HomeMy WebLinkAboutCCCC Final Legal Analysis Memorandum HRF PUD_13-FEB-261
CATTLE CREEK CONFLUENCE COALITION MEMORANDUM
HARVEST ROARING FORK PUD – LAND USE CODE COMPLIANCE FAILURES
I. Summary of Findings
The Garfield County Land Use and Development Code (LUDC) establishes mandatory
requirements that an applicant must satisfy before The Planning Commission can recommend
approval of a PUD Application. These requirements are not discretionary. They are as follows:
a. LUDC Section 6-101.A.: “PUDs must be in general conformance with the
Comprehensive Plan.”
b. LUDC Section 6-202. B.1.c.: “The approved PUD zoning and the approved PUD
Plan are inseparable. PUD zoning shall not be approved without the approval of
the related PUD Plan documents.”
c. LUDC Section 6-2-202.C.: “An application for PUD Zoning shall meet the
following criteria:
1. Purpose and Applicability. The PUD meets the purpose and applicability of
this Code, as provided in section 6-101.A. and B.
2. Development Standards. The PUD meets the Development Standards as
provided in section 6-401.
3. Standards, Article 7. The PUD meets the standards within Article 7, Division
1, excluding 7-101.
4. Rezoning Criteria. The PUD meets the Rezoning Review Criteria in section 4-
113.C.
5. Established Zoning Standards. The PUD Plan adequately establishes uses
and standards governing the development, density, and intensity of land use by
means of dimensional or other standards.”
Under Section 4-101.F.2. of the LUDC, “If the application fails to satisfy any one (1) of
the applicable requirements and compliance cannot be achieved through conditions of approval,
the recommending body shall recommend that the application be denied.” (emphasis added). In
this case, the recommending body is the Planning Commission. Pursuant to LUDC Section 1-
108.B.3.: “The word ‘shall’ is always mandatory.”
Accordingly, the Planning Commission would abuse its discretion and exceed its
jurisdiction if it failed to recommend denial of the Harvest Roaring Fork (HRF) Application
based on any one of the thirteen following failures under the LUDC:
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1. The PUD Application is not in general conformance with the Comprehensive
Plan as required by LUDC Section 6-101.A. The HRF PUD Application exceeds the
maximum density of 5.8 units per acre. It includes commercial uses that are not
contemplated under the RH land use designation. It is not consistent with the underlying
RS zoning of one unit per 20,000 square feet. It is not consistent with the rural character
of the area and the existing density of surrounding properties. The PUD does not use
clustering or other mechanisms to achieve the higher density.
2. The PUD Application does not satisfy Section 6-202. B.1.c. PUD zoning and
the PUD Plan are inseparable; zoning approval requires simultaneous approval of the
Plan documents. Because HRF has failed to submit detailed PUD documents that meet
the specific development criteria under the LUDC standards, including a Phasing Plan,
PUD Map, Site Plan, Grading and Drainage Plan, and Landscaping Plan, an essential
requirement under Section 6-2-2.B.1.c is missing.
3. The PUD Application does not meet the criteria under LUDC Section 6-2-
202.C. The PUD Application does not meet the purpose and applicability of this Code, as
provided in Section 6-101.A. and B, because it is not in conformity with the
Comprehensive Plan, does not meet the Development Standards as required in Section 6-
401, does not meet the standards within Article 7, Division 1, and does not adequately
establish uses and standards governing the development, density, and intensity of land use
by means of dimensional or other standards.
4. The PUD Application does not meet the Design Standards of Article 7
Division 1. There is no detailed road plan required by Section 7-107. The PUD’s
proposed land uses do not conform to, nor are they compatible with the nature, scale, and
intensity of adjacent land uses as required by Section 7-103.
5. The PUD Application does not meet the Rezoning Review Criteria in Section
4-113.C. The PUD rezoning does not result in a “logical and orderly development
pattern.” To the contrary, the proposed density of the development far exceeds the
permissible density under the RS zone district, is inconsistent with existing adjacent
residential developments, and is far in excess of that contemplated under the
Comprehensive Plan. The proposed rezoning also fails to address “a demonstrated
community need with respect to facilities, services, or housing.” The development will
exacerbate traffic congestion on Highway 82, will not provide effective mass transit
services, and will not meet the community demand for affordable housing. The housing
demand generated by the development itself will exceed the 10% affordable mitigation
housing proposed by the developer.
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6. The PUD Application Does Not Meet LUDC Section 6-401.I. Phasing Plan
Requirement. HRF has not submitted a binding Phasing Plan with firm contractual
deadlines for the completion of the various project phases.
7. The PUD Application Does Not Meet LUDC Section 6-301 and 302 PUD Map
Requirement. The PUD Map does not show the location, acreage, type, and densities of
all proposed land uses, lots, building sites, rights of way, easements, designation of
building envelopes, open space, and designation of flood or other hazard areas shown by
location and dimension.
8. The PUD Application Does Not Meet LUDC Section 4-203.B. PUD Site Plan
Requirement. There is no Site Plan showing the topography, storm drainage, parking
areas, driveways, emergency turn-outs, sidewalks, paths, existing and proposed roads,
utility lines, easements and rights-of-way, location and dimension of all existing and
proposed structures, elevation drawings showing existing grade, finished grade, and
height of the proposed structures, location and size of sewer service lines and treatment
facilities, the location and size of water lines, and location and size of signs.
9. The PUD Application Does Not Meet LUDC Section 4-203.E. PUD Grading
and Drainage Plan Requirement. No detailed Grading and Drainage Plan was
submitted.
10. The PUD Does Not Meet LUDC Section 4-203.F. PUD Landscaping Plan
Requirement. No detailed Landscaping Plan was submitted.
11. The PUD Relies on “Form Based Zoning”. Form based zoning is not a
recognized or adopted type of zoning under the LUDC or the Comprehensive Plan.
12. The Applicant’s PUD Plan Overrides the LUDC’s Conflict Provisions. The
proposed PUD Guide would prevail over conflicting or more stringent public health and
safety requirements under the LUDC.
13. The Applicant’s PUD Plan Overrides the LUDC’s PUD Amendment
Procedures. The proposed PUD Guide would dictate what amendments to the PUD are
deemed minor and deprive the Planning Director of making that decision, including
increasing building heights, realigning streets, reducing lot line setbacks, decreasing
landscaping, and other significant amendments.
The Applicant’s forgoing failures mandate denial of this Application.
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II. Detailed Analysis of Relevant Criteria for Review
1. The PUD is not in general conformance with the Comprehensive Plan, LUDC
Section 6-101.A.
Standard for Decision: “PUDs must be in general conformance with the
Comprehensive Plan.”
Analysis: The Comprehensive Plan calls out this property for Residential High
(RH) density. Upon revocation of the existing PUD, the property will revert to
Residential Suburban (RS) zoning. RS zoning contemplates “low-density
suburban residential uses developed to maintain a rural character” with minimum
lot size of 20,000 square feet and 50% lot coverage.
Residential Suburban (RS), Residential Urban (RU), Residential Mobile Home
Park (RMHP), and Planned Unit Developments (PUD) are considered compatible
zoning districts under the Comprehensive Plan. However, the Comprehensive
Plan sets the maximum density limits for RH at one (1) dwelling unit per 7,500
sq. ft. (i.e. 5.8 dwelling units per acre) to one (1) dwelling unit per two (2) acres.
HRF has an average density of 8.9 units per acre based on their Neighborhood
Standards. This density ranges from a minimum of 6 units per acre up to 15 units
per acre. These figures also include the 54 acres of the conservation easement
which is undevelopable under any circumstance. If the conservation easement is
excluded, the average density increases to 10.6 units per acre. This also assumes
1,500 total units. If 375 ADUs are included, the density increases even further.
The proposed density is twice that contemplated under the Comprehensive Plan
and is therefore non-compliant. The Applicant’s density table is set out below:
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2. The PUD Application does not satisfy Section 6-202.B.1.c.
Standard for Decision: “The approved PUD zoning and the approved PUD Plan
are inseparable. PUD zoning shall not be approved without the approval of the
related PUD Plan documents.”
Analysis: The PUD zoning and the PUD Plan documents must be approved
together. Because HRF has failed to submit a detailed Phasing Plan, PUD Map,
Site Plan, Grading and Drainage Plan, and Landscaping Plan that meet the
specific development criteria under the LUDC standards, a mandatory
requirement under Section 6-2-2.B.1.c is missing.
3. The PUD Application does not meet the criteria under LUDC Section 6-2-
202.C.1 through 5.
Standard for Decision: “An application for PUD Zoning shall meet the
following criteria:
Requirement 1 - Section 6-2-202.C.1. Purpose and Applicability. The PUD
must meet the purpose and applicability of this Code, as provided in section 6-
101.A. and B.
Analysis: The PUD Application does not meet the purpose and applicability of
the Code, as required in Section 6-101.A. “PUDs must be in general conformance
with the Comprehensive Plan.” The Application fails because it does not comply
with or conform to the Comprehensive Plan due to higher than permitted density
(average 8.9 units per acre when the maximum is 5.8 units per acre).
Requirement 2 - Section 6-2-202.C.2. Development Standards. The PUD must
meet the Development Standards as provided in Section 6-401. Pursuant to
Section 6-401, “[T]he PUD Plan shall meet the following criteria:
6-401.A. Permitted Uses.
1. Permitted uses within the PUD are all uses that are either permitted in the
underlying zone district or are in general conformance with the Comprehensive
Plan.
Analysis: Residential uses are permitted in the underlying RS Zone District, but
the proposed density of the residential uses does not generally comply with the
Comprehensive Plan. HRF proposes 55,000 square feet of commercial uses and a
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120 room three-story hotel. Commercial and lodging uses are not permitted uses
in the underlying RS zone district and are subject to either limited or major impact
review. The density of nonresidential development allowed within a PUD shall
comply with the Comprehensive Plan and shall not exceed the level that can be
adequately served by public facilities. The proposed nonresidential density (i.e.
commercial) does not comply with the Comprehensive Plan as described above.
6-401.B. Off-Street Parking. The PUD shall provide parking areas adequate in
terms of location, area, circulation, safety, convenience, separation, and
screening.
Analysis: There is no defined parking plan for the project because there is no
PUD Map or Site Plan that shows the proposed parking based on the conceptual
guidelines submitted by HRF.
6-401.C. Density. Nonresidential Density. The density of nonresidential
development allowed within a PUD shall comply with the Comprehensive Plan
and shall not exceed the level that can be adequately served by public facilities.
2. Residential Density.
a. Residential density shall be no greater than 2 dwelling units per gross acre
within the PUD; provided, that the BOCC may allow an increase to a
maximum of 15 dwelling units per gross acre in areas where public water and
sewer systems, owned and operated by a municipal government or special
district, pursuant to C.R.S. § 32-1-103(20) are readily available.
b. Residential density shall be calculated by summing the number of
residential dwelling units planned within the boundary of the PUD and
dividing by the total gross area expressed in acres within the boundary of the
PUD. Averaging and transferring of densities within the PUD shall be allowed
upon a showing of conformance with the purposes of this section through
appropriate design features within the PUD that will achieve high standards of
design and livability.
Analysis: The proposed residential density is approximately 8.9 units per acre
with some areas at 15 units per acre. This exceeds the Comprehensive Plan and
does not conform with the RS Zone or adjacent uses. The BOCC may allow up to
a maximum of 15 dwelling units per acre where public water and sewer systems
are available, provided that averaging and transferring of densities within the
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PUD shall be allowed upon a showing of appropriate design features within the
PUD that will achieve high standards of design and livability.
The Comprehensive Plan describes how density transfers can be accomplished by
clustering. “For densities that encompass a range, the maximum density can be
achieved through a combined process of land conservation and clustering (refer to
Figure 4) in coordination with the conservation framework lands and/ or other
significant public benefits.” Figure 4 is set out below:
Figure 4: Hypothetical comparison of clustering options on a thirty (30) acre
parcel with a Medium High (MH) Future Land Use Designation (one (1) dwelling
unit per two (2) to six (6) acres).
HRF is not proposing clustering or conservation of property to achieve higher
densities on any portions of the property.
4. The PUD Application does not meet the Design Standards of Article 7 Division 1.
Requirement 3 - Section 6-2-202.C.3. Standards of Article 7, Division 1.
Standard for Decision: The PUD must meet the standards within Article 7,
Division 1, excluding 7-101.
7-102: The Land Use Change is in general conformance with the Garfield County
Comprehensive Plan and complies with any applicable intergovernmental
agreement.
Analysis: The PUD is not in general conformance with the Garfield County
Comprehensive Plan as described above.
7-103: The nature, scale, and intensity of the proposed use are compatible with
adjacent land uses.
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Analysis: The PUD’s proposed land uses do not conform to, nor are they
compatible with the nature, scale, and intensity of adjacent land uses. Adjacent
residential development has substantially lower density and much higher levels of
preserved open space and greenbelts. Aspen Glen has average density of one
residential unit per 2.25 acres (429 units on 965 acres). Iron Bridge has an average
density of one unit per 1.7 acres (322 units on 533 acres). Even the adjacent
Cavern Springs mobile home park has a lower overall density than HRF with a
density of 7 units per acre (98 units on 13.85 acres). The residential property to
the south has two units on 80 acres. Adjacent commercial properties are small-
scale retail and service businesses.
7-107: All roads shall be designed to provide for adequate and safe access and
shall be reviewed by the County Engineer.
Analysis: The internal roads proposed by HRF have not been finalized beyond a
purely conceptual stage. While the submittal does lay out generic defined
standards, the roads themselves are not accurately depicted on any map or plan for
the overall property. Thus, the actual roads have not been designed to provide for
adequate and safe access sufficient for review by the County Engineer. See below:
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5. The PUD Application does not meet the Rezoning Review Criteria in Section 4-
113.C.
Requirement 4 – Section 6-2-202.C.3. Rezoning Review Criteria Section 4-
113.C.
Standard for Decision: The PUD must meet the Rezoning Review Criteria in
Section 4-113.C. An application for rezoning shall demonstrate that the following
criteria have been met:
1. The proposed rezoning would result in a logical and orderly development
pattern and would not constitute spot zoning;
2. The area to which the proposed rezoning would apply has changed or is
changing to such a degree that it is in the public interest to encourage a new use or
density in the area;
3. The proposed rezoning addresses a demonstrated community need with respect
to facilities, services, or housing; and
4. The proposed rezoning is in general conformance with the Comprehensive Plan
and in compliance with any applicable intergovernmental agreement.
Analysis: The PUD rezoning does not result in a “logical and orderly
development pattern.” To the contrary, the proposed density of the development
far exceeds the permissible density under the RS zone district, is inconsistent with
existing adjacent residential developments, and is far in excess of that
contemplated under the Comprehensive Plan. The proposed rezoning also fails to
address “a demonstrated community need with respect to facilities, services, or
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housing.” The development will exacerbate traffic congestion on Highway 82,
will not provide effective mass transit services, and will not meet the community
demand for affordable housing. The housing demand generated by the
development itself will exceed the 10% mitigation housing proposed by the
developer.
6. The PUD Application Does Not Meet LUDC Section 6-401.I. Phasing Plan
Requirement.
Standard for Decision: Section 6-4-1.I. Phasing. “Each phase within a PUD
shall be planned and related to existing surrounding and available facilities and
services so that failure to proceed to a subsequent phase will not have a
substantially adverse impact on the prior and future phases of the PUD or its
surroundings.”
Analysis: HRF has not submitted a well-defined or binding phasing plan. While
HRF sets target dates for various portions of the project running from July 2026
through December 31, 2042, HRF expressly disclaims any firm commitment to
the phasing of the project. To wit: “The time frame for each phase listed above is
a good-faith estimate… If the phase is not 100% complete by the estimated end
date in the time frame, Harvest may extend that estimated time frame when it next
submits a preliminary plan application for that phase or simply by informing the
County of the new estimated time frame. Given the scale of the proposed
project and the adaptable nature of the proposed PUD, any delay in completing a
phase, change in phasing schedule/ order, or a failure to proceed to a subsequent
phase, will not have a substantially adverse impact on the prior and future phases
of the PUD or its surroundings. As described in this phasing plan, it is
acknowledged that detailed phasing for this project is subject to market influences
that cannot be forecast with any relative certainty.” The lack of any firm phasing
plan is not compliant with the LUDC.
7. The PUD Application Does Not Meet LUDC Section 6-301 and 302 PUD Map
Requirement.
Standard for Decision: Table 6-301 Application Submittal Requirements:
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Section 6-302.D. PUD Plan Map. “The map of the PUD Plan shall be drawn at a
scale of 1inch equals 100 feet or a scale approved by the Director which clearly
shows the entire proposal.” This shall include Location, acreage and type of all
land uses and proposed densities; Location, acreage and type of land to be held in
common, Open Space devoted to community use, and land to be dedicated for
public use, including school sites; Location and acreage of all rights of way,
accesses and easements including the names and dimensions of each road; Uses
and grantees of all existing and proposed easements and rights-of-way on or
adjacent to the parcel, shown by location and dimension; Location and description
of monuments; Primary control points; Gross and net acreage of individual lots or
sites; Designation of any Building Envelopes; Designation of any flood or other
Hazard Area; Certification of title showing the Applicant is the land owner or
option-holder; Lienholder consent, if applicable; Certification by the project
surveyor certifying to the accuracy of the survey and Plat; Certification for
approval of the BOCC; and Certification for the County Clerk and Recorder. See
also, Requirement 5 - Section 6-2-202.C.5. Established Zoning Standards.
Analysis: The PUD Map must adequately establish uses and standards governing
development, density, and intensity of land use by means of dimensional or other
standards as described above. Because the applicant has not submitted a PUD
Map meeting the forgoing standards, this requirement has not been met.
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8. The PUD Application Does Not Meet LUDC Section 4-203.D. PUD Site Plan
Requirement.
Standard for Decision: Section 4-201.A. Required Submissions. “This
Division identifies the application materials required by this Code, including
some submittal materials required for Article, 5, Divisions of Land. Section 4-
203.D. Site Plan.” “The Site Plan shall include the following elements:” existing
and proposed topographic contours at vertical intervals sufficient to show the
topography affecting the development and storm drainage; existing and proposed
parking areas, driveways, emergency turn-outs and emergency turnarounds,
sidewalks, and paths, shown by location and dimension; existing and proposed
roads, railroad tracks, irrigation ditches, fences, and utility lines on or adjacent to
the parcel, shown by location and dimension; users and grantees of all existing
and proposed easements and rights-of-way on or adjacent to the parcel, shown by
location and dimension; location and dimension of all structures, existing and
proposed, and distance of structures from property lines; elevation drawings
showing existing grade, Finished Grade, and height of the proposed structures
above existing grade; location and size of leach field, sewer service lines, and
treatment facilities to serve the proposed use; the source and capacity of the water
supply, including location and size of water lines to serve the proposed use; and
location and size of signs for the purpose of identification, advertising, and traffic
control.
Analysis: In this case, the Planning Director specifically advised the Applicant
that a Site Plan would be required due to his determination that this Application
was a Substantial Modification. See, Letter re: Pre-Application Conference
Summary dated 10/30/2024.
Section 6-301 also specifically calls for a Site Plan as part of the PUD Zoning
Application submittal process. HRF has not submitted a PUD Map or a Site Plan
that identifies any of the forgoing with the required detail or specificity. These
requirements are mandatory, and HRF has not requested a waiver. Instead HRF
states as follows: “Due to the number of jurisdictional entities and requirements,
and that Harvest is large and will develop in phases over a period of years, not all
of the information normally submitted with a zoning application is known or
available at the time of submittal. For this reason, the following items shall be
included at the time of the application for a plat approval of a subdivision or a site
plan approval.” The LUDC is unequivocal. An application “shall” include a Site
Plan meeting the LUDC standards. HRF has failed to meet this requirement.
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9. The PUD Application Does Not Meet LUDC Section 4-203.E. Grading and
Drainage Plan.
Standard for Decision: Section 4-203.E Grading and Drainage Plan - “The
Grading and Drainage Plan shall include the following [23] elements:” Site Map,
Drainage Structures, Topography, Grading Plan, Soil Stockpile and Snow Storage
Areas, Drainage Plan, Equipment Storage Areas, Temporary Roads, Areas of
Steep Slopes, Construction Schedule, Permanent Stabilization, Erosion Control
Measures, Estimated Costs, Calculations, Neighboring Areas, Stormwater
Management, Stormwater Management Plan, Reclamation, Revegetation and Soil
Plan, Hydraulic Calculations, Maintenance Requirements, Spill Prevention
Control and Countermeasures Plan, Additional Information or Detail, Signature
Blocks.
Analysis: HRF did not submit a Grading and Drainage Plan that satisfies this
requirement.
10. The PUD Application Does Not Meet LUDC Section 4-203.F. Landscape Plan
Requirement.
Standard for Decision: Section 4-203.F. Landscape Plan: “Landscape Plans
shall be scaled at 1 inch to 20 feet for properties exceeding 16 acres in size, or 1
inch to 10 feet for properties less than 16 acres in size. The Landscape Plan shall
demonstrate compliance with section 7-303 and shall include, at a minimum, the
following [5] elements:” Topographic information at 2-foot contour intervals,
Location of all lot lines, improvements, and easements, Identification of all
existing trees of 6 inches in caliper or greater, and which trees will be preserved
or removed and other existing vegetation with the type, location, size, and number
of plants that will be installed, and specified seed mixtures, A Cost Estimate of the
materials depicted in the Landscape Plan, and a proposed maintenance program.
Analysis: HRF did not submit a detailed Landscape Plan as required.
11. The PUD Relies of “Form Based Zoning”. Form based zoning is not a recognized
or adopted type of zoning under the LUDC or the Comprehensive Plan.
Standard of Decision: In lieu of submitting a PUD Plan Map, Site Plan, Grading
and Drainage Plan, and a Landscaping Plan as required at the time of rezoning
approval, HRF suggests providing the required details at the time of platting and
subdivision. The LUDC does not allow this. Section 4-203 B. states that these
“basic materials are required for all applications for a Land Use Change Permit.”
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Analysis: HRF proposes adopting a PUD “Guide” in lieu of these required plans.
As stated in the application cover letter: “The PUD Guide utilizes a form-based
zoning outline designed to adapt to both market needs and jurisdictional
approvals that will occur after the Board of County Commissioners considers this
zoning request.” The PUD Guide attached as Exhibit D to the application is
described as a “Neighborhood Exhibit, PUD Map, and Illustrative Concept Map.”
This is intended to “establish a form-based code within the Harvest Roaring Fork
PUD Guide. This guide will serve as a set of rules for the property, allowing the
planning staff to use these standards as a framework for evaluating and approving
future development within the PUD.”
Garfield County has not adopted form-based zoning, and it is not defined
anywhere in the LUDC. Moreover, HRF has admitted that the “guide” set out in
Exhibit D is not binding or regulatory. Exhibit D contains the following
disclaimer prominently on page 3: “ILLUSTRATIVE PLAN: This plan depicts
the design intent of the development but shall not constitute a regulatory
document.” The application goes on to state: “NEIGHBORHOOD CONCEPT
MAP: This map depicts two conceptual designs aligned with the proposed form
based code. This map is not a regulatory document. The Applicant and County
recognize that detailed site investigations and iterative planning are needed to
address neighborhood form, livability, grades, views, and environmental
conditions to achieve best-in-class development.”
In other words, the “plan” or “guide” is not binding on the developer. This
position directly contradicts HRF’s statement in its Project Description as follows:
“The PUD Guide will serve as the regulatory framework guiding the community’s
growth and ensuring alignment with Garfield County’ s vision for balanced,
responsible development.” HRF states that “Both the Applicant and the County
desired this [form based zoning] structure as appropriate for a large, long-term
development.” County planning staff does not have the authority to implement a
new type of form based zoning or to unilaterally waive the application
requirements in the absence of a formal request for waiver. None was made.
The “Site Conditions Map” contained in Exhibit D purports to substitute for the
detailed information required by the LUDC. It states as follows: “SITE
CONDITIONS MAP: This map depicts general site conditions, including possible
geotechnical conditions typical for this area. It is provided for informational
purposes only and is not a regulatory document. Given the significant amount
of site grading that is contemplated, this map should not be relied upon as the
basis for design, permitting, or construction decisions. Full size scalable copies of
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this information have been submitted with this application. The Applicant' s
development team will conduct additional testing and site assessments with each
proposed development phase to identify specific issues and mitigation methods
that will be implemented to address conditions identified during the development
process.” The PUD Map, Grading and Drainage Plan, Landscaping Plan, and the
Site Plan are mandatory, not optional, and no waiver of this requirement has been
requested. HRF is requesting approval for 1,500 residential units of density, 375
ADUs, 55,000 square feet of commercial space, and a 120 room hotel without
providing the County with any binding details about where the improvements will
be located or any specific binding details about the plan for the overall
development. An approval of this application would flatly contradict the
mandatory requirements under the LUDC.
12. The Applicant’s PUD Plan Would Override the LUDC’s Conflict Provisions.
Standard for Decision: Section 1-108 of the LUDC states: “The provisions of
this Code shall be regarded as the minimum requirements for the protection of
the public health, safety, and general welfare…If a conflict occurs between
provisions of this Code, or between provisions of this Code and a State statute or
other applicable codes and regulations, the more restrictive provision controls
unless otherwise specified in this Code.”
Analysis: Exhibit D states: “In the case of a discrepancy between this
Development Ordinance [i.e. the proposed PUD Guide] and the current Garfield
County Land Use Development Code, this Development Ordinance shall govern.”
Exhibit D would prevail over any conflict with the LUDC even if the Code
required a more stringent condition necessary to protect the health, safety, and
general welfare of the public.
13. The Applicant’s PUD Plan Would Override the LUDC’s PUD Amendment
Procedures.
Standard for Decision: Section 6-203 of the LUDC provides a mechanism for
amending a PUD. Minor amendments, as determined by the Planning Director,
can be processed in a more expedited manner than a PUD zoning application but
still require the submittal of General Application materials and a Vicinity Map.
Under the LUDC, the Planning Director determines whether the amendment is
minor or substantial.
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Analysis: Exhibit D would limit the Planning Director’s discretion to decide
whether a proposed amendment was minor or major by explicitly defining
amendments that are considered “minor.” The Applicant contends that the
following amendments to the PUD would be presumptively minor including, but
not limited to: altering the alignment of the primary streets; increasing
commercial space within any neighborhood up to 5,000 square feet or 10%;
allowing up to 20% more single family driveways on primary streets; altering
street drainage to curb and gutter storm water collection; allowing streets to be
divided along the centerline to employ two different street types; increasing tree
spacing within required streetscapes (i.e. reducing landscaping); allowing an
increase in building height to add an additional story to one building in all but the
North Riverfront and South Riverfront neighborhoods; permitting a decrease in
front or rear building setbacks; altering the alignment of the Community Trail
network; granting exceptions to the Dark Sky standards; and permitting uses not
listed and/ or defined in the Permitted Use Table in the LUDC. Proposed Exhibit
D deprives the Planning Director of the discretion to determine whether these
changes are minor or major and conflicts with the LUDC.
III. Conclusion
The HRF Application does not meet significant mandatory requirements of the LUDC. It
relies on proposed form based zoning that is not recognized and has not been adopted by the
County. Due to these substantial failures, the Application must be denied.