HomeMy WebLinkAbout2000-04-12 BAA MINUTES\ .
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MINUTES
BOARD OF ADJUSTMENT AND APPEALS
April 12, 2000
I. CALL TO ORDER
The regular meeting of the Englewood Board of Adjustments and Appeals was called to
order at 7:30 P.M. in the Englewood City Council Chambers, Chair Bode presiding.
Members present: Bode, Carlston, Davidson, O'Brien, Rasby, Seymour, and Smith
Members absent: None
Staff present: Nancy Reid, Assistant City Attorney
Tricia Langon, Planner
Kate Newman, Planning Technician
Chair Bode stated that there were seven members present; therefore, five affirmative
votes will be required to grant a variance. Chair Bode stated that the Board of
Adjustments and Appeals is empowered to grant variances by Part III, Section 60 of the
Englewood City Charter .
Chair Bode set forth parameters for conduct of hearings: The Chair will introduce the
case; applicants will present their request and reasons the variance should be granted;
proponents will be given an opportunity to speak; opponents will address the Board;
and then staff will address the Board.
II. CASE #6-2000
Lawrence Moskow
1170 E. Amherst Ave.
Chair Bode declared the Public Hearing open , stating he had proof of posting and
publication . He introduced the case by stating it is a variance to encroach 3 feet 8
inches into the required 7 foot side yard setback with an attached garage and encroach
1 foot 10 inches into the required 6 foot rear yard setback with the garage. This is a
variance from Section 16-4-2:M.1.d.1, Minimum Side Yard for Accessory Buildings and
Permitted Accessory Uses and Section 16-4-2:M.1.e.2, Minimum Rear Yard for
Accessory Buildings and Permitted Accessory Uses.
Lawrence Moskow, 1170 E. Amherst Avenue, was sworn in for testimony . Mr. Moskow
stated he bought the house at 1170 East Amherst Avenue in 1991. At that time the
house had, and still has, a detached garage which was built in 1974. When the plans
were submitted , it was discovered that the garage encroached into the setback. Mr .
Moskow testified that his intent is to construct an addition to the house which will attach
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the garage. He testified that with regard to the first criterion, the garage is existing and •
the addition will not change or move it. He further testified that granting the variance
would allow him to construct the proposed new addition which conforms to all the
setback requirements. The garage will not adversely affect the neighborhood because
it will remain in the same location and stay the same size. Further, the neighbors have
no complaints. With regard to the variance being the least modification , Mr . Moskow
testified that his only alternative would be to tear down the garage ; move it three feet;
and then rebuild it.
There were no other persons present to testify for or against the variance. Chair Bode
incorporated the staff report and exhibits into the record and closed the public hearing.
Mr. Seymour moved;
Mr. Smith seconded:
THAT FOR CASE 6-2000, 1170 EAST AMHERST AVENUE, BE GRANTED A
VARIANCE TO ENCROACH 3 FEET 8 INCHES INTO THE REQUIRED 7 FOOT SIDE
YARD SETBACK AND 1 FOOT 10 INCHES INTO THE REQUIRED 6 FOOT REAR
YARD SETBACK WITH AN ATIACHED GARAGE. THIS IS A VARIANCE FROM
SECTION 16-4-2:M.l.d.l, MINIMUM SIDE YARD FOR ACCESSORY BUILDINGS
AND PERMITIED ACCESSORY USES, AND SECTION 16-4-2:M.l.e.2, MINIMUM
REAR YARD FOR ACCESSORY BUILDINGS AND PERMITIED ACCESSORY USES .
Mr. Smith stated that the garage did not meet the setbacks when it was built. He
stated he didn't understand how the garage could have been built if it encroached, but
it is another one of those "mysteries" of the City of Englewood and the Building
Department. It does not alter the character of the neighborhood; it just makes a
bigger house.
Ms. O'Brien stated that she concurred with the City's staff report.
With no further discussion, the secretary polled the members' votes~
Mr. Seymour stated he voted "yes". The neighbors do not object to the variance. The
addition will provide the applicant with a livable situation, and it will be an asset to the
neighborhood.
Ms. Davidson stated she voted "yes." There are exceptional circumstances due to the
existing garage already being in violation of the setbacks. There is no threat to public
safety and welfare. It does not adversely affect the adjacent property or neighborhood.
The neighbors had no complaints. It does not impair the appropriate use of the
adjacent property because it is already developed. It would be a hardship to the
applicant if he had to move his garage.
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Ms. Carlston, Mr. Rasby, Ms. O'Brien, Mr. Smith, and Chair Bode stated they voted
"yes", concurring with Mr. Seymour and Ms. Davidson.
The Chair announced the variance as granted by a 7-0 vote, and directed the applicant
to contact the planning division staff for any additional information.
III. CASE #2-2000
Community Care, Inc.
3527-3535 South Corona Street
David Fine, attorney for the applicant, stated the Board already has his statement, and
he will try to make it brief. He stated that while he has the outmost respect for Mr.
Stitt, there is a significant issue that he wishes to raise with regard to his memorandum.
Mr. Stitt's memorandum is influenced a lot by what he calls a "misrepresentation by
Community Care" back in 1995. This "misrepresentation" was based on Minutes from
the Planning Commission. Mr. Fine testified that he made copies of the tapes for that
hearing; listened to the tapes; and the tapes demonstrate that Dr. Bruno, who is
accused of misrepresentation, did not say what he is accused of saying. Mr. Fine stated
that while he doesn 't believe Mr. Stitt did it deliberately, it is ironic that Mr. Stitt
misrepresented what Dr. Bruno sa id at that hear i ng. The critical point is that Dr. Bruno
was accused of misreprese nting the nature of the Community Care program. Dr. Bruno
did not mention the judicial system at all in his statements. Mr. Fine stated he did not
have a transcript for the Board, but he would be happ y to have one r:nade or provide
the Board with the tapes. Mr. Fine continued; Dr. Br un o testified at that hearing that
the program would primarily be geared toward treatment of mentally ill youth, and that
in fact is what the program has always done . To accuse someone of misrepresentation
is very strong, but the Minutes, for whatever reason were not accurate and that is
where Mr. Stitt got his impression. Mr. Fine stated he simply wanted to clarify that
issue since it seemed to be very important in Mr. Stitt's memo.
Mr. Fin e continued; the fundamental question the Board needs to decide is whether or
not the property is a nonconforming use that stayed a nonconforming use after the
change in the Ordinance. The critical point is that before the Ordinance changed it was
a permitted use; it wasn't even a conditional use and trea t ed mentally ill youth. Today,
it is the same program that treats mentally ill youth. The only difference that the City
points out is that some of its patients, or residents, come from a different source.
Initially in 1995, the residents came from referrals from the Department of Human
Services and private placement. At some point in time, the Div ision of Youth
Corrections (DYC), through the Department of Human Services, had mentally ill youth
that were going to be released back into the community and were placed with
Community Care for the same treatment as the other residents. The use did not
change .
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Currently, there are no youth from the Division of Youth Corrections at Community
Care. Between 1995 and present, there have been such youth at the facility. Those •
youth come from the Department of Human Services; go through a screening process
with a community board made up of DA's, probation officers, community people; they
are screened by Medicaid and Community Care for safety -both for themselves, the
program, and the community. Mr. Fine reiterated that none of those youth are
currently in the program, but the point is when those kids where in the program, there
were also youth from private placements and Social Services; but the use stayed the
same. Mr. Fine stated that the analogy would be a pediatric medical clinic in the
neighborhood, and for whatever reason the City decided to change the Zoning
Ordinance which eliminated medical care facilities in the neighborhood. Continuing the
analogy; prior to the change the clinic was taking kids that were referred by doctors,
Medicaid, and from schools. After the Ordinance passes, the clinic becomes a
nonconforming use, and they then start taking patients from another source, such as a
juvenile detention center. The use, providing medical treatment, has stayed the same.
Similarly in this case, the program treated mentally ill youth before the Ordinance
change, and it is still treating mentally ill youth. It is, therefore, a nonconforming use
that has not changed under the City's Ordinance. On that ground alone -pure zoning
ground -the appeal should be upheld. The Cease and Desist Order should be rejected.
Mr. Fine further testified that the Fair Housing Act is set forth in the applicant's
statement and why they believe it covers this case. Mr. Stitt's memo also discusses the
Act, even though he takes issue with Mr. Stitt. Referring to pages 6 and 7 of that •
memo, Mr. Stitt discussed a reasonable accommodation, in which he agrees the City is
obligated to look at. Mr. Fine continued; he doesn't feel the Board even needs to reach
that question because the zoning answers it. To the extent the Board does wish to look
at it, Mr. Stitt outlined 2 options, which are potentially amenable to the City. Mr. Fine
referred the Board to the last 2 paragraphs on page 7 of Mr. Stitt's memo, and stated
the applicant is comfortable with Option 3 and would be satisfied with that option. He
believes on pure zoning grounds, the case is simply a nonconforming use that has not
changed. To the extent we disagree, the reasonable accommodation set forth by Mr.
Stitt, particularly Option 3 set forth on page 7, is acceptable to Community Care. Mr.
Fine stated he would be happy to answer any questions from the Board. Mr. Fine
continued; it is fairly complicated on how patients get to Community Care, but the legal
question is simple. It is like any other nonconforming use case the Board has to
consider. It is a straight forward zoning question. He reiterated that he is open to
questions from the Board. Further, Dr. Bruno is available to answer any questions the
Board might have regarding whether or not he misrepresented himself. It is important
to Dr. Bruno that the Board know he checked the tapes when he learned he was
accused of misrepresenting himself at that hearing.
Mr. Smith asked if the youth from the Department of Youth Corrections were subject to
arrest if they left the Community Care premises. Mr. Fine responded that there is a •.
great deal of confusion between "Department of Youth Corrections" versus "Department
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of Corrections." Mr. Fine testified that "Department of Corrections" is not involved with
Community Care and is out of the picture. Mr. Fine referred to his display boards
depicting how patients are referred to or "funneled" into the program. Mr. Fine
testified the youth are referred from County Social Services, mental health services,
and, what is not on the board, private placement. They are also referred by the
"Division of Youth Corrections", which can lead to the confusion between the
"Department of Corrections" and the "Division of Youth Corrections." The Division of
Youth Corrections is part of the State Department of Human Services. Some of these
youth have been adjudicated for crimes they were accused of.
Mr. Smith asked for clarification on "adjudication" -delinquent or dependent and
neglected. Mr. Fine responded that it could mean either one. Mr. Smith asked if they
were adjudicated whether they were referred to the Department of Corrections and
then the Department of Human Services, or do they go directly to the Department of
Human Services? Mr. Fine responded that they actually go to the Division of Youth
Corrections, which is part of the Department of Human Services. Mr. Fine stated that if
the youth do not go to Community Care, one of two things can happen. The youth
could go to another program, if one exists; or they can stay in the Division of Youth
Corrections and be released to their family or just released. He reemphasized that all
the youth are diagnosed as mentally ill. The other alternative is that they go into
Community Care, where they are actually treated to go back into the community. They
stay a certain period of time and receive mental health treatment, counseling, skills,
etc., which is the purpose of the Community Care program. Currently, there are no
such youth at Community Care, but from time to time there ha v e been. The
adjudicated youth are in with the other youth who are receiving the same mental health
treatment. Mr. Smith stated that he assumes the whole reason everyone is at the
meeting is because there is a possibility such youth will be placed in the future. Mr.
Smith stated that if Community Care would agree not to take adjudicated youth, then it
would render everything moot.
Mr. Fine stated that is Mr. Stitt's fourth option in his memo. Mr. Fine stated he called
Mr. Brotzman today, which wasn't the best day to call, but in previous discussions that
option did not come up. Mr. Fine stated that he couldn't say whether that was the
City's position. Mr. Smith stated he wanted to know Mr. Fine's or his client's position.
Mr. Smith continued; if the applicant would agree to that condition, there wouldn't be
much left to do and the case could be resolved quickly. On the other hand, the Board
will consider the case as full as Mr. Fine wishes.
Mr. Smith stated that according to Mr. Stitt's memo, the only reason the applicant was
issued a Cease and Desist Order was because some of the patients in the facility were
subject to arrest if they left. If those are the only patients from the Division of Youth
Corrections and the facility is no longer taking those referrals, then there is not much
reason to continue. Mr. Fine stated with regard to the last point, he needed to confer
with his client so the Board had the most accurate information.
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A short recess of the Board was declared by the Chair.
The meeting reconvened; all Board members were present.
Mr. Fine stated he spoke to Community Care, and it has agreed not to take referrals
from the Division of Youth Corrections. It is taking the position on the record without
waiving its contention that it is not required to do so for the reason set forth in its
statement. Mr. Fine continued; there are serious problems with the Ordinance and,
they would like to continue talking with the City regarding the Ordinance. Mr. Fine
recognized that the Ordinance is not within the Board 1s function, but wished to make
that offer on the record. For the purpose of this hearing, Mr. Fine stated that
Community Care does agree not to take referrals from the Division of Youth
Corrections. Mr. Smith stated he wished to make it clear that the he was not trying to
pressure him to settle the case because he doesnt mind making hard decisions. If
there are youth that are going to come to the facility, need help and can benefit from it,
Mr. Smith stated he didnt mind going through with the hearing. If the City is agreeable
to the proposal, he stated he assumed the City would withdraw the Cease and Desist
Order. Mr. Smith asked the City if that was correct.
Don Elliott of Clarion Associates, the City's consultant on the case, stated that the
comments made by Mr. Fine in the case substantially simplify the case. Mr. Elliott
stated that the case is governed by the old Ordinance; it's a nonconforming use case.
By saying the applicant did not have any DYC kids when they operated in 1995, the
whole issue of misrepresentation goes away. What the Board has before them is a case
wherein the applicant was legal when they began their operation. However, when
Community Care began accepting DYC kids, the City's contention is it became a half-
way house on those days. On the days that DYC kids were at the facility, it was a
different use. On days like today when there are no DYC kids at the facility, it is a
group home. The use does change depending on where the people are from.
Mr. Smith stated he understood that part of the City's position; however, he's not sure
there even was a DYC in 1995. Mr. Smith stated his question is: If there are no DYC
kids at the facility, is it in fact a valid nonconforming use under the present Ordinance?
Mr. Elliott responded that was correct. Mr. Elliott recommended that the Board decide it
is a nonconforming use as long as it does not have DYC people. The Board's decision
should reflect the offer that has been made, and which was the use approved in 1995.
Mr. Smith stated in that case, the Board might as well go through with the hearing. It
makes no sense to say "if they do this, or if they do that." Mr. Smith stated it is the
City's burden to show that Community Care is in fact violating the special use permit. If
they do not have DYC kids at the facility, the City cannot show that. Mr. Smith stated
the City is asking the Board to rule on a moot argument. You can argue what will
happen if they do; but until they do, from a legal point we are moot.
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Ms. O'Brien stated she needed clarification because she was getting confused. Ms .
O'Brien stated that in the past Community Care accepted DYC youth, and the Board is
asking if they will agree not to accept children from DYC in the future. Ms. O'Brien
asked if that was the issue? Mr. Elliott responded that it is his understanding that is the
issue that lead to the issuance of the Order. If that issue were agreed to, to the City's
satisfaction, it is his understanding that the Order would be revoked.
Ms. Reid interjected that the Board is considering an appeal. The Board has the
authority to uphold, revoke, or amend the ruling by the zoning officer. The zoning
officer's Order, which the Board has, stated Community Care is a nonconforming use; it
had youth from the Division of Youth Services; therefore, it was in violation and has lost
its nonconforming use status. Under the Zoning Ordinance, when a nonconforming use
status is lost, that use is "shut down." If the Board decides that the zoning officer was
wrong and Community Care can keep their nonconforming use status, the Board needs
to make a determination as to whether Community Care keeps its nonconforming use
status with conditions; it lost nonconforming use status and must leave; or the zoning
officer was incorrect, and Community Care did not violate its nonconforming use status.
Ms. Reid reiterated that the Board can modify, uphold, or revoke the Cease and Desist
Order. Ms. Reid stated on the day Community Care received the Order, it had DYC
kids, and that is when it lost its nonconforming use status. Nonconforming use is unlike
a variance; it does not "run with the land." Normally with a nonconforming use, when
the use changes or is discontinued, it is gone; you cannot get it back again .
Mr. Smith stated that it has only become nonconforming within the last six months. Mr.
Smith asked if DYC youth have been at the facility since the new Ordinance went into
affect? Ms. Reid responded that is what the Order indicates and that is also what Mr.
Fine testified. Mr. Smith stated Mr. Fine stated there had been DYC youth at the facility
in the past, but were there DYC youth at the facility on January 11?
Ms. O'Brien stated they were getting off target. If the Board is discussing how to
procedurally handle the situation, she believes Community Care can agree to the
condition that it will no longer have any individuals from the Division of Youth
Corrections. Mr. Fine stated he didn't wish to "muck" it up, but Community Care would
agree to that condition. He also stated that Mr. Stitt outlines two other options. He
stated he appreciates the Board's offer not to feel pressured to settle. Community Care
is a non-profit and cannot run itself into the ground by fighting the case to the "nth"
degree. It is not the best solution for his client or the youth for Community Care not to
accept DYC kids, but it appears to be a solution that would allow the program to
function. As an alternative, option 3 would allow the Board to determine whether or
not the nonconforming use status has been v iolated. If the Board chose that option
and found against Community Care, it could then determine the facility could stay with
the conditions that it not take DYC youth. He stated he has represented to the Board,
and stands by it, that it will not take DYC youth .
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Mr. Smith asked if DYC youth are subject to arrest if they leave the facility. Mr. Fine •
responded that the reason the youth are subject to arrest is not because they are from
the DYC, but the judge has said under certain conditions the youth will go to
Community Care. A Court Order states the youth will receive treatment, and if the
youth leaves, he/she will be arrested and returned to the facility. Ms. O'Brien clarified
that they are subject to arrest. Mr. Fine responded "yes", but not because they are
from DYC, but because the Court orders it. Ms. O'Brien stated that was a distinction
without a difference. Mr. Smith asked if there were DYC youth not subject to arrest if
they leave the facility. Mr. Fine responded that he didn't know, and then stated "no."
Mr. Fine stated that the term "arrest" connotates youth are arrested because they have
committed a crime. Mr. Smith stated that under the old definition persons released
from correctional institutions or facilities go into a half-way house. If they are
unconditionally released, they may go wherever they want to, and they can chose to
go to Community Care. They are then not subject to arrest.
Mr. Smith moved,
Mr. Seymour seconded:
TO ALLOW COMMUNITY CARE TO CONTINUE AS A NONCONFORMING USE OR
GRANT IT NONCONFORMING USE STATUS UPON THE CONDITION THAT IT NOT
ACCEPT PATIENTS WHO ARE SUBJECT TO ARREST IF THEY LEAVE.
Ms. O'Brien stated she didn't understand the motion; she asked why "either/or"? Mr. •
Smith asked what difference it made. His motion is to allow the facility to continue in
existence as it is so long as it does not accept patients who are subject to arrest if they
leave. Ms. Davidson asked if the motion was phrased as such because Community Care
lost its nonconforming use status by accepting DYC patients?
Mr. Smith stated the reason it was stated in that fashion was because his motion is to
let them continue, regardless of whether Community Care lost its nonconforming use
status or whether the Board has to grant them nonconforming use status. Mr. Smith
continued; let them continue in use as a nonconforming use under the present
Ordinance as long as they do not accept residents who are subject to arrest if they
leave.
Mr. Fine stated that there can be a youth adjudicated by the court such as a runaway,
who can be subject to a Court Order, but not a criminal. For example, if a youth runs
away, mom and dad say they can't take care of them, guardianship is appointed to
Community Care, and the Court Order states if the youth leaves, he/she is to be
arrested and brought back to Community Care. There is a distinction between DYC
youth and youth subject to arrest by a Court Order. There could be a privately placed
youth, not placed by the Department of Human Services, who has a Court Order stating
the youth is to be arrested and returned to the facility.
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Ms. O'Brien asked to hear the City's position. Mr. Elliott responded that it is acceptable
and a good idea. It would bring the facility i nto conformance. The one objection that
was made and which began these proceedings is that they didn't think they could meet
condition 3 under the new definition of detention facility. They thought they
inadvertently or unknowingly wound up being in violation of the detention facility. They
are now agreeing not to do the thing that would make them a detention facility. Mr.
Elliott encouraged the Board to word it so it matches the definition in the Code that
brings them in compliance with the new Code.
Ms. Davidson asked whether the applicant would sti l l be considered a detention facility
if they accepted someone from a private referral that was arrestable if they left the
facility. Mr. Elliott stated that under the new Ordinance, they would .
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Mr. Smith, with Mr. Seymour's approval, amended the motion to:
THAT COMMUNITY CARE BE ALLOWED TO CONTINUE OPERATING IN THE
PRESENT FASHION SO LONG AS THEY DO NOT FALL UNDER THE DEFINITION
OF A DETENTION FACILITY, AS CONTAINED IN THE PRESENT ZONING
ORDINANCE.
Mr. Fine stated part of the definition is problematic. Subsection 3 of the definition of
detention facility states "detention facility can be a group home containing any
individual who will be subject to the issuance of an arrest or escape warrant if they
leave the facility." That is the broad based language that cannot be avoided, even if
Community Care agrees not to accept DYC youth. Mr. Fi ne stated he couldn't agree
with t he conditions of the motion, because it elim i nates referrals from any source if the
youth has an arrest prov ision attached to their placement. Technically, such a provision
would place the facility under detention facility status even if that youth was completely
nonviolent and never committed a crime and for whatever reason had to be placed
outside the home .
Chair Bode asked if Community Care knew, prior to placement, whether the youth had
been adjudicated. Mr. Fine stated he believed that to be true; the youth are referred
from some source. Community Care is appraised of the situation and asked if they can
take the placement. Chair Bode clarified that the referral agency or person does tell
Community Care whether or not the youth has been adjudicated. Mr. Fine stated he
believed that was true; Community Care wants to know that i nformation and it does it
best to find out.
Mr. Smith stated part of his problem was he didn't understand the City's position. First,
the City claims Community Care has used the facility as a proh i bited half-way house and
then the City states it is operating as a detention facility. There appears to be no
particulars as to "when" and "how", whether it is just the DYC youth or some other
youth.
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Mr. Elliott responded that the City's position is that nonconforming use cases needed to
be resolved under the law in affect at the time they were approved, which in this case
is the old Ordinance. Referring to page 6 of Mr. Stitt's memo, Mr. Elliott stated there
are two paragraphs which explains the City believes that the facility was not a
nonconforming use under the old statute. In addition, the third paragraph on that page
sets forth that incidentally Community Care would also be in violation of the new
statute. The governing law, however, is whether or not they are in compliance with the
approval they received in 1995. The City's position is Community Care is not.
Mr. Fine responded that in 1995 Community Care submitted a conditional use
application with the Planning and Zoning Commission. During the course of those
proceedings, the City concluded that Community Care did not require a conditional use
permit; therefore, those proceedings were essentially aborted. Community Care has
existed as a permitted use, and no conditions were placed on the facility. Mr. Fine
continued that he cannot find "half-way" house in the old Ordinance and doesn't believe
the applicant was operating as a half-way house. From the zoning point of view, the
facility was treating mentally ill youth in 1995, under the old Ordinance; and it is
currently treating mentally ill youth, under the new Ordinance. During that time, some
of those youth came from DYC, but the use has not changed. Mr. Fine agreed with Mr.
Smith regarding the statement in the Cease and Desist Order because it is putting the
"cart before the horse." The City is saying Community Care is a detention facility,
therefore, it is no longer a nonconforming use. Mr. Fine stated he believes it is the
other way around; it is a nonconforming use because it is a detention facility and unless
the use changes, it will not lose its nonconforming use status. Mr. Fine testified that is
how he reads the zoning issue. He stated he believed the City was "dead wrong", but
the applicant's interest is to continue to operate.
Ms. Davidson stated she needed clarification. When Community Care first started
operating, it did not take DYC youth and then at some point, it did start taking DYC
kids. Mr. Fine stated that was correct; Community Care didn't know they could or that
DYC existed. Ms. Davidson stated that it is the City's position that at the hearing, which
was aborted, if it had realized that Community Care was going to take youth from the
Division of Youth Corrections that hearing would have continued. Community Care may
or may not have been granted a conditional use. The City's sole complaint for it being
in violation is just the referral from Division of Youth Corrections. From her reading, the
Cease and Desist Order does not indicate anything about any other youth who could
possibly be arrested. Mr. Fine stated that is how he also reads it; unfortunately, the
new Ordinance creates that problem. Ms. Davidson clarified that it is not having to
abide by the new Ordinance. Mr. Fine stated that the Cease and Desist Order states
that Community Care is violating the Ordinance because it is a detention facility.
Further, under the Ordinance, Community Care is a detention facility even if it agrees
not to accept DYC youth.
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Mr. Elliott stated that the law that should apply is the law in affect at the time of
approval. However, there is a new Ordinance, and it is not inappropriate to talk about
wording the decision in such a way that it would enable Community Care to operate
legally under the new Ordinance. It is not where the dispute came from, but it would
be helpful to have it resolved in a way that it conforms with the Ordinance. Based on
his knowledge of the City's position, Mr. Elliott stated it would be acceptable if there
was a determination that the nonconforming use continued provided Community Care
did not accept referrals from any State agency under terms the youth would be subject
to arrest or escape warrant if they leave. Mr. Fin e's point about private placement has
never been discussed with the City to the best of his knowledge. Mr. Elliott reiterated
that if the determination were worded such that it prohibited referrals from any agency
--refraining from naming a specific agency because it could go out of business or
change its name-of the State government and youth subject to escap e or arrest if they
leave. If Community Care agrees to that, it is his understanding that would solve the
cause of the issue.
Ms. Davidson stated that they do not have to comply with the current Ordinance. Mr.
Elliott responded that legally as long as Community Care had stayed "legal" under the
old Ordinance they could have gone on forever. The City's position is that Community
Care is not legal under the old Ordinance, and therefore, they cannot go on forever.
Ms. O'Brien stated she needed to clarify what she has heard. The old statute governs,
but if Community Care lost its nonconforming use status, it lost it; and then the Board
looks at the new law. Mr. Elliott stated that was correct; it would be illegal and illegal
uses are not nonconforming uses. Ms. O'Brien continued; the City's position is that
Community Care lost its nonconforming use status when they took youth from the
Division of Youth Corrections. Mr. Elliott stated that was correct.
Mr. Smith stated he needed further clarification. Was there, in fact, a special use
permit granted? Mr. Fine stated there was not. Mr. Smith asked what section of the
old Ordinance did Community Care violate that made it a nonconforming use? Mr. Fine
stated that was his question as well. Ms. O'Brien stated she wished to hear from the
City.
Mr. Elliott responded that it is his understanding that according to the Minutes, the
entire proceeding, up to the point were it was aborted . . . . . . Mr. Smith interjected
that it didn't matter because no special permit was issued. Ms. O'Brien asked Mr. Smith
to let Mr. Elliott finish. Mr. Elliott continued; everything has to be a use in the City.
Everything is a use; it is not a "nothing." Therefore, what was Community Care's use at
the time of the hearing? All the representations and all the evidence introduced up to
the point where it was dropped were based upon Community Care's representation that
it was a group home and their persuasion of the City staff that they were not a half-way
house. Therefore, the City's position is that Community Care was trying to be a group
home, which is what they made a case for before it was dropped.
11
Ms. Davidson asked that if the City's contentions of what was said were incorrect or
overstated that Community Care would not take these youth, then isn't the City basing
its case falsely? Mr. Smith asked whether the City did anything to stop Community
Care from operating under the old Ordinance. Mr. Elliott stated he didn't know. Mr.
Smith stated that unless the City states differently, he is going to assume they did
nothing to stop them from operating. If the City didn't stop their operation, they cannot
go back and give them a "ticket" now. Mr. Elliott countered that the City can determine
today whether they are legal. They either have to be legal under the new Ordinance or
nonconforming under the old Ordinance; those are the only two choices. Mr. Smith
asked why all the discussion regarding the nonconforming use under the old Ordinance
if they were not a nonconforming use and if the City never said anything about them
being a nonconforming use. Mr. Elliott stated that there doesn't need to be a
determination by the City to be a nonconforming use. Community Care was not a
nonconforming use until the new Ordinance was adopted. Mr. Smith asked if they were
a nonconforming use under the new Ordinance, why was the case before the Board? If
Community Care is a nonconforming use under the new Ordinance, because they were
grandfathered in when the new Ordinance was adopted, then there is nothing for the
Board to decide. Mr. Elliott stated that wasn't true. In fact, Community Care violated
the use that was approved; they were illegal on the date the new Ordinance was
adopted. Mr. Smith argued that is the same as him speeding last week, but he didn't
get caught and nothing happened.
Ms. O'Brien asked if Community Care was illegal under the old Ordinance. Mr. Elliott
reiterated that it is the City's position that they were illegal because they were a half-
way house. Mr. Smith asked for the definition of a half-way house in the Zoning
Ordinance. Mr. Fine stated it doesn't exist. Mr. Smith asked for the difference between
a group home and a half-way house. Mr. Elliott responded that the definition that he
has been reading comes from the Minutes, not from the Code. Mr. Smith asked if the
City was asking the Board to prove they were in violation of Minutes. Mr. Smith again
asked if there was any definition for half-way house within the Municipal Code. Ms.
Langon stated there was no such definition. Mr. Smith asked if the word "half-way
house" appears in the Code and where. Mr. Elliott stated it did; in the Minutes it is used
as a place for treatment of substance abuse or individuals who have been through the
judicial system. Mr. Smith stated that was the Minutes; again what does the Ordinance
say about half-way houses? Mr. Smith again asked where the word "half-way house"
was used in the old Ordinance.
Ms. Reid referred the Board to Section 16-4-5:0, Conditional Uses in the R-2 zone
district. Ms. Reid recited: "Provided the public interest is fully protected and the
following uses are approved by the Commission, except for those group homes which
are required by State statute, the following provisions apply: 1. Large child care home.
•
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2. Group homes which are licensed by the Sate and which provide 24 hour •
supervision." Under subsection 2(a) "No 2 group homes, whether under the same or
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different sponsorship, shall be located within the same block or within the blocks
adjacent to the block in which the group home is located. This shall not include group
homes or half-way houses for persons released from correctional institutions or
facilities." Mr. Smith stated that was as clear as "mud." Ms. Reid responded that is why
there is a new Ordinance. Mr. Smith asked what "this shall not include" referred to?
Does it refer to that they cannot be in the same block or does it refer to conditional
use?
Ms. Reid responded that in her opinion it refers to the fact that a conditional use will not
approve a group home that is a half-way house. Mr. Smith asked why it was located in
the same section that two cannot be in the same block. It implies to him that two half-
way houses can exist in the same block. Ms. Reid stated that was not her
interpretation. Her interpretation is that group homes can exist under a couple of
condit ions. There cannot be two in one block and you cannot have a group home that
is a half-way house. Ms. Reid reiterated that is the old Ordinance.
Mr. Fine stated that what it does not say is that Community Care was i llegal at the time
the Ordinance was changed. Mr. Smith stated that he wasn't sure what it says, but he
would have to reach a long way to find Community Care was in violation of the
Ordinance. Ms. O'Brien stated she would not. Mr. Smith asked her if she thought it
was a group home or a half-way house. Ms. O'Brien responded that she d id, especially
when they started taking kids from the Division of Youth Corrections. Ms. Davidson
stated that she wanted to hear or see the transcript of the tapes.
Ms. Reid made a point of order. On the issue of a transcript of the tapes, the Board can
ask for what they want, but the official report of what happens at any meeting is the
Minutes which are approved by the Board or Commission. If someone objects to the
Minutes, the person is supposed to appear before the Board and object to those
Minutes.
Mr. Fine stated that the Board is asking the same questions he has been asking, and
this is the best dialogue he has had with the City thus far on this matter. In his opinion,
Section 16-4-5 clearly does not state that Community Care, even if it were a half-way
house, was illegal. Mr. Fine asserted that at the hearing it was as if the Division of
Youth Corrections didn't exist in anyone's mind, including Community Care. Community
Care was trying to obtain a conditional use permit as a group home. The City is now
saying that if it had known then what it knows now, it would have acted differently. Mr.
Fine stated that is pure speculation on the City's part; it wasn't part of the decision that
was approved at the time; and at that time, Community Care didn't even think about
accepting DYC youth. It was a few years later when another department within Social
Services asked them if they would be willing to take some of those kids. Mr. Fine stated
the thought "wasn't even a glimmer in a future father's eye."
13
Ms. O'Brien stated that made sense to her; but wouldn't it also be true that it wasn't
even a glimmer in the eye of the City when they heard testimony from the applicant at •
the hearing as to what was going on at the facility at that time? Mr. Fine stated that
the relevancy is that the use is still the same. Ms. O'Brien argued that the use did
change. Under the old definition, it changed when Community Care started accepting
youth who were subject to arrest. Mr. Smith stated that "subject to arrest" was never
in the old Ordinance.
Mr. Smith stated that the old R-2-C zone district has similar language as the R-2 zone
district regarding group homes. However, Section 16-4-6-N:2 states: "Group homes:
Group homes, which are licensed by the State of Colorado and which provide twenty-
four (24) hour supervision. This shall not include group homes or half-way houses for
persons released from correctional institutions or facilities." Mr. Smith stated that he
has not necessarily heard testimony that DYC youth have ever been in correctional
institutions or facilities. Mr. Elliott stated it is the City's position that is exactly what it
did, because DYC is the only judicial system for youth. Mr. Smith countered that if they
are still subject to DYC, they haven't been released. Mr. Elliott stated that they have
been released for placement in the facility. Mr. Smith argued that they are still under
DYC's control and, in fact, have not been released.
Mr. Elliott asked the Board to consider the intent or purpose of the definition. Mr. Smith
responded that he was sure, at that time in Englewood, the intent was to keep out •
anybody whoever had been near a prison. Mr. Elliott stated that the intent of the
definition of group homes does not cover half-way houses or people who had been
through the judicial system. Mr. Smith stated that the next section puts that sentence
in a different category; but it doesn't say that half-way houses are prohibited.
Mr. Elliott stated that the nonconforming use issue only comes up when the new
Ordinance was adopted. Mr. Smith argued that the City's position is that Community
Care did something years ago which led to this hearing. In fact, the only thing that has
changed from 1995 to now is a new Ordinance. Mr. Elliott stated that was not correct;
what has changed is the source of the people who came in. Saying a "group home is a
group home" regardless of where the people came from is the same as saying "dancing
is dancing" regardless of whether it is adult dancing or another type. It is not the
same; it is a different use under the Zoning Ordinance because of the type of activity.
Mr. Smith asked if the citation was for something that happened prior to the adoption of
the new Ordinance. Mr. Elliott responded that the citation is that when the new
Ordinance was adopted, Community Care would have become a nonconforming use but
they were in fact illegal. They were illegal, not grandfathered, and they do not meet
the new Ordinance.
Mr. Smith stated that it seems the City is like a police officer giving a ticket for speeding
or careless driving. The judge gets to decide; take your pick. Mr. Fine stated that is •
what he was referring to as the "cart before the horse." Mr. Fine stated that what
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made the use "illegal" is the new Ordinance. Prior to the new Ordinance, it was a
permitted use. The new Ordinance made Community Care a detention facility;
therefore, under the Zoning Ordinance it becomes a nonconforming use. So long as
they stay a nonconforming use, it is allowed to stay.
Chair Bode asked Mr. Fine to stop because he didn't hear that from the City. Mr. Fine
responded that he didn't hear that from the City. The City claims that Community Care
was illegal before and after the new Ordinance. Chair Bode stated that he didn't care
about the "after." He clarified that the City is saying they were illegal before the new
Ordinance. Mr. Fine stated that was correct, but he has yet to hear why.
Mr. Elliott responded that the City's answer is because the only indication Community
Care gave was that it was applying for a group home. A group home does not include
half-way houses; and half-way houses include people who come from correctional
facilities or institutions, which would include DYC kids. That is why Community Care
was illegal. The minute Community Care started taking DYC kids it was no longer a
group home. Mr. Elliott stated he believes the applicant is trying to take advantage of
the fact that since the hearing was suspended, no one can name what the use was.
There clearly was a use which was allowed in 1995. Mr. Elliott asked the Board to
consider why the City decided not to continue the hearing, did it believe it was allowing
a group home or did it believe it was allowing a half-way house? If the Board believes
the City was allowing a half-way house, then the Board has to overturn the citation
because they were legal when the new Ordinance went into affect. If the Board
believes it was allowing a group home, then the day Community Care started accepting
DYC kids it became an illegal use. Illegal uses are not grandfathered.
Ms. O'Brien asked whether all the Division of Youth Correction kids are released from
correctional institutions or facilities. Mr. Smith asked if DYC is a "correctional institution
or facility." Mr. Elliott responded "yes." Ms. O'Br ien asked if Mr. Fine agreed. Mr. Fine
stated he would answer that question in a minute. Mr. Fine stated he was not at the
hearing, but for whatever reason the City made a choice to abort the conditional use
hearing and allow Community Care to exist. The discussion at that time was about
what Community Care thought it was going to be doing. The City may have had an
"understanding", but he doesn't know that. Further, Mr. Fine stated it didn't matter;
Community Care wasn't illegal. There is nothing within the Ordinance that defines half-
way house. The phrase states "half-way houses or for persons re leased from
correctional institutions or facilities." Mr. Fine stated that what that section is referring
to density of group homes.
Ms. O'Brien asked Mr. Fine if he remembered her question and if so, would he please
answer it. Mr. Fine responded that there is a Department of Corrections, such as
Canyon City, which is a correctional facility. Division of Youth Corrections, at least by its
name, is a correctional facility. The youth, however, do not come to Community Care
because Division of Youth Corrections says "let these kids of out jail and send them to
15
Community Care, into the neighborhood." The Department of Human Services decides
that mental health treatment needs to be provided to this population in order to •
transition them out into the community. That is how the DYC youth are sent to
Community Care.
Mr. Rasby stated that those kids could be Court ordered to the facility due to a variety
of reasons. Mr. Fine stated that to fully understand the situation there is a requirement
by the State, by Medicaid, and by Community Care that kids considered a danger to the
other youth in the program or to the staff are not allowed at Community Care. Even if
they were a nonviolent offender, but for some reason considered dangerous, they
would not be placed at Community Care, because the facility is unable to treat youth of
that nature.
Ms. Davidson asked if youth coming out of DYC were coming out of a correctional
facility. Mr. Fine asked if she meant the last place they were. She responded "yes."
Mr. Fine asked if Dr. Bruno could be sworn in to answer that question. Chair Bode
stated he could be sworn in later, but the Board still had questions for Mr. Fine.
Mr. Smith stated that a half-way house implies that it is a transition from incarceration,
where someone is locked up, into society where you learn to take the bus again, etc.
and is under guard, in essence, 24 hours. He continued; it seems to him that
Community Care is a mental health treatment facility where they are not guarded; the
patients are there to receive treatment or be retrained.
Chair Bode asked Mr. Smith to read the section from the Code again where it references
incarceration or correctional facility. Mr. Smith stated the sentence reads: "This shall
not include group homes or half-way houses for persons released from correctional
institutions or facilities." Chair Bode asked Mr. Fine to hold up the first board he
referred to earlier in the meeting. Chair Bode asked if the Department of Corrections,
on the left side of the board, was a different division than the Department of Human
Services, on the right side of the board. Mr. Fine stated that was correct. Chair Bode
stated that if he put what Mr. Smith just cited to the "spirit of the law", he understands
it to say from the Department of Corrections.
Ms. O'Brien asked if any youth go to the Department of Corrections, or are they all
through the Division of Youth Corrections. She continued; in fact, they are all through
the Division of Youth Corrections because there is no Department of Corrections
applicable to youth. Chair Bode disagreed; a kid can go to the Department of
Corrections; it is in the newspaper all the time as to whether to try the kid as an adult
or a kid. Mr. Fine stated that no person comes out of the Department of Corrections
into Community Care. Ms. O'Brien stated that she would take a different reading and
say that there is a division between adults and minors, and that this provision is
applicable to both; that is her view. Mr. Fine responded that adults do not go through
DYC. Youth can go through Department of Corrections. Ms. O'Brien clarified that youth •
16
only go through the Department of Corrections is if they are tried as adults. Mr. Fine
• stated he didn't know if that was true.
Mr. Elliott stated that the language everyone is talking about does not distinguish
between youth and adults, and it does not talk about a specific department within the
State of Colorado. It does not talk about jails. I t states correctional facility. In fact,
the chart Mr. Fine just referred to shows there are at least two kinds or more within the
State of Colorado. One is run for adults and/or tougher cases -the Department of
Corrections; and another is the Divis ion of Youth Corrections. That is why it has
"corrections" in its title. Mr. Rasby asked if there was a Division of Youth Corrections in
1995. Mr. Elliott responded that he didn't know. Mr. Smith stated that a person who is
adjudicated "mentally ill" in probate court is not released from a correctional institution.
Mr. Seymour stated that it says "correction", so what is it correcting? Mr. Fine asked if
Mr. Seymour was asking what the Division of Youth Corrections is correcting. Mr.
Seymour responded "yes." Mr . Fine responded that some youth with the Division of
Youth Correction are there for some type of adjudication of some type of criminal
behavior. Mr. Seymour stated that there is criminal behavior involved. Mr. Fine stated
there could be. Mr. Fine reiterated tha t it might be helpful to swear in Dr. Bruno, but a
kid who steals a car, or some other criminal activity, and is severely mentally ill may be
released and placed with Community Care. Mr. Seymour clarified that these youth have
done something criminal. Mr. Fine stated that within the Division of Youth Corrections
• that was correct.
•
Ms. Davidson asked whether a private referral, with an arrest warrant attached, would
also be coming from a correctional facility. Mr. Fine responded "no." Ms. Davidson
stated that if Community Care met the previous statute, which excluded half-way house
or those coming from a correctional facility, and became conforming Community Care
would be back to its original status. If the Board decided to exempt the Division of
Youth Corrections' referrals, would Community Care then meet the prior statute
because the private referral would not come from a correctional facility? Mr. Fine stated
"yes", but the "cart before the horse" is that no determination was made that if a DYC
kid was placed at Community Care it became a half-way house and, therefore, illegal.
That determination has simply never been made. Ms. Davidson responded that she is
trying to get to the bottom line and solve it, and Community Care has already agreed to
not take DYC kids in the future even though it thought it wasn't valid. If the Board
decided Community Care could continue operating, whether as a nonconforming use or
not, conditicnally that it would not accept DYC kids, would that be acceptable? The
private referral, with a court order attached, would not come from a correctional facility
and still meets the previous statute. Is that correct ?
Mr. Fine stated he wasn't sure. Mr. Smith stated he wasn't even sure and is at a loss as
to why the Board should care what happened before the new Ordinance. So what? It's
water under the bridge; it's gone. There seems to be a couple of related problems
17
One is the Fair Housing Act and how that impacts. Mr. Smith stated that there is some
obligation from the federal government to make reasonable accommodation. Ms. •
Dav idson stated that Community Care has already agreed to not accept DYC kids, and
she is just trying to get the case solved based on what they've agreed to do.
Mr. Smith suggested receiving testimony from others who might want to speak for or
against. Mr. Fine stated that Dr. Bruno wished to testify and answer the Board's
questions.
Dr. Louis L. Bruno, 950 East Harvard Avenue, was sworn in for testimony. Dr. Bruno
stated that this is a very difficult situation, and it is not just Englewood that is dealing
with it. Dr. Bruno stated he wished to put some things in perspective so the Board
could sort everything out. Things have changed; before 1990, most mentally ill youth
were treated in state hospitals. The problem with mentally ill youth is that they make
bad decisions; their brain doesn't work right; they need to be on medications. Their
families are often dysfunctional. They are kids that get into trouble. They usually end
up at the state hospital. In the early 1990's, mental health services were capitated and
partially capitated in the State. They started closing down hospital beds. The resources
for families and these kids were being closed down. In the mid-1990's, all mental
health services were capitated. Overnight, almost al l the state hospital beds went
away. These kids still get into trouble. Ten years ago, they would have been in the
state hospital. Now where they wind up is with community resources. Those
community resources don't exist. Dr. Bruno continued; the kids still get into trouble •
and they wind up in jail; they wind up in Youth Corrections. There is a distinction
between Youth Corrections and the other correctional juvenile systems. There is a YOS
-youth offender services, and Community Care doesn't take any of those kids. Dr.
Bruno stated he accepts kids under the Division of Youth Corrections, and the stated
goal of DYC is to return these kids to their families and the community and to
rehabilitate them. That is why that system exists. We as a society determine that
these kids deserve some kind of treatment. The problem is there is no psych iatr ic
treatment essentially in Youth Corrections. DYC wants to get their mentally ill kids into
a treatment program and that is why they come to Community Care.
Dr. Bruno further stated that when he test ified at the Planning and Zoning Commission
in 1995, he wasn't thinking of Youth Corrections because the kids weren't there, they
were still "here." (Secretarys Note: Dr. Bruno pointed to the display board.) Now, 30
to 40 percent of the kids in the Division of Youth Corrections are seriously mentally ill -
sch izophrenia, bipolar disorder -with treatable mental i llness, but because of what
society has done that is where they are coming from now. Dr. Bruno testified that he
personally thinks that these kids should be treated, and what Community Care has tried
to do is select a few of these kids through a highly regimented, specific referral process.
First, Community Care does not take youth from the Department of Corrections. It only
takes youth from the agencies within the Department of Human Services, which exist to •
help kids. They are not geared to arrest kids, but to help kids. They must be
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approved by Medicaid for medical treatment. Medicaid does not pay for corrections;
they only pay for medical treatment. The youth from DYC are screened by Youth
Corrections and an Arapahoe County review board, which Englewood has been invited
to participate in. They are then deemed safe to return to the community but are
mentally ill and need treatment. They are then referred to Community Care. Then a
Community Care psychiatrist and treatment team reviews the kids to determine if they
are appropriate for the facility. Medicaid then reviews them to determine whether it is
someone with a psychiatric diagnosis. Commun ity Care could not keep the kids at the
facility if they were not psychiatrically disordered kids. Medicaid would not pay for it.
Dr. Bruno stated his point was that the Ordinance is very flawed and discriminatory. Dr.
Bruno stated that nothing has changed at the facility. They don't lock kids up; there are
no guards. They treat mentally ill kids.
Ms. Carlston asked on average how many patients are from DYC. Dr. Bruno stated that
there were currently no patients at the facility from DYC. Ms. Carlston again asked on
average and/or have arrest warrants issued if they leave the facility. Dr. Bruno stated
that is a different question. He stated the average number from DYC is 2 or 3 at any
one point in time. It is a smaller percentage of the kids. Dr. Bruno testified that 75 to
80 percent of the kids are subject to an arrest warrant. He has evaluated a kid from
DYC who was mentally disturbed, went to her neighbor's garage and took a bicycle.
She wound up being in corrections for six months. He stated that wouldn't happen to
an adult. The kids are adjudicated because the kids are deemed to not make
responsible decisions. Dr. Bruno continued; we as a society have determined that we
are going to protect our kids. So, if a kid runs away, we are going to court order the
kid to stay at the facility. That happens all the time. If a kid is truant, he could wind up
at the Division of Youth Corrections because he is a truant. Maybe he is a truant
because there are problems at home. He stated that 75 to 85 percent of kids at a RTC
within the state is subject to an arrest of some sort. With the way the Ordinance is
written, basically no kids could be treated at Community Care.
Ms. Carlston reiterated that she was just asking whether the kids would be arrested if
they left the facility even if they didn't commit a crime. Mr. Smith stated that chronic
runaways are subject to arrest, and he doesn't believe that is what the Ordinance
means. Dr. Bruno stated that in answer to Ms. Carlston's question, 75 percent of the
kids are subject to arrest if they leave the treatment facility, not because they are from
the Division of Youth Corrections. Ms. Carlston asked if he could explain what a DSM IV
diagnosis is. Dr. Bruno responded that it was a diagnostic nomenclature system. There
is a list of diagnoses, developed within the profess ion, and each diagnosis has to meet
certain criteria. When they are diagnosed psychiatrically, they have to assess what
their DSM IV diagnosis is, and these kids are all f unded, and always have been, by
medical insurance or Medicaid. It is a medical treatment facility; it has never deviated
from that.
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Mr. Smith clarified that the purpose of the facility is not to detain the kids. A detention
facility to him is the county jail. Dr. Bruno stated that the facility has no requirement to •
detain these kids. The staff is told not to detain them; they are not allowed to. If any
kid wants to leave Community Care, they meet with the kid's client manager and help
the youth find another facility. The kid doesn't have to stay. Dr. Bruno stated that the
Board is trying to make a poor Ordinance fit, and that is why everyone is going crazy.
Mr. Seymour asked if the kids have created problems in the neighborhood. He also
asked how close Dr. Bruno worked with the facility; how "hands on" was he? Dr. Bruno
responded that he is the medical director and executive director. He is very hands on.
There is a psychiatrist who is directly responsible medically for the kids. Dr. Bruno
stated he supervises the facility. Dr. Seymour asked what the situation was with the
neighborhood. He wouldn't want 20 kids in his neighborhood. He has driven by the
facility when no kids were outside, and other times the kids are outside smoking or
whatever. Mr. Seymour stated that he wouldn't want it in his backyard. Dr. Bruno
agreed that he wouldn't want it in his backyard either, but that is not a reason not to
have one. Mr. Seymour stated he understood that and was sympathetic to that. Dr.
Bruno stated that if he moved into a neighborhood and a facility was there, there wasn't
anything he could do about it, at least from his understanding. When Community Care
went through the planning process, Harold Stitt was very involved. He visited the
facility and talked with the different agencies that worked with the facility. Dr. Bruno
stated that Mr. Stitt felt that it was a good neighborhood for a facility like Community
Care because it was very close to the hospital. •
Mr. Seymour stated he didn't care who said what, when, where, why. It is the impact
on the neighborhood; that is what he is concerned about. Dr. Bruno stated that it is
difficult to help these kids learn how live in the community. He stated he would be
lying to the Board if he said there weren't problems. Mr. Seymour stated that there are
non-mentally ill youth in neighborhoods that create problems.
Ms. O'Brien asked Dr. Bruno to disclose any problems that he is aware of; what types of
problems have been experienced. Dr. Bruno responded that he has met with the
neighborhood community and talked about the complaints. The complaints are kids
mingling in the front yard smoking. The kids and/or the music get loud, and the police
are called. The facility is required to call the police if a kid becomes disruptive.
Community Care works very closely with the Impact Team; they attend the community
meetings. It is a difficult population to treat in the community, but the only way to
teach these kids to live in the community is to allow them to live in the community. Dr.
Bruno stated he couldn't teach them at Fort Logan to live in the community. There
have been problems; he is not disputing that. He stated that these kids need to be
treated in the community, and by their rights as a disabled person must be
accommodated. These kids need medications, education, treatment services, family
therapy, etc. There is no way to reintegrate our youth that are mentally ill, and have •
wound up in Youth Corrections, back into the community without a such a program.
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Dr. Bruno stated that there aren't many such programs. It is ironic because the
correctional programs won't take these kids because they are mentally ill. If these kids
can't go to facilities such as Community Care, they get to languish in jail.
Ms. O'Brien stated that the Board cannot address societal ills. Mr. Smith suggested
listening to other witnesses if there were any. Chair Bode asked if there were any other
questions from the Board for Dr. Bruno. There were no further questions.
Bill Fuchs, 3539 South Corona Street, was sworn in. Mr. Fuchs stated that he lives
directly south of Community Care. He stated the reason he was at the meeting was
because there is a neighborhood group that has come together to try to do something
about the harassment that has been going on in the neighborhood. Since Community
Car e has been in the neighborhood, the police have been there over 330 times. He
stated he considers the facility a public nuisance. Recently, there was a kid throwing
rocks at his dog. Mr. Fuchs stated the youth wouldn't stop so he called the police. This
evening there were two police cars at the facility . Last week, he called Community Care
twice to ask them to turn down the stereos. That is three incidents within one week;
Mr. Fuchs testified that was typical. He stated he shouldn't have to live like that; he
was in the neighborhood before they moved in. Something slipped through the cracks;
the proceedings started and then stopped. Community Care never received a special
permit; they just moved in. The facility is detrimental to the neighborhood. It is "hell."
Mr. Fuchs continued; the youth call him "every name in the book." They talk back to
his wife. He stated if he could sell his house, he would move. He stated he couldn't
sell the house with Community Care next door. He understood that the facility needed
to be somewhere, but he didn't want it next to hi m. He further stated that he believes
it is a waste of the City's manpower to have the police called to the facility over and
over.
Mr. Rasby asked where he thought such a facility should be located. Mr. Fuchs
responded that it could be located in an area where there is not as many people, such
as an industrial area. Mr. Rasby asked if it wou ld be acceptable for a facility such as
Community Care to be within 10-15 miles of his house. Mr. Fuchs responded that it
was more a matter of having 20 kids at one location. If there were only 4 kids, he
wouldn 't mind as much. Twenty is too many, and there isn't enough supervision. Mr.
Rasby stated he understood nobody wants these faci lities in their backyard. Mr. Fuchs
reiterated that smaller groups and more supervision would be optimum. He testified
that his kids are older than most of the counselors. It is scary to have them in charge
of kids with mental problems. He hates for his w ife to be home alone, at least he has
the dogs but the kids are now throwing rocks at the dogs. Mr. Fuchs asked the Board
how they would feel about that. The kids talk back to you when you tell them to stop.
Chair Bode closed the public hearing. Mr. Smith suggested leaving the hearing open,
taking a short recess, and giving the City an opportunity to speak. The City is part of
the hearing and needs to be heard during the public hearing. Ms. Reid concurred; the
2 1
public hearing should stay open if the Board wants to hear further testimony and ask
further questions. Chair Bode stated the public hearing would remain open. •
A short recess of the Board was declared by the Chair.
The meeting reconvened; all Board members were present.
Chair Bode stated the Board would like to hear from staff. Don Elliott, Vice President of
Clarion Associates, was sworn in. Mr. Elliott stated that he was a consultant to the City
on issues relating to group homes. He stated he believed they could skip most of the
information that was in Mr. Stitt's memo. The City's position is that even though the
hearing in 1995 was abandoned, the City allowed a use. It had to be some "use"; some
use was operating in the City at that time. Realistically, it was either a group home or a
half-way house. The City believes it ceased to be a group home and became a half-way
house. It was a group home when it started because it did not have patients that fit
the definition of a half-way house. It became a half-way house when Community Care
started accepting those people. For that reason, it was an illegal use from then on.
The City, and most Codes make this clear, is under no obligation to pursue an illegal
use at any given time. However, when the new Ordinance was adopted, it became
clear that it was a nonconforming use. Based on its size, it would have been classified
as a large or special group living facility. To answer Mr. Rasby's question, under the
new Ordinance it would be allowed in the R-3 and R-4 zone districts. It would not be
allowed in R-2; that is what the new Ordinance does. Facilities of this size do not •
belong in R-2 neighborhoods. However, once the citation went out stating Community
Care did not comply with the new Ordinance; specifically, it did not comply with large or
special group living facility, the applicant then raised the issue that they were a
nonconforming use and should be allowed to continue. The City disagreed; the City
believes it is an illegal use. It is a matter of law. Illegal uses -uses that do not
comply with the condition upon which they were approved -at the time the new
Ordinance was adopted do not get grandfathered. They are not grandfathered together
with their illegality into the future. Briefly put, that is the City's position.
Mr. Smith countered that Section 14 does not say any "legal use"; it says "any use in
existence, which is not otherwise addressed by these limitations, which does not
conform to the limitations established by this Ordinance, shall be nonconforming." Mr.
Elliott responded that black letter land use law indicates .... Mr. Smith interjected that
he is reading the Ordinance. Black letter law can be changed with Ordinances and
statutes. Mr. Elliott again responded that his interpretation is that illegal uses are not
grandfathered at the time a new Ordinance is adopted. Mr. Smith clarified that Mr.
Elliott believes it is fairly well established that Community Care became a half-way
house. Mr. Smith asked what definition he was using; was it simply their accepting kids
from DYC? Mr. Elliott stated that was correct. On the date Community Care started
accepting kids from DYC, which is a correctional facility, it became a half-way house
under the old Ordinance. Mr. Smith clarified that even 2 or 3 youth out of 100 kids •
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makes it a half-way house. Mr. Elliott stated under the old definition, that was correct.
Any kids from a correctional facility made it a half-way house.
Mr. Rasby clarified that Mr. Elliott is defining youth corrections as the same as adult
corrections and someone truant could go through Youth Corrections. Mr. Elliott stated
that was true. What Mr. Fine and Dr. Bruno testified was very helpful. There have been
major changes in the last 10 years, even in the last 5 years, in how youth are managed
and youth are treated for mental illness. There is no disagreement. Mr. Rasby clarified
that "corrections" as Mr. Elliott is defining it is adult corrections. Mr. Elliott stated that
was incorrect. When you read the Ordinance, the word "judicial" comes up over and
over in the course of the hearing that was suspended. There was all this discussion ...
Mr. Rasby interjected that he didn't have that information, so he didn't care about it.
It's Minutes and it means nothing to him. Mr. Elliott stated that the debate going on is
exactly about that. The applicant has asked to be considered under the terms of the
old law, which applies. They assert that Commun ity Care was in compliance under the
old law and were grandfathered. Th is dispute has t o take into account what was said in
1995, and those Minutes are the offic ial Minutes of that meeting. Those Minutes reflect
. . . . Mr. Rasby again interjected that there was not a Division of Youth Corrections at
that time. Mr. Elli ott responded that was correct. Mr. Rasby stated that it could not be
incorporated into this case. Mr. Elliott countered t hat they talk about "persons." There
are 4 pieces of evidence in the staff report that make it very clear statements were
made at the hearing that the patients would not be people who were in trouble with the
judicial system. It did not say "not adults or youth in trouble with the judicial system"
or "not people going to jail"; it said "won't include people who have judicial problems;
won't include people who are in trouble with the judicial system." Mr. Elliott stated that
as he reads the Mi nutes it is very clear what was going on. It was a discussion about
whether there would be people who were in trouble with the law at the facility. The
applicant went way out of their to say that there would not be. Mr. Rasby countered
that he could read that to be hardened criminals. Mr. Elliott stated that was the
precisely the job of the Board -to interpret that. The City's position is that it is very
clearly what the intent of the whole definition of half-way house was, and it is pretty
clear as to what the discussion was in 1995 before the hearing was suspended. It was
a discuss ion about "people"; there was no discussion of age; no discussion of youth at
all. Mr. Elliott stated that the entire discussion in 1995 presumed there would only be
youth at the facility. They are only talking youth, and yet the Commission keeps asking
about whether they would be in trouble with the judicial system. The Planning and
Zoning Commission knew that Community Care was a youth facility and kept asking
questions about being in trouble with the law.
Mr. Rasby stated that if the Commiss ion thought those kids didn't have any trouble with
the law, they were mistaken; they were in a world that didn't exist. Mr. Smith stated
that the whole system has change o. Five years ago a kid that went "bang, bang" with
their finger wouldn't go to jail. Today, he might. Mr. Smith stated that he would like to
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see those Minutes as well as the whole Ordinance, but he doesn't have time to read the
whole Ordinance tonight. •
Mr. Smith asked if anyone from the City has sat down with Community Care to try to
resolve these issues or is this the first time, as Mr. Fine implied, that this discussion has
occurred within the City. Mr. Elliott responded that he did not know. Mr. Fine stated
they met briefly with the City Manager and the City Attorney to have this discussion.
They went to a study session with City Council to try to discuss the matter and were
told by a council member that they would have us out regardless of what was said. Mr.
Fine reiterated that this discussion is the only discussion that has addressed the issues.
Mr. Elliott stated that he wished to make another comment on the record. It is a
difference of interpretation. Mr. Elliott stated that Dr. Bruno testified that 75 -80
percent of the kids would be subject to an arrest or escape warrant. After discussion
with the police department, the City used those words -escape or arrest warrant -
specifically because the police department does not consider that the 75 or 80 percent
would be subject to arrest or escape. When they pick up runaways, the police do not
arrest them. They transport them back to where they should be. Mr. Elliott stated he
was just pointing out a difference in interpretation. Mr. Rasby stated that they have an
arrest warrant out for them. Mr. Elliott stated that was incorrect. Mr. Smith stated his
concern is that the City is trying to create an artificial distinction based on the source of
the referral. It does not make that kid any worse than the kid that comes from
somewhere else. It appears to him to violate the Fair Housing Act, the American with •
Disabilities Act, and all those other federal acts. Mr. Smith continued; if the Board uses
that kind of a label, they are as much in violation of the federal law as the Ordinance.
Mr. Smith stated he didn't have a solution for that, but it doesn't seem to him that the
City has worked with Mr. Fine or Community Care to try to reach that solution either.
He stated that he didn't know what kinds of kids the City doesn't want in there, other
than any of them. What does the City want? Mr. Smith stated he hasn't been shown
anything that distinguishes one kid from another. If he saw all the kids' histories in
front of him; he couldn't pick out those who came from DYC and those who didn't. He
challenged the City to be able to do that. Mr. Smith asked what the Board did about
that problem?
Mr. Elliott responded that he disagreed that the distinctions being made are in violation
of the Fair Housing Act. What was said back in 1995 was 100 percent wrong. The Fair
Housing Act does not mean that there couldn't be a conditional use proceeding and
hearing for this case. A major mistake occurred. If the Board is under the illusion that
someone can say "Fair Housing" and let it go, that is not the law and there are cases
cited to support that in the staff report. When the new Ordinance was drafted, the
issue of public safety needed to be addressed. The vast judgment of staff, the
consultant, and the Council was to address that issue by whether the police can be told
to retrieve someone if they leave the facility -an escape or arrest warrant as opposed
to picking up a runaway which the police told him they do not consider an escape or •
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arrest warrant. Therefore, that was a distinction. The Fair Housing Act allows a lot of
distinctions based on public safety. Mr. Smith countered that no one can tell him if one
kid is safer than another. Mr. Elliott responded that you can tell based on the youth's
background. That is the position of the City. It isn't an issue of "if" they will get in
trouble with the law; it is an issue of "have" they been in trouble with the law. Mr.
Elliott stated that he wished to point out that neither the old law nor the new law states
"Department of Corrections" or "Division of Youth Corrections." The City in both
incidents did not try to highlight where the referrals where coming from. Rather, they
highlighted what was of concern to them. In the old law, it was from a facility. In the
new law, it doesn't even say from a facility; the City didn't care where they came from.
If whatever brought them there is under a "condition" or if they leave, the police are
going to be called to return them. That is the trigger, not where they came from, which
is related to public safety.
Mr. Smith stated that Mr. Stitt's fourth option directly says DYC. Mr. Elliott responded
that was a very good point. The law of Fair Hous ing and how someone may or may not
attach conditions to the approval and any condit ional uses -can they or can they not
be spaced, can there be size requirements, etc. -is one part of the Fair Housing Act.
There is also a separate section called "Reasonable Accommodation." That section
provides for those who do not make it through the system but still wish reasonable
accommodation. They are in violation of zoning, but they may still ask for reasonable
accommodation. That is where the fourth option comes from in Mr. Stitt's memo. That
is the reason the memo separates the issue of nonconforming use from reasonable
accommodation. Even if the Board decided Community Care was a nonconforming use,
they would still have the right to ask the City for reasonable accommodation. Option 4
is related to the fact that they have the right to ask for reasonable accommodation.
Those two issues are being mingled, but the memo attempts to keep the issues
separate.
Ms. Davidson clar ified that a runaway would not be arrested, but they would still be
brought back to the facility. Mr. Elliott stated that was correct; however, in that
situation, it would not make it a detention facility because they are not subject to "the
issuance of an arrest or escape warrant." The fact that someone is a runaway and the
police returns that person does not make it a detention facility. Mr. Elliott continued;
the reason it was drafted that why was because staff and Counc il felt that if the judge
attached that condition, even without prior criminal activity, it was more important than
saying the youth committed a crime because the judge is the one who decided .....
Mr. Rasby interjected that how does the judge know? It's like Mr. Smith stated earlier
about how do you tell which one is worse than ano t her. It could have been a bad day.
Mr. Elliott responded that at some point, you need to rely on some indicators of public
safety. He believes if a judge attaches those condit ions, it is a pretty good indicator of
whether . . . . Mr. Rasby interjected that that is his opinion, just like the Minutes, and
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he doesn't agree with that. Mr. Elliott continued that the Board asked for the City's •
position, and that is what he is trying to present.
Chair Bode stated that whenever Community Care opened the facility, it did not take
referrals from the Division of Youth Corrections, because there were no referrals at that
time. Chair Bode continued that if the Board determines that Community Care cannot
take youth from DYC and tomorrow the State changes the name, would the kids now be
"good" kids. They are coming from a different department now. Mr. Elliott stated that
is the reason why both the old and the new Ordinance avoided naming agencies as to
where the referrals come from. The City tried to tie the referrals to other indicators of
safety. The issue came up in the course of reasonable accommodation. Community
Care can ask for anything they want; in fact, they have asked for a lot of things. Mr.
Stitt just offered another thing they could ask for. It is a negotiation about the
particular use, whether it is legal or illegal.
Chair Bode clarified that the Ordinance states "from a correctional institute." Mr. Smith
responded that the old Ordinance states that. Ms . O'Brien stated that it actually states
"correctional institution or facility." Chair Bode stated the State happened to name it
Youth Corrections. If they happen to name it "Bad Boys League" or something without
the word "correction" in it, would this discussion be occurring? Would the youth be
considered referred from a correctional facility? Mr. Elliott stated he believed they
would. Chair Bode countered they would be from a youth facility. Mr. Elliott stated
the essence of this is back in the Minutes and the common sense basis of the discussion •
which was: Are these kids in trouble with the law? That is what the discussion was.
Mr. Rasby stated nobody knows that for sure. Nobody at this hearing was at the
hearing in 1995. Mr. Elliott stated that he understood that, but it is clear to him by the
record what the discussion was in 1995.
Chair Bode stated the term "correctional institute" keeps bothering him. What is a
correctional institute? For example, if the kid across the street from him let the air out
of his tire and went to a correctional institute, Chair Bode stated he didn't think he was
"that bad of a kid." The kid still cuts his lawn.
Mr. Elliott stated that part of the difficulty is that the definitions of group homes and
half-way houses are in the past and are difficult to determine. That is part of the
reason the City wanted to redo the Ordinance. Mr. Elliott stated that he wanted to be
clear; part of that ambiguity was created in 1995 when the applicant stated the City
didn't need to know what kind of use it is. He would like to ask Mr. Fine what kind of
use he thought Community Care was. It wasn't a group home; it didn't meet that
definition. If it was a half-way house, it didn't belong in the R-2 zone district. The
reason it is vague was because the hearing was suspended. The hearing was
suspended because they falsely said they had . . . . Mr. Rasby interjected that Mr.
Elliott didn't know; he was basing it on the Minutes.
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Mr. Elliott reiterated that the Board needs to decide whether Community Care is a legal
nonconforming use at the time the new Ordinance was adopted. Mr. Smith stated that
he didn't believe that was necessarily so. Ms. O'Brien stated that the Cease and Desist
Order was issued based on the City's belief tha t it was an illegal use. Mr. Elliott
responded "yes" under the new Ordinance. Ms. O'Brien clarified that the Board is being
asked to decide if there was a reasonable basis for the City's decision. Mr. Rasby
asked if the Cease and Desist Order was based on the old or new Ordinance. Mr.
Elliott stated that the Cease and Desist Order was based on the fact that when the City
adopted the Ordinance, Community Care became illegal. The applicant believes they
were not illegal; they are a nonconforming use that is legal and should be able to
continue; and the new Ordinance is a bad ord i nance.
Chair Bode stated that he hasn't heard that Community Care thinks the new Ordinance
is good, bad , or indifferent. He hears the appl icant saying that they were
grandfathered under the old Ordinance. Mr. Smith stated that the City and the
Community Care seem to agree that it is nonconforming under the present Ordinance.
Messrs. Elliott and Fine stated that was correct. Mr. Smith conti nued; the Board needs
to dec ide whether Community Care was i llegal before the new Ordinance to kill it now,
or whether it should impose further conditions on a conti nued nonconform ing use.
Mr . Elliott stated that the Board could decide it was legal prior to the Ordinance, and
therefore, should continue. The Board could decid e it was i llegal, but want to follow the
advice i n Mr. Stitt's memo and try to offer the reasonable accommodation.
Chair Bode asked Ms. Re id if the Board was allowed to make those dec isions. Ms. Reid
responded that it was her opinion that the Board could do one of several things. The
facts of the Order were that Community Care had youth that were subject to an arrest
or escape war rant at the t i me of its issuance . Th is put them i n violation of the i r legal
nonconforming use, and therefore, they lost their nonconforming use status. That is the
Order the appl icant is appealing. The Board can either uphold, modify, or revoke that
Order. Ms. Re id stated that it is her opinion that the Board is not the proper body to
make the reasonable accommodation. The app licant has not asked the Board for
reasonable accommodation; it has asked the Board to overturn the Cease and Desist
Orde r . Depend i ng on the Board's decis ion, it can make a recommendation that the
zoning staff and City Manager's office make a reasonable accommodation based on
what the Board has heard.
Mr. Smith stated that he would like to clean u p the record. With Mr. Seymour's
permission, Mr. Sm ith withdrew the earlier motion.
Chair Bode clarified that the City 's posit ion is that the Cease and Desist Order claims
that Community Care is in violation of the new Ordinance, as well as the old Ordinance.
Mr. Elliott stated that was correct.
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Mr. Seymour stated he wanted to know the day Community Care started accepting
youth from DYC. Mr. Elliott stated that Community Care would know that date. Mr. •
Seymour stated they might not be willing to volunteer that information. If the applicant
doesn't admit it, how can the City say they are in violation? Mr. Elliott stated it is his
understanding that at the time the citation was issued, the City had evidence that
Community Care had youth from DYC.
Mr. Smith stated that the applicant may wish to rebut. Mr. Fine stated he did wish to
make a short rebuttal. In response to Chair Bode's question, Mr. Fine testified that
"Division of Youth Corrections" was previously called "Division of Youth Services." The
second paragraph of the Order states " .... You have violated the terms of any
nonconforming use you might have by operating your group living facility as a
Detention Facility, as defined ..... " Mr. Fine stated that was impossible; it is the
reverse. Community Care is a nonconforming use because of the new definition of
Detention Facility. The City is now saying it was illegal because it was a half-way
house. Mr. Fine defied anyone to find the definition of half-way house in the
Ordinance. The applicant was not a half-way house. Even the language, "correctional
facility", next to the word "half-way house" doesn't fit because as the Chair pointed out,
it wasn't a correctional facility except by name. Finally in response to Mr. Fuchs'
comments, Community Care has continuously worked with the neighbors. As of a
month ago, Community Care thought that the neighbors' believed things had gotten
better.
There were no other persons present to testify for or against the appeal. Chair Bode
incorporated the staff report and exhibits into the record and closed the public hearing.
Mr. Smith stated he didn't know what a half-way house was either, but it seemed to
him that having one or two children in trouble with the law isn't a half-way house. Mr.
Smith stated he would like to continue the case so he can read the Ordinance and the
Minutes. He also suggested that Community Care and the City "talk." His inclination is
to put some type of restrictions on the facility, but he doesn't know what kind of
restrictions because it seems to him that DYC youth is an unreasonable, arbitrary and
capricious distinction that does one thing: It tells you which ones are black, and which
ones are white. If you can arrest them, they are a different kind of kid; but he doesn't
know if that is true. It's like a speed limit -36 mph isn't any more unsafe than 34 mph,
particularly if it is snowing; however, it is a line; it's a distinction that can be used to
keep speeds reasonable. In this case, where the Board has to interplay the Fair
Housing Act, American with Disabilities Act, the Code, the Department of Youth
Corrections, etc., there should be some reasonable way that reasonable people could
make a reasonable suggestion to solve this case in a reasonable manner. Mr. Smith
stated that he currently didn't have enough information to do that. He reiterated that
he would like a chance to look at the old Minutes and the Ordinance.
Mr. Smith moved,
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Mr. Seymour seconded:
THAT CASE 2-2000, COMMUNITY CARE, BE CONTINUED TO MAY 10, 2000.
Ms. O'Br ien asked if anyone wished to hear the tapes. Mr. Smith stated he didn't. He
stated the Board had enough facts. Whether there was a misrepresentation or not, it
doesn't matter because the whole system changed. Chair Bode stated that once again
we have a case where someone from the City and someone from the opposing side
haven 't sat down and tried to handle it. The Board seems to be getting a lot of those
cases lately. Mr. Smith stated that it could be that they need the Board to get their
discussions going. He stated that he suspects that neither side had previously heard all
the discussion that was presented in the last two hours.
Ms. Reid stated that she wished to clarify the motion. The public hearing is closed. The
Chair stated that was correct. Ms. Reid continued; the motion then is to continue the
discuss ion based on the evidence submitted and not take further testimony. Mr. Smith
stated that he did not wish to reopen the public hearing. The Board w i ll consider what
action to take at the next meeting. He asked that the City and Mr. Fine subm it any
releva nt information. Ms. Reid clarified that if t he Board is taking more ev id ence, the
publi c hearing would need to be reopened. Mr. Smith stated that he is taking
argument, not evidence. Ms. O'Brien stated that she isn't interested in hearing any
more argument. She is interested in a proposal for the Board to consider; she doesn't
want it "briefed." Mr. Smith reiterated that the pub lic hearing is closed and the next
meeting would be open for discussion and possible action.
Ms. Dav idson disclosed that she has a mentally i ll teenager, but it will not affect her
judgment in this case.
With no further discussion, the secretary polled the members' votes.
AYES:
NAYS:
Bode , Carlston , Davidson , O'Brien , Rasby, Seymour, and Smith
None
ABSTAIN: None
ABSENT: None
The Chair announced the case continued by a 7-0 vote.
III. APPROVAL OF MINUTES
Chair Bode asked for consideration of the Minutes from the March 8, 2000 public
hearing.
Mr. Smith moved,
Ms. O'Brien seconded:
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THE MINUTES OF March 8, 2000 BE APPROVED AS WRITIEN.
AYES: Bode, Carlston, Davidson, O'Brien, Rasby, Seymour, and Smith
NAYS: None
ABSTAIN: None
ABSENT: None
The motion carried. The Chair announced the motion approved.
IV. APPROVAL OF FINDINGS OF FACT
Mr. Smith moved;
Ms. O'Brien seconded:
THE FINDINGS OF FACT IN CASE #3-2000, CHARLES WILSON, 2144-2154
WEST ILIFF AVENUE, CASE #4-2000, K&H WINDOWS AND EXTERIOR, 4702
SOUTH DECATUR STREET, AND CASE #5-2000, DEANDA BUILDING, 3080
SOUTH DOWNING STREET , BE APPROVED AS WRITTEN.
AYES: Bode, Carlston, Davidson, O'Brien , Aasby , Seymour, and Smith
NAYS: None.
ABSTAIN: None.
ABSENT: None
The motion carried. The Chair announced the motion approved.
V. STAFF ADVISOR'S CHOICE
Ms. Langon stated that there are two cases for the May 10 hearing. The first case is a
setback for an attached garage and addition in the RlC district. The second is for a
reduction in lot frontage for a church and school.
By direction of the City Manager's office, Boards and Commissions have been asked not
to meet between June 5 and June 19 due to the move to the new city hall.
Mr. Smith asked the audience to move their discussion to the hallway so the Board
could hear staff.
Mr. Seymour asked what that did for the citizen who has a project and now needs to sit
around for another 30 days. Ms. Langon responded that if there was an urgent issue,
staff would make every effort possible to find an alternative meeting date in June;
however, the City Manager's office has asked that Boards and Commissions not meet.
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Ms. Langon stated that tours of the new city hall will be scheduled for the Boards and
Commission sometime in May. Staff will advise the Board when a date has been set.
Mr. Smith asked for the addresses of the two cases in May. Ms. Langon responded that
the addresses are 4719 South Elati Street and 3055 South University.
VI. CITY AITORNEY'S CHOICE
Ms. Reid stated she had nothing further.
VII. BOARD MEMBER'S CHOICE
Mr. Smith stated that Ms. Reid shou ld join the Board at the podium, since she is the
Board's attorney. Ms. O'Brien stated she would like that too.
Mr. Rasby stated he didn't understand why discussion wasn't happening between the
City and the applicants before it comes to the Board. Ms. Langon responded that it is
just the procedure. A Notice is issued and the next step is the appeal to the Board. Mr.
Smith stated that it isn 't unusual. Ms. O'Brien stated that sometimes you need a
meeting, such as before the Board, to act as a catalyst to get people talking.
There was no further business brought before the Board. The meeting was declared
adjourned at 10:20 p.m .
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