Loading...
HomeMy WebLinkAbout1972-11-21 PZC MINUTESPage 1510 The vote was called: AYES: Robins; Ross; Carlson; Lentsch; Henning; Stanley; Vobejda NAYS: Brown ABSENT: Weist ABSTAIN: None The motion carried. VIII. DIRECTOR'S CHOICE Mrs. Romans stated there was nothing further to come before the Commission at this time. IX. COMMISSION'S CHOICE. Chairman Lentsch stated that he strongly disapproved of members of the Planning Commission leaving a meeting prior to adjournment when there are people in the audience who have yet to present their case to the Commission. Mr. Lentsch stated that persons desiring to appear before the Commission have the right to expect that members of the Commission in attendance at the meeting will give their request due consideration. Mr. Lentsch asked that his opinion be reflected in the record of this meeting. The meeting adjourned at 12:15 A.M. Wednesday, October 18, 1972. Gertrude G. Welty Recording Secretary * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** I. CALL TO ORDER. CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION NOVEMBER 21, 1972 The regular meeting of the City Planning and Zoning Commission was called to order at 8:00 P.M. by Chairman Lentsch. Members present: Stanley; Henning; Vobejda; Robins; Lentsch; Brown; Ross Supinger, Ex-officio Members absent: Also present: Carlson; Weist City Attorney Berardini; Assistant Director Romans; Utilities Director Carroll; Finance Director Nollenberger. II. APPROVAL OF MINUTES. Chairman Lentsch stated that Minutes of October 3, 1972, and October 17, 1972, were to be considered for approval. Ross moved: Brown seconded: The Commission dispense with approval of Minutes until later in the evening. AYES: Brown; .Vobejda; Stanley; Ross; Lentsch; Robins NAYS: Henning ABSENT: Weist; Carlson III. KENT VILLAGE ASSOCIATION John A. Criswell Mr. Criswell stated that he was sure when the Commission took the vote on October 17th, that they felt the matter of the Subdivision Waiver requested by the Larwin Corporation was finalized. Mr. Criswell noted that he had thought the same on many occasions in regard to the KLZ Sit~ He stated that he "isn't here to commence litigation again." Since 1961, the City has been . in trial court four times on this site, and before the Supreme Court three times. Mr. Criswell reiterated that he is not present to suggest and threaten litigation; rather, he is present to pre~ent litigation. Mr. Criswell stated he was contacted by the Kent Village Association rather belatedly, (two weeks ago), and he doesn't really know what has transpired in previous meetings of the Commission. Mr. Criswell stated that as far as he could determine, this request began on June 8th, at which time Larwin Corporation filed a petition for a waiver to the Subdivision Regulations on which application it was stated that the ''applicant proposes to develop an apartment ' project under the PUD Ordinance." Accompanying the application for a Subdivision Waiver was an application for PD approval; there was also a staff report written at that time in support of the request of the waiver only if the development was accomplished .under the PD Ordinance. ~~ I I I I I I Page 1511 Later, the files in the Office of Community Development show that the PD application was withdrawn; there is nothing in the files withdrawing the Subdivision Waiver application , nor is the first application in the files. There is, however, a second Subdivision Waiver application, dated June 8, 1972. This second application for a Waiver states as reasons for the application that "the subject property will be developed as ' Multifamily residential complex. No streets will be dedicated to the public and the parcel will not be subdivided into lots or blocks. No subdivision is contemplated in the traditional sense. All utilities and public improvements can be assured by the imposition of reasonable conditions by the Planning Commission." Mr. Criswell submitted a copy of a letter from Larwin Multihousing Corporation dated August 30, 1972, which asks amendment to the application £or consideration of only the north 1 /2 of the site, or Phases I thru IV. The minutes of the Planning Commission reflect there was no further amendment to the application since August 30th. Mr. Criswell stated that on October 17th, the Planning Commission adopted a resolution approving the application for Subdivision Waiver; this resolution, to Mr. Criswell, is con- fusing. The Resolution approves the waiver for the entire site; the letter of August 30th amends the request to only that portion on the north one-half of the site. Mr. Criswell noted that the Waiver has several conditions attached as part of the Waiver, among them the statement that the "development of the subject parcel shall comply with the General De- velopment Plan (Exhibit "A"), which shall be approved by the Commission and attached hereto, and by reference made a part hereof ..• ". Mr. Criswell stated that the words "which shall be approved" seems to him to indicate .that it shall be done in the future. Mr. Criswell then discussed "site plan" vs. "general development plan"; it is his under- standing that the general development plan has been recorded in the County Clerk & Recorder's Office, but he cannot determine what the "site plan" is. Mr. Criswell posed the following questions: 1. Did the Commiss~on mean in their action of October 17th, to approve a waiver of the necessity to file a plat f or the entire project, or only for the northerly portion? 2. What is a "site plan?" Mr. Criswell stated that he "is sure the Commission wouldn't hav.e given approval to the Site Plan without seeing it"; he stated he asked the staff what the Site Plan is, and he still doesn't know. Mr. Criswell asked "what does the waiver mean?" "Does the Developer have to come back or has the Commission approved the whole thing?" Mr. Criswell stated that in view of the letter from Larwin asking for an amendment to the application, that the Planning Commission had no authority to act upon the entire parcel, as the waiver approval of October 17th seems to indicate. Mr. Criswell stated he was present to say that his clients believe the Commission has more authority than it has exercised on matters such as the Subdivision Waiver, and to urge the Commission to exercise the authority they do have. Mr. Criswell stated that he did not believe the Planning Commission has been advised of what has gone on for the past 10 years in regard the development of the KLZ Site. Mr. Criswell stated that his clients are not objecting to the subdivision waiver, so long as the result reached is satisfactory. Mr. Criswell stated that he personally felt the Commission was making a very serious mistake in going the Subdivision Waiver route. Mr. Criswell noted that "since 1961 this ground has been under constant litigation, and anything you do will provide fodder for more." Mr. Criswell stated he "would suggest you are making a mistake by adopting a route that raises legal questions." He noted that "the Subdivision Regulations weren't designed for this type of development." Mr. Criswell noted that the reasons given. on the application for waiver are basically that "no benefits will be due the City by requiring a Plat"; Mr. Criswell stated that the evidence does not bear this statement out. Mr. Criswell stated that on one hand, the Commission has indica~ed a Subdivision Plat is not required; on the other hand, a Waiver was approved with "conditions" attached, and the conditions are those normally found on a required Subdivision Plat. Mr. Criswell then discussed the Comprehensive Zoning Ordinance as it pertains to this par- ticular site, which is zoned R-3-A. The R-3-A Zone District provides that "no structure or vehicle on the same lot with the principal dwelling shall be used f or residence purposes." Mr. Criswell stated that this provision means "there shall be one building or a row of buildings attached to one building" on a lot; by not dividing the subject site into lots and blocks, he questions whether there can be more than one building on the entire 57 acre parcel. Mr. Criswell reiterated that the Comprehensive Zoning Ordinance restricts develop- ment to only one building or attached buildings per lot. There are also restrictions that all buildings and building sites must abut a "public street". There is also a requirement in the Subdivision Regulations that developers must post a bond equal to the cost of the utilities, etc. that must be installed. Mr. Criswell again stated that by going the sub- division waiver route, you have created problems and questions that could be raised in litigation." Mr. Weist entered and took his chair with the Commission. Mr. Criswell reviewed the history of the R-3-A zoning on the subject site ; at the time the zoning was granted, promises were made by the developer at that time, Mr. Carey, to ensure a satisfactory development. Mr. Criswell charged that the Planning Commission has now allowed the present developer, Larwin Corporation, to reneg on promises previously made. Mr. Criswell stated that at the time the zoning of the site came before the Planning Com-. mission back in 1967, the Commission felt the density permitted in the R-3-A District was too great, and recommended control of the density through other methods, namely subdivision. controls. The City Council received the zoning recommendation of the Planning Commission on the same evening the Bill for the Subdivision Regulations was considered. Mr. Griswell recalled that before City Council enacted the R-3-A zoning on the site, they asked if the density could be controlled, and he, as City Attorney at that time, said that it could be. At this point, stated Mr. Criswell, the residents of the neighborhood, t he developer, and a City Committee consisting of the City Manager, Planning Director and City Attorney were en- gaged in discussions on the proposed development. Mr.Criswell stated that as a r esult of those discussion, it was recommended, and agreed to, that the developer would expend in excess o f $240,000 for off-site drainage facilities. This Page 1512 was for a pipe system which would run down Girard and tie into Little Dry Creek to the sou1h Mr. Criswell stated that another big problem at that time was the matter of density. The developer after many discussions, agreed he could li~it the development to 1120 units, and at the sa~e time be financially able to provide underground parking spaces for every unit. Mr. Criswell emphasized that the parking spaces would be "underground or covered." These points were stressed in the report made to the City Council by the committee of City Manager, City Attorney, and Planning Director. Mr. Criswell stated that the restrictive covenants were devised as a 11 litig.ation gambit" by the developer when the neighbors refused to agree to the density offered by the developer of 1120 units. The restrictive covenants were drawn for 1500 units, and were regarded as a "bargaining point" by the developer. Mr. Criswell strongly emphasized that the only pur- pose of the restrictive covenant of 1500 units was a bargaining point by the developer, who was agreeable to 1120, and was in hopes a settlement could be reached by reducing the density from the 1500 units. Mr. Criswell then reviewed the law suit filed by the opponents to the development, and the:ir claim that the 1500 unit limit in the R-3-A District was "contract zoning", and that the. re- strictive covenants were accepted by the City. Mr. Criswell stated that depositions of Council members were taken, and the Council members stated that the restrictive covenants were not what they had relied upon in granting the zoning. They had relied upon the Sub- division Regulations to control the density of the proposed development. Mr. Criswell stated that the counsel for the opponents did not contest the ~ouncil testimony and withdrew the claim. The case was subsequently won at the Trial Court, by the City, but was appealed to the Supreme Court by the opponents. Mr. Criswell reviewed his letter to members of the Planning Commission, dated November 6, 1972; he stated it was not his intent to criticize City Attorney Berardini for giving an opinion on the spur of the moment as he, Mr. Criswell, has done so many times. However, Mr. Criswell stated, he does suggest that Mr. Berardini is not correct when he states the Planning Commission cannot control density through the Subdivision Regulations. Mr. Criswell. stated he is also critical of Mr. Berardini, when he stated that the density was litigated through the Supreme Court. Mr. Criswell emphasized that the Supreme Court did not litigate the matter of density on the KLZ Site; "the only thing the Supreme Court said about density was there had been sufficient changes in the neighborhood to authorize Council's changing the zoning to a higher density. There was nothing said about 1500 units." 11 They only said that with the change of density to multi-family, Council did not act arbitrarily." Mr. Criswell stated that "nowhere did the Supreme Court say or intimate that the City was now required to accept the lpOO unit density." Mr. Criswell reiterated that in 1967, the developer was told to expen~ one-quarter million dollars for off-site storm drainage; the developers will now have to expend nothing for off-site storm drainage. Mr. Criswell stated there have been many changes since 1967, and because of present policy, the developers will save one- quarter million dollars on the storm drainage alone. Mr. Criswell emphasized that in 1967, all parking spaces were to be underground or covered. Under the present plans, there will be "some underground parking." There is now proposed 11 a ·lot of surface parking against the neighbors." Mr. Criswell asked "what is the percentage of underground parking today vs. the 1967 plans?" Mr. Criswell stated that in 1967, there was a density proposed of 1120 units; today the developer is talking about 1500 units. Mr. Criswell stated he "thinks its primarily be- cause the Commission was not advised of the promises made." Mr. Criswell pointed out the developers will be saving money on the drainage system, there will be less underground parking, and an increase in the number of units proposed. Mr. Criswell stated that in 1967, the "neighbors wanted 800 units on the site." The City determined that 800 units was not feasible if amenities such as underground and covered parking were to be realized, and the 1120 unit figure was suggested. Mr. Criswell now directed hi~ remarks to the matter of the park area proposed for dedication to the City by Larwin Multihousing Corporation. Mr. Criswell stated that he has represented developers from time to time, and "the greatest deal is for a developer to offer a city a park." Mr. Criswell noted that the park proposed. along Floyd Avenue is 4.6 acres. Mr. Criswell noted that "to begin with, under the Subdivision Regulations, this Planning Com- mission has the right not to enter into an agreement for a park, but to demand a park." "If. this were in Arapahoe County, the developer would 'have' to provide 5.7 acres for park land before the subdivision would be approved and development begin." Mr. Criswell noted that "this developer is giving 1.1 acres less in park land than what Arapahoe County would re- quire by law." Mr. Criswell stated he does not have criticisms over the donation of the park; the developer "is giving land and he will suffer financial benefit by giving the park to the City. The ground he is giving will have to be a green area anyway; he isn't going to be able to build buildings on it because it will be used for drainage. If he (the developer) gives 4.6 acres to the City, he will realize an income-tax reduction equal to the value of that land .. Once he gives that land to the City, he doesn't have to pay ad valorem tax on it. If the developer doesn't give land to the City, he would be responsible for development of the area as a green area anyway. There would also be maintenance costs --mowing the lawn, water, repair of pipe lines, etc. The City will now have to . pay for all that." Mr. Criswell again stated that he "isn't criticizing the deeding of the land to the City, but it is not a gift;.the .developer will save considerable money by doing this." Mr. Criswell noted that the Planning Commission Resolution approviµg th~ Waiver states that 45% of the land must be in open space; 11 if he (the developer) can get you to maintain part of that, it's mutually beneficial." - Mr. Criswell stated "under the law, can the Commission limit density. If you cannot limit it, then your Resolution is invalid: the Resolution limits density to 1500 units." '.'The question is, can the Planning Commission impose greater restrictions on the land than the Comprehensive Zoning Ordinance imposes." "The Resolution also requires 45% open space; this is greater than the Comprehensive Zoning Ordinance requires now; you are already limiting density to these two factors." r Mr. Criswell referred to Mr. Berardini's letter to Council of November 13, 1972; he stated that he disagrees with Mr. Berardini. Mr. Criswell stated that the City Charter grants power to the Plann~ng Commission by St~tute, and stated that "restrictions placed upon a subdivision by the Planning Commission have the same force by law and shall be enforceable I I I I I I i I . Page 1513 in the same manner and with the same sanctions and .penalties •..•. as though set out as a part of the Zoning Ordinance ...•• " Mr. Criswell stated that a New York court case ruled that the Planning Commission has the 1authority to vary the Zoning Ordinance on Subdivision control. Mr. Criswell further discussed the powers he feels are available to the Planniµg Commission. . . Mr. Criswell stated that the Commission may decide that the l500 unit restriction they have placed on the proposed development is proper; he "is under the impression that some members of the Planning ~ommission were laboring under the impression they could not impose any. further density restrictions." Mr. Criswell emphasized that it is his opinion the Colorado State Statutes give the Commission aµthority to impose a density restriction on the develop- ment lower than the 1500 units if they so d~sire. Mr. Criswell stated that if the Commission determines the 1500 unit restriction is proper, the opponents will disagree with that decision, but •.. Mr. Criswell stated that he hated to see the Planning Commission "let the developer off the hook on the promises that were made." Mr. Criswell discussed the matter of "reconsideration"; he stated that two cases in Colorado . "seem to indicate that a quasi-judicial body can reconsider its decision, but only if new material is submitted to it.'' Mr. Criswell stated that the 4 /4 vote on October 3 failed, and it is his opinion that Mr. Ross did not vot~ with the "prevailing , side" that evening, as stated by Mr. Berardini in his letter to City Council dated November 13, 1972 •. Mr. Ross voted "for" the motion, and the motion lost. Mr. Criswell stated he "submits to you that so far as my clients are concerned, they aren't concerned with legal procedures." Mr. Criswell stated that he felt "after eleven years of suing and being sued, the City would adopt procedures so they. could get the show on the road;" he st~ted j;hat "no one in the room wants the KLZ Site to go undeveloped." Mr. Criswell stated that in light of the information he has presented, he feels the Commission could reconsider their ~ction of October 17th. Mr. Lentsch thanked Mr. Criswell for his presentation, and stated he wished Mr. Criswell had been present three weeks ago at the time the decision was rend~red. Mr. Martin Malis, Larwin Corporation, asked to speak to the Commission. Mr. Lentsch stated that the Commission would call on Mr. Malis later in the evening; they now wanted to consider Mr. Crisw~ll's presentation in depth. Mr. Brown questioned Mr. Criswell's statement in regard to holding the developer to promises; he asked if the City cou~d hold the Larwin Corporation to promises that were made by a pre- vious developer in 1967? Mr. Criswe:}..l stated "why can't yoq.?" "If, in 1967, it was feasible to develop this ground with total underground ,parking for li20 units, why isn't it feasible today with 1200 units, with some surface p~rking?" Mr. Criswell pointed out that the Com- mittee of City personnel spent hours going through economic studies; it was not feasible to develop the site with less than 1,000 units with underground parking; if the 1500 unit density is now approved, all the parking spaces should be put underground; if surface parking is approved, then the numb~r of units should be reduced. Mr. Criswell urged that the density be reduced to 1200 units; he stated that he felt the economics were about . the same now as they were five years ago. It was feasible at that time to put 1120 units on the site with _all undergroµnd pa~king. Mr .. Criswell again pointed out that the 1500 unit figure was a "planning number" and a "litigation gambit." Mrs. Henning stated that she wa~ rather c;onfused about the expansion of "use" to include "density", and asked Mr. Berardini .if _he could clarify this point. Mr. Berardini stated that he does not disagree with Mr. Criswell's statement on Statutory powers of the Commission; he does see, however, "a tremendous difference in 'the Commission shall have the power to agree', and 'the Commission .shall have power to impose'." Mr. Berardini pointed out that the agreements reached with the developer would restrict the development. Mr. Berardini stated that there is a delegation of legislative power, and the Coilllllission does not have the power to zone .. Mr. Berardini pointed out that the R-3-A zoning was approved by the State Supreme Court. He personally feels that it would be illegal to restrict the development to, say, 800 units. Mr. Berardini pointed out that "density is contrQlled by a lot of things: parking, height, setbacks, etc." Mr. Berardini felt that restriction of density beyond this point, or in conformance with restrictive .covenants, is outside the authority of the Planning Commission. Mr. Lentsqh asked "where did you get the 1500 units?" Mr. Berardini stated that the restrictive covenants placed on the site by Mr. Lou Carey, the previous developer of the site, restricted the development to a density of not more than 1500 units. Mr. Berardini stated that the covenants have nothing to do with zoning; he has maintai~ed that the 1500 unit res~riction is what the Commission can enforce on the covenant basis; if the covenants do not "stand" then the developer may develop to the full density permitted in .the R-3-A Zone District. Mr. E,oss asked "are you saying the covenants might not stand?" Mr. Berardini stated that he has always taken the position that the covenants are valid and enforceable. Mr. Ross stated that the covenants read "not more than 1500 units"; does this mean the Pianning Commission can restrict the development to less? Mr. Berardini stated that the "Planning Commj .ssion can request; they cannot require." Mr. Ross referred to the Supreme Court decision, wherein it was stated that the "current amendment is one of degree -from single-family residences to multi-family residences ••• " Mr. Ross asked how this language restricted the Planning Commission from imposing restrictions on the R-3 zoning. Mr. Berardini reiterated that the Comprehe~sive Zoning Ordinance controls the density. Mr. Ross stated that if he understands Mr. Criswell correctly, the Commission could adopt a position or policy for negotiating, and that if the developer did not want to meet the requirements, then he must file a plat. Mr. Berardini asked if he felt density could be controlled by the filing of a plat? Mr. Criswell interposed that "you don't control density directly under either the Comprehensive Zoning Ordinance or the Subdivision Regulations; there is no section in the Comprehensive Zoning Ordinance which states there shall be "x" number of .units per acre. It is controlled by (1) the% of lot coverage; (2) % of open space; (3) height; (4) bulk, etc." Mr. Criswell stated that he felt statutory cities can enter into agreements with the applicant Qn the above four items, and the City Council has the authority to grant to the Commission authority to impose restrictions on use, height, bulk, etc. Mr. Ross asked if traf~ic would be included? Mr. Criswell stated that it would be. Discussion followed. Mr. Ross asked if Mr. Criswell felt the action taken by the Planning Commission at the October 17th meeting was erroneous? Mr. Criswell stated that he _felt the Planning Commission lost all jurisdiction at the October 3rd meeting when the vote was 4 /4. "The only person who moved to reconsider voted on the losing side." Mr. Criswell stated .that he further felt Page 1514 the Commission had no authority to act on anything but Phase I thru Phase IV; he does not feel the action approving the waiver for the entire site was proper; he thinks it is illegal. Mr. Criswell stated that he felt the Commission does have the authority to reconsider its action. Mr. Ross asked if it would be best to reconsider or consider a new application? Mr. Criswell stated that he represents only residents of Kent Village, and that the people he represents · "aren't interested in engaging in a tilt"; it might be wise if a few things were observed, however. Mr. Criswell stated that he thinks reconsideration would be in order. He stressed that the written application is for Phases I thru IV; there is nothing further in the file after the letter from Larwin amending the application. ·Mr. Criswell stated that he did not object to the Commission acting on the entire thing, but again stressed that the Commission had nothing before them but the amended application for Phases I thru IV. Discussion followed. Mr. Ross asked ii a motion for reconsideration would be in order at this time. Mr. Berardini stated that it could be. Mr. Lentsch asked about the "site plan?" Mr. Lentsch stated that he had asked many times what a "site plan" was, and no one could bring it forth, and he did not get any answers on it. Mr. Lentsch asked if the Commission could reconsider the.matter without specific knowledge of the area they would be considering, that is, the entire site, or the north one-half •. Mr .. Berardini stated that he had understood the action taken at the October 17th meeting was for the entire site; he asked if the Commission now had objections to considering the entire parcel? Mr. Lentsch stated "are you saying it's OK to forget about the applica- tion and consider the entire thing?" Mr. Berardini stated that he "thought this is what you did." Discussion followed. Mr. Berardini stated that he recalled discussion to the effect that the waiver would apply to the north one-half, and a Planned Development would be filed on the south half of the site. Mr. Ross agreed with Mr. Berardini that there was discussion to that effect, and the south half was to be developed in accordance with a "general develop- ment plan", and for that reason he introduced language in his proposed conditions which took · this into consideration .. Mr. Ross stated that he added to the conditions wording to the effect that development of the subject parcel shall comply with the general development plan, which shall be approved by the Commission and attached hereto, and by reference made a part hereof ••.•. , and he did this because he understood the consideration was only for a portion of the site, and that the plans for the southern portion of the site would also come before the Commission and would have to be approved by this body. Mr. Berardini asked if Mr. Ross meant by this that the 1200 units or 1500 units would be only for the north 1 /2, inasmuch as the condition states further "and shall be limited to a maximum of 1500 dwelling units plus ancillary structures for recreation and security purposes .•. " Mr. Ross stated that the dwelling unit restriction "had nothing to do with it." Mr. Berardini commented that he thought the Commission was considering the restriction of 1200 or 1500 units on the total site. Mr. Ross stated that the Commission does consider the dwelling unit restriction for the entire site, and that he feels the question of approval of the general development plan is still before the Planning Commission. Mrs. Henning stated that at the time the matter was first considered, reference was made to the fact that the application was only f or the north portion; she checked the actual applica- tion and determined that it was, indeed, for the entire site. Mrs. Henning stated that she voted on the assumption that the request was still for the total site. Mr. Lentsch stated that at a meeting with Mr .. Eason, Mr. Dial, Mr. Supinger and Larwin representatives, only the north 1 /2 of .the site was discussed. Further discussion followed. Determination of density and restriction of density was then discussed. Mr. Criswell noted that through mathematical computation, one could come up with say 3,000 to 3,500 units on this site; how- ever, this is completely unrealistic. Mr. Criswell stated "there is no .question but that 1500 units would comply with the Comprehensive Zoning Ordinance"; the factors the Comprehensive Zoning Ordinance uses to control density are the same factors this Commission has control over by Ordinance, and are contained in the Subdivision Regulations. Mr. Criswell stated if you can control the density through the Comprehensive Zoning Ordinance, you can do so through the Subdivision Regulations. Mr. Criswell stated that if you can restrict use, it seems to imply to him that you can limit density of the use in a particular project. Mr. Griswell stated he disagreed that the Commission had no power to look at a lesser number of units and make a decision upon it. Mrs. Henning asked if the applicant doesn't agree to the lesser density, may they appeal? Mr. Criswell stated that he did not think there was an appeal pro- cedure to Council from denial of a Subdivision Waiver. If the applicant doesn't agree to stipulations placed on the waiver, then he must follow the law and file a plat. Mrs. Henning questioned whether, if a plat were to be filed, the Commission has the right to impose con- ditions? Mr. Criswell stated he disagreed that the Commission did not have the right. Mr. Berardini noted that the R-3-A District permits any use permitted in the R-1-C District, plus multi-family uses. If Mr. Criswell's arguments are sound, the Planning Commission could restrict the use of land to a special kind of use in direct violation of the Ordinance. Dis- cussion followed. Mr. Lentsch asked how the plan before the Commission was devised; why wasn't a plan presented for 1200 units with total underground parking. Mr. Supinger stated that the staff did not suggest such a plan because he "didn't feel we have the authority to restrict the density on this property; any density restrictions were done under the covenants. If those were not placed upon this property, I would say the applicant had the right to develop to the maximum density on this property." Mr. Ross referred to a memorandum to the Planning Commission from Mr. Supinger, dated August 21, 1972 .. Mr. Ross stated that Mr. Supinger indicates the application was for the north 1 /2 of the site; but the application showed it was for the entire site. This is why he suggested the amendment he did. Mr. Ross further discussed the memorandum from -Mr. Supinger. Mr. Ross stated that he .further understood that a study session of the Commission, set for August 16th, was cancelled following a meeting of the City Manager, City Attorney, and Director of Community Development, at which meeting the City Attorney had rendered the decision that a subdivision waiver was not necessary. Larwin Corporation was ultimately advised that no subdivision waiver was .necessary, Mr. Berardini stated that when the matter was first considered, there was a question whether this development would come under the provisions of the Subdivision Regula- tions; when the matter had been investigated more fully, he gave a written opinion stating . the developers were required to comply with the Ordinance. Discussion followed. Mr. Ross stated that his intention in offering the amendment on the "general development plan" was that the .matter be kept before .the Planning Commission until final approval of that "plan". ~r. ~oss ~o~ed that Mr. Berardini had not spoken to the matter of the general development plan in his opinion dated November 13, 1972, and asked why? Mr. Berardini stated he felt the action of the Commission on October l7th was approval of the general development plan with conditions. Further discussion followed. I I I I I I Page 1515 Mr. Brown discussed the matter; he stated that he felt there were some members of the Com- mission who were confused on whether the ·consideration was for the entire site or not. Mr. Brown stated that he "felt we were considering the entire development when we voted." Mr. Brown stated that he was confused on the covenants --"up to 1500 units." Mr. Brown stated that he had believed that the covenants were "for 1500 units", and that it was a concrete figure. He now feels the Commission has made a mistake on the 1200 units, and thinks the Commission should restrict the development to 1200 units. Mr. Brown stated he would like to present some petitions that have been addressed to him, and read as follows:. "HOWARD BROWN, MAYOR PRO TEM, ENGLEWOOD . "We, the undersi'gned, request your favorable consideration to a pending issue on the Planning Commission. It is understood that the question of reasonable density for the development of the KLZ site will again be brought before the Commission on Tuesday, Nov. 21st. A request to reduce the density from 1500 to 1200 units will be presented. "We urge your support in favor of this reduced density requirement as neighbors and residence of Englewood in an area directly affected by the development of this site." Mr. Brown stated that these petitions have been signed by approximately 350 persons. Mr. Brown stated that these signatures are of residents and neighbors who would be most directly affected by the development. Mr. Brown stated that he would be in favor of reconsideration of the Commission decision at this meeting:. Mr. Lentsch now asked Mr ~ Malis, Larwin Corporation, to speak. Mr •. Martin Malis Larwin Corporation 9100 Wilshire Boulevard Beverly Hills, California -stated that no one from Larwin Corporation was advised of the agenda before the Commission this evening, and he feels that Larwin Corporation has a right to know when their project is io be considered by the Commission. Mr. Malis stated that no new material has been presented to the Commission this evening, and agreed that the Commission has the right to reconsider' that which they have approved. Mr. Malis discussed Mr. Criswell's statement that he "doesn't know · what a site plan is," and pointed out that Mr. Criswell does, admittedly, represent many deve~opers and unions. Mr. Malis stated that Mr. Criswell is also in the process of preparing a lawsuit against Larwin Corpora- tion on another matter, and in view of the pending lawsuit, he feels that Mr. Criswell should withdraw from this matter, that he, Mr. Malis, gets the feeling there should be a conflict of interest. Mr. Criswell stated he would like to speak on a point of personal privilege, and discussed the pending lawsuit he is preparing against Larwin Corporation. Mr. Criswe11 stated that the lawsuit is a mechanics lien against another project for employee benefits, and has nothing whatever to do with the reason he is before the Commission this evening. Mr. Criswell then discussed the matter of "site plan" vs. "general development plan", and noted that "there must be a distinction between them, in that the Resolution refers to both of them." Mr. Criswell stated he "was told they were one and the same thing. If they are one and the same thing, I cannot read the Resolution and make sense out of it." Mr. Criswell stated that he has spent many hours and days trying to represent his clients in an honorable way and protested the "personal animosity" which has been displayed toward him at this meeting. Mr. F. M. Stevenson stated that he would like the Commission to know that he and Mr. Richard Brown personally asked Mr. Criswell's help in this matter. Mr. J. B. Kennedy 3225 South Race - Mr. Don Fullerton stated that he did not live in Kent Village, but does live in the area and knows the history of the site. Mr. Kennedy pointed out that any development on the site will be there a long time, and took exception to Mr. Malis' "attitude and treatment of the Commission." Mr. Kennedy discussed the efforts of the residents of the area in the matter o~ this subject site, and stated "we won't give up now." 3265 South Race St. -stated that he was a member of the City Council at the time the most recent lawsuit was filed protesting the proposed development by Mr. Carey. Mr. Fullerton stated he had opposed the granting of the zoning. Mr. Fullerton discussed the depositions taken from the Councilmen by the City Attorney at that time, Mr. Criswell. Mr. Fullerton stated that Council did have assurance that the Subdivision Regulations would control the density on the subject site. Discussion followed. Mr. Berardini noted that a motion to reconsider "must be made by one who voted on the prevailing side." Mr. Berardini also noted that there was a member of the Commission absent '. Mr. Lentsch stated that he did inform Mr. Carlson that· therB would be a motion to reconsider the matter at this meeting, and that he, Mr. Lentsch, had stated at this time that it was a possibility he would change his vote. Mr. Carlson had stated he would not attend the meeting. Further discussion followed. Mr. Lentsch stated that he felt the reconsideration should go back to the meeting of October 3, 1972, at which time there was a 4 /4 vote. Robins moved: Stanley seconded: The Planning Commission reconsider action taken on October 3rd, relative to Case #20-72. Mrs. Henning voiced concern on reconsideration of the total project at this meeting, and noted the lateness of the hour, the fact that Larwin representatives were not notified of the matter on the agenda. She stated that she felt it would be only fair that it be delayed to a later date, and that all parties concerned be notified. Page 1516 Henning moved: Vobejda seconded: The matter be tabled until the next regular meeting. AYES: Henning; Weist;.Vobejda NAYS: Lentsch; Brown; Robins; Stanley; Ross ABSENT: Carlson The motion failed. Mr. Lentsch called for the vote on Mr. Robins' motion. AYES: Robins; Weist; Ross; Vobejda; Stanley; Brown; Lentsch NAYS: Henning ABSENT; Carlson The motion carried. Mr. Lentsch stated that he did think Larwin representatives should be present at the time the matter is discussed, and would recommend that the matter now be tabled. Mr. Berardini asked if the reconsideration was for the entire development plan, or for the north 1 /2 of th€ site? Mr. Lentsch stated that it was for reconsideration of the application. Mrs. Henning asked about requesting Larwin Corporat~on to resubmit an application, in whatever form they so desire, for consideration of the Commission so that hopefully we may avoid some of the problems we have experienced with the present application? Mr. Robins suggested that possibly the matter could be tabled until the second meeting in December, and the re-submitted application could be available to the Commission by December 5, 1972. Discussion followed. Henning moved: Vobejda seconded: The Planning Commission request Larwin Multihousing Corporation to re- submit an application for development of the entire 55 acre site, and to have it to the Planning Commission by December 5th. Discussion followed. Mr. Richard Brown asked "suppose Larwin between this time and the next meeting, apply for building permits or try to exercise those they may have --does the City Attorney feel they may go ahead on the existing building permits?" Mr. Berardini stated that some permits have been issued, for a · total of 384 units. Mr. Criswell asked if the City will issue further permits, or will the Planning Commission action to reconsider stop further permits? Mr. Supinger stated "as it stands right now, based on a memo sent to me by Mr. Dial, I am to issue permits which comply with the Commission's previous action." Failure to issue permits would subject the City to legal proceedings. Unless this directive is changed, it will stand; he has been specifically directed to issue permits if applications for building permits are in order. Further discussion followed. Mrs. Henning stated that with the permission of the second, she would withdraw the motion. Discussion followed. Mr. Berardini stated that the question is whether the City is now in a legal position to restrict further building permits over and above those issued. Mr. Berardini asked "are you saying there is nothing before the Commission to consider at this time, or are yo~ saying you are considering it only f or the purpose of density control? If it's only for density control, why can't permits b~ issued on plans already approved?'' Mr. Ross stated that "it seems the matter of issuing building permits in the first place is in question; until the general development plan is approved, it is my conclusion that it is not proper to issue building permits." Mr. Ross stated that he "thinks members of the Community Development Department were advised of that." Discussion followed. Mr. Berardini stated he was under the impression that approval had been given. Discussion followed. Mrs. Henning stated that it was the Chairman's ruling at the meeting of October 17th that the matter would be considered as a new case, and there was no challenge to that ruling. Further discussion followed. Mr. Ross asked which of the actions of the Commission should be recon- sidered --October 3rd or October 17th? Mr. Berardini stated that "regardless of which meeting, it seems to be in order." Discussion followed. It was suggested that recommendation on whether or not building permits should be withheld should be directed to City Council. Mr. Ross stated that "if the consequence is to place it in the hands of the Council, I am opposed.'' Mr. Supinger stated that he felt if this suggested procedure were followed, it would relieve the City Manager from possible personal liability of withholding building per- mits on this site. Mr. Supinger noted that the City Council had passed a Resolution supporting the Commission's action on the subdivision waiver. Mr. Lentsch stated that "it does state under the Charter it is up to the City Manager to issue permits; if he issues them he can take the responsibility for withholding them." Mr. Supinger stated that he felt there would be litigation on the matter of withholding building permits, and he did not feel that any administrative personnel should be placed under that kind of responsibility. Further dis- cussion followed. Mrs. Henning commented that if it was the intent to direct action through the Council she didn't think the Councll would agree to it. Mr. Brown stated that City Council didn't know there was no motion to reconsider made at the meeting of October 17th. Mr. Brown further commented that he felt it should be the action of October 17th that is reconsidered. Mr. Berardini commented that he felt it was reconsidered on October 17th, and that he had taken the action that evening to mean a reconsideration, even though no pro-forma motion was made. Mr. Berardini also stated that the City Council did, indeed, know that there was no motion made by the Commission to reconsider the matter following the 4 /4 vote on October 3; that it was in his memorandum to them on the matter. Mr. Brown stated that "no issue wa£ made of it." He stated he would like to make an amendment to the motion that the considera- tion applies to the October 17th action, and would hope that someone would move that issuance of building permits be stopped; let the permits issued stand, but don't issue further permits. Mr. Ross asked "what would happen if we reconsidered both of them (October 3 and October 17)? The action on October 17th may have been erroneous." Mrs. Henhing stated that no one is challenging the action taken. Mr. Ross stated that if no one challenges the action, he still states that the general development plan must be approved. Mrs. Henning pointed out that the general development plan, or Exhibit "A", was approved. Further discussion ensued. I I I I I I Page 1517 Robins moved: Stanley seconded: The Planning Commission request that no more permits be issued for con- struction on the KLZ Site. AYES: Henning; Ross; Brown; Weist; Vobejda; Robins; Lentsch; Stanley NAYS: None ABSENT: Carlson The motion carried. Mr. Robins suggested that a plan be submitted for the entire site, and the Commission "OK the entire thing at once and have it over with." Mr. Lentsch asked suggested that it might be in order and hash it out." night. if the Commission should table the matter until a given date. Mr. Robins be tabled until the second meeting in December. Mr. Ross stated that "it for the Planning Commission and Larwin representatives to get together Mrs. Henning suggested that such a meeting be held on a regular meeting Robins moved: Ross seconded: The matter be tabled until December 5th. AYES: Ross; Weist; Brown; Lentwch; Robins; Henning; Vobejda; Stanley NAYS: None ABSENT: Carlson The motion carried. Mr. Lentsch declared a 10 Minute recess at 11:05 P.M. The meeting was called to order at 11:15 P.M. IV. SEWAGE TREATMENT FACILITIES Cities of Englewood and Littleton Joint Project CASE #32-72 Mr.Supinger stated that Commission approval is requested for an application for sewage treatment facilities for the cities of Englewood and Littleton, a joint project with the location to be in the City of Englewood. Mr. Carroll, Director of Utilities, was present to discuss the matter with the Commission. Mr. Carroll referred to the proposed Capital Improvement program, 1972 thru 1977, and noted that 2.5 million dollars had been indicated for both 1973 and 1974 for this project. Mr. Carroll stated that these figures are high for Englewood's share. Mr. Carroll reviewed discussions between officials of the City of Englewood and City of Littleton, and their decision to develop a joint waste water treatment plant. Mr. Carroll stated that as long ago as 1955, consultants said the confluence of Bear Creek and the Platte River was the ideal place for a sewage treatment plant --this is where Englewood's plant is now. Mr. Carroll stated that this project is eligible for 75% Federal aid through the Environmental Protection Agency. Mr. Carroll stated that the application will be for $9,550,000. Fifty acres are now owned at the site, condemnation will be begun on three parcels, and the City has a contract to purchase seven acres. The proposed plant will be completed by mid-1975; initial development will be for 20,000,000 gallon per day. Mr. Carroll stated that bids would be let in 1973, and there will be an 18-month construction period. The City of Littleton will be responsible for a 66" out-fall pipe, which will tie the two plants to- gether. Mr. Ross asked if this would have any effect on the cost of services? Mr. Carroll stated that at some point in time, services will cost more. Mr. Carroll then discussed the require- ments of the Water Pollution Control Board, and noted that all sewage treatment plants will use the newest methods. By 1985, they are looking at "zero discharge", which means no pollution in the rivers, stated Mr. Carroll. This all means that the cost of treatment will have to be passed on to the customers. Mr. Lentsch inquired if this would mean a savings to Littleton customers? Mr. Carroll stated that the Littleton plant would still be in operation, and the excess would be transferred to Englewood. This joint plant would be operated on a joint budget. Mr. Weist asked if services would be sold to outside areas. Mr. Carroll stated they would be, and that this is what makes it a "going" business for the City. Mr. Ross asked if this procedure helped to keep the cost down? Mr. Carroll pointed out that large plants can be operated with the same number of personnel as several small plants. Mr. Ross reviewed Mr. Carroll's presentation before the Commission at the time the Larwin Subdivision Waiver was considered, at which time Mr. Carroll had stated that additional treatment facilities would be needed no matter whether the Larwin project was approved or not. Discussion followed. Henning moved: Brown seconded: The Planning Commission, after reviewing the proposal for the Englewood/Littleton Sewage Treatment facility, recommend approval of the request for Federal aid for such project. AYES: Henning; Lentsch; Stanley; Weist; Vobejda; Brown; Ross; Robins NAYS: None ABSENT: Carlson The motion carried. V. CAPITAL IMPROVEMENT PROGRAM. Mr. Supinger stated that copies of the proposed Capital Improvement Program, 1972-1977, have been submitted to the Commission for their consideration. Page 1518 Mrs. Henning asked why the Commission is getting copies at this time, when the Charter specifically states that the Commission shall consider it prior to Council approval. Mr. Lentsch asked that this item be placed on the agenda for the next regular meeting. VI. REGENERATION OF NEIGHBORHOODS. Mr. Lentsch stated that he would suggest an ordinance be drafted which would permi~ a house "x" number of years old to be removed and replaced with a duplex. Mr. Supinger stated he felt the Commission should sit down and discuss this matter at a study session. Discussion followed. Meeting adjourned at 11:35 P.M. Gertrude G. Welty Recording Secretary * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * I. CALL TO ORDER. CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION December 5, 1972 The regular meeting of the City Planning and Zoning Commission was called to order at 8:05 P. M. by Chairman Lentsch. Members present: Ross; Brown; Henning; Lentsch; Vobejda; Robins; Stanley J. L. Supinger, Ex-officio Members absent: Carlson; Weist Also present: D. A. Romans, B. V. Berardini II. APPROVAL OF MINUTES. Chairman Lentsch stated that Minutes of October 3, October 17, and November 21 are to be considered for approval. Ross ~oved: Brown seconded: The approval of Minutes be dispensed with until later in the meeting, or until a later time. AYES: Brown; Lentsch; Robins; Ross; Stanley NAYS: Vobejda; Henning ABSENT: Carlson; Weist The motion carried. III. LARWIN MULTIHOUSING CORPORATION Subdivision Waiver -KLZ Tract CASE #20-72 Mr. Lentsch stated that this matter was tabled at the meeting of November 21st. Mr. Ross asked what was before the Commission for reconsideration? Mr. Lentsch reviewed the meeting of November 21st, at .which time Mr. Criswell spoke at length on matters pertaining to the development of the site; also Mr. Howard Brown presented petitions to the Commission that had been presented to him asking that the density be lowered. Mr. Ross noted criticism of the Commission that had been in the press, and stated that before the Commission gets into further confusion, they should determine exactly what the reconsideration is on --is it re- consideration of the application, and if so, what precisely does the application state: is it for the entire parcel, or only for part of the parcel? Mr. Weist entered and took his place with the Commission. Mr. Ross asked if there was a valid application on file with the Department of Community Development? Mr. Lentsch asked Mr. Supinger if there was an application on file for the entire site, or if it was amended to only part of the site? Mr. Supinger stated that the office does have an application on file for the entire parcel; the office also has a letter from Larwin Corporation requesting that the application be amended for consideration of the north one-half, Phases I thru IV. Mr. Supinger stated that he also recalled at one of the meetings at which time this matter was discussed, some discussion between the applicant and the Commission regarding the Subdivision Waiver on the entire site, and the Commission stated they would be willing to consider it for the entire site. Discussion followed. Mr. Brown suggested that perhaps this meeting could be termed a "study session" for the Commission; he felt more facts were needed on the matter before a determination was made. Mr. Robins agreed a study session was needed. No formal decision on the matter of "study session" vs. regular meeting was made. Mrs. Henning asked "what are we asking for in the way of additional facts?" "Are we asking further clarification of the site plan?" Mr. Ross stated that one point that bothered him was "did we actually find there were no benefits to be gained by requiring a Subdivision plat; we didn't determine on a factual basis that question, we just assumed it." Mrs. I I I