the highest building in
Estes Park. It is proposed to be located in lowest part of the valley, in the most dense part
of the community, and will not be hiding the Park Theater tower. Along Elkhorn Avenue,
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the third floor is proposed to be an outdoor patio. The Elkhorn side will appear as a two-
story structure, which will gradually become higher towards the rear of the building.
Chair Darling asked about the corridor along the river and the entrances into the building.
Thorp stated that entrances would be an open walkway with the potential for something
like air curtains in the wintertime. The inside will be controlled airspace with locks to
different areas of the building.
Member Moreau asked about the height of the exterior lighting.
Thorp stated that the fixtures would be about 20 feet above the ground. Which is why they
bleed out as far as they go. They will fit within the brick design. The lighting plan shows
how the light fades as it gets further from the building. The 8.3 feet-candle is what it is
right up next to the building.
Member Lynch asked about existing utilities in the river and entrances to the riverwalk.
Thorp stated that there are no existing public utilities involved in the river. The riverwalk
will be above the river as it is to the east. They are not planning on doing anything inside
of the river.
Thorp thanked the board and stated that this is an amazing project for the community and
hopes to be able to resolve the requirements of the codes and meet those requirements
in a little different way.
Lucia Liley (attorney): She has been helping the applicant with the review process. For a
project this size, significance and complexity, her role has been fairly limited and easy
which is surprising. That is a testament to the kind of project this is, and its importance to
Estes Park as well as those involved in the project doing a great job of explaining the
project and its aspects. Her role tonight is just to emphasize and summarize the pieces of
information the board has received both written and verbally to support and argue how in
their view it meets the standards required for the variances. When it comes to variances is
boils down to three main things – unique special circumstances, practical difficulty, and is
this the least request necessary to afford relief. Looking at the river setback variance, staff
found the “winter garden” with the riverwalk to be the special circumstance. She wanted to
point out that there are additional special circumstances. One is ownership of both sides
of the river which allows them the opportunity to enhance the river and provide access
that would have otherwise been impossible. Secondly, the river currently has been in a
concrete culvert and this creates an opportunity to create the kind of benefit that the river
setback was created, to promote, preserve and enhance. The granting of this variance
does not impair the intent of the standard, as that intent will be done with this project
(opening up the river, vegetating, provide access), it just would be done inside the
building. Public access is an important goal of the standard. EVDC 7.6.E.2: “Where a
principal building in the CD district provides public access, including a primary entrance,
on the side of the building facing a stream or river corridor, the setback may be reduced to
ten (10) feet with the approval of the Decision-Making Body.” The Town Board is able to
reduce the river setback from 20 feet to 10 feet without a variance for a building with a
public entrance facing the river. Moving to the second standard, practical difficulty, it is
important to note that this project is unique and cannot be built without this variance.
While it could be two separate buildings with a river setback for both, the economic
benefit would be diminished without the riverwalk inside the building. This project cannot
feasibly proceed without this setback and this kind of design. It is a substantial variance,
moving from 20 to 0, but the uses proposed for what would have been the setback (public
riverwalk, public access to the building, enjoyment of the winter garden) all accomplish
the purposes of the setback. Looking at whether the proposed project substantially alters
the neighborhood or is a detriment to the neighboring properties, it does alter the
neighborhood but in a positive way. It provides a year-round, unique use specifically
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targeted in the Town’s adopted plans. It adds unique character in the downtown context
and provides encouragement to neighboring businesses to redevelop and expand as well.
The project removes the concrete culvert, replacing it with year-round public access. The
applicant is not requesting any variance from floodplain or storm water regulations. Part of
the process requires compliance with all storm water regulations. The project will meet the
required 100-year CDOT flood discharge requirements. The applicant acknowledges the
Town is conducting a hydrology study for discharges along Fall River. Applicant is aware
they need to apply for and receive a floodplain permit. They will need to continue to
comply with the CDOT 100-year discharge requirements, even if the criteria for that
changes. They have met all the requirements of the Town for storm water and that there
is a separate process that will have to be made as well. Applicant has knowledge of the
variance requirements, but the kind of unique project that this is could not be located
anywhere else than a central downtown location. The property was donated to the EPIC
group by the property owner. There is no other feasible project location other than the one
being proposed tonight. Applicant has shown that this is the least deviation necessary for
this project with its unique uses and design. And that while the building does not comply
with the river setback standards, the design provides many of the benefits that a setback
would provide, including continuation of the public riverwalk, views of the river and the
winter garden, and public education. In terms of exterior lighting special circumstances,
the project fronts 2 public streets, a public parking lot, and the river all of which
experience a high level of public traffic. In terms of practical difficulty, the project could be
completed without the exterior lighting but that would not provide for safe and well-lit
surrounding public areas. The applicant is attempting to mitigate any negative impacts by
using high quality lighting and downcast and indirect lighting features. In regards to
height, in addition to the unique design, there are special circumstances regarding the
bedrock and water levels of the lot which prevent lowering the structure further into the
ground. This area downtown is the prime location for this type of use. Other beneficial
uses may be possible, but you really need this kind of height for a professional theater.
The same height had previously been approved by a prior board, the Park Theatre Mall
exceeded the 30 foot height limit before it burned down, and the Park Theater tower is still
15 feet taller and will be prominent. The design ensures that the street view will
essentially be that of two stories, which is typical for other downtown buildings. The
applicant has spent four years in designing the best state of the art theater with the
minimum number of variances. They sunk the building as low down as it could go,
setback the highest elements of the building away from the street, and used the most
efficient design standards possible.
David Bangs (project engineer): Provided a brief overview of how they incorporated the
river into the design of the building. The project started prior to the 2013 flood and started
using flow rates of 680 cubic feet per second (cfs) for the 100-year flood. After the flood,
they used flow rates of 1670 cfs, which is almost 2.5 times the previous flow rates. The
current design improves the current capacity of the channel is adequate to convey this
flow through the building. The channel has been designed with the freeboard to grant
additional protection to address concerns regarding additional flow and creating pinch
points for debris dams. The design mitigates those concerns to the maximum extent
feasible while balancing the design and needs of the project.
Chair Darling: Did anyone talk to the Division of Wildlife regarding impact to fish?
Roger Thorp: No direct conversations with the Division of Parks and Wildlife had been
made in regards to this project. But they see tremendous educational opportunities for
those viewing the wildlife of our rivers.
Member Moreau: What are the plans for debris flow?
David Bangs: Just upstream of the river it is pretty channelized with concrete walls on
both sides. There are also two immediate upstream crossings that are more restrictive
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Estes Valley Board of Adjustment 11
February 22, 2016
than the proposed design. But the freeboard included in the design will allow for debris to
pass through the site.
Roger Thorp: The amount of water designed to go through the building is under the
assumption that the bridges above have been raised and the channel is containing the
entire flow.
David Bangs: The project has been designed with both what is currently out there and for
the improved bridges upstream, to mitigate the impacts of a future flooding event.
Member Lynch: Is there a way to prevent the larger wildlife (deer, elk) from moving out of
the channel?
Roger Thorp: When the river is low enough to allow for larger wildlife to safely walk along
it, the embankments will be too high for them to leave the channel.
Chair Darling requested a 10-minute recess. Meeting reconvened at 10:45 a.m.
CBO / Floodplain Manager Birchfield: He stated that even though this variance request is
for the EVDC and is not for the floodplain regulations, he wants to make a clarification.
Immediately after the flood the Town Board authorized him to use best available data to
regulate the floodplain. It was immediately realized that the numbers they had been used
were underestimated. The best available data at this time are the CDOT numbers. When
the hydrology study is completed those numbers will become the best available data. If
the applicant has not submitted a floodplain application and/or a building permit
application, they will have to go back to the drawing board and design to the new best
available data. This is an extremely high standard. Typically when we change the rules on
people, we know what the rules are going to look like. We engage the public to get their
feedback and their input. But in this case, we don’t have the opportunity to do this
because this data is an unknown. We don’t know what this is going to look like. It is his
understanding that the applicant understands this, but the board needs to realize that this
data is a moving target until they get final numbers and it may change before they submit.
They have to comply with the rules and regulations in place at the time the application
was submitted.
Chair Darling: Asked about what it meant if they applicant submitted for a floodplain
permit and at a latter date for a building permit and the floodplain numbers changed
between submittal of the two permits.
CBO / Floodplain Manager Birchfield: They have to design to the best available data for
when they submit. If the best available data changes between that time, they would have
to update the design. They only have to apply to the floodplain regulations at the time that
they submit for the permit. He used the example of the building division going through the
adoption process for the 2015 International Building Codes. They have spent 18 months
in public outreach. With this process they can’t do that because they don’t know what the
numbers will look like. This is a very high standard.
Chair Smith: Stated he was confused as to when in the process the applicant is required
to change their design to new best data if the figures change at some point during the
process.
Lucia Liley: Stated that the applicant will adhere to all of the Town’s requirements at the
time of the submittal.
Stan Black: The applicant will have to freeze the design at some point. That point would
be before they start construction from their standpoint. If there is a higher standard, they
would want to meet that higher standard. It makes sense given they are building a
building with a river flowing through it which could impact upstream, downstream and
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Estes Valley Board of Adjustment 12
February 22, 2016
inside their own building. But at some point they have to freeze that design and move
forward as they are permitted.
Public Comment
Paul Fishman (312 Big Horn Drive): He was supportive of the project when it was SOPA.
He is supportive of the project at a downtown location.
Scott Jandrain (108 E. Elkhorn Ave): Co-owner of the Caramel Crisp, adjacent to the
proposed site. The Caramel Crisp has been there for 41 years. He reviewed past
performance venues (theater on Virginia, Barleen family entertainment venue, National
Park Village theater, Park Theater) that have all disbanded or no longer doing well. He
does not have confidence that the performing arts center will be successful and is
concerned about having a large vacant building downtown.
Grieg Steiner (1404 Cedar Lane): There has never been a production theater in Estes
Park. He stated this center would have the ability to carry on theater the way it is
supposed to be done. This is not another theater in Colorado, outside of Denver, that will
have all the aspects this theater is proposed to have. This will be a very high-level theater.
He stated that Estes Park is practically the only tourist town in the United States that does
not have a legitimate performance space (many less than ½ the size of Estes Park). The
height limit was set to 30 feet because that was the highest ladder the fire department
had. It is no longer relevant. The Central City opera house is built over the river, and the
opera house has never flooded. This is not completely unique to the state. The way our
river is being addressed will be one of the advantages to the downtown area. Theaters in
tourist towns, increase the number of nights stayed by at least 2x or more because of the
events available. We are a 365 day business and we have a lot of theater in our town and
a dedicated audience group. This project is important and the design team and Town
have done a great job with the application. He is very supportive of the project.
Charlie Dickey (265 Steamer Court): Buisiness owner across from the proposed site. He
is glad we have this process for special projects for businesses. They have a valid reason
for the height, and it will improve the downtown look. It will not impair the vision, and will
improve his vision of the parcel (better than a vacant slab). It will be an asset to the
downtown and improve other downtown businesses. In regards to exterior lighting,
although Estes Park is a safe community, the proposed lighting is needed to make guests
feel comfortable. He is supportive of the project.
Ty Nagle (132 E. Elkhorn and 2540 Larkspur): He is the 3rd generation owner of the
Wheel Bar. Would the height, location and construction of the project affect the view
corridor, parking and economic livelihood of any adjoining businesses? For many
properties that may be a no, but he wants to point out one incident where that property
affected a nearby business. When the Park Theater Mall fire occurred in 2009, it took 6-9
months to cleanup the site. They staged that cleanup in the parking lot behind the site.
Just shutting down that parking area, significantly negatively affected his business by ~35-
40%. They pled with the Town Board for help regarding the parking area and the
commotion that was caused with the cleanup, commotion he is certain will be repeated
with this future construction. The project will remove 40+ parking spots with the curb and
gutter. Which will have a large affect on someone nearby. The high structure will impact
his view corridor from his business, which he has enjoyed for about 70 years.
Johanna Darden (501 MacGregor Avenue): Roger Thorp and Stan Black are good at
what they do. She thinks problems that might result from the project during a flood would
be costly. She wanted to know what percentage of performances would require a fly area
or a fly area of that height. She does not believe lack of a fly area will impact the
economic viability of the theater as it will feature many types of performances. We are a
small town and we only need to accommodate the visitors that come here and the people
who live here. Any consideration to increasing town density is premature. The Town has
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Estes Valley Board of Adjustment 13
February 22, 2016
only recently created a steering committee to gather information on what the town should
look like in the future. The public has yet had the opportunity to contribute their input. The
reason for the 30 foot height limit is to not have a negative impact on the views around the
outskirts of town and we are losing that. She stated the Town Board has reservations and
concerns regarding the project which are shared with this Board. She disagreed with the
reasoning behind allowing a lighting variance because everyone is doing it.
Karen Chionio (114 Columbine Lane): She is aware of the issues that all production
groups face in the Estes Park area in finding rehearsal and performance space. She
would welcome a world-case theater in Estes Park. She feels that we need to spend more
time encouraging other forms of income for Estes Park outside of tourism. We need to
broaden our base and make us more solvent rather than relying on tourism so much. We
wouldn’t be here today if we weren’t looking to make a profit off of tourism. While it would
support local groups, she feels the proposed theater is too large for our needs.
Ron Willcox (2711 Sunset Lane): He supportive of the project. He owns several
businesses across the street. This could affect his view corridor, if he looked at it just from
his perspective. But this town needs this theater downtown for many reasons, and he is
willing to give up his views for the RMPAC. This current design is the best of the best of
what they’ve gone through over the years. It will provide year-round jobs, will bring
diversity of jobs in addition to tourism including professional positions that are not tourist
related. The variance requests seem well mitigated and in line with downtown goals. This
will spur new lodging, new dining, improve educational aspects (intern opportunities for
students), etc. This has been approved by the Planning Commission and Town Board, it
is a well-vetted application.
Diane Muno (1868 Bradley Lane): Business owner downtown. She appreciates concerns
and challenges about the construction impacts. However, she is encouraged by seeing
new construction in our community as it feels like growth and a future. She cares about
this community and where it goes. She wanted to note that this is a planned project and
not an emergency project (which can be very difficult to deal with). She wishes she was a
next door neighbor to the project as those businesses will improve. She is supportive of
the variance requests.
Kent Smith (661 Big Horn Drive): He was on the design committee for Union College Civic
Center in Greely. In order to have quality productions (both tour and local), you need a
good fly space and a good grid. A band shell for musical performances can be stored
above the stage. It is critical for the kinds of venues we would like to see perform here to
have a fly space. Roughly 2/3rds of the touring companies that could go to UCCC would
not come with out a fly space, wing space and a backstage. There are performers that
need those facilities. It is also nice for local groups that can raise their sets up above
during professional performances making it more user-friendly for multi-uses.
Heather Stone (627 Marigold Lane): Artist/musician. The revised plan is much better. She
is a shuttle bus driver for the town and RMNP for many years. Traffic is growing
significantly worse. Performers will be coming with large vehicles and she wondered
where they will be loading/unloading and parking those vehicles. A pull-in area for a
shuttle bus needs to be considered and addressed as there is no place for them to legally
stop and unload passengers in the area of the proposed theater. Even with the proposed
parking structures it is growing more and more condensed back there. She stated that the
construction area needs to be configured so it doesn’t impede on existing businesses.
Mark Elrod (675 Summerset Court): He stated that the code generally provides health and
safety provisions. He explained that at one time he needed a variance to build his
personal residence which Thorp had designed and Van Horn had done the engineering in
regards to a stream on the property. He was granted his variance by the Board of
Adjustment. During the flood, his property survived as it had been engineered to. He
thinks the river setback proposed would work as designed. He did research on the codes
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Estes Valley Board of Adjustment 14
February 22, 2016
and the height requirement was out of firefighting concerns before the days of sprinklers.
We have stuck with it, that doesn’t have as much reason in terms of health and safety.
The board has to exercise their judgment for the community. The impact to the community
will be astronomical. He supports the variances.
Judy Smith (661 Big Horn): When they were looking at places to relocate to, Estes Park
was missing a performance venue for professional theater. It currently requires going to
Denver to view any professional performances. She supports the project.
Jon Nicholas (1660 North Ridge Lane): President of the Estes Park EDC. He partnered
with the Town and Avalanche Consulting for regional strategic planning. There were over
three dozen major projects or areas they looked at and prioritized. One was the RMPAC.
This would be priority project for us to address issues of seasonality and promote a year-
round economy. One of the problems is that Estes Park has lost a lot of working-age
population. Between the 2000 and 2010 census, 28% of 35-44 year-olds had left the
community over a 10-year span. As of the 2013 census, the decline has increased to 45%
over 13 years. It is important to think of things that provide weekend/evening opportunities
in the off-season or the shoulder seasons because they create opportunities for the
employees that staff the businesses and if they have year round employment it makes it
easier for our businesses. Staff and applicant have addressed whether they have met the
standards for variances. It is important that this project be downtown. He is supportive of
the project.
Jenna MacGregor (136 Moraine Avenue): She lives adjacent to the proposed project. She
is also representing the donors of the property. The former Mall was higher than 30 feet.
She does not think the proposed height would be an issue when it’s placed next to the
highest structure in town as far as view. Construction would be an issue, no matter what
is built there and nobody likes the empty lot. Floodwaters in 2013 came from Elkhorn, not
from the river. She asks that this be allowed so that we can have something bigger in our
community and our community can continue to grow. She admits that the theaters may
not have survived in the past, people get older and technology changes. She is focusing
increasingly on live performances and things that involve people which is where things
are changing to. She believes this can be very prosperous for Estes Park.
Public Comment Closed
Staff and Member Discussion
Planner McCool: The applicant received a special review approval and amended plat
approval in January 2016. Part of the special review is a development agreement, which
involves construction phasing. Other impacts such as traffic generation, etc. are under the
purview of the special review. The Board of Adjustment does not address these issues,
and is limited to the variance requests and the review criteria discussed in the staff report
and supporting documentation.
Member Lynch: Most buildings constructed now require variances due to the lot sizes and
other constraints, particularly commercial lots, due to the uniqueness of properties in
Estes Park. That is a part of doing business in Estes Park.
Conditions of Approval
1. Height certificate shall be required at the time of the foundation and framing
inspections (shall be prepared by a registered land surveyor, and requires survey
control point be established prior to site work).
2. The applicant shall secure a floodplain development permit prior to any work within
the regulatory floodplain.
RECORD OF PROCEEDINGS
Estes Valley Board of Adjustment 15
February 22, 2016
It was moved and seconded (Lynch/Smith) to approve with the requested variances
as written with the findings and conditions recommended by staff and the Board,
and the motion passed unanimously.
Chair Darling reviewed the options of the vote.
4. REPORTS
None.
There being no other business before Board, the meeting was adjourned at 11:36 a.m.
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Don Darling, Chair
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Karen Thompson, Recording Secretary