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HomeMy WebLinkAbout10/15/1998ORIGINAL CITY OF WHEAT RIDGE PLANNING COMMISSION Study Session Notes October 15, 1998 6:30 p.m. Commission Members Present: Ann Brinkman Jerry Collins Dean Gokey Don MacDougall Tom Shockley Nancy Snow Janice Thompson Staff Members Present: Gerald Dahl, City Attorney Kelly Elefant Alan White, Director of Planning & Development Meredith Reckert, Sr. Plarmer Arm Lazzeri, Minutes Specialist Gerald Dahl reviewed his memorandum regarding various areas of the Planning Commission's jurisdiction. Commissioner SNOW asked Mr. Dahl to address covenants. Mr. Dahl explained that covenants are usually more restrictive than local land use regulations in regard to setbacks, etc. If a conflict happens between covenant and local regulations, individuals have one year to bring suit to enforce the private covenant. Local governments do not have jurisdiction to enforce private covenants with the exception of certain land uses which are governed by the State such as the Air and Water Quality Control, etc. Mr. Dahl outlined standard land use regulatory tools. In regard to planning, he noted that the City's zoning neap controls use of the property and that the master plan is merely an advisory plan. Mr. Dahl discussed quasi judicial issues stating that amendments to the zoning map are quasi- judicial. He advised the Commission that if a single piece of property is being considered and there has been notice of public hearing, the applicant cannot lobby Commission members because all of the individuals who may be affected are not present. He advised, however, that lobbying can take place regarding ordinances changing the zoning code or the comprehensive plan. He stated that quasi judicial matters are governed by informal rules of evidence and hearsay evidence can be submitted where Commission members are allowed to consider the believability of testimony. Planning Commission Study Session Page 1 10/15/98 Commissioner BRINKMAN asked Mr. Dahl to address the matter of Commission members talking among themselves during hearings. He replied that if the dialogue is something the other members should hear, the applicant deserves to hear those comments because, otherwise, the applicant is denied the right to hear all of the opinions. Commissioner GOKEY asked if it were permissible to talk to another Commission member for clarification--for example, to ask a member to explain something that has occurred in the past. Mr. Dahl replied that while there can be some background conversation, questions such as these could be asked as part of the hearing. He discouraged the Commission members from talking among themselves during hearings. Mr. Dahl discussed ex parte contact as contained in his memorandum. He advised the Commission to do whatever it takes to avoid such contacts and to encourage citizens to wait until the public hearing to make their comments. He suggested that Commissioners could tell individuals that the city attorney has advised it is improper for a Commissioner to talk about the case before the public hearing. He also suggested that Commissioners can explain that if they discuss a matter before the public hearing, they might have to step down and refrain from voting, and that this would defeat the purpose of improperly lobbying a Commissioner. He emphasized the importance of giving the applicant and other members of the public the right to have their comments heard as part of the public hearing process. He also advised Commission members against accepting gifts. Commissioner THOMPSON asked what procedures should be followed if an applicant or his representative makes a statement of fact, but does not have evidence to back it up. Mr. Dahl replied that testimony should be taken from everyone who wished to speak at the hearing and then a motion made to continue the hearing for the purpose of obtaining more information. He noted that the Commission can invite, but cannot compel the evidence to be produced. Another avenue would be to recommend denial in that the final decision is made by City Council in most cases. He stated that raising certain concerns provides a service to the City Council. Commissioner GOKEY asked if approval could be given conditioned upon proof of ownership and if it would be appropriate to take a break to determine with other Commission members how to set such conditions. Mr. Dahl replied that approval can be given with conditions; however, taking a break to discuss those conditions would not present a good public perception. He cautioned the Commissioners that the meeting cannot be continued during a break. Commissioner BRINKMAN asked if the Commission should require proof (such as a power of attorney to speak on the behalf of someone else) from people giving testimony. Mr. Dahl replied that if there are real doubts about testimony from an applicant, the case can be continued. However, - if it is a member of the public, it goes to the issue of believability and proof should not be required. In response to a question from Commissioner GOKEY regarding a situation where an individual claims to be representing a large number of people, Mr. Dahl replied that decisions shouldn't be based on the number of people-that the Planning Commission is not an "applausometer." He reminded the Commissioners that they are appointed and elected officials and are to exercise independent thought. Planning Commission Study Session Page 2 10/15/98 Commissioner COLLINS asked Mr. Dahl to address the necessity of providing drainage plans to the Commission. Mr. Dahl explained that there will be some applications where the drainage requirements are minimal or not required as a submittal document and the applicant would have the right to a hearing. However, if the Commission has serious concerns, the case can be continued or denied on the basis that the drainage plans were not available. Commissioner SNOW commented that cases have been approved in the past which were conditioned upon submittal of a drainage plan. Mr. Dahl explained that this is permissible. He cautioned the Commissioners to resist the temptation to fill in regulatory gaps on the spot. If the regulations do not exist and the Commission feels they should exist, then a process for rewriting the regulations should be initiated. Commissioner SNOW asked if it would be advisable to change the zoning ordinance to give the Commission the ability to require a site plan with any rezoning. Mr. Dahl replied that this would be up to the Commission's discretion. Ms. Reckert commented that the only place this can currently be required is in a master plan area or in a planned development. In response to a question from Commissioner THOMPSON, Mr. Dahl stated that the Plamring Commission can best serve the City Council by making sure their recommendations are very detailed. Mr. Dahl addressed contract zoning and cautioned the Planning Commission against requiring conditions that are not in the regulations. He stated that he would like to see ordinances initiated that could clean up some areas in this regard. In regard to "takings", Mr. Dahl stated that just because there is a mechanism in place for rezonings, there is no entitlement to a rezone. Alan White: Exactions and conditions. The two things we need to be concerned about are: Rough proportionality. Impacts associated with the project. The Commission needs to be careful that conditions (exactions) on an approval are directly related to the impact of the development. This is sometimes called the "rough proportionality" test. Mr. Dahl replied that case law is evolving in such matters. As an example, he stated that the Planning Commission could require a business on Wadsworth to install a sidewalk even though there are no sidewalks on either side as part of a long-range goal for the entire area to have sidewalks. Mr. Dahl addressed the issues of conflict of interest. He advised that even though there is no monetary gain involved and there is a legal right to vote, a Commissioner may wish to step down and refrain from voting on a matter to simply avoid the appearance of anything improper. He Planning Commission Study Session Page 3 10/15/98 commented further that if, at some point, a Commissioner has a strong bias and knows that lie or she might harm the process, the Commissioner should act accordingly. In response to a question from Commissioner SHOCKLEY, Mr. Dahl replied that personal decisions have to be made regarding whether you are a Planning Commission member or an activist in a certain situation. He also reminded the Commissioners that having the ability to vote on the Commission is more powerful than speaking as a private citizen on a matter. Commissioner THOMPSON asked if it would be advisable for a Planning Commissioner to speak to the City Council in a public hearing. Mr. Dahl replied that ten percent of the Planning Commission cases heard at City Council come back to the Planning Commission. He advised that it would be wise to withhold public comment until City Council has made a final decision on a matter. Commission SNOW commented that the commission has the right to a minority report Commissioner THOMPSON asked if a Commissioner could appear before the Board of Adjustment. Mr. Dahl replied that it would be permissible if it were a case which would not come before the Planning Commission; however he cautioned against any activity which could erode the power of the Planning Commission. Commissioner BRINKMAN asked what procedures to follow if contacted by the press. Mr. Dahl advised that it is okay to speak with members of the press after City Council has decided a case; however, Commissioners should not respond to questions from the press before afinal decision has been made on a matter. Mr. Dahl reviewed the memorandum from Meredith Reckert which was contained in the study session packet. In response to a question from Commissioner SNOW regarding variances, Mr. Dahl replied that variances or waivers of variance need to be in accordance with public hearing notices on a matter. Alan White asked if a variance could be approved if it were requested by the Planning Commission during the process of hearing a matter. Mr. Dahl replied that he wouldn't recommend it unless the variance was included as part of the public notice on the matter. Meredith Reckert asked what the procedure should be if it became apparent at the time of public hearing that a variance was required. Mr. Dahl replied that there will be exceptions and that one option is to let the City Council consider the variance at its hearing. Mr. Dahl reminded the Commission that the fact that the Planning Commission has required something in the past does not constitute the setting of a precedent. He stated that it is a. misconception that rezonings or conditions made in the past constitute a precedent. He stated the Planning Commission's role is to make decisions based on the code, and if the code does not provide for certain conditions, those conditions should not be granted. Planning Commission Study Session Page 10/15/98 Commissioner SNOW asked if there were provisions for a variance to be created by City Council without there being an application for variance. Mr. Dahl replied that it is necessary to have public notice. Commissioner SNOW asked if the Commission could recommend denial and ask the applicant to come back with a request for a variance. Mr. Dahl replied that it would be okay to ask the applicant to come back for another process. Commissioner GOKEY asked what procedure to follow if an applicant presents a plan (such as additional landscaping, etc.) as a selling point for his application, but the Commission feels he has no intention of completing the plan. He asked if the Commission had the right to approve the application conditioned upon the completion of the landscaping, etc. Mr. Dahl replied that it is not appropriate to place any conditions that are not required by code unless volunteered by an applicant. He also stated that the commission could make a condition that the plan presented be completed before a certificate of occupancy is issued. (I must have missed something here. This seems to be contradictory.) Mr. Dahl advised that the Commission has the right to grant a lesser variance, but can never grant a greater variance than requested. Meredith Reckert asked if an applicant can build a larger structure that requested as long as they comply with the approved setback. Mr. Dahl replied that the size of the building could be placed as a condition of approval of the variance. In regard to example no. 4 in Meredith Reckert's memorandum where a condition of variance approval is not by the recognized zoning code, Mi. Dahl replied that there is no entitlement to the granting of an exception and therefore, the answer to the question would be yes. Mr. Dahl stated that, in regard to example no. 6, where no neighborhood opposition has been voiced, the Planning Commission has the right to raise such concerns and that it also desirable to get the neighborhood involved in such issues. In regard to example no. 7, where a setback variance is granted, can future expansions be allowed in line with the varied setback, Mr. Dahl stated that the answer would be yes if the variance doesn't specifically speak to the issue. The study session adjourned at 9:45 p.m. c4Z- Arm Lazzeri, Recording 'e retary glugce Thompson, Chair ( B.a bern PCItPTS.PI.AN000M\PCMINUTE%1998\9SIOIi wild Planning Commission Study Session Page 5 10/15/98