HomeMy WebLinkAboutSUP-85-01INTRODUCED BY COUNCIL MEMBER MERKL
CORRECTED Ordinance No. 623
Series of 1985
TITLE: AN ORDINANCE PROVIDING FOR THE APPROVAL OF A SPECIAL USE PERMIT FOR A
RESIDENTIAL GROUP HOME FOR CHILDREN ON LAND LOCATED AT 10001 WEST 32ND
AVENUE, CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON, STATE OF COLORADO.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, THAT:
Section 1 . Upon application by Alex Panic, Jr. for approval of a Special Use
Permit, with conditions, to allow a Residential Group Home for Children in a
Residential -One Zone District in Wheat Ridge, Colorado, Case No. SUP -85 -1 and
pursuant to findings made based on testimony and evidence presented at public
hearing before the Wheat Ridge City Council, a Special Use Permit for a
Residential Group Home for Children in a Residential -One Zone District is
hereby granted for the following described land:
A tract of land located in the east 430 feet of the south 300 feet of
the northeast quarter of Section 28, Township 3 South, Range 69 West
of the 6th Principal Meridian, being more particularly described as
follows:
Commencing at the southeast corner of the northeast quarter of said
Section 28; thence N48 29'05 "W, a distance of 59.98 feet to the True
Point of Beginning; thence 389 41 "W, being parallel to and 40.00
feet north of the south line of the northeast quarter of said Section
28, a distance of 321.35 feet; thence NO3 27'36 "E, a distance of 55.59
feet; thence S84 03 "E, a distance of 9.08 feet; thence N05 56 11 E,
a distance of 34.85 feet; thence N84 03 11 W, a distance of 7.35 feet;
thence N09 26'03 "E, a distance of 40.26 feet; thence N04 14'36 "W, a
distance of 41.92 feet; thence N72 29'24 "W, a distance of 20.94 feet;
thence N23 08 11 E, a distance of 4.02 feet to the most southerly
southeast corner of a tract of land described in Book 2593 at Page 122
of the Jefferson County Records under Reception No. 621300; thence
continuing N23 08 "E, along the easterly line of said tract, a
distance of 11.66 feet; thence S72 45'30 "E, a distance of 16.09 feet;
thence U22 31'00 "E, a distance of 36.59 feet; thence N32 03'30 "E a
distance of 46.08 feet; thence departing the easterly line of said
tract described in Book 2593 at Page 122, N89 41'00 "E, a distance of
63.16 feet; thence S85 50 "E, a distance of 10.19 feet; thence 347
55 a distance of 40.70 feet; thence S35 55 "E, a distance of
36.20 feet; thence S76 35'15 "E, a distance of 63.00 feet; thence S52
25'35 "E, a distance of 105.20 feet to a point on the westerly
right -of -way line of Kipling Street; thence SOO 08 11 W, along said
westerly right -of -way line a distance of 132.71 feet to the True Point
of Beginning, County of Jefferson, State of Colorado.
Section 2. Conditions.
(1) The capacity of the group home to be limited as stated in the application
for a maximum of 20 adolescents between the ages of 13 and 18.
(2) The Special Use Permit be conditioned upon the site plan that has been
presented.
(3) That this Special Use Permit be issued to Personal Development Adolescent
Care unit, to Dr. Alex Panio, Jr., owner, only and if there is a change
in use or a change in ownership, the Special Use Permit would terminate.
(4) Parents' groups will continue on an off -site location.
(5) There will be no exterior signs showing it is a treatment center on the
property except for the address.
(6) All requirements of the Wheat Ridge Fire District be met.
Section 3 . Safety Clause The City Council 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.
ORDINANCE NO. 623 PAGE 2
Section 4 . Severability If any clause, sentence, paragraph, or part of this
ordinance or the application thereof to any person or circumstances shall for
any reason be adjudged by a court of competent jurisdiction invalid, such
judgment shall not affect, impair or invalidate the remainder of this
ordinance or its application to other persons or circumstances.
Section 5 . This ordinance shall take effect June 24, 1985.
INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to 0 on
this 25th day of February 1985, 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 March 18, 1985 1985, at 7:30
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
6 to 2 , this 24th day of June , 1985.
SIGNED by the Mayor on this 24th day of June , 1985.
Wanda Sang, City Cie
rk
1st Publication: February 28,
2nd Publication: July 4, 1985
Wheat Ridge Sentinel
Effective Date: June 24, 1985
FRANK STITES, MAYOR
APPROVED AS TO FORM BY, CITY ATTORNEY:
JOHN HAYES, CITY ORNEY
1985 v'
REPUBLISHED TO CORRECT ERROR IN ORIGINAL ORDINANCE: October 10 , 1985
This ordinance is published to correct Ordinance No. 623 in accordance with
Wheat Ridge Code of Laws, Appendix A., Sec. 1.,F. Specifically, Section 2.
Conditions is being corrected to accurately state all conditions of approvaS-
CITY COUNCIL MINUTES: June 24, 1985
Page -4-
Item 9. Council decision regarding the striping of 44th Avenue.
Mr. Ric Minetor was present to explain and answer questions. There was
discussion. Motion by Mr. Hobbs that 44th Avenue, Wadsworth to Kipling
Street be striped 4 lanes since street has been built to a 44 foot
flowline to flowline, the street has also been constructed at the same
width from Parfet to Tabor Street, which is 44 foot flowline to
flowline, that had been approved by City Council to be striped at 4
lanes, this would create a 3 -lane street to exist between Wadsworth
Blvd, and Kipling. Mr. Hobbs stated that he felt it needs to be striped
4 lanes, seconded by Mr. Merkl. Mrs. Snow stated that she would be
voting No because Council voted to leave it 3 lanes. Mrs. Keller stated
that she would also be voting No because the City had restriped the East
side. Discussion followed. Mr. Hobbs called for the question; no
second, carried 6 -2 with Mr. West and Mrs. Keller voting No. Vote on
original Motion failed 4 -4 with Mr. Merkl, Mr. Davis, Mr. Hobbs, and Mr.
Flasco voting yes. Motion by Mrs. Keller to restripe W. 44th Avenue to
two west -bound thru -lanes to Yarrow Street and then merge to a one
thru -lane continuing west; seconded by Mr. West; carried 6 -2 with Mr.
Hobbs and Mr. Davis voting No.
Item 10. Council decision regarding authorization to initiate
condemnation proceedings to obtain the necessary easement
across Mr. Bowser's property for the 45th & Everett Drainage
Improvement Project DI- 104.01 -85 -5.
Mr. Merkl introduced Resolution 944; title read by the Clerk; Motion
by Mr. Merkl that John Hayes be authorized to initiate condemnation
proceedings to obtain the necessary easement across Mr. Bowser's property
for the 45th and Everett Drainage Improvement Project DI- 104.01 -85 -5;
seconded by Mr. Hobbs; carried 8 -0. Motion by Mr. Merkl for the
adoption of Resolution 944; seconded by Mr. Hobbs; carried 8 -0.
Item 11. Decision regarding, or enactment of, Council Bill 178 in light
of judge's order of June 17, 1985.
Motion by Mr. Merkl for the adoption of Ordinance 623 as per the Judge's
order on June 17, 1985; seconded by Mr. Flasco. Discussion followed.
Mr. West stated that he will be voting No because he was right the first
time and believes he is right now; he doesn't feel there was anything
wrong in voting for his constituants; he thinks when the Judge made his
ruling, the window was open and the Judge smelled too much hops from the
brewery. Motion carried 6 -2 with Mr. West and Mr. Hobbs voting No.
�6 i
E'l i
F D S CNN- T ) L . V ; , - L � ) ; M N T L N C D 1 . W II I D 1
1) 1 1 MA Lj R C 1 F D"', I i F A RE f) I '11 F-. I I , J 1 1 S f I :!j! 11 HA .";ol
- OR T I11 DI F: j N D I T S. T T y LA 1 1 W:, L! R_ I i i i N l 1 1-.
c nri i
.,. c, I � ; 1. UTE m r m i: ili i ji� I I
Fileo in tho DlstrlC c F. f e
Court
DISTRICT COURT, JEFFERSON COUNTY, COLORADO j0H.:,: -. _,; _ ^
JUN 1'7 o7 ; .
Case No. 85CV0923, Division 2
of Jrffnnnn frn nty, Cnl`4r �fp0 17 --
DEFENDANT'S TRIAL BRIEF D'x
File_ _—
PERSONAL DEVELOPMENT CENTER - ADOLESCENTS, INC., a Colorado
corporation; ALEX PANIC, JR., WILLUT INVESTMENTS, a Colorado
partnership; DONALD LUTTRELL; CAROLINE LUTTRELL; CHRISTOPHER
WILSON, JR. and JEAN M. WILSON; and KRUSE PANIO PARTNERSHIP,
Plaintiffs,
VS.
THE CITY OF WHEAT RIDGE, COLORADO, a Colorado municipality,
acting by and through its City Council, the members of which are:
Kent O. Davis, Anthony N. Flasco, Clyde E. Hobbs, Moe Keller,
Larry Merkl, Nancy Snow, Randy West, Dan Wilde, and Frank Stites
(Mayor),
Defendant
ISSUE
Did the City Council for the City of Wheat Ridge abuse its
discretion or act arbitrarily or capriciously in denying
Plaintiffs' application for a special use permit to operate a
residential group home for children?
STATEMENT OF FACTS
Prior to March 18, 1985, Plaintiffs filed With the City of
Wheat Ridge, Colorado an application for a special use permit for
operation of a residential group home for children to be located
at 10001 West 32nd Avenue, City of Wheat Ridge, County of
Jefferson,. State of Colorado. Such a use is permitted in R -1
zoned districts of the City upon approval of a special use permit
by the City Council, which permit may be granted upon the 3 -•,
r
satisfaction of certain criterion and subject to certain
restrictions and limitations. Thus, it is not a use by right. 11M V
The proposed group home would accommodate up to 20
adolescents between the ages of 13 and 18. Ia essence, the home
C�
would be the site of a rehabilitation program for adolescents �.
with alcohol or drug abuse problems. The families of such
adolescents would pay a substantial fee to enter the program and
the child would receive full -time treatment for up to 45 days
during which time the parents may visit the child at the home.
Also connected with the treatment program are group family
sessions }field off the premises.
On March 18, 1985, a public hearing was held on Plaintiffs'
request for said permit. At that time, evidence both in favor of
and in opposition to the proposed group home was presented to and
heard by the City Council for the City of Wheat Ridge ( "City
Council "). Following the presentation of evidence, the City
Council failed, by a tie vote, to enact an Ordinance granting
the requested special use permit and this action pursuant to
C.R.C.P. 106(a)(4) ensued.
SUMMARY OF ARGUMENT
If there is any competent evidence to support the actions of
a zoning authority, such actions must be upheld on C.R.C.P.
106(a)(4) review, Even if it is only fairly debatable whether
such authority acted reasonably or justifiably, a court should
not interfere with the decision.
F
The City Council was required by its Ordinance No. 609,
adopted March 4, 1985, to determine whether the proposed group
home would have an adverse effect on the residential character
and quality of life in the neighborhood in which the proposed
group home was to be located. Where the City Council denies a
special use permit, the Ordinance requires that substantive
evidence be offered to show that the proposed residential group
home would have such an adverse effect.
The transcript filed with the Court in this case establishes
that substantial evidence was received on both sides of this
question, and that the City Council did in fact base its denial
on substantive evidence showing that the proposed group home
would adversely affect the neighborhood in which it was to be
located. The City Council therefore, as a matter of law,
properly exercised its discretion in reaching a determination
that the special use permit should be denied based upon such
evidence. Therefore its denial must be upheld.
It is important, perhaps vital, to note clearly at the onset
that the proposed group home involved in this case is not a
"group home for the developmentally disabled" as defined in
C.R.S. 1973, 531 -23 -303. The group home here sought to be
established is subject to regulation by the City under its zoning
ordinances free from state regulation. in order to regulate such
a use, the City of Wheat Ridge has enacted Ordinance No. 609,
discussed more fully supra. Thus, no equal protection issue of
whether the Ordinance infringes a fundamental interest or
discriminates against a suspect class is presented in this case.
3
v -
Rather, the standard for review is the familiar standard .
discussed herein.
ARGUMENT
Plaintiffs allege that the City Council abused its
discretion or acted arbitrarily or capriciously in denying their
application for a special use permit for operation of a
residential group home for children at the proposed location, and
that this Court should overturn the City Council's decision.
The standard for review of the decision of an inferior
tribunal pursuant to C.R.C.P. 106(a)(4) is limited and embodies
only the question whether, on the basis of the record as a whole,
the ultimate findings of the agency are supported by any
competent evidence. Cooper v Civil Service Commis sion, 43 Colo.
App. 258, 604 P.2d 1186 (1979). Unless the Court upon review
finds that the administrative body's decision is unsupported by
any competent evidence, the Court cannot set aside its decision
on the ground that it is arbitrary and capricious. Marker v.
City of Colorado Springs 138 Colo. 485, 336 P.2d 305 (1975);
Hoard of County Commissioners of Jefferson County v. Simmons 494
P.2d 85 (Colo. 1972).
The record in this case unequivocally establishes that the
City Council's denial of aspecial use permit was based upon
proper considerations and was supported by competent evidence.
The standard to be used by the City Council in determining
whether to issue a special use permit for a residential group
home for children is contained in Section 1(c) of Ordinance No.
609 of the Code of Laws of the City of Wheat Ridge, adopted by
4
the City Council on March 4, 1985 and effective March 6, 1985,
which provides in pertinent part as follows:
c
It is clear from the above emphasized language of Ordinance
No. 609 that an affirmative finding . that the proposed group home
will not have an adverse effect on the residential character and
quality of life in the particular neighborhood of its location is
required before the City Council may grant a special use permit
thereunder. It reasonably follows that if, after public hearing
at which evidence is received and considered, the City Council
cannot make the finding that the proposed group home will not
have an adverse eEEect, the City Council must deny the permit.
The only question which this Court should consider is whether
valid and substantive evidence was offered in the hearing which
supports the denial of the special use permit applied for by
5
ANY SPECIAL USE PERMIT GRANTED PURSUANT TO THIS SECTION
SHALL BE LIMITED IN ITS EFFECTIVENESS TO THE APPLICANT
THEREFORE, AND SHALL PROVIDE, BY ITS TERMS, FOR
TERMINATION UPON CESSATION OF OWNERSHIP, MANAGEMENT OR
USE OF SAID APPLICANT. THE LIMITATION SPECIFIED IN
THIS SUBPART c IS DEEMED NECESSARY BY THE CITY COUNCIL
IN ORDER TO MAINTAIN THE MAXIMUM LAWFUL AUTHORITY OVER
THE USE AND USER APPROVED BY ANY SUCH ISSUED SPECIAL
.;
Plaintiffs. The City of Wheat Ridge believes that such evidence
was presented.
"Sustanti.al evidence" to support a zoning authority's
decision has been defined in Rathhoff, The Law of Zoning and
Planning Section 42.07, pp. 42 -77, 78, as follows:
This does not mean that a mere scintilla of evidence will
suffice, nor does it mean that the court is bound to select
the testimony of one side, with absolute blindness to that
introduced by the other. The record is to be considered as
a whole, and it is for the court to determine what
constitutes substantial evidence. The court is not to
substitute its discretion for that committed to the agency
by the Legislature, but is to sustain the agency if it is
reasonably supported by substantial evidence before the
court. If the evidence as a whole is such that reasonable
minds could not have reached the conclusion that the agency
must have reached in order to justify its action, then the
order must be set aside.
Quoting from Davis v. Zoning Hoard of Adjustment 362 S.W.2d 894
at 897 (Tex. Civ. App. 1962) (emphasis in original). In
this case, the testimony presented to the City Council in
opposition to the proposed group home included valid and
substantive evidence which would reasonably and justifiably lead
a city council to conclude that the proposed group home would
adversely affect the character and quality of the neighborhood.
Terry Forcade, a resident of the neighborhood of the
proposed group home with seven years' experience as a real estate
agent, testified as to the likelihood of diminished property
.values and increased opportunity for other commercial and
business enterprises in the area as a result of granting the
special use permit. (Transript at 42, lines 10 -16).
Woody Norman, a resident of the neighborhood and former
prosecutor with the Jefferson County district attorney's of Eice,
6
presented substantial testimony as to the risk of heightened
crime which would be likely to result from location of the
proposed group home in the neighborhood. Such testimony was
based upon Mr. Norman's first -hand involvement in actual cases
involving persons being treated in group homes similar to the one
at issue in this case. Certainly such testimony constitutes
valid and substantive evidence. (Transcript at 43, line 14,
through 44, line 6). -
Michael Sipes, a school teacher, and Betty Woods, both
residents of the neighborhood in which the proposed home would be
located, testified as to the close proximity of the home to at
least four schools, namely Vivian Elementary School, Prospect
Valley School, Everitt Junior High School and Wheat Ridge High
School and the potentially adverse effect the group home would
have on the safety and welfare of the children attending these
schools. (Transcript at 46, lines 11 -25, 47 lines 1 -3, 51 lines
2 -14).
Testimony was also introduced at the hearing with respect to
potential traffic congestion problems. (Transcript at 37, line
25 and 38, line 1) and the adverse effect on the neighborhood of
allowing a for - profit enterprise in a residential area.
( Transcript at 41, lines 19 -25).
All of the above statements constitute valid and substantive
evidence which might reasonably and justifiably preclude a city
council from finding that a neighborhood will not be adversely
affected by the proposed group home.
7
Ordinance No. 609 as above quoted, does riot state that a
denial of a special use permit cannot be based upon neighborhood
opposition. It merely prohibits a denial based on neighborhood
opposition where the testimony presented by neighbors does not
contain valid and substantive evidence as tc the adverse effect
the proposed home will have on the residential character and
quality of the neighborhood. The purpose of this Ordinance is to
preclude denials baed solely upon fear and prejudice, factors the
City acknowledges are not legally sufficient to justify denial of
this special use permit. The Ordinance does, however, recognize
the right of neighboring property owners to object to the
proposed use based on those legally recognized factors by which
all zoning actions are judged -(i.e. conformance to comprehensive
plan, traffic impacts, adverse effects on surrounding properties,
etc.)
The testimony described above was proper and substantive
evidence as to the issues of whether the proposed group home
would adversely affect the neighborhood, and also as to the
criteria important to zoning and planning decisions pursuant to
state statute and to the City's comprehensive zoning ordinance.
Section 31 -23 -303 C.R.S. and Ordinance No. 98, Series of 1971
codified (as amended) as Appendix A of the Code of Laws of the
City, provide that the following are among the factors which
should be considered by the zoning authority: conformance with a
comprehensive plan; degree of congestion in the streets; safety
from fire, panic, floodwaters and other dangers; promotion of
health and general welfare; prevention of overcrowding of land;
8
and avoidance of undue concentration of population. zoning and
planning regulations are to be made with reasonable consideration
as to the character of the district and its particular
suitability for particular uses and with a view to conserving the
value of property and encouraging the most appropriate use of
land throughout the municipality. C.R.S. 431 -23- 303(1) and
Ordinance No. 98. The record in this case reflects that the City
Council members who voted against the granting of this special
use oermit were concerned about access problems and traffic
congestion, close proximity to schools, retention of the
residential character of the neighborhood, preservation of
property values and incompatibility of the proposed use with the
neighborhood. (Transcript at 91, line 17, through 92, line 17;
92, line 19, through 93, line 20; 93, line 22, through 94, line
11; 94, line 13, through 95, line 9.)
The City Council properly considered the testimony presented
at the March 18, 1985 hearing as it bore on the criteria found
both in Ordinance No. 609, C.R.S. Section 31 -23- 303(1) and
Ordinance No. 98. As was recognized by the Oregon Supreme Court
in Anderson v. Ped en, 284 Ore. 313, 587 P.2d 59 (1978), while a
denial based solely upon general neighborhood objection to the
use may be arbitrary, "this does not preclude a (zoning
authority) from considering the evidence submitted by the persons
most familiar with the neighborhood insofar as it bears upon the
objective factors important to the future of the area affected by
the proposed use" and upon the issues of maintenance of land
values and compatibility with existing uses. Id. at 67 -68.
9
0
Based upon the valid and substantial evidence supporting the
i
City Council's decision discussed herein, it would not be
appropriate for this Court to set aside said decision.
Under well - established Colorado law, where the evidence
presents a fairly debatable question as to whether the action of
the administrative body was unreasonable and arbitrary, the Court
must uphold the decision of the elected members of such
administrative body who possess expertise as to the issue being
decided and who are familiar with the interests and objectives of
the community. Huneke V. Glaspy 396 P.2d 453 (Colo. 1964);
Nopro Co. v. Town of Cherry Hills Village 504 P.2d 344 (Colo.
1973); Famularo v Board of County Commissioners of Adam County,
505 P.2d 958 (Colo. 1973).
This case presents at the very least a fairly debatable
question as to whether the City Council acted reasonably and
justifiably in denying a special use permit to Plaintiffs. As
one who was present at the emotion - filled hearing on this matter,
substantial evidence was presented on both sides of this question.
As stated by the most eloquent of the supporters of the proposed
group home, this matter presented "a judgment call for all of
(the Council members)." Transcript at 87, line 25.
Based upon this conflicting testimony and evidence, the
Council members exercised their judgment and their lawful
discretion. A court is without power to substitute its .zoning
philosophy with that of the legislative body charged with
implementing the zoning ordinance. Nopro Co. v. Town of Cherry
Hills Village 504 P.2d at 348; Huneke v. Glasby 396 P.2d at
10
456; Baum v. City and County of Denver 396 P.2d at 697, quoting
from Robinson v. City of Bloomfiel Hills 350 Mich. 425, 86 N.W.
2d 166, 172 (1957). For this reason, the Court must, as a matter
of law, defer to the discretion of the elected members of the
administrative body charged with making the decision.
CONCLUSION
The City Council unquestionably complied with both the
language of Ordinance No. 609 and with the standard of review
under Rule 106(a)(4) which requires that the decision of an
administrative body be upheld where there is any competent
evidence to support it. It simply cannot be said that the City
Counci'l's decision was unsupported by any competent evidence so
as to mandate a reversal by this Court.
Moreover, it is at least fairly debatable that the City
Council acted reasonably and not arbitrarily in denying a special
use permit to Plaintiffs.
For these reasons, the Wheat Ridge City Council's decision
to deny a special use permit to Plaintiffs should be upheld and
this action against the City of Wheat Ridge and its City Council
members dismissed.
MCMARTIN, BURKE, LOSER,
& FITNERALD� P \C.
By ( " �' ( \/' �\--
John E. Hayes, #523
Jplia F. Crowe, W4045
Attorneys for Defendant
600 First Interstate Center
3333 South Bannock Street
Englewood, CO 80110
761 -1481
11
DISTRICT COURT, COUNTY OF JEFFERSON, STATE. OF COTARADO
g 1
CASE NUMBER 85CVO923, DIVISION 2
FINDINGS OF FACT AND ORDER .. - - --
PERSONAL DEVELOPMENT CENTER -ADOLE SCENTS,' a Colorado
corporation; ALEX. PANIO, JR.; WILLUT INVESTMENTS, A Colorado
Partnership_, DONALD LUTTRULL, CAROLINE LUTTRULL, CHRISTOPHER
WILSON, JR. and JEAN M. WILS (�F'Rld`R�& fi F� PARTNERSHIP,
Plaintiffs,
SUN is +'p,
VS.
of JYfUSOR COON; plgrza
THE CITY OF WHEAT RIDGE, COLORADO, a Colorado municipal ' t y,
acting by and through its City Council, the members of which
are: Kent 0. Davis, Anthony N. Flasco, Clvde E. Dobbs, Moe
Keller, Larry Merkl, Nancy Snow, Randy West, Dan Wilde, and
Frank Stites (Mayor),
Defendant.
re vh a r m+ f4 f'b "3.daP s
' x
2.
THIS MATTER having come before the Court on the 17th day
v
Y':?
of June, 1985 follow the filing of an action under Rule 106,
rf�t
C.R.C.P.; the Court having reviewed the record of proceedings as
A y
prepared by the Municipal i.ty, having .reviewed the Court's file
`
and the Briefs filed by legal counsel, and being otherwise fully
6 y
advised,?;
j
FINDS as follows:
3
Ordinance No. 609 governs the issuance or denial of
w " '
1. On March 18, 1985 Case Number S.U.P. 85 -1 came before
use
the Wheat Ridge City Council, for a public hearing upon a
f
request for a Special Use Permit for a Residential Croup Home
y y-1'i
For Children.
t i
re vh a r m+ f4 f'b "3.daP s
' x
2.
Following the public hearing the Wheat Ridge City
v
Y':?
Council
by
a vote of four to four, denied the request for the
Special
Use
Permit.
6 y
£�
3
Ordinance No. 609 governs the issuance or denial of
w " '
special.
use
permits for Residential Group Homes For Children.+'
t i
4.
Ordinance No. 609 contains very specific language
p
regarding
the criteria upon which issuance or denial of a£
special
use
permit must be based. The Ordinance provides:$`
U l+
The City Council, prior to granting such
special use permit, shall be required to
re vh a r m+ f4 f'b "3.daP s
' x
?fir;
determine chat the proposes group home will not
have an advnroo effect an the residential
character and quality of life in the particular
neighborhood of its location. The City Council
may not deny a special use per mit for
proposed Residential. Group Home solely on the
basis of neighborhood opposition, where no
valid and substantive evidence has be =n offered
to show that the proposed Residential Group
Home would have such an adverse effect.
5. The provisions of Ordinance 609 require the submittal
of valid and substantive evidence.
6. The record in this case fails to reflect any valid
and substantive evidence upon which the City Council could have
rightfully denied the special use permit sought by the
applicant.
7. The votes of at least two of the council persons
casting negative votes clearly violate the provisions of
Section c of Ordinance No. 609.
8. The action of the City Council in denying the
applicant's request for a special use permit is unsupportable by
the record, without foundation, was arbitrary and capricious,
and constituted an abuse of discretion.
Therefore, the Court ORDERS as follows:
1. Wheat Ridge case number. S.O.P. 85 -1 is remanded to
the City Council with directions to forthwith issue the
requested Special Use Permit for the operation of a Residential
Group Home For Children, which facility shall be locaked at
10001 West 32nd Avenue, City of Wheat Ridge, State,of Colorado.
Y1- /
DUNG AND SIGNED IN OPEN COURT this day o� - - +' =� ,
1985 nunc pro tuna, June 17, 1985.
BY THE COURT:
' District Court Judge
APPROVED AS TO FORM:
Maurice C. Pox, No. 324E Joh4At,' yes,
Attorneys for Plaintiffs Cit - Wheat F.idge
4465 Ripl.ing 3333 South Bannock Street
Wheat Ridge, Colorado 80033 600 First lnte rstate Center
424 - 4443 Englewood, Colorado 60110
7
z �
1'
�. y
CITY COUNCIL MINUTES: March 18, 1985
Page -2-
B) Resolution 938 was introduced by Mr. West; title read by the Clerk.
Motion by Mr. West for the adoption of Resolution 938; seconded by Mr.
Merkl; carried 7 -0 with Mr. Flasco abstaining.
Item 2. Council Bill 178 - An Ordinance providing for the approval of a
Special Use Permit for a Residential Group Home for Childven on
land located at 10001 West 32nd Avenue, City of Wheat Ridge,
County of Jefferson, State of Colorado.
(Case No. SUP -85 -1) (Alex Panic, Jr.)
Council Bill 178 was introduced by Mr. Merkl; title read by the Clerk.
City Attorney Hayes introduced applicants' exhibits A and B. He also
introduced 3 separate packets from the protestants. Exhibit III (42
petitions in opposition to the proposed SUP; Exhibit I - marked legal
protest with 9 signatures; Exhibit II - Notice of Protest. Mr. Hobbs
submitted letters he had received, into the record marked as Council
Submissions. Mr. Stromberg presented the staff report; entered
documents into the record; showed slides and overhead transparencies.
Speaking in favor of the application and sworn in by the Mayor were:
Maurice Fox attorney for the applicant; Gary Davis 10147 N. Freemont
Place, father of a teenager who had been treated by applicant; James
Holyfield, 1043 St. Paul Street, Denver, Colorado Dept. of Health;
Alviina Mabry 1839 Mt. Zion Drive, Golden, teacher at the presently
licensed facility owned by the applicant; William Jarvis 7563 Sourdough
Drive, father of a teenager who was treated by applicant. Mr. Fox
entered Exhibit D showing the site as it currently is and pointed out
the six foot fence that surrounds the property; the sufficient parking
spaces; showed an overhead aerial of the site; pointed out the privacy
of the property.
Speaking in opposition and sworn in by the Mayor were: Lary Lawler
12410 W. 31st Ave., attorney for the opposition; Charles Kimball 10628
W. 31st Place, attorney, representing some property owners in the area;
Bill Powers 14 Hillside Drive, Coy Watson 10004 W. 30th Ave., Anita
Hansen 10280 W. 33rd Ave., Bernadine Moore 10024 W. 30th Ave., Ross
Westover 9965 W. 34th Drive, Woody Norman 37 Hillside Drive, Douglas
Schuler 10370 W. 33rd Ave., Michael Sipes 2065 Miller Street, Betty
Woods 16 Skyline Drive, Terri Forcade 32 Skyline Drive, Kirk Forcade
32 Skyline Drive, Dr. Charles Zarlengo, 50 Hillside Drive, Louise
Turner 11256 W. 38th Avenue. Their concerns included a business in a
residential neighborhood; property values dropping; concern for their
children; close proximity to four schools; quantity of outpatients;
drugs in the neighborhood.
Mr. Fox spoke in rebuttal and then answered Council's questions and
concerns which included: possible selling of drugs to passing high
school students; how many occupants would be in residence; will JeffCo
Social Services supervise this facility; will they be allowed to make
placements in this facility; the number of teachers; does Blue Cross and
Blue Shield pay any percentage of the payments; who makes the
determination when the treatment is completed; what kind of social
CITY COUNCIL MINUTES: March 18, 1985 Page -3-
activity is at the center; what are the school hours; have there been
any complaints about children getting out and meeting students from
junior high schools and giving them drugs; does Dr. Panio keep a close
control on the children.
Motion by Mr. Merkl that Case No. SUP -85 -1, a request for a Special Use
Permit for a Residential Group Home for children on property located at
10001 W. 32nd Avenue, be approved for the following reasons: 1. The
proposed facility conforms with all the requirements of the Special Use
Permit in the Residential -One Zone District. 2. The request is
compatible with adjacent land uses and zoning if used in conformance
with the submitted site plan and specifically for those uses the
applicant has indicated. With the following conditions: 1. The capacity
of the group home to be limited as stated in the application for a
maximum of 20 adolescents between the ages of 13 and 18. 2. The
Special Use Permit be conditined upon the site plan that has been
presented. 3. That this Special Use Permit be issued Personal
Development Adolescent Care Unit, Dr. to Alex Panic, Jr., owner, only
and if there is a change in use or a change in ownership the Special Use
Permit would terminate; seconded by Mr. Davis. Mrs. Snow asked that Mr.
Merkl add 3. That the proposed Group Home will not have an adverse
effect on the neighborhood. Mr. Merkl and second accepted. Mrs. Snow
continued that under conditions be added: 4. Parents Groups will
continue on an off -site location. Mr. Merkl and second accepted that.
Mrs. Snow asked to add 5. There will be no exterior signs showing it is
a treatment center on the property except for the address. Mr. Merkl and
second accepted. Mr. Merkl added at Mr. Hobb's request 6. All
requirements of the Wheat Ridge Fire District be met. Second accepted.
Mrs. Keller stated she would be voting No because the homeowners in the
neighborhood have the right to say what they want or not want in their
neighborhood. Mr. West will be voting no because the change will be a
blight on the community that a home of this size would invite
lawbreakers and could invite drug traffic and could have an adverse
effect on close -by schools; will have an adverse effect on the
residential character and quality of life in the neighborhood near the
location; has no social or economic value to the community; property
owners should be able to rely that expected use categories will be
maintained to protect homeowners -that they have a right to have peace of
mind, and that their property values be preserved by excluding damaging
intrusions for profit; R -1 zoning is the highest residential and most
restrictive in the City. It specifies that it is intended for single
family use; that this group home is maintained for substantial profit to
the operator; is fundamentally a business use of land and house rather
than for normal single family usage; does not conform to the
Comprehensive Plan. Mr. Wilde will be voting no because he is not
convinced that Jefferson Social Services will be supervising this
activity. If they do, they require at least one placement be made and
they also have some control over the cost of the entry; it will
encourage special use requests and zoning changes in the immediate area;
it could have an adverse effect on property values; and citizens have a
right to preserve the values they bought their homes for; the nature of
the proposed use is not compatible. Mr. Hobbs will be voting No because
there have been 528 signatures against; this could be taken to a
CITY COUNCIL MINUTES: March 18, 1985 Pc._: -4-
referendum; the people have made clear their wishes; it would
C the property values; the access in and out of the school.
Motion as amended Failed 4 -4 with Councilmembers Merkl, Davis, Flasco,
and Snow voting yes.
Item 3. Council Bill 180 - An Ordinance adopting Standards and Criteria
for the review and approval of Holding Tanks within the City of
Wheat Ridge, and adopting by reference the "Design Criteria for
Wastewater Treatment Works ", adopted and published by the
Colorado Department of Health, Water Pollution Control
Division, the "Criteria used in the review of Wastewater
Treatment Facilities" adopted and published by the Colorado
Department of Health, Water Pollution Control Division, and the
"Recommended Standards for Sewage Works ", 1978 Edition (Ten
State Standards), adopted and published by the Great
Lakes -Upper Mississippi River Board of State Sanitary
Engineers, and providing a penalty for violation thereof.
Council Bill 180 was substituted by a Council Bill brought in by City
Attorney, John Hayes, titled: An Ordinance amending Section 27,
Regulations applicable to all Districts of Appendix A of the Code of
Laws of the City of Wheat Ridge by establishing criteria for issuance of
rezoning approvals and building permits in instances where holding tanks
are required to be installed and maintained within the City of Wheat
Ridge, and providing a penalty for violation thereof. This substitute
Council Bill 180 was introduced by Mr. Wilde; title read by the Clerk.
Speaking in opposition and sworn in by the Mayor was Connie Rossillon
6505 W. 31st Avenue, who questioned whether or not holding tanks were
"fail safe" and gave various examples of other supposedly "fail safe"
instances. Motion by Mr. Wilde for adoption of Council Bill 180
(Ordinance 612 on second reading; seconded by Mr. Flasco; carried 8 -0.
After discussion Mrs. Snow requested that another vote be taken. Council
was repolled on Mr. Wilde's motion — carried 7 -1 with Mrs. Snow voting
NO.
Motion by Mr. Wilde to go past 11:00 p.m. and continue the agenda in its
entirety; seconded by Mr. Hobbs; carried 6 -2 with Mr. West and Mr. Davis
voting No.
Item 4. Council Bill 177 - An Ordinance providing for the approval of
Rezoning from Residential -One to Residential -One -C on land
located South of West 30th Avenue, between Marshall Street and
Newland Street, City of Wheat Ridge, County of Jefferson, State
of Colorado.
(Case No. WZ- 84 -37) (Daniel Schneider)
Council Bill 177 was introduced on second reading by Mr. Wilde; title
read by the Clerk; Ordinance No. 613 assigned. Mr. Stromberg gave the
staff report and showed slides. Daniel Schneider applicant, was sworn
in by the Mayor.