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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.