MINUTES OF THE BOARD OF COUNTY COMMISSIONERS

 

 

THURSDAY, JANUARY 3, 2018

 

 

LAND USE PUBLIC HEARING

 

The Board of County Commissioners held a public hearing at 6:00 p.m. in the Town Board Room in Estes Park, Colorado. Chair Johnson presided, and Commissioner Donnelly and Commissioner Dougherty were present. Also present were: Randy Hunt, Community Development, Estes Park; Jeff Woeber, Planning; Greg White. Attorney; Jeannine Haag, County Attorney; Elizabeth Carter, Clerk and Recorder; and Deirdre O'Neill, Deputy Clerk.

 

Chair Johnson opened the hearing with the Pledge of Allegiance and briefly explained the agenda for the evening.

 

1.          APPEAL TO BOARD OF COUNTY COMMISSIONERS OF PLANNING COMMISSION DECISION TO UPHOLD STAFF DEVELOPMENT PLAN#DP 2018-04, APPROVED BY STAFF AUGUST 6, 2018 (ESTES PARK MOUNTAIN COASTER): The applicant, Yakutat Land Corporation, submitted a Development Plan application for the Estes Mountain Coaster (Project) on April 18, 2018.

 

The Project is generally described as a Mountain Coaster, a gravity-driven ride, approximately 1,960 feet in downhill length, with related infrastructure including a coaster storage building, ticketing office, restroom facilities, and parking area. Utilities would be extended to serve the facility, including electric, water and wastewater service.  A new driveway access is proposed.  Limited onsite parking would be provided, with most riders being transported by shuttle from a parking area located near the existing horseback riding facilities near the intersection of Dry Gulch Road and Highway 34. The location of the base of the coaster is approximately 800 feet to the east of Dry Gulch Road, approximately 0.85 mile north of Highway 34. The site is within unincorporated Larimer County, in the Estes Valley Development Code planning area boundary. The property is entirely in the RE-1 (Rural Estate Residential) Zoning District.

 

The Development Plan Application for this project was formally filed with the Community Development Department on April 18, 2018. Following several rounds of internal staff review, the Development Plan was approved by staff with conditions on August 6, 2018.

 

Staff’s approval of the Development Plan was originally appealed on September 5, 2018, by nine parties-in-interest with standing to appeal. This appeal was broad in scope, and included elements that were eventually heard by three bodies of elected or appointed officials as provided in the Estes Valley Development Code (EVDC): (a) the Board of County Commissioners, who on October  2, 2018 heard an appeal of the Use Classification; (b) the Estes Valley Board of Adjustment, who on October 16, 2018 heard an appeal of staff’s decision to process the Development Plan as a staff-level review; and (c) the Estes Valley Planning Commission, who on October 30, 2018 heard an appeal of staff’s approval of the Development Plan itself.

 

The appeal before the Board of County Commissioners is an appeal of the Planning Commission’s October 30, 2018 decision to uphold the staff’s decision to approve the Development Plan as conditioned.

 

The current appeal was initiated by receipt of a “Notice of Appeal (Dev. Plan App. No. 2018-04; Planning Commission Hearing, 10-30-18)”. This appeal was filed on November 27, 2018, within the 30-day appeal period in EVDC Sec. 12.1 and signed by five (5) parties-in-interest. Staff hereby confirms that the Appeal was filed timely and that property records show the five appellants have standing to appeal as parties-in-interest.

 

Chair Johnson invited Randy Hunt to present the Staff Report.

 

Mr. Hunt addressed the Board and spoke about the Six Grounds of Appeal as well as Staff response. They are as follows:

 

Grounds 1. The appellants assert that the Development Plan should have been processed and reviewed as a Location and Extent Review.

 

Staff Response: The project cannot be reviewed under the Location and Extent review process, nor is the project itself eligible for such review.

 

The appellants accurately noted that the right-hand column in Table 4-1, headed “Additional Regulations (Apply in All Districts Unless Otherwise Stated)” has an entry in the Parks and Recreation Facility row directing one to “§3.13, Location & Extent Review”. That section in EVDC is titled “Public Facility/Location and Extent Review,” and goes on to detail this separate specific process in our Code.

 

The argument is made, in summary form in the November 27, 2018 appeal, that this section does apply, or ought to be applied, to the Mountain Coaster review and/or to Park and Recreation Facilities in general. This would be accurate if the Mountain Coaster were a publicly owned or operated facility. That is not the case, of course.

 

Location and Extent Reviews are authorized by Colorado Revised Statutes §30.28-110 et seq. The Statutes unequivocally state that this type of review is available and applicable only for public projects, except for private utility projects.

 

For this reason, the appeal on Location and Extent review requirement is not a topic for Board decision and need not be addressed in your discussion, motion, or findings.

 

Grounds 2. Appellants assert that the Planning Commission should have reviewed the entire Development Plan in the first instance.

 

Staff Response: As already noted, this issue has already been heard and decided by the appropriate appellant body: the Estes Valley Board of Adjustment. There is no provision in EVDC or other regulations for an appeal of the Board of Adjustment’s decision to the governing body.

 

Grounds 3: Appellants assert that the Estes Valley Comprehensive Plan is applicable as a regulatory document; the appeal goes on to cite several Comprehensive Plan sections that they believe effectively vitiate any assertion that the project is consistent with the Comprehensive Plan.

 

Staff Response: Firstly, staff does not agree that the Comprehensive Plan is applicable as a regulatory document. To the contrary, staff asserts that the Comprehensive Plan was effectively instrumental in the original adoption of the Estes Valley Development Code in late 1999, and explicitly or implicitly instrumental in adoption of various text and/or zoning map amendments to the Code since then. (Appellants acknowledge this connectivity in Grounds 2 by quoting EVDC Sec. 1.3.)

 

Staff asserts that the Comprehensive Plan does have useful guidance in shaping consideration of whether types of development in the abstract are compatible with community visioning. This consideration does not extend to assuming the Plan’s regulatory authority over individual projects. This issue has been adjudicated in Colorado case law and elsewhere.

 

Moreover, staff points to numerous examples in our Comprehensive Plan that support the Mountain Coaster development as proposed in this location. These elements are spelled out in the Planning Commission Staff Report in section “11. Comprehensive Plan”.

 

Grounds 4. Appellants assert that the Development Plan proposes insufficient parking for the expected use and traffic, and therefore a Plan with more than 20 on-site spaces should have been required. Appellants add that a Plan with more than 20 on-site spaces would have placed the Plan review in the Planning Commission’s hands, per EVDC.

 

Staff Response: The appellants offer no traffic engineering or similar expert data and conclusions to support this assertion. Their sole justification is a recommendation by Larimer County Senior Civil Engineer Traci Shambo that six more parking spaces be added in the proposed parking area near the Coaster boarding location.

 

Estes Community Development staff have worked with Senior Engineer Shambo for many years, and we highly respect her professional judgment, requirements, and recommendations. The key in this instance is the term “recommendation”. Planning practice in Estes Park since 2016, and in many development-review processes elsewhere, is for various professional staff to provide plan-review “requirements” and plan-review “recommendations”.

 

In this case, Engineer Shambo’s comments take the form of a recommendation. Staff had several verbal discussions with her prior to the final staff approval on August 6. The recommendation for additional on-site parking spaces remained just that – a recommendation. These discussions culminated in a memo from Engineer Shambo to EP Community Development staff on August 3, 2018, in which Engineer Shambo indicated they had no further comments.

 

The final Development Plan approval from Community Development staff included no remaining requirements by County Engineering, except those stated in Condition 2 of the August 6 approval letter.

 

Staff acknowledges that additional on-site parking would not have violated code or best practice; that was a viable option for the developer. All of us would concur with Engineer Shambo’s comment that a future re-visitation of parking adequacy would be wise after the Coaster’s opening; that is a best practice for any project’s parking arrangements.

 

However, we would stress that the approved Plan’s arrangements for 19 on-site spaces, plus additional parking via shuttle from existing parking lots owned or managed by the developer in the Dry Gulch Road / U.S. 34 area, also meet Code. In fact, the EVDC encourages shuttling operations when and where appropriate, to reduce paved-over areas and to use existing parking lots for multiple purposes (EVDC, Sec. 7.11.G.1.b; 7.11.G.2.a).

 

Additional information regarding parking is outlined in the Planning Commission Staff Report in the section headed “9. Parking”.

 

In summary regarding Grounds 4, the parking plan is adequate, meets Code requirements, and is expected to function appropriately. The appellants offer no expert evidence to the contrary.

The wish for a Planning Commission ab-initio review mentioned in appellants’ Grounds 4, last sentence, is superfluous and not relevant. As outlined previously, the Board of Adjustment has settled that issue by determining that staff-level review of parking and other Development Plan elements was appropriate.

 

Grounds 5. Appellants assert that staff’s decisions regarding the Development Plan were incorrect in three (3) respects: (a) the Development Plan met EVDC and Comprehensive Plan standards for RE-1 single-family zoning; (b) the Development Plan and associated plans and reports sufficiently addressed a variety of [presumed] development standards; and (c) the application met the standards of Recreation, Passive under Parks and Recreation Use in residential areas.

 

Staff Response to (a): Item (a) improperly seems to assert that only EVDC and Comprehensive Plan standards for RE-1 Zoning District are applicable, and/or that RE-1 standards in the two adopted documents somehow supersede those not specific to RE-1.

 

Regarding EVDC: The entire EVDC, not just RE-1 standards, applies to this project. It is unstated which RE-1 standards in EVDC the appellants believe should apply to the project. Staff has found no specific standards in RE-1 that contravene approval of the project as conforming under EVDC.

 

The argument regarding the Comprehensive Plan has been dealt with elsewhere in this report. To the extent the Plan is applicable at all, there is at least as much to support this project as to discourage it.

Staff Response to (b): Some elements in appellants’ list are in fact development standards applicable to this project. Those include: Traffic design; wetlands; drainage; noise levels, and lighting mitigation. The applicant has provided, and staff have analyzed, data and information on all these matters. Most or all of these are addressed in the Planning Commission Staff Report; staff sees no need at this time to elaborate further. Staff reviewed and determined that applicable standards were met.  The Planning Commission upheld staff’s decision, indicating the Planning Commission concurred.

Some of the appellants’ elements – wildlife habitat, and the vague term “environmental issues” – either do not appear in EVDC or are applicable under EVDC to aspects not present in this case. For example, EVDC (Sec. 7.8, “Wildlife Habitat Protection”) makes development plans subject to review for general wildlife related matters; however, specific review and protection or mitigation measures (a Wildlife Conservation Plan), are applicable only in three specific circumstances – none of which apply to the area on the site proposed for development. Overall wildlife measures are satisfied by submittal of the plans to Colorado Parks and Wildlife (CPW) department, and receipt and consideration of comments from CPW – all of which was done during staff review.

 

It is also worth noting that less than three percent of the full approx. 187-acre parcel are to be disturbed. This fact alone strongly suggests that wildlife and environmental issues in general are not likely to be impacted.

 

Staff response to (c): The definition of “Recreation Facility” (EVDC 13.3.197) reads in its entirety as follows: “Recreational Facility shall mean a place designed and equipped for the conduct of sports or passive and/or active recreational activities.” There is no requirement anywhere in EVDC that a Recreation Facility – the use classification that staff has consistently applied, and that the Board of County Commissioners upheld on October 2, 2018 means Passive Recreation only.

 

Grounds 6: Appellants assert that two votes taken near the close of the Oct. 30 appeal meeting had the effect of “not upholding” the staff’s Aug. 6 Development Plan approval.

 

Staff response: The approved Minutes for the October 30, 2018 Planning Commission meeting were attached.

 

The assertions in this section in the Notice of Appeal contain a number of factual errors. Firstly, it states or strongly implies that either of the two votes was sufficient in itself to constitute a reversal / vacation of staff’s decision. Not so. Either vote on its own serves to leave staff’s decision standing under parliamentary procedure.

 

The first motion of the meeting was “…to deny Development Plan DP 2018-04…”, along with findings in the “due to…” sentence that follows. This motion, after being seconded, failed by an unambiguous majority (2 in favor, 4 opposed). No matter what motions or votes may have followed, this motion’s failure to achieve a majority clearly has the effect of upholding and leaving intact staff’s August 6, 2018 approval with conditions. That is accepted parliamentary procedure under any system with which staff is familiar.

 

Discussion following the vote indicated the desirability of a motion to achieve a positive disposition of the Development Plan. Although not required, standard parliamentary procedure allows for and in some cases encourages such a disposition, if one can be made.

 

Following a failed motion (not seconded) to continue the matter to a future date certain, another motion was made and seconded “…to uphold the staff’s decision on appeal…”, along with findings as stated in the Minutes. This motion failed on a tie vote (3 in favor, 3 opposed).

 

While a tie vote is perhaps less unambiguous than one may prefer, the parliamentary outcome of a tie vote is always unambiguous: A tie vote results in the motion’s failure to pass. This fact alone leaves renders a staff decision “un-reversed and un-vacated” as the outcome.

The only motion of the evening to reach a clear majority vote was the failed motion to deny the Development Plan. Although not worded precisely as a motion to reverse and vacate staff’s approval, the effect is precisely the same: staff’s decision was not reversed and not vacated.

 

Thus, no action taken by the Planning Commission on October 30, 2018 reversed and/or vacated staff’s approval. To the contrary every action taken by the Planning Commission had the outcome that staff’s August 6 approval of the Development Plan still stood. Staff’s decision has remained in effect since.

 

The October 30, 2018, Planning Commission Staff Report contains analysis and findings supporting staff’s decision approve the Development Plan with conditions. Nothing since Oct. 30 (except the Notice to Appeal) has been brought forward to cause reconsideration of staff’s original approval and findings, the October 30, 2018, Staff Report is still valid.

 

Rick Zier, representing the Appellants, addressed the Board.

 

Mr. Zier spoke at length in opposition to this project. He brought up several discussions from past meetings as well as concerns with onsite parking.  He presented the Board with several arguments for opposition. He also urged the Board of County Commissioners to consider the recommendations of the County Engineer as far as the issue of parking. He is asking the Board to deny the appeal.

 

There was some discussion between the Board and Mr. Zier.

 

Lawrence Myers and Joseph Coop representing the applicant addressed the Board.

 

Mr. Myers and Mr. Coop spoke to the Board on why they feel this appeal should be approved. They believe they have met all criteria and were open to take questions from the Board.

 

There were some discussions between the Board and Mr. Coop

 

Chair Johnson opened the hearing to the public for comment.

 

The following members of the public addressed the Board: Robert Burkhardt, Jan Gelhauser, Patty Freudenberg, Susan Harris, Jeffrey Letchwork, Steve Kled, Judy Schaeffer, and Greg Elsworth spoke in opposition to this project. Their collective concerns were: noise, traffic, environmental, effects on wildlife, effects on the future of Estes Park and its natural beauty.

 

Chair Johnson closed public comment.

 

Mr. Myers addressed the Board to address the comments made by the public.

 

Mr. Zier also addressed the Board and re-iterated his comments about recommendations becoming requirements. He presented his final arguments for the Board.

 

The Commissioners had some questions on clarification for County Attorney, Jeannine Haag.

 

There was some discussion among the Board. They went over the Six Grounds as well as whether the plan meets the criteria.

 

M O T I O N

 

Commissioner Donnelly moved the Larimer County Board of County Commissioners uphold the Planning Commission decision which upheld the Planning staff’s approval of the Mountain Coaster Development Plan DP 2018-04.

 

Motion carried 2-1. Chair Johnson dissenting

 

Chair Johnson thanked everyone for coming to the hearing and for those members of the public who addressed the Board.

 

The hearing adjourned at 8 p.m.

 

 

 

 

 

 

 

____________________________________

STEVE JOHNSON

BOARD OF COMMISSIONERS

 

 

 

ANGELA MYERS

CLERK AND RECORDER

 

ATTEST:

 

 

____________________________________

Deirdre O’Neill, Deputy Clerk