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HomeMy WebLinkAbout1958-09-04 PZC MINUTESI I I CITY PLANNING AND ZONING COMMISSION MEETING SEPTEMBER 4, 1958 The meeting was called to order by Chairman Jones at 8:05 P. M. Members present: Members absent: Braun, Jones , Kelley , Lacy , Romans, Rudd Hill M. 0. Shivers, Jr., Attorney George H. Allen, Owner 9 West Hampden Avenue Rezoning Northwest Corner (two lots) of East Dartmouth Avenue and South Lincoln Street. Page 315 Hearing ~o. 30-58-A August 7, 1958 The subject area having been properly posted and public no t ice given, a hearing was held relative to rezoning of the area (Lots 25 and 26 , Block 8 , Strayer's Broadway Heights) from R-2-B to R-3, C-1 or C-2 Zone District. The hearing was opened with the showing of photographic slides and presentation o f a land use survey of the subject and surrounding area .by the Planning Director. The letter of request, under date of July 15, 1958 .(see Minutes o f Au g ust 7, 1958), was again read by the Planning Director , for the benefit of all Board me mbers. A portion of the Planning Commission minutes of December 2, 1954, was read, as follows: "Dr. John Davis presented a petition signed by a majority of the prope~ty owners concerned indicating that they do not o b ject to the change of zoning to allow a medical clinic at 91 and 97 E. Dartmouth. He also presented a petition for change of zoning, which he intends to present to Council. Motion by Mr. Wright, seconded by Mr. Flint, that the Commission recommend to Council that Lots 25 and 26, Block 8, Strayer's Broadway Heights, commonly known as 91 and 97 E. Dartmouth Avenue, be rezoned from R2 to R3 to permit operation of a medical clinic. Mr. Wright , yes; Mr. Flint , yes ; Mr. Jones, yes; Mrs. Romans, yes." The following persons were recognized and spoke: Mr. F. F. Clausen, 3067 South Lincoln, asked the Commission what their outlook was for possible changes of zoning of the remainder of the block. Mr. Jones, Chairman, answered Mr. Clausen by stating that previous consideration had bem given this area but that at that time and until now, it was felt that any change of zoning would not be warranted. Mr. M. 0. Shivers, Jr., Attorney for the applicant, stated that it is the primary purpose of the applicant that the subject land be rezoned to restore conforming status for its use rather than the present non-conforming status. Braun moved : Romans, seconded: That the hearing be closed. Ayes: Braun, Jones, Kelley, Lacy, ·Romans, Rudd Nays: None Absent : Hill After discussion on the possible additions which might be contemplated on the existing building and off-street parking to be required, it was understood that expansion under proposed zoning would require a minimum of three additional µlrking spaces. Other factors requiring further close personal examination by Planning and Zoning Commission members also were discussed. Rudd moved : Kelley seconded: That further consideration of the rezoning request be deferred for further study by Planning and Zoning Commission members, with action to be taken on or before September 18, 1958. Ayes: Braun, Jones, Kelley, Lacy, Romans, Rudd Nays: None Absent: Hill Victor C. Rose 4215 E. 34th Avenue Subdivision Approximately Two Blocks Sou t h of West Oxford Avenue between South Jason Street and South Lipan Street in the 4100 Block Hearing No. 29-58-B July 24, 1958 August 7, 1958 Mr. Victor Rose , developer, appeared to present the final plan of Rose-Meadows Subdivision, proposed for the subject area. The Planning Director reported that all requirements made previously by the Planning and Zoning Commission, including the letter below, had either been accomplished or are in the process. Page 316 "CITY OF ENGLEWOOD , COLORADO August 13, 1958 Mr. Victor E. Rose 4215 East 34th Avenue Denver, Colorado Dear Mr. Rose: As you will recall, Planning Commission decided and you agreed that a letterEhould be prepared setting forth and "firming up" the type of housing you intend to construct in your Rose-Meadows Subdivision. Please consider this letter to be the agreement which I shall sign as the City's planning administrator and you should sign as the subdivider. At the August 7th Planning Commission meeting held in the City Hall at Englewood, Colorado, it was mutually agreed by unanimous vote of the Planning Commission and by the undersigned subdivider that approval of a preliminary design for platting of the Rose-Meadows Subdivisin as proposed would be contingent upon an agreement by the subdivider to build brick veneer homes designed to sell for approximately $10,500 except for some sites on which brick veneer homes would sell for $9,300. The specific agreement reached was that on homes to be constructed on that portion of the subdivision formerly owned by Mr. and Mrs. Art Sanger would be three bedroom, full basement, brick veneer homes with a selling price of approximately $10,500. All · homes constructed on that portion of the subdivision formerly owned by Mr. and Mrs. R. E. Sunderlin except the four lots facing West Oxford Avenue (across from the proposed Sealtest Processing Plant) would be also of the three bedroom type with a selling price of approximately $10,500, unless a pending F. H. A. program is passed by Congress allowing the present 203-I mortgage program to be increased from $8,000 to $9,000. In the event the new F. H. A. program is a pproved, the homes on the site in the former Sunderlin-owned portion might be used for construction of three bedroom, brick veneer homes without basements designed to sell for approximately $9,300. The four lots facing West Oxford Avenue mentioned above may be used for 203-I F. H. A. housing in any event. The Planning Commission also deviated from the strict requirements o f the subdivision regulations by allowing a Certificate of Escrow from the F. H. A. to be submitted as a guarantee that required street improvements would be made rather than requiring an additional bond for this purpose. I am sure that you understand that the approval of the plat did require some deviation both in frontage requirements and lot area requirements and that this deviation was allowed on the understanding and the apparent good faith with which you approached the Commission with the preliminary design. We feel sure that your movement to construct housing in Englewood and our negotiations which are culminated in this letter will work to the mutual advantage of both you and the City. Sincerely, /S / Joe M. Lacy Planning Director /S / Victor E. Rose VICTOR E. ROSE JML /ij P. S. Please sign and return the original copy to the Planning office." After additional consideration by Planning and Zoning Commission members, Kelley moved: Lacy seconded: That the Planning and Zoning Commission recommend to City Council that the final plan of the Rose-Meadows Subdivision be approved, subject to the following conditions: 1. That evidence is available o I purchase of land by the subdivider from Mr. and Mrs. Arthur Sanger and Mr. and Mrs. R. E. Sunderlin aloµg with a six inch reservation strip along the east side of the subdivision from the Wilson Investment Company. 2. That the most logical layout of lots 14-15-16-17 be made with the approval of the City Engineer after consideration of drainage requirements, as well as lot area and frontage requirements, has been given. 3. That the City Attorney has determined whether or not the letter indicating agreement on the type of housing constructed (see letter above) should be recorded with the plat or exist only in the Planning and Zoning Commission Minutes. Ayes: Braun, Jones, Kelley, Lacy, Romans, Rudd Nays: None Absent: Hill I I I I I I ,. V. A. Buckmaster 3688 South Sherman Rezoning East Side -3600 Block, South Sherman Page 317 Hearing No. 36-58 Mr. V. A. Buckmaster, owner, appeared and presented an application for rezoning of lots 18-19-20-21, Block 3, Koppes Subdivision, from R-2-B Zone District to R-3-A or R-3-B Zone District to allow use of an existing single family residence, located on said lots and known as 3688 South Sherman, as a medical or dental office. After discussion, involving the increased traffic on South Sherman Street, an existing medical office use on the north end of the subject block, the present zones to the north and west of the subject area and City Council's policy which normally requires request for one full block for rezoning, Lacy moved, Romans seconded: That the application be received and that the Planning and Zoning Commission, on it's own motion, expand the area for rezoning con- sideration to include the remainder of the west one-half of Block 3, Koppes Subdivision, from present R-2-B (Multiple Residential) to R-3 A, (Multiple Residential) classification, and that the Commission proceed to legally advertise, post the property and hold a public hearing on October 9, 1958. Ayes: Braun~ Jones, Kelley, Lacy, Romans, Rudd Nays: None Absent: Hill City Council City Housing Code Hearing No. 34-58-A August 20, 1958 The Planning Director presented a packet of housing code reference material to each of the Planning and Zoning Commission members to be used in preliminary study for a possible City of Englewood Housing Code. In the discussion which followed, it was agreed that before work on the Housing Code should progress very far, a presentation of the previous Council!s reasons for instigating a City Housing Code and the inevitable results of enforcing such a code be made to the present City Council in order that the present City Council's wishes can be determined and used as a guide for the Planning and Zoning Commission. It was also suggested that a preliminary survey f rom the City Directory indicating ·rental units in the City's single family zones be made to determine the scope of the problem. Braun moved; Lacy seconded: That a presentation of the need for and the ramifications of a City Housing Code be made to the City Council after a preliminary survey of two family use in single family zones is completed. Ayes: Braun, Jones, Kelley, Lacy, Romans, Rudd, Hill Nays: None Absent: None Planning and Zoning Commission City Validity of P Zone Hearing No. 37-58 (Also see Hearing No. 25-58-A, August 7, 1958.) A legal opinion, rendered by the City Attorney, as requested by the Planning and Zoning Commission was presented and read as follows: "JOSEPH W. ESCH Attorney and Counselor at Law 203 First National Bank Buildirig Englewood, Colorado August 26, 1958 Mr. Joe M. Lacy, Planning Director City of Englewood P. 0. Box 178 Englewood, Colorado I Dear Mr. Lacy: This will acknowledge your letter of August 13th on behalf of the Planning Commission, asking for an opinion as to the legality of the "P" Zone for parking as it exists in the present zoning ordinance. Pursuant to your request, I have examined the ordinance, various legal works on zoning, and have discussed the matter with Mr. Henninger of Harmon, O'Donnell and Henninger, the firm with which the zoning ordinance originated. Mr. Henninger advised me that to the best of his knowledge this particular zoning was a new type and was present only in the Englewood and Denver zoning ordinances. My investigation of the legal authorities would seem to bear this out since I was able to locate only one 'case which seemed to be definitely in point. Rhyne on Municipal Law states that the basic legal questions to be decided in adjudging the validity of a zoning ordinance are these: "(l) whether the ordinance emanates from a grant of authority to the city or other municipality by the state; (2) whether the ordinance bears Page 318 a reasonable relationship to the promotion of public health, safety, morals and public wel- fare, and, in a few states, the economic prosperity or convenience of the community; and (3) whether the ordinance in terms and in application is reasonable in the light of all pertinent facts and circumstances giving due regard to private property rights. In brief, the zoning ordinance must be reasonably within the City's scope of authority, must be reasonable and free from unlawful discrimination, and must be enforced in a reasonable manner. "It is generally held that unreasonable restraints on the right to use and enjoy private property cannot be imposed. The New York Court has expressed the legal principle as follows: 'An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose, goes, it is plain, beyond regulation, and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject tofue burden of payment of taxation, while outright confiscation would relieve him of that burden."' It is my opinion that the "P" Zone is not a reasonable zoning regulation and goes beyond regulation which can be justified under the police power of the City. It further appears to me that it sets aside an arbitrary portion of a piece of prop~rty for parking without any apparent reasonable relation to the size or needs of the type of business which may be operated on the rest of the property. The case of Vernon Park Realty vs. City of Mt. Vernon, 307 N.Y. 493, 121 N.E. 2d 517 (1954), had under consideration a similar question. This case was an action for judgmeqt declaring a city zoning ordinance and amendments thereto limiting the business use of plaintiff's realty to parking of automobiles and incidental services to be unconstitutional insofar as they affected plaintiff's property. The zoning ordinance was declared unconstitutional by the trial court and this judgment was affirmed on appeal by the Court of Appeals of New York, which is the equivalent of the Colorado Supreme Court. The city had a zoning district known as "D. P. D." (Designed Parking District), whnch in effect, prohibited the use of plaintiff's property for any purpose except the parking and storage of automobiles, a service station within the parking area, and the continuance of prior non-conforming uses. The opinion of the court read in part as follows: "The city justifies the ordinance and its amendment by reason of the congested traffic and parking conditions in Mt. Vernon which, it says, have become so acute as to reach a strangulation point. However compelling and acute the community traffic problem may be, its solution does not lie in placing an undue and uncompensated burden on the individual owner of a single parcel of land in the guise of regulation, even for a public purpose. True it is that for a long time the land has been devoted to parking, a non-conforming use, but it does not follow that an ordinance prohibiting any other use is a reasonable exercise of the police power. While the Common Council has the unquestioned right to enact zoning laws restricting the use of property in accordance with a well considered and comprehensive plan designed to promote public health, safety and general welfare such power is subject to the constitutional limitation that it may not be asserted arbitrarily or unreasonably and this is so whenever the zoning ordinance prohibits the use of the property for any purpose for which it is reasonably adapted." It is, therefore, my own personal reaction to the "P" Zone provision ordinance, as well as my reaction from research of the legal authorities that the zoning could not be upheld as a reasonable exercise of the zoning power in the event that it should be attacked by court action. JWE /em" Yours very truly, /S/ Joseph W. Esch City Attorney City of Englewood, Colorado In the discussion which followed, the following factors were considered with no conclusions being reached: 1. The P Zone, as now used, provides a buffer between multiple use and commercial use and between a Junior High School and a commercial zone. 2. It is an additional imposition onfue property owner to be required to provide more parking for some commercial uses than is normally required for similar commercial uses elsewhere in the City. 3 .. Frontage on both South Acoma and South Broadway is controlled by the same owners all the way through the block where vacant land zoned for parking is involved, or P Zoned land owners already have another use located in the P Zone tract which is satisfactory for their property needs. 4. The P Zone dictates the location of required off-street parking for owners involved in such a way that it is not required of other commercial property owners within the City. 5. One of the primary intents of the P Zone is to insure the commercial advantage of abutting commercial usage by grouping off-street parking requirements into an easily used "bulk parking" area'. 6. The theory of the P-Zone is so new that no clear cut precedent has been established to uphold the theory. The only cases involving a similar concept have been decided contrary to the theory. 7. There are at least nine examples, prior to 1952, in which a P-Zone was considered as a transitional zone used to hold land for parking use until the area demand was such that a building use district could be applied, according to a national study. After lengthy consideration of the above points and others, it became apparent that there are possibly four alternatives from which the Planning and Zoning Commission may choose a recommendation: I I I • I I I Page 319 1. To leave the P-Zone, as presently in force, until a court decision proves it invalid. 2. Eliminate the entire concept of the P-Zone b y the City's own action b efore legal action is brought against the City. 3 . 4. Use the present P-Zone to hold areas vacant for parking until a proposal is made on a site by site basis for compatible building usage in relation to abutting zones. Modify the present P-Zone requirements in such a way that no owner would be sub- ject to providing more parking in a P Zone than he would have to have in an abutting commercial or industrial zone for any minimum parking use. City Council Master Plan Aid Hearing No. 16-58-F April 24, 1958 City May 22, 1958 June 5, 1958 June 19, 1958 July 24, 1958 August 20, 1958 The Planning Director stated that the Mayor had requested, thr9ugh the City Manager, that the Planning and Zoning Commission make a recommendation on the value of the U. S. Census Block Statistics Program as announced by the I.C.R.P.C. It was agreed that the remarks on the subject, included in a memorandum dated August 20, 1958, from the Planning Director to the Planning and Zoning Commission, concerning the subject, be transmitted, through the City Manager, to the Mayor, as the Planning and Zoning Commission's thoughts on the program, previous consideration and approval of said memorandum having been given by the Planning and Zoning Commission on that date. There being no further b usiness to come before the City Planning and Zoning Commission, the meeting was adjourned at 11:35 P. M. Approved ~~~~~~~ John D. Curtice Recording Secretary MEMORANDUM TO THE ENGLEWOOD CITY COUNCIL REGARDING ACTION OR RECOMMENDATION OF THE CITY PLANNING AND ZONING COMMISSION Date: Subject: Recommendation: September 4, 1958 Rose-Meadows Subdivision That the final Plan of the Rose-Meadows Subdivision be approved, subject to the following conditions: 1. That evidence is available of purchase of land by the subdivider from Mr. and Mrs. Arthur Sanger and Mr. and Mrs. R. E. Sunderlin along with a six inch reservation strip along the east side of the subdivision from the Wilson Investment Company. 2. That the most logical layout of Lots 14-15-16-17 be made with the approval of the City Engineer after consideration of drainage requirements, as well as lot area and frontage requirements, has been given. 3. That the City Attorney has determined whether or not the letter indicating agreement on the type bf housing constructed (see letter reproduced in Planning and Zoning Commission Minutes this date.) should be recorded with the plat or rexist only in the Planning and Zoning Commission Minutes. Respectfully submitted, By order of the City Planning and Zoning Commission, John D. Curtice Recording Secretary * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * CITY PLANNING AND ZONING COMMISSION MEETING SEPTEMBER 18, 1958 The meeting was called to order by Vice-Chairman Kelley at 8:10 P. M. Members present: Hill, Kelley, Lacy, Romans, Rudd Members absent: Braun, Jones