HomeMy WebLinkAbout1993-03-02 PZC MINUTES{
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CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION
MARCH 2, 1993
I. CALL TO ORDER.
The regular meeting of the City Planning and Zoning Commission was called to order by
Chairman Covens at 7:00 P. M. in Conference Room A of the Englewood City Hall.
Members present: Tobin., Covens, Cuesta, Draper, Dummer, Gerlick, Mason, Shoop
Merkel, Ex-officio
Members absent: Garrett (with previous notice)
Also present: Planning Administrator Harold J. Stitt
Assistant City Attorney Dan Brotzman
City Attorney Rick DeWitt
City Manager Fraser
Assistant City Manager Reid
Charles Kodis, citizen
IT. APPROVAL OF MINUTES
February 23, 1993 .
Chairman Covens stated that the Minutes of March 2, 1993 , were to be considered for ap-
proval.
Mr. Draper noted that on Page 3, Paragraph 4, Ms. Tobin made reference to a duplex being
constructed on "Lehigh", when in reality the construction is occurring on "Kenyon". Ms.
Tobin acknowledged that this was an error on her part, and requested that the Minutes be
amended to reflect the correct location of the construction.
Draper moved:
Mason seconded: The Minutes be approved as amended on Page 3, Paragraph 4, to reflect
the construction is on "Kenyon Avenue".
AYES:
NAYS:
Cuesta, Draper, Dummer, Gerlick, Mason, Shoop, Tobin, Covens
None
ABSENT: Garrett
ABSTAIN: None
The motion carried.
Ill. ECONOMIC DEVELOPMENT UPDATE
Mr. Covens welcomed City Manager Fraser to the meeting.
Mr. Fraser discussed efforts of the Englewood government to inform the community of gen-
eral operations and special projects undertaken by the City, to build a sense of community
pride and community involvement in the governmental process, and to redefine what we are as
a community. Mr. Fraser stated that the presentation he will make to the Commission is what
has been given to other community groups such as the Neighborhood Watch reception. Mr.
Fraser also noted that within the next week to 10 days, the City will publish a special newslet-
ter for employees, members of Boards and Commissions, etc. which will hopefully provide
information to enable the recipients to serve as informed sources for their neighborhoods.
Mr. Fraser gave a financial overview of revenues vs. expenditures, and a breakdown of both
categories. Sources of revenue include sales tax (66% ), property tax, licenses and permits,
recreation facilities and programs, fines from Municipal Court, intergovernmental revenues,
other taxes and miscellaneous fees. Expenditures per department were indicated, the largest
portions going to Safety Services (Police/Fire) (44%) , and Public Works (23%). Other de-
partmental shares range from 8 % down to 1 % . Mr. Fraser pointed out that these reve-
nue/expenditure figures are in the General Fund, and that there are other funds , such as the
water and sewer fund, and the golf course fund, which are not included in this discussion.
Mr. Fraser pointed out that the average taxpayer contributes $70 in property taxes per year to
the City of Englewood; the remainder of the tax bill is for the school district, county, and
other local governments.
Mr. Fraser noted that revenues have not kept pace with inflation for the past several years, and
discussed efforts that his administration has made to keep expenditures within the bounds of
the revenues received. These efforts include a reduction of expenditures, vacant positions have
not been filled, and programs that were not functional or beneficial have been abandoned. Mr.
Fraser cited citizen surveys done in 1990 and 1992, and even though there has been a reduc-
tion in personnel to provide services, the satisfaction rate with the City has risen between 8 %
to 15 % on these two surveys.
Mr. Fraser addressed the decrease in revenue from Cinderella City, citing that in 1980, the
sales tax from Cinderella City accounted for 44 % of the revenues to the City; today, that reve-
nue has slipped to 17%. The City has depended very heavily on revenues from Cinderella
City, but fortunately the retail businesses that have settled in the Urban Renewal area are pro-
ducing well, as are outlying commercial areas such as the Centennial and Brookridge shopping
areas, and the Broadway commercial strip. Mr. Fraser stated that the actual revenues are
down approximately $600,000 from 1980.
Mr. Mason commented on the sales tax "burden" that Englewood and the State of Colorado
carries, and inquired whether this was part of the problem. Mr. Fraser stated that Englewood
must remain competitive with other cities within the State of Colorado, but did not feel that the
sales tax rate was a problem when compared with other states.
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City Manager Fraser presented slides and narrative on the City of Englewood in general, ad-
dressing such matters as Project BUILD, which has completed the construction of 13 new
homes in the last two years, these homes selling in the mid-80 's; the annual Spring Clean-up ,
and the cooperation received from Waste Management, Inc.; fire/police service and that fact
that Englewood citizens receive free transport to the hospital from an accident site or from
their residence; cooperative agreements with Sheridan, Castlewood and Littleton fire depart-
ments; cooperative agreements with Sheridan and Littleton to provide vehicle maintenance at
the Englewood garage, and the City of Englewood is now providing building inspection serv-
ice to the City of Sheridan.
The slide presentation and narrative also covered the MAS Marketing highlights of their sur-
vey on Cinderella City. This survey incorporated 1,000 telephone interviews with women 18
to 65 years of age to determine shopping habits; it has been determined that Cinderella City is
still a "viable site" so far as location is concerned. Comments received from those interviewed
indicate they no longer shop Cinderella City because of poor merchandise selection and an in-
ab ility to find what they want. The current Mall configuration and tenant mix don't match the
market potential , and there is a need fo r new tenants and improved merchandising to be suc-
cessful. Options outlined in the MAS marketing survey include:
1) Redevelop as a super regional Mall at the current size.
2) Downsize the Mall drastically.
3) Create a non-traditional downtown retail center (start over).
4) Pursue retail alternatives at sites other than Cinderella City.
The Trolley Square King Soopers store i s estimated at approximately 60 ,000 square feet, and
the typical size is now in the 100,000 square foot range; one of the suggestions to be consid-
ered would be to encourage King Soopers to relocate to the west side of Cinderella City.
City Manager Fraser stated that the City has not adopted any of the proposed options as a pre-
ferred scenario , and is trying to work with the current owner and prospective developers to
determine what makes the most sense.
Mr. Fraser stated that the future of Phar-Mor is also a question, not because of the viability of
the Englewood store, but because of the general problems this chain has experienced nation-
wide. The Englewood store has been the recipient of stock from closed stores in Littleton and
southwest Denver.
The closure of the Ponderosa Restaurant was noted; Mr. Fraser stated he understood the owner
closed both Ponderosa Restaurants in the metro area. Trammell Crow is responsible for leas-
ing the Englewood Marketplace, and he understands they are negotiating with at least three
restaurants for this space.
Mr. Fraser stated that one idea under consideration is the extension of design concepts along
Little Dry Creek and the Plaza at Little Dry Creek to Santa Fe on the west, and as far was as
Swedish Medical Center on the east.
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Trolley Square was discussed. City Manager Fraser stated that the FDIC has had control of e
Trolley Square since 1989, when they assumed control of the property after the collapse of
Silverado Savings. The FDIC has effectively stopped any leasing activity within the site, and
will not accept any long-term commitments on the site. The relationship between Mr. Martin,
the owner, and the FDIC has not been amicable. Mr. Fraser stated that he and Mr. Merkel
flew to Dallas, Texas to meet with John Martin in December, and the City understands that the
FDIC will be advertising the property for foreclosure sale within the near future. The City is
now examining its options regarding Trolley Square. Design problems of this development
were discussed, and Mr. Fraser acknowledged that one of the big problems is lack of grade
level access from Broadway ..
Another area of Englewood that has been of concern is the old General Iron site. These
structures were formerly filled with "junk", and have now been cleaned out. The ceiling
height in the buildings is 45 feet, and the property has access to a railroad spur, and is close to
Santa Fe Drive. There may be a problem with contaminated soils on the site. The City has
recently been contacted by a firm who may want to do major steel work on the. site.
In response to a query posed by Ms. Cuesta, City Manager Fraser stated that in 1992, a special
"task force" met to view the site and "brainstorm" various ideas for its use. Among some of
the more interesting proposals was that of movie production; there were numerous other ideas
suggested as a result of this brainstorming session.
The last slide in the presentation by Mr. Fraser was of the old Englewood Depot; he stated that
the City has purchased the rights to this picture and that it will be used in "what will we be-
come" presentations and discussions. The old Depot is actually in the City of Sheridan, and is
on property jointly owned by the Railroad and another party. City staff negotiated with both
parties to gain approval to paint and fix up the structure.
In response to a question by Mr. Dummer, Mr. Fraser stated that Lonestar Plywood has pur-
chased the former Cedar Lumber building on South Windermere.
Discussion on various retailers for the Cinderella City area were discussed. Ms. Tobin sug-
gested that a Wal-Mart might be in competition with the proposed development on the old
Wards site in Denver. Ms. Tobin also pointed out that Englewood's elderly population wants
convenient shopping. City Manager Fraser agreed that "convenient" shopping is important to
everyone in today's society.
Ms. Tobin inquired about the possibility of toxic spills, noting that Englewood has high vol-
ume traffic carriers in Santa Fe Drive, U.S. 285, and South Broadway. Mr. Fraser stated that
there are people trained to handle a hazardous material spill; further that there are approved
routes and times when these materials may be transported through the City. Haulers must also
be licensed by the State and must register with a specific community before the material may
be brought in.
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Mr. Covens commented that there has to be a line drawn on investment to redevelop Cinder-
ella City vs. a projected return on the investment. City Manager Fraser stated that to date, the
City has virtually nothing invested in Cinderella City, but that over the life-time of the Shop-
ping Mall (25 years), the City has realized over $100,000,000 in revenues. Mr. Fraser em-
phasized that the goal of the City is not ownership of the Mall, nor major investment in the
Mall, but to serve as a catalyst to attract developers/redevelopers who would be interested in
the Mall.
Ms. Tobin commented that Cinderella City has been one of the major employers in the City of
Englewood. Mr. Fraser agreed that it has been a social and economic institution since its
opening in 1968.
Ms. Cuesta asked whether the MAS Marketing study indicated what brings in the most reve-
nue: Malls, or the "little guy". Mr. Fraser stated that revenue producers are judged on a
square foot analysis, and the same store may do exceptionally well in one location, and fail
rapidly in another.
Redesign of the Mall was discussed. Mr. Fraser stated that CitiCorp has already given notice
of intent to vacate, and commented on reports that have come from numerous sources on the
negative , anti-tenant attitude of the Mall management and leasing agents. Some stores may
still be doing well, but refuse to deal with the attitude displayed by the leasing agents and
management. Mr. Fraser discussed his perception of the relationship between the two owning
parties, KRA VCO and Equitable, and the impact this relationship has had on the viability of
this Mall.
Ms. Cuesta asked what was the most attractive alternative. Mr. Fraser responded that the first
thought was to start over, and extend the amenities of the Little Dry Creek improvements to
Santa Fe, promote convenience shopping, etc. However, the City was recently visited by a
major retail developer who viewed the Mall and commented on the structural soundness of the
building itself, and that the parking deck is what needs work. This developer advised that the
City should give strong thought to the soundness of the Mall itself before "starting over".
Mr. Mason inquired about the problems on the parking deck. Mr. Fraser stated that people
are concerned about its safety, and don't want to park on the lower level; there is poor light-
ing. A lot of the "bumps" and "dips" were designed and built into the deck to provide drain-·
age.
The need for better merchandising in the Mall, and better signage for some of the stores that
do not have external signage on the Mall, such Wards, was discussed. The need for better ad-
vertising by Mall management was also discussed.
General brief discussion ensued. Chairman Covens expressed the appreciation of the Com-
mission to City Manager Fraser for his presentation, and noted that it is important for the
members of the Commission to be kept informed on matters such as this.
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A brief recess was called. The meeting reconvened at 8:40 P. M. All members of the Com-
mission were in attendance but Mr. Garrett, who participated in the following discussion via
speaker phone from Washington, D.C.
IV. PLANNING COMMISSION TRAINING SESSION
City Attorney DeWitt addressed the Commission regarding consideration of some Conditional
Uses, such as adult-oriented businesses. Mr. DeWitt cautioned that this will be a "general"
discussion, intended to provide a background of law, constitutional and ordinance concepts,
and will not address a specific location, application, or use. When the Commission considers
Conditional Uses, they make the final determination, and are acting in a quasi-judicial capacity
--the Commission must look at the facts, and people have the right to contest the issues. Mr.
DeWitt emphasized that in consideration of adult-oriented businesses, the First Amendment
rights come into play --the right of free speech. "Free speech" may take many forms --oral,
artistic , written, etc. "Free speech" encompasses everything unless it is classified as
"unprotected", which includes obscenity, slander and liable. Mr. DeWitt stated that the City
first faced the issue of adult-oriented businesses in the early 1980's, and addressed these uses
on three fronts: 1) by licensing; 2) by zoning (conditional use approval), and 3) by prohibition
of specific conduct within the City. Licensing issues are handled by the Finance Department,
Zoning is handled by Community Development/Planning Commission, and Conduct is handled
by the Safety Services Department (Police Division). Mr. DeWitt strongly urged that all
members of the Commission put their personal beliefs and opinions in the background, and
address these issues only on the "facts" presented during the course of the Hearing. What may
be offensive to one person is another individual's right. Mr. DeWitt stated that the City can-
not control the content of any business establishment, but can address secondary adverse ef-
fects. Adult uses may vary from a movie theater, adult book store, topless bars, adult video
stores, etc. The Commission must keep in mind that the adult uses cannot be totally prohibited
from the City, but there can be restrictions on where these uses may locate. The Commission
can focus on the impact an adult establishment may have on the community or neighborhood
based on testimony tendered at the Hearing. Mr. DeWitt stated that this will mean looking at
the quality of life: is there an increase in crime factually attributed to these uses; what impact
will it have on commercial neighborhoods; what impact will it have on residential neighbor-
hoods; will the impact be positive or negative, and will it have an impact on future changes in
neighborhoods.
Mr. DeWitt stated that the Commission members could ask specific questions such as age of
patrons, age of employees , the hours of business.
Mr. DeWitt again emphasized that a Commission member's personal philosophy does not
matter, and that a decision on this issue must be based on the facts of the case presented at the
Hearing. Mr. DeWitt stated that the applicant bears the burden of proof that the proposed
business will be compatible with the neighborhood.
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Mr. Covens stated that staff and City legal counsel will be present at any hearing on adult-ori-
ented establishments, and asked if the Commission could ask for clarification of issues during
the course of the Hearing. Mr. DeWitt answered in the affirmative.
Mr. Dummer asked if an applicant were to meet all the criteria set forth for Conditional Uses,
and does not impact the community and quality of urban life, is this grounds for approval or
disapproval. What impact would petitions in support or opposition have on a determination.
Mr. DeWitt stated that "counting heads" is not a basis for a determination; however, if wit-
nesses testify to an impact on increase of crime, for instance, this may be considered. Mr.
DeWitt emphasized that the Commission is the "judge and jury" in considering the pros and
cons of the issue and must use their best judgment based on the facts of the issue presented to
them.
Mr. Garrett noted Mr. DeWitt's reference to "impact on the community and neighborhood",
and asked if there were boundaries that comprised a neighborhood --a distance figure. Mr.
DeWitt stated that an adult establishment may not locate within 500 feet of a school, religious
institution, public park, public library, community center, or residential district, whether these
uses are within or without the City of Englewood; also, there cannot be two adult establish-
ments within 1,000 feet of one another. Beyond these restrictions, the Commission must still
consider a "logical" definition of "neighborhood".
Mr. Garrett asked whether the Commission could go into a Hearing "cold" with no informa-
tion on a proposed adult establishment, or would there be some information available to them
before the commencement of the Hearing. Mr. DeWitt stated that were an adult establishment
to apply for approval, there would be a staff report and a copy_ of the application and support-
ing documentation submitted to each member of the Commission for their consideration; this
same information will be submitted to the applicant.
Assistant City Attorney Brotzman then led discussion on "Conditional Use" consideration, and
the criteria that must be considered in granting or denying a request for any Conditional Use.
The Commission must use these criteria in rendering their Findings of Fact following the Pub-
lic Hearing on all Conditional Use applications. These criteria are found in §16-5-21 E of the
Englewood Municipal Code (Comprehensive Zoning Ordinance). Mr. Brotzman stressed the
importance of the Commission to avoid "arbitrary" decisions, and stated that if the six condi-
tions cited in §16-5-21 E are followed, they will have written guidelines upon which to base
their decisions. Mr. Brotzman emphasized that "a head count doesn't work" in justifying a
decision, but if any number of people showed up at a Hearing, gave testimony to the detriment
of a proposed use, the Commission could take this into consideration. Mr. Brotzman sug-
gested that the Commission will still have to use its judgment on an issue; testimony regarding
increased traffic congestion alone is not sufficient to deny; are there alternate solutions to miti-
gate the traffic impact --such as improved signalization, etc. An issue regarding "aesthetics"
would not be sufficient by itself to result in denial.
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Mr. Merkel suggested that if the Commission could determine means to mitigate impacts, such
as increased signalization to handle traffic congestion, this could be imposed as a "condition" e
to be met by the applicant.
Mr. Brotzman stated that staff reports prepared by the staff will address the items that must be
met by the applicant, and whether the application as submitted does adequately meet those
conditions. Mr. Brotzman further discussed the need for tangible evidence on which to base a
decision, and on which to base their Findings of Fact.
Mr. Garrett asked if it would be better for the record to have an "active" or "passive" partici-
pation by the Commission. City Attorney DeWitt stated that he would encourage Commission
members to ask questions during the course of the Hearing, and to make sure that they have all
their questions asked prior to the closure of the Hearing. The Commission can sift through the
testimony they have received in testimony and response to questions to make their determina-
tion, but there must be evidence to support the decision.
Mr. Garrett asked if a determination on an issue cannot be made on the date of the Hearing,
must all deliberations be on the record. Mr. DeWitt stated that the decision must be made in
public meeting; the Commission can deliberate in study session, however. If the deliberations
are done in a public meeting, the Findings of Fact can be based on those discussions.
Mr. Garrett inquired about ex parte communications. Mr. DeWitt stated that thiey are not al-
lowed; he strongly stressed the need for the Commission not to discuss a case with anyone, but
they may tell people to attend the Public Hearing at which time it will be discussed.
Mr. Brotzman stressed that 1) Commission members must have an "open mind" going into the
Hearing, and 2) if anyone cannot make a decision based solely on the facts presented during
the course of the Hearing, they must recuse themselves. If members of the Commission visit
the site and want to bring up something they saw at the time of that visit, this must be brought
up at the Hearing and made part of the record of the meeting. However, he did not encourage
members "visiting" the site beforehand.
Mr. Dummer questioned the "radius" affected by a proposed business, and could this be part
of a decision. Mr. Brotzman stated that the Commission would have to determine the affected
area and "draw a circle in your mind"; he reminded members that areas that may be consid-
ered as far as being impacted by an adult use do not have to be within the city boundaries.
Ms. Tobin asked whether Commission members can be held personally liable in the event of a
lawsuit. Mr. Brotzman stated that only in the event of fraud would a Commission member be
personally liable. Mr. DeWitt stated that Commissioners may be named in a suit, but that the
City indemnifies and defends them in this type of suit.
Mr. Dummer inquired whether a Commission member could "observe" the site, and if one
noted children passing by, or some other issue that might be of concern, is this acceptable, and
can it be made part of the record of the Hearing. Mr. Brotzman stated that if the Commission
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member stated, in the Hearing, that he had "observed" a particular situation it could be made
part of the record. He emphasized that this could be done only prior to the closing of the
Hearing.
Mr. DeWitt cautioned against getting "too deeply involved" in an issue such as an adult-ori-
ented establishment; members do not want to jeopardize their role as a board member by pos-
sibly being called as a witness regarding a specific issue and what activity they may or may not
have been party to.
Mr. Brotzman urged Commission members to familiarize themselves with the Conditional Use
provisions of the Municipal Code (§16-5-21 E), and to pay particular attention to #2, #3 and
#6.
Mr. Dummer asked if an applicant would have to prove. "need" for an adult-oriented business.
Mr. Brotzman stated they would not; they would be required to prove that the proposed use
meets the "conditions" set forth in § 16-5-21 E.
Mr. Covens thanked Mr. DeWitt and Mr. Brotzman for their attendance and discussion. He
asked if Mr. Garrett had more questions he would like to ask. Mr. Garrett indicated that he
did not.
Mr. Merkel stated that the meeting on March 16 will be a Public Hearing on a Subdivision
Plat , but that the Public Hearing on a possible adult-oriented establishment has been postponed
and not rescheduled at this time. The meeting will begin at 7:00 P. M. in the City Council
Chambers.
V. PUBLIC FORUM.
Mr. Covens asked Mr. Kodis if he wished to address the Commission. Mr. Kodis replied in
the negative.
VI. DIRECTOR'S CHOICE
Mr. Merkel stated that he had nothing to bring before the Commission.
VII. COMMISSIONER'S CHOICE.
There was nothing further brought forward for discussion. The meeting was declared ad-
journed at 9:40 P. M.
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Gertrude G. Welty, Recording Secre
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