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HomeMy WebLinkAboutZOA-10-04CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER LANGWORTHY Council Bill No. 15 Ordinance No. 1470 Series of 2010 TITLE: AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS WHEREAS, the City Council of the City of Wheat Ridge is authorized by the Home Rule Charter and the Colorado Constitution and statutes to enact and enforce ordinances for the preservation of the public health, safety and welfare; and WHEREAS, in the exercise of this authority, the City Council has previously enacted Article I of Chapter 26 of the Wheat Ridge Code of Laws (the "Code "), concerning zone changes; and WHEREAS, the Council finds and determines that provisions must be in place to allow approval with conditions during the zone change process. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26 -112 of the Code is amended to read: Sec. 26 -112. Private rezoning. A. Purpose. A change of any zone district as shown on the official zoning map is permitted only when it is consistent with the goals and policies of the Wheat Ridge Comprehensive Plan and promotes the general welfare of the community. If a proposed amendment is not consistent with the comprehensive plan, then the request may only be approved if the applicant demonstrates that the request is justified because of changed or changing conditions in the particular area or in the city in general, or the rezone is necessary to correct a manifest error in the existing zone classification. A manifest error may include, but may not be limited to, one (1) or more of the following: 1. Mapping errors, including incorrect boundary location or incorrect zone designation, or 2. Ordinance errors, including incorrect zone designation, legal description error or typographical errors. The final decision on a change of zone expressly rests in the exercise of the discretion of the city council and all applicants are advised there is no right to a change of zone of property. E. Planning commission review. The planning commission shall hear and consider any evidence or statement presented by the applicant, city staff, or by any person in attendance at the hearing. The planning commission shall then make a recommendation to city council to approve, approve with conditions, or deny the application, basing its recommendation upon the facts presented in the public hearing in consideration of the criteria for review as specified above. F. City council review. City council shall review and decide upon all requests for change of zone, upon recommendation of the planning commission for approval, approval with conditions, or for denial. Change of zone may only be approved by passage of an ordinance following the city's standard ordinance adoption procedures. Notice of public hearing shall be by publication, letter and site posting in the manner provided in section 26 -109 hereof. City council, in addition to consideration of the planning commission record, shall hear additional evidence and testimony presented and either approve, approve with conditions, or deny the ordinance. City council shall base its decision upon all evidence presented, with due consideration of the criteria for review. Section 2. Safety Clause: The City of Wheat Ridge hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 3. Severability: Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on this 26th day of July, 2010, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for August 23, 2010, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of s to o , this 23rd day of August, 2010. SIGNED by the Mayor on this 23rd i ATTEST: Michael Snow, City Clerk First Publication: July 2g, 2010 Second Publication: August 26, 2010 Wheat Ridge Transcript Effective Date: September 10, 2010 APPROVAL OF AGENDA Motion by Mrs. Adams to move Item 6 on the agenda to Item 7 and add as Item 6: Discussion of Recommendations of Citizens' Exploratory Committee (CEC); seconded by Council Members Berry and Langworthy; carried 5 -3 with Council Members Stites, DeMott and Sang voting No. 1. CONSENT AGENDA A. Motion to approve award RFP -10 -24 Armed Guard Services to G4S Secure Solutions USA, Inc. B. Resolution 46 -2010 amending the Fiscal Year 2010 General Fund Budget to reflect the approval of a Supplemental Budget Appropriation in the amount of $2,620 for the 2009/2010 Jefferson County Dog License Reconciliation. C. Resolution 47 -2010 —amending the Fiscal year 2010 Police Investigations Seizure Fund Budget to reflect the approval of a Supplemental Budget appropriation in the amount of $4,480.35 for the purchase of Police Equipment. D. Resolution 48 -2010 —amending the Fiscal Year 2010 General Fund Budget to reflect the approval of a Supplemental Budget appropriation in the amount of $1,850 for the renewal of the WRTV8 Scheduling Software. E. Motion to approve payment to Murray Dahl Kuechenmeister & Renaud, LLP for July 2010 Legal Services in the amount of $20,264. Consent Agenda was introduced and read by Mrs. Langworthy. Motion by Mrs. Langworthy for approval of the Consent Agenda; seconded by Mrs. Adams; carried 8 -0. PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 2. Council Bill 15 -2010 — amending Article I of Chapter 26 of the Wheat Ridge Code of Laws concerning the provision for conditions of approval in the Zone Change Process. Mayor DiTullio opened the public hearing. Council Bill 15 -2010 was introduced on second reading by Council Member Langworthy. City Clerk Michael Snow assigned Ordinance No. 1470. No citizens were present to speak. Mayor DiTullio closed the public hearing. Motion by Mrs. Langworthy to approve Council Bill 15 -2010 (Ordinance 1470) on second reading and that it take effect 15 days after final publication; seconded by Mr. Reinhart; carried 8 -0. ORDINANCES ON FIRST READING 3. Council Bill 16 -2010 — amending Chapter 26 of the Code of Laws concerning the creation of Mixed Use Zone Districts (Case No. ZOA- 09 -07). Council Bill 14 -2010 was introduced on first reading by Council Member Stites Motion by Mr. Stites to approve Council Bill 16 -2010 on first reading, order it published, public hearing set for Monday, September 13, 2010 at 7:00 p.m. in the City Council Chambers, and that it take effect 15 days after final publication; seconded by Mrs. Sang; carried 8 -0. DECISIONS, RESOLUTIONS, AND MOTIONS 4. Resolution 45 -2010 — approving a Supplemental Budget Appropriation in the amount of $65,000 for the purpose of conducting a Traffic Study and Roadway Design Analysis for 38 Avenue in conjunction with Development of a 38 Avenue Corridor Plan. Resolution 45 -2010 was introduced by Council Member Jay. Motion by Mrs. Jay to approve Resolution 45 -2010; seconded by Mrs. Sang; Motion by Mr. DeMott to amend Resolution 45 -2010 to reflect the approval of a supplemental budget appropriation of $52,000 to WR2020 to continue their already progressing studies of 38 Ave., and $13,000 to the Wheat Ridge Business District for additional grant money; failed for lack of a second. Motion by Mr. Reinhart to amend Resolution 45 -2010 to reduce the budget appropriation to $50,000, of which $30,000 be allocated to the Traffic Impact Study and $20,000 for Roadway Design Feasibility; seconded by Mrs. Sang; carried 6 -2 with Council Members Stites and DeMott voting No. Motion carried as amended 6 -2 with Council Members Stites and DeMott voting No. 5. Motion to include funding for a local match for a Federal Transportation Planning Grant Application in the 2011 Budget as part of the Wadsworth Corridor Coalition. City of Wheat Midge IN 's �J ITEM NO: A DATE: August 23, 2010 REQUEST FOR CITY COUNCIL ACTION Ap` �BBLE L. ry WF TITLE: COUNCIL BILL NO. 15 -2010 - AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS ® PUBLIC HEARING ❑ ORDINANCES FOR IsT READING (07/26/2010) ❑ BIDS/MOTIONS ® ORDINANCES FOR 2 READING (08/23/2010) ❑ RESOLUTIONS QUASI - JUDICIAL: ❑ YES Community Devel�pmdnt Director E NO - City Manager ISSUE: The attached ordinance proposes an amendment to the zoning code to establish a provision for conditions of approval during the zone change process. Currently, the zone change process provided for in Section 26 -112 (private rezoning) recognizes recommendations from the Planning Commission and approvals by City Council for only approval or denial of a request. The proposed language will allow for approval with conditions. In order to legitimize an approval with conditions during the zone change process, there should be enabling legislation included in the code of laws. The Planning Commission recommended approval of this amendment at a public hearing held on July 15, 2010. There were no suggested conditions of approval. PRIOR ACTION: None FINANCIAL IMPACT: There could be negative financial impacts to the City in respect to litigation if a zone change is approved with conditions when there is no enabling legislation in the code. Council Action Form -Case No. ZOA -10 -04 August 23, 2010 Page 2 Z BACKGROUND: Section 26 -112 lays out the process for private zone change requests. The process described in the code allows for recommendations of approval or denial by the Planning Commission and final action by City Council for approval or denial. There is no mention of allowing approval of a request with conditions. In order to allow approval with conditions, there should be a basis in the code of laws. This amendment was initiated based on the recommendation of the City Attorney. RECOMMENDATION: Approve the legislation as proposed. "I move to approve Council Bill No. 15 -2010 a proposed amendment to Article I, Chapter 26, of the zoning and development code regarding conditions of approval for zone change requests, on second reading and that it take effect 15 days after publication." Or, "I move to postpone indefinitely Council Bill No. 15 -2010 a proposed amendment to Article I, Chapter 26, of the zoning and development code regarding conditions of approval for zone change requests, for the following reason(s) " REPORT PREPARED BY: Meredith Reckert, Senior Planner Kenneth Johnstone, Community Development Director ATTACHMENTS: 1. Council Bill No. 15 -2010 2. Dahl memo dated July 23, 2010 3. Planning Commission minutes CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER TRACY LANGWORTHY ` Council Bill No. 15 Ordinance No. Series of 2010 TITLE: AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS WHEREAS, the City Council of the City of Wheat Ridge is authorized by the Home Rule Charter and the Colorado Constitution and statutes to enact and enforce ordinances for the preservation of the public health, safety and welfare; and WHEREAS, in the exercise of this authority, the City Council has previously enacted Article I of Chapter 26 of the Wheat Ridge Code of Laws (the "Code "), concerning zone changes; and WHEREAS, the Council finds and determines that provisions must be in place to allow approval with conditions during the zone change process. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26 -112 of the Code is amended to read: Sec. 26 -112. Private rezoning. A. Purpose. A change of any zone district as shown on the official zoning map is permitted only when it is consistent with the goals and policies of the Wheat Ridge Comprehensive Plan and promotes the general welfare of the community. If a proposed amendment is not consistent with the comprehensive plan, then the request may only be approved if the applicant demonstrates that the request is justified because of changed or changing conditions in the particular area or in the city in general, or the rezone is necessary to correct a manifest error in the existing zone classification. A manifest error may include, but may not be limited to, one (1) or more of the following: 1. Mapping errors, including incorrect boundary location or incorrect zone designation, or 2. Ordinance errors, including incorrect zone designation, legal description error or typographical errors. The final decision on a change of ` zone expressly rests in the exercise of the discretion of the city council Attachment 1 and all applicants are advised there is no right to a change of zone of property. E. Planning commission review. The planning commission shall hear and consider any evidence or statement presented by the applicant, city staff, or by any person in attendance at the hearing. The planning commission shall then make a recommendation to city council to approve, approve with conditions, or deny the application, basing its recommendation upon the facts presented in the public hearing in consideration of the criteria for review as specified above. F. City council review. City council shall review and decide upon all requests for change of zone, upon recommendation of the planning commission for approval, approval with conditions, or for denial. Change of zone may only be approved by passage of an ordinance following the city's standard ordinance adoption procedures. Notice of public hearing shall be by publication, letter and site posting in the manner provided in section 26 -109 hereof. City council, in addition to consideration of the planning commission record, shall hear additional evidence and testimony presented and either approve, approve with conditions, or deny the ordinance. City council shall base its decision upon all evidence presented, with due consideration of the criteria for review. Section 2. Safety Clause: The City of Wheat Ridge hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 3. Severability: Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on the 26th day of July, 2010, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for August 23, 2010, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this 23rd day of August, 2010. SIGNED by the Mayor on this day of 2010. Jerry DiTullio, Mayor ATTEST: Michael Snow, City Clerk Approved As To Form Gerald E. Dahl, City Attorney First Publication: July 29, 2010 Second Publication: Wheat Ridge Transcript Effective Date: p'rt rhx2F m u p R F) ,1a t_ !�. LJ E G E 35' T EP FZENC. Lt0 t_L_P MEMORANDUM TO: FROM: DATE: RE: Mayor and Council Gerald E. Dahl, City Attorney July 23, 2010 Ordinance permitting conditions on rezoning applications I recommend approval of the attached Ordinance which amends Section 26 -112 of the Code of Laws to permit conditions on the approval of rezoning applications. The Wheat Ridge Code of Laws, at Section 26 -112, addresses private rezoning. This procedure is used for "straight' rezoning applications as well as for approval and amendment of planned development applications (See, Code Section 26- 301.6). The private rezoning procedure limits the scope of the Planning Commission's recommendation to the City Council on rezoning to approval or denial. See, Section 26- 112.E. Similarly, Section 26 -112.F restricts the Council's authority to act on private rezonings to approval or denial. Neither subsection contemplates approval with conditions. While conditions on the rezoning applications are not common, they have been imposed on rezonings in Wheat Ridge in the past, and it is to be anticipated that the Planning Commission will want to recommend, and the Council will want to impose, such conditions in the future. This is particularly true for infill and redevelopment applications. As an inner ring suburb municipality, these applications are more common in Wheat Ridge than in other jurisdictions. The Colorado courts have upheld the imposition of site - specific conditions on rezoning in some limited circumstances, but typically where the underlying municipal code contemplated conditions. See, Kings Mill Homeowners Association Inc. v. City of Westminste 557 P.2d 1186 (Colo. 1976), and City of Colorado Springs v. Smartt 620 P.2d 1060 (Colo. 1980). Attachment 2 The Colorado Supreme Court has also held that in order to exercise a specific authority inherent in the zoning power, the local government must provide in its own regulations for that exercise, sufficient to place others on notice of the scope of the requirement. The leading case in Colorado on this point is Beaver Meadows v. Board of County Commissioners 709 P.2d 928 (Colo.1985). In Beaver Meadows the Supreme Court held that while Larimer County had the inherent authority to require certain road improvements as a condition of a PUD approval, it had not detailed the basis for those requirements in its land -use regulations, and therefore the attempted condition was void. As Council is aware, all rezonings for commercial purposes must be processed as planned developments. While Code Section 26 -302 of the planned development district regulations does state that requirements for, among other things, density in a planned development district may be "more or less restrictive" than other districts, the reference to the approval procedure in Code Section 26 -112 appears to limit the Council's role to approval or denial of the application as presented, without any conditions. It is for this reason, and in order to be able to more easily defend Council- imposed conditions on rezonings generally, that I recommend approval of the attached ordinance. Commissioner BUCKNAM stated that he was initially concerned about the northwest part of the consolidation because there is a significant amount of green space there. But in light of the fact that there is an access issue in terms of public safety concerning access for fire trucks, he is satisfied with the plat. Commissioner DWYER stated that he could find no reason not to approve the plat, but he would hope SRC would do a better job of communicating with neighbors. The motion carried 7 -0. B. Case No. ZOA- 10 -04: An ordinance amending Article I of Chapter 26 concerning the provision for conditions of approval in the zone change process. \ Gerald Dahl addressed concerns expressed by Commissioner DWYER. The code, as presently written, only gives Planning Commission and City Council power to approve or deny a zone change request In the past, there have been occasions where approvals have been given with conditions. Those conditions run the risk that there is not a code base to support it. The question then becomes whether the conditions are enforceable. The condition can be enforceable if the applicant consents to it. This ordinance was drafted to clarify conditions of approval during a zone change process. Commissioner DWYER agreed with language. However, since Planning Commission would be enabled to impose conditions under the new ordinance, he asked what protection from the risk of litigation would be provided. Mr. Dahl explained that the first line of defense is the staff report that recommends approval with conditions and reasons for the conditions. The second line of defense is the Planning Commission placing conditions which are backed up by the code. The third line of defense is the city attorney's task to examine Planning Commission recommendations before they go before Council. Chair MATT14EWS asked to hear from the public. Hearing no response, he closed the public hearing. It was moved by Commissioner DWYER and seconded by Commissioner BUCKNAM to recommend approval of Case No. ZOA- 10 -04, a proposed ordinance amending Section 26 -112 (private rezoning) concerning conditions of approval during the zone change process. The motion carried 7-0. (The meeting was recessed from 8:19 p.m. to 8:30 p.m.) Planning Commission Minutes July 15, 2010 Attachment 3 � City of l � WheatRiidge ITEM NO: 1 DATE: July 26, 2010 0 s��ZEE UEST FOR CITY COUNCIL ACTION J y W Gt v I'S TITLE: - V COUNCIL BILL NO. 15 -2010 — AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS ❑ PUBLIC HEARING ® ORDINANCES FOR 1 READING (07/26/2010) ❑ BIDS/MOTIONS ❑ ORDINANCES FOR 2 READING (08/23/2010) ❑ RESOLUTIONS ❑ YES ® NO iLuj d Director City Manager ISSUE: The attached ordinance proposes an amendment to the zoning code to establish a provision for conditions of approval during the zone change process. Currently, the zone change process provided for in Section 26 -112 (private rezoning) recognizes recommendations from the Planning Commission and approvals by City Council for only approval or denial of a request. The proposed language will allow for approval with conditions. In order to legitimize an approval with conditions during the zone change process, there should be enabling legislation included in the code of laws. The Planning Commission recommended approval of this amendment at a public hearing held on July 15, 2010. PRIOR ACTION: None FINANCIAL IMPACT: There could be negative financial impacts to the City in respect to litigation if a zone change is approved with conditions when there is no enabling legislation in the code. Ordinance Amending the Code of Laws — Conditions of Approval July 26, 2010 Page 2 BACKGROUND: Section 26 -112 lays out the process for private zone change requests. The process described in the code allows for recommendations of approval or denial by the Planning Commission and final action by City Council for approval or denial. There is no mention of allowing approval of a request with conditions. In order to allow approval with conditions, there should be a basis in the code of laws. This amendment was initiated based on a recommendation of the City Attorney. RECOMMENDATION: Approve the legislation as proposed. "I move to approve Council Bill No. 15 -2010 a proposed amendment to Article I of Chapter 26 of the zoning and development code regarding conditions of approval for zone change requests, on first reading, order it published, public hearing set for Monday, August 23, 2010 at 7 p.m. in the City Council Chambers, and that it take effect 15 days after publication." Or, "I move to postpone indefinitely Council Bill No. 15 -2010 a proposed amendment to Article I of Chapter 26 of the zoning and development code regarding conditions of approval for zone change requests, for the following reason(s) " REPORT PREPARED BY: Meredith Reckert, Senior Planner Kenneth Johnstone, Community Development Director ATTACHMENTS: 1. Council Bill No. 15 -2010 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER Council Bill No. 15 Ordinance No. Series of 2010 TITLE: AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS WHEREAS, the City Council of the City of Wheat Ridge is authorized by the Home Rule Charter and the Colorado Constitution and statutes to enact and enforce ordinances for the preservation of the public health, safety and welfare; and WHEREAS, in the exercise of this authority, the City Council has previously enacted Article I of Chapter 26 of the Wheat Ridge Code of Laws (the "Code "), concerning zone changes; and WHEREAS, the Council finds and determines that provisions must be in place to allow approval with conditions during the zone change process. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26 -112 of the Code is amended to read: Sec. 26 -112. Private rezoning. A. Purpose. A change of any zone district as shown on the official zoning map is permitted only when it is consistent with the goals and policies of the Wheat Ridge Comprehensive Plan and promotes the general welfare of the community. If a proposed amendment is not consistent with the comprehensive plan, then the request may only be approved if the applicant demonstrates that the request is justified because of changed or changing conditions in the particular area or in the city in general, or the rezone is necessary to correct a manifest error in the existing zone classification. A manifest error may include, but may not be limited to, one (1) or more of the following: 1. Mapping errors, including incorrect boundary location or incorrect zone designation, or 2. Ordinance errors, including incorrect zone designation, legal description error or typographical errors. The final decision on a change of zone expressly rests in the exercise of the discretion of the city council and all applicants are advised there is no right to a change of zone of property. ATTACHMENT 1 E. Planning commission review. The planning commission shall hear and consider any evidence or statement presented by the applicant, city staff, or by any person in attendance at the hearing. The planning commission shall then make a recommendation to city council to approve, approve with conditions, or deny the application, basing its recommendation upon the facts presented in the public hearing in consideration of the criteria for review as specified above. F. City council review. City council shall review and decide upon all requests for change of zone, upon recommendation of the planning commission for approval, approval with conditions, or for denial. Change of zone may only be approved by passage of an ordinance following the city's standard ordinance adoption procedures. Notice of public hearing shall be by publication, letter and site posting in the manner provided in section 26 -109 hereof. City council, in addition to consideration of the planning commission record, shall hear additional evidence and testimony presented and either approve, approve with conditions, or deny the ordinance. City council shall base its decision upon all evidence presented, with due consideration of the criteria for review. Section 2. Safety Clause: The City of Wheat Ridge hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 3. Severabilitv; Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this 26th day of July, 2010, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for August 23, 2010, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this 23rd day of August, 2010. SIGNED by the Mayor on this day of 2010. Jerry DiTullio, Mayor ATTEST: Michael Snow, City Clerk Approved As To Form Gerald E. Dahl, City Attorney First Publication: Second Publication: Wheat Ridge Transcript Effective Date: PUBLIC HEARING ROSTER CITY OF WHEAT RIDGE PLANNING COMMISSION July 15, 2010 Case No. ZOA- 10 -04: An ordinance amending Article I of Chapter 26 concerning the provision for conditions of approval in the zone change process. Name Address In favor /Opposed City of � Wheati ge PLANNING COMMISSION COMMUNITY DEVELOPMENT LEGISLATIVE ITEM STAFF REPORT MEETING DATE: July 15, 2010 TITLE: AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS CASE NO. ZOA -10 -04 ® PUBLIC HEARING ® CODE CHANGE ORDINANCE Case Manager: Meredith Reckert Date of Preparation: June 28, 2010 SUMMARY: The attached ordinance proposes an amendment to the zoning code to establish a provision for conditions of approval during the zone change process. Currently, the zone change process provided for in Section 26 -112 (private rezoning) recognizes recommendations from the Planning Commission and approvals by City Council for only approval or denial of a request. The proposed language will allow for approval with conditions. BACKGROUND See attached memorandum from the City Attorney labeled as Exhibit 1. "I move to recommend approval of Case No. ZOA- 10 -04, a proposed ordinance amending Section 26- 112 (private rezoning) concerning conditions of approval during the zone change process." Exhibits: 1. City Attorney memo 2. Proposed ordinance ZOA -10 -04 /Conditions of approval F M URRAY 0A" L_ K.IJ EGFiEPiME15TER RENACJO LLP TO: Wheat Ridge: Planning and Zoning File FROM: Gerald Dahl DATE: February 23, 2009 RE: Conditions on Rezoning Applications: Planned Development Districts QUESTION: May the City impose density restrictions (not agreed to by the applicant) on an application to rezone property to a Planned Development District (PDD)? ANSWER: The general police power to rezone property includes the power to impose conditions when such conditions are reasonably related to the purposes of the zoning regulations and the Code of Laws allows approval with conditions. Density restrictions likely serve at least some of the stated purposes of the City's PDD regulations. Express authority to impose conditions on such approvals, in addition to the (current) simple approval or disapproval in Code Sec. 26 -112 should be included in the PDD zoning regulations at Section 26 -302. DISCUSSION: There is not consensus among state courts concerning municipal authority to impose conditions on rezoning applications. Rathkopfs The Law of Zoning and Planning, ( 4 th ed. 2005) notes that enabling statutes vary from state to state, and the question of whether statutes delegate the power to impose conditions is left to judicial interpretation. Rathkopf § 44:2. Connecticut and Maryland have held that site - specific conditions on rezoning are ultra vires and therefore invalid. Rathkopf § 44:3. Placing conditions on a request to be included in a particular zone district that do not apply to other properties in the same zone district is, in effect, amending the zoning ordinance as applied to that particular property only. Creating such "mini" districts seems in contravention of one of the purposes of zone districts — to create groups or properties uniform in their treatment of buildings, structures and land uses. State courts in Connecticut and Maryland have cited this degradation of uniformity as one reason why site - specific rezoning conditions are generally invalid in those states. Id. However, several more states, including Colorado, have upheld the imposition of site - specific conditions on rezoning. Rathkopf, § 44:4. Two Colorado Supreme Court cases offer the leading authority in Colorado on the subject. In King's Mill Homeowners Association, Inc. v. City of Westminster 557 P.2d 1186 (Colo. 1976), the plaintiff filed an application with the City of Westminster to, among other things, annex and rezone a parcel of property from a residential to a commercial zone district. The city approved the annexation rezoning request subject to the condition that the rezoned property "be developed as a regional shopping center, and for no other purpose." Other uses were permitted as a matter of right in the commercial zone district. Plaintiffs challenged the city's imposition of conditions in this manner as impermissible "contract zoning." EXHIBIT I After noting that this was an issue of first impression in Colorado, the King's Mill court cited, with approval, cases from New York and California upholding the imposition of site - specific conditions on zoning applications: "The power to impose conditions on rezoning is an exercise of the police power and such conditions are valid as long as they are reasonably conceived." King's Mill at 1191. The court noted that the stated purpose of zoning, as expressed in Westminster's zoning regulations, is "to preserve and promote the public health, safety and welfare ... and to encourage and facilitate the orderly growth of the city." Id. Significant facts in King's Mill included that the rezoning request was part of a proposed annexation, and that the Westminster Code required the Planning Commission to forward one of three recommendations to the Council: (1) approval; (2) approval with conditions; or (3) denial. Following King's Mill the Colorado Supreme Court again considered the validity of the imposition of conditions on rezoning applications in City of Colorado Springs v. Smartt 620 P.2d 1060 (Colo. 1980). In Smartt plaintiff landowner applied to rezone property from a garden home zone district to a multi - family residential district together with a conditional use of the property as an office park. The plaintiff also sought approval of a variance from the zoning requirement that a dimensionalized plot plan be filed prior to the grant of a conditional use. The City approved plaintiffs rezoning and conditional use requests but imposed a condition that the only access to the property be from a specific street. The Court reasoned that an access restriction was reasonable given the lack of information provided by the applicant via a plot plan concerning traffic flow and safety needs. As authority to impose an access restriction, the City pointed to the stated purposes of its zoning regulations, among them: "to lessen congestion in the streets" and "to facilitate the adequate provision of transportation." Smartt at 1062. The Court also found that the City Code concerning conditional uses applicable: Section 14.81.1 of the City's Code recognizes the occasional need for allowing special, or conditional, uses of land which differ from the principal permitted uses in a particular zone. The section authorizes the City Council to grant a conditional use and to effectuate amendment of the zoning map accordingly. These two ordinance sections empower the City Council to rezone a parcel of property and to do so subject to conditions to facilitate transportation. The Smartt court disagreed with the plaintiff and upheld the City's imposition of access restrictions. It is significant that Smartt involved a conditional use permit and a request for waiver from the City's requirement of a dimensional plat plan along with the rezoning request. Wheat Ridge Code of Laws The Code, at § 26- 301.6, requires that the procedure for review of Planned Developments is that set forth at Section 26 -112. That section, in turn, provides, in part: E. Planning commission review. The planning commission shall .. . make a recommendation to city council to approve or deny the application ... City Council review. City council shall review and decide upon all requests for change of zone, upon recommendation of the planning commission for approval, or for denial by the planning commission The Colorado Supreme Court has also held that in order to exercise a specific authority inherent in the police power, the local government must provide in its own regulations for that exercise, sufficient to place others on notice of the scope of the requirement. In Beaver Meadows v. Board of County Commissioners 709 P.2d 928 (Colo.1985) the court held that while Larimer County had the inherent police power authority to require certain road improvements as a condition of a PUD approval, it had not detailed the basis for those requirements in its land use regulations, and therefore the attempted condition was void. While Code § 26 -302 does state that requirements for, among other things, density in a Planned Development District may be "more or less restrictive" than other districts, the reference to the procedure in Code § 26 -112 appears to limit the Council's role to approval or denial of the application as presented, without Council — imposed modifications. A simple amendment to Section 26 -112 E and F, specifically permitting "approval with conditions" would address this issue. While a Council- imposed density condition on a Planned Development District might survive judicial scrutiny, in order to be in line with the Beaver Meadows decision, I recommend the amendment described. In the case of a Wheat Ridge application to rezone property to a PDD zone district, any unilaterally imposed condition should further a stated purpose of the PDD regulations to be valid. If the City wished to impose density restrictions on such an application, such restrictions could theoretically be tied to the following stated purposes of the PDD regs: to promote the efficient use of land to facilitate a more economic arrangement of building, circulation systems, land use and utilities; to preserve, to the greatest extent possible, the existing landscape features and to minimize impacts on other natural features of the site; to promote flexibility in design and permit diversification in the location of structures; to ensure that adequate public utilities and facilities are available with in the area, to serve the specific development. Code § 26- 302.B. Any of these stated PDD purposes could be served by a density restriction, depending on the facts. The Wheat Ridge PDD regulations recognize "the great variety of land use intensities, densities, and environmental and land use interfaces which are possible." WR Code §26- 301.C. The regulations also authorize Council to consider requirements for density that are , 'more or less restrictive than such requirements" in zone districts similar to the requested PDD. Sec. 26- 302.B. These provisions also suggest that density restrictions should directly relate to the purposes and goals of PDDs. CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER Council Bill No. ? ?- 2010 Ordinance No. Series of 2010 TITLE: AN ORDINANCE AMENDING ARTICLE I OF CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE PROVISION FOR CONDITIONS OF APPROVAL IN THE ZONE CHANGE PROCESS WHEREAS, the City Council of the City of Wheat Ridge is authorized by the Home Rule Charter and the Colorado Constitution and statutes to enact and enforce ordinances for the preservation of the public health, safety and welfare; and WHEREAS, in the exercise of this authority, the City Council has previously enacted Article I of Chapter 26 of the Wheat Ridge Code of Laws (the "Code "), concerning zone changes; and WHEREAS, the Council finds and determines that provisions must be in place to allow approval with conditions during the zone change process. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26 -112 of the Code is amended to read: Sec. 26 -112. Private rezoning. A. Purpose. A change of any zone district as shown on the official zoning map is permitted only when it is consistent with the goals and policies of the Wheat Ridge Comprehensive Plan and promotes the general welfare of the community. If a proposed amendment is not consistent with the comprehensive plan, then the request may only be approved if the applicant demonstrates that the request is justified because of changed or changing conditions in the particular area or in the city in general, or the rezone is necessary to correct a manifest error in the existing zone classification. A manifest error may include, but may not be limited to, one (1) or more of the following: 1. Mapping errors, including incorrect boundary location or incorrect zone designation, or 2. Ordinance errors, including incorrect zone designation, legal description error or typographical errors. The final decision on a change of zone expressly rests in the exercise of the discretion of the city council EXHIBIT 2 and all applicants are advised there is no right to a change of zone of property. E. Planning commission review. The planning commission shall hear and consider any evidence or statement presented by the applicant, city staff, or by any person in attendance at the hearing. The planning commission shall then make a recommendation to city council to approve, approve : wfh.contltions, or deny the application, basing its recommendation upon the facts presented in the public hearing in consideration of the criteria for review as specified above. F. City council review. City council shall review and decide upon all requests for change of zone, upon recommendation of the planning commission for approval, approve with conditions, or for denial. Change of zone may only be approved by passage of an ordinance following the city's standard ordinance adoption procedures. Notice of public hearing shall be by publication, letter and site posting in the manner provided in section 26 -109 hereof. City council, in addition to consideration of the planning commission record, shall hear additional evidence and testimony presented and either approve, approve with condiitions, or deny the ordinance. City council shall base its decision upon all evidence presented, with due consideration of the criteria for review. Section 2. Safety Clause: The City of Wheat Ridge hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 3. Severability: Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this day of , 2010, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for , 2010, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to this day of , 2010. SIGNED by the Mayor on this day of , 2010. Jerry DiTullio, Mayor ATTEST: Michael Snow, City Clerk Approved As To Form Gerald E. Dahl, City Attorney First Publication: Second Publication: Wheat Ridge Transcript Effective Date: 1!� City of Wheat d e CO DE LAND USE APPLICATION FORM Case No. Case Description Date Received F - 7 _ 5/25/2070'. Related Cases F Case Planner Apfi&.W fr'lafmafion Name Gty of Wheat Ridge Name F- Phone F- Address I City State I Zip �- D�1whowebi7n Name Name F Phone Address _ City F Stale r Zip F— CeMacf /rdovma/Rpf� Name 1 Name Phone F-- Address I City F— State r Zip F PAnj &I&klr� Address Street !, City F— State CO Zip F--- Location Description Citywide Project Name Parcel No. _ _ Qtr Section: Distict No: Ressvws Pre-App Date Neighborhood Meeting Date �— App No: Review;Type Review Body ,Review Date ( Disposition 'Comments,, Dispesifmn Case Disposition Conditions of Approval Res # F Ord # F Date Notes I I I Status lopen ...........'.