Loading...
4 - Call Up Item: Boulder South Tennis Court Replacement, 5278 Table Mesa DriveMEMORANDUM TO: Mayor Toor and Members of City Council FROM: Ron Sechrist, City Manager Peter Pollock, Planning Director Nan Johnson, Planner DATE: July 31, 2002 SUBJECT: Call Up Item: Planning Board Notice of Disposition for the Boulder County referral # LUR2002-00044 of the 1041 State Interest Review for the University of Colorado - Boulder South Tennis Court Replacement Project per the U.S. Highway 36 Corridor Intergovernmental Agreement between the City of Boulder and Boulder County. The six acre property is located at 5278 Table Mesa Drive (outside city limits). Attached is the Planning Board Notice of Disposition for the Boulder County Refenal #LUR2002-00044 on the 1041 State Interest Review of the CU-Boulder South Campus Tennis Court Relocation Project per the U.S. Highway 36 Corridor Intergovernmental Agreement. The site of the proposed development is located at 5278 Table Mesa Drive, which is outside the city limits. This item went before the Planning Board on July 18, 2002. A recommendation of denial was made by the Board with a vote of 5-2 (B. Pommer and T. Nielsen opposed). The motion was stated as: "The Planning Board recommends that the proposed development be denied because the proposed development does not preserve desirable existing community patterns, as required by criterion J.4 (Article 8-5 ] 1 of the Boulder County Land Use Code), and as reflected in several Boulder Valley Comprehensive Plan policies including but not limited to the following: 2.04 "Compact Land Use Pattern," 2.06 "Design of Community Edges," 2.07 "Design of Major Entryways," 2.28 "Commitment to a Walkable City," 6.02 "Reduction of Single Occupancy Auto Trips," and 6.08 "Transportation Impact." A second motion followed the recommendation of denial that was stated as: "That Planning Board recommends to City Council and the University of Colorado Board of Regents that they enter into discussions right away aimed at forming an annexation agreement with respect to this property that is owned by the University." The second motion was approved 5-2 (B. Pommer and T. Nielsen opposed)., Address: 5278 TABLE MESA DR The decision to recommend denial may be called up before the City Council on or before August 6, 2002. If no call-up occurs, the decision is deemed final and will be delivered to the Boulder County Commissioners prior to the scheduled August 15, 2002 Board of County Commissioners meeting. If a call up occurs, the city will request a short time extension from the County in order to schedule the item for the August 20, 2002 City Council meeting. Several attachments provide additional information regarding this item. The City Attorney's office has prepared a memorandum to Council regarding some legal issues associated with the City's consideration of the University's 1041 application for the tennis court project. Staff has also received some questions from the Council hotline. Attached are the staff responses as well as the Planning Board Agenda Item and Planning Board minutes of the July 18, 2002 hearing. List of Attachments: Attachment A: Planning Board Notice of Disposition Attachment B: City Attorney's Office Memorandum Attachment C: Council Hotline Questions and Staff Responses Attachment D: Planning Board Draft Minutes of July 18, 2002 Attachment E: Planning Board Agenda Item packet of July 18, 2002 Address: 5278 TABLE MESA DR ATTACHMENT A ~//~~'~ '~ CITY OF BOULDER Planning and Development Services 1739 Broadway, Third Floor P.O. Box 791, Boulder, CO 80306-0791 phone 303-441-1880 fax 303-441-3241 • web boulderplandevelop.net CITY OF BOULDER PLANNING BOARD NOTICE OF DISPOSITION You are hereby advised that on July 18, 20b2 the following action was taken by the Planning Board based on the procedures of the U.S. Highway 36 Corridor Intergovernmental Agreement and the criteria of Article 8 Boulder County Land Use Code 1041 State Interest Areas Regulations, as applied to the proposed development. DECISION: Recommend Denial PROJECT NAME: CU SOUTH CAMPUS -TENNIS COURTS DESCRIPTION: Boulder County referral per the U.S. Highway 36 Corridor Intergovernmental Agreement (IGA) fora 1041 State Interest Review of the C.U. Boulder-South Tennis Court Relocation Project. LOCATION: 5278 TABLE MESA DR COOR: S03W01 LEGAL Lot TR, 194-198 COMMERC OWNER: REGENTS OF THE UNIVERSITY COLORADO APPLICATION: County Referral -1041 State Interest Review, Case # LUR2002-00044 CASE MANAGER: Nan Johnson This decision may be called up before the City Council on or before August 6, 2002. If no call-up occurs, the decision is deemed final and will be delivered to the Boulder County Commissioners prior to the scheduled August 15, 2002 Board of County Commissioners meeting. At its public hearing on July 18, 2002 the Planning Board made a Recommendation of Denial for the request with the following motion: The Planning Board recommends that the proposed development be denied because the proposed development does not preserve desirable existing community patterns, as required by criterion J.4 (Article 8-511 of the Boulder County Land Use Code), and as reflected in several Boulder Valley Comprehensive Plan policies, including, but not limited to, the following: 2.04 "Compact Land Use Pattern," 2.06 "Design of Community Edges;' 2.07 "Design of Major Entryways," 2.28 "Commitment to a Walkable City;' 6.02 "Reduction of Single Occupancy Auto Trips," and 6.08 "Transportation Impact." Vote: 5-2 (B. Pommer and T. Nielsen opposed) Approved By: Pe er Pollock, Planninging Dir'" ` actor Address: 5278 TABLE MESA DR ATTACHMENT B CITY OF BOULDER, COLORADO Once of the Coy Allomey Municipal Building 1777 Broadway Post Oltire Box 791 Boulder. Colorado 80306 Telephone 1303)431-3020 Facsimdc 003) 44I-3859 MEMORANDUM TO: William R. Toor, Mayor Members of the City Council Ronald A. Secrist, City Manager FROM: Jerry P. Gordon, Deputy City Attorney . /~ /~ ~/~,, -,~ ~~ • SUBJECT: Legal Issues Related to 1041 Review of Proposed Tennis Courts Project DATE: July 30, 2002 Introduction This memorandum is intended to clarify some legal issues associated with the current City consideration of the University's 1041 application with regard to the proposed tennis court project. As Lvill be explained below, this review process is taking place in a complex legal environment. The process in which the City is now playing..a role is often referred to as a "1041 permit application process." The process has this name because 1041 was the number assigned to a Colorado House Bill that helped enact the provision. The state law was intended to extend environmental protections to certain specified areas. It was also intended to clarify the role of local governments in the extension of such protections. Under that law, the government that has the legal obligation to approve or reject The application is Boulder County. The City's role in the application review process comes not from any state law but rather from an agreement between the City and the County known as the U.S. 36 Corridor Comprehensive Development Plan IntergovernmentalAgreement(theLG.A.). That agreement defines certain"areas of influence" that exist outside ofthe City but within areas ofthe County with some proximity to the City. The agreement specifies that the City must "approve" development subject to 1041 review within such areas of influence. Although the language ofthe agreement seems clear, its relationship to the provisions of state law i s important. The City and County cannot, by an agreement between them, alter or amend state law. Therefore, the agreement must be read in a manner consistent with the state mandate that the County enforce 1041 regulations. Therefore, the City's action will become a recommendation to the County, which (under the law) must approve or reject the proposed development under its development regulations. In essence, the County has agreed to allow the City to become a part of the County process by which these applications are reviewed. C.\DOnm,ents and 5ettings\johnnl\Local Settings\Temp\n+1041 regulations.kpb.wpd What Standards or Criteria are to be Utilized in this Process? The Countyhas adopted criteria bywhich 1041 applications are to be judged. Those criteria must be utilized by the City as it plays a role in the County 1041 review process. The list of criteria is attached to the Planning Board memorandum and is part of this packet. It is those criteria which the Planning Board evaluated as it made its decision in this matter. What Potential Litigation is Associated with this Review Process? The University of Colorado, which applied to the County in the 1041 process, does not acknowledge that the County has jurisdiction to enforce land use regulations against the University. It claims that as a state agency, the University is not subject to County land use rules. However, since both the University and the County are political subdivisions of the state, this legal conflict between them is a very complicated one. The disagreement between the University and the County resulted in a lawsuit. However, in an attempt to resolve the dispute, the University and the County entered into a "stand-still agreement" that effectively suspended the lawsuit. The idea was to allow the land use approval process to proceed and see how it developed. Presumably, if the University's application was granted, it would not need to pursue the litigation because if would be able to proceed with its project. After making its application to the County, the University was apparently surprised to learn about the agreement between the University and the City that gives the City a role to play in reviewing the application. The University objected to that role on several bases, including a contention that the City's role represents an illegal delegation of authority by the County of its decision-making obligations under state law. All of this means that there is a much greater probability of a legal challenge than exists in amore typical City land use review process. The case between the University and the County is already pending. In addition, as in most land use approval processes, a court appeal from a denial is a possibility. What are the County's Options if the City does not Approve the Project? The County Attorney has indicated that he will advise the County Board of Commissioners that it is bound, in the first instance, by state law. Therefore, he will advise the County that it must follow that law as it makes its decision on the granting or denial of the 1041 application. His position is that the City's role is essentially part and parcel of the County's review process. In that sense he views the City's action as a recommendation to the County. C.\Ducuments and Settinesyohnnl\Local Settings\Temp~nf 1041 regulations.kpb. What are the City's Options if the County Action is Different than that Recommended by the City? The contract into which the City entered does not speak about a "recommendation." It talks about a City approval. If the County takes action other than that recommended by the City, the City's legal remedies would be against the County. The City's remedy would not be against the University because the University is not a party to the agreement between the City and the County. The City's action would essentially be a contract action. What are the University's Options if it Disagrees with the Outcome of the 1041 Process? The University will have several legal options if it disagrees with the outcome of the 1041 process. It may simply declare that the "stand still agreement" in the pending litigation is over and proceed to challenge the County's authority to impose land use regulations upon the University. Or, it may choose to challenge the result by use of a traditional judicial challenge (a "Rule 106" review). It is not probable that the University would challenge the City's action in this matter directly since the final action with regard to its application will be that of the County in granting or denying the application. However, if the University does challenge the County action, it may raise its contention that the City's role in the process is inappropriate. Did the Planning Board Utilize Appropriate Criteria During its Review of the Application? The PlanningBoard was diligent about utilizing the County's 1041 criteria when it evaluated the proposal. It discussed a number of those criteria in detail and determined, in each case except one, that the criteria were met. What is the Relationship Between the 1041 Criteria and the Provisions of the Boulder Valley Comprehensive Plan? Criterion number 14 ofthe County's 1041 regulations specifies that the proposal must "... be in accordance with ...any applicable intergovernmental agreement affecting land use and deve]opment." TheBoulder Valley ComprehensivePlan is an intergovenvnental agreementbetween the City and the County that affects land use and development. As a result, the Planning Board considered whether the tennis court proposal is in accordance with the Comprehensive Plan. The Planning Board's discussion ofthe relationship between Comprehensive Plan provisions and the proposed tennis courts was quite lengthy. At its conclusion, the Planning Board decided that the proposal does not violate any provisions of the Comprehensive Plan. However, in reaching its final decision, the Planning Board utilized some elements of the Comprehensive Plan in another context. County 1041 criterion 7.4. specifies that "[t]he proposed development shall preserve desirable existing communitypatterns." This is the criterion that served as the basis for the Planning Board's decision to recommend against approval. In evaluating this provision, the Planning Board's first task was to decide what constitutes "desirable existing community patterns." It was for that purpose that C:\DnnmM:nts and Settings\johnnlU.ncal Settings\TempMF104I regulalions.kpb.. G-' the Planning Board consulted and relied upon various policies of the Comprehensive Plan. Then, having relied upon the Comprehensive Plan to identify various development patterns that this community has designated as being desirable, the Planning Board made its decision that the proposed development is inconsistent with those specified desirable patterns. May a Reviewing Body in a 1041 Review Make its Approval Conditioned upon Changes to the Requested Plan? The County Attorney has indicated that the issuance of a conditional approval would be consistent with prior County practice. Since the City is participating in a County review process, the City could recommend a conditional approval. What is the Relationship Between The 1041 Criteria and Flood Concerns? Much testimony at the Planning Board hearing related to concerns about flooding and potential flood mitigation measures. In the end, the Planning Board did not rely upon this testimony in making its determination. In this regard, it is important to understand that 1041 regulations do not apply to all developments. in order for them to apply, there has to be a triggering condition. In this case, it is the proximity to U.S. 36 that triggered the 1041 review process. Another triggering condition recognized by state law exists when a project is to be located in a flood area. This later provision, however, requires that the flood area be "mapped" under applicable regulatoryprovisions. In the case of the property involved in this case, the tennis courts would not be located within a currently mapped flood area. Many people providing testimony at the hearing indicated their belief that studies currently underway may result in the future remapping of the area. However, a 1041 permit cannot be denied because a parcel of land maybe found to be within a flood area at some future date. It is the current official mapping that must be used in making a decision about a current application. The criteria specified for 1041 review are slightly different depending upon the triggering condition that leads to such review. The Planning Board discussed and applied the appropriate criteria fora 1041 review process triggered by proximity to a highway. C\DocumenLS and Settings\johnnl\Local Setlings~Tempmrl0J1 regulalions.kpb. ATTACHMENT C COUNCIL HOTLINE QUESTIONS: 1. Is the reviewing body required to merely acceptor reject a proposal, or may it make approval conditioned upon to changes to the requested plan? This question is addressed in the attached memorandum from the City Attorney's Office. 2. Explain the relevance of BVCP provisions in evaluating the proposal based on 1041 criteria. This question is also addressed in the attached memorandum from the City Attorney's Office. 3. A map of the property showing the current Land use designations could be helpful. Can one be provided as part of the packet? Yes. A color map indicating the Boulder Valley Comprehensive Plan Land Use designations for the CU site is included in the packet. 4. Why are the tennis courts so far south on the site? The location is related to the CU Boulder South Campus Framework Plan and was determined from the conceptual land use assessment of the property. CU project planner Jeff Lipton explained that the proposed tennis court site is desired to be on a developable area rather than an area that is to be preserved for flood detention. Also, further north is a large pond and wetland area. Further south is an area for flood detention and where the Framework Plan locates other planned recreation fields that would eventually be adjacent to this site. 5. What existing tennis courts on campus will be closed when during the next ten years or so? The Kittredge tennis courts on the main campus are the only existing courts planned for relocation. According to the CU project planner Jeff Lipton, the tennis courts at Williams Village and the courts adjacent to the recreation center will remain at the existing campus sites and are not planned for future closures or relocations. 6. Why are 125 parking spaces needed? The number of parking spaces was determined by the University's Transportation Engineer, who based the number on traffic counts, past parking needs at the existing site, and tournament parking needs. On a normal daily basis, the number of parking spaces needed would be much less than the 125 spaces provided. Address: 5278 TALE MESA DR 7. How does CU determine the traffic count to the site for both the near and far term? The "every day" traffic generated by the site is based on Institute of Transportation Engineers (ITE) surveys. ITE data for tennis court uses are limited and not highly. reliable. The typical daily traffic estimate is further assessed in terms of expected numbers of users during a typical weekday time period, which helps to overcome some of this inherent lack of reliability. The traffic study states that traffic for larger events is based on experience of the CU Athletic Department. Although there is some uncertainty as to the true traffic demands from this proposal, it appears that the report's estimates of traffic generation are reasonable. The background traffic numbers shown in the report represent traffic not related to this proposal. The growth rate used to determine what the future traffic volumes are typically based on the history of growth on these streets. The background traffic stated in the report may actually be a slightly high estimate because Table Mesa will have more transit options in the future and the city is being more aggressive about promoting alternatives to the automobile than in the past. Address: 5278 TABLE MESA DR C' BVCP Land Use Desi ions at osed Site ~~,~~~; ~~~~~~ ~~~ ~~ I~ ~~ ~~,,. ;, Site ~~ aoo 0 TIAL F J } 1- L7 800 Feet /C Cily Of ~f~~'; Boulder ATTACHMENT D CITY OF BOULDER a~~,~~ PLANNING BOARD MEETING MINUTES DATE: July 18, 2002 DRAFT of 7/3I/02 TIME: 6 p.m. Not yet approved by Planning Board PLACE: City Council Chambers, Municipal Building, 1777 Broadway BOARD PRESENT: Macon Cowles Thom Krueger, Vice Chair Simon Mole Tina Nielsen, Chair Alan O'Hashi Beth Pommer John Spitzer STAFF PRESENT: Bob Mr. Cole, Director of Land Use Review Jerry Gordon, Deputy City Attorney Nan Johnson, Associate Planner Mary Lovrien, Planning Board Secretary Sarah Myers, Landmarks Board Secretary Alan Taylor, Development Review 1. CALL TO ORDER Chair, Tina Nielsen, declared a quorum at 6:04 p.m. and the following business was conducted. 2. APPROVAL OF MINUTES The board unanimously approved minutes of the Apri14, 2002 and April 18, 2002 meetings. 3. CITIZEN PARTICIPATION Robert Sharp. 5995 Marshall Drive. said he is concerned about a berm off of 63rd Street near Valmont Butte. It's a beautiful road, and the berm is getting too high and blocking the view. He asked if the board was aware of this. The board asked staff to check into the matter and get back to the board. 4. DISCUSSION OF DISPOSITIONS, PLANNING BOARD CALL-UPS Mr. O'Hashi-let's keep in mind the potential for mixed-use on this site for the comp-plan two year update. Mr. Cowles- doesn't like this architecture with corporate logo. Mr. Cole- code doesn't block this, and it happens a lot. Only has to be compatible with surrounding context. /~ Mr. O'Hashi- maybe give the Downtown Design Advisory Boazd an expanded role so they could have the chance to review projects like this. Ms. Pommer- thinks staff interpreted it correctly, so I don't want to call it up. Maybe we could analyze it as a future `gateway' azea. Mr. Cowles- wants to call it up but took a poll of other board members and decided against it. 5. MATTERS FROM THE PLANNING BOARD, PLANNING DIItECTOR, AND CITY ATTORNEY (this item was addressed after the action items) The board discussed difficulties in working on the Gunbarrel Town Center project. 6. ACTION ITEMS A. Public hearing and consideration of a recommendation to City Council regazding the proposed adoption of changes in Boulder Revised Code 1981 Title 10-7 Energy Conservation and Insulation Code concerning a local amendment to the 2000 International Energy Conservation Code. Project Manager: Corey Schmidt B. Public hearing and consideration of the county referral of the 1041 State Interest Review of CU-Boulder South Tennis Court Replacement Project for the property located at 5278 Table Mesa Drive (outside city limits). Project Manager: Nan Johnson The board decided to place this item first on the agenda since there were many people from the public who were present for it. Mr. Gordon- gave an explanation of the reasons why Planning Board is being included as a review body for this project, based on the HB 1041 review criteria and the City and County of Boulder's inter- governmental agreement. He told the board members that they must decide if the project meets all of the criteria listed in Attachment A of their packets. Mr. Cole- went over the staff memorandum and zoning for the property. Mr. Cowles- shared with the board an ex-parte contact he had at a family function with a lawyer representing CU. This man told Mr. Cowles that he had written a letter to the Boulder City Council stating he believes that the city government has no authority to review this project under the federal HB . 1041 regulations. The board had a number of procedural questions for Mr. Gordon. Applicant Presentation Graham Billinesley. Land Use Director for Boulder County, explained why the County Land Use department feels the proposed tennis courts are acceptable. Jeffrey Lipton, Executive Director of Facilities Management at the University of Colorado at Boulder, said the application for tennis courts meets all the requirements of HB 1041. He gave a history of why the university has decided to move the tennis courts at this time. He explained that moving the courts to /~ the CU South area will help reduce impacts on the city proper. Furthermore, the tennis court area is outside any floodhazard areas. The courts aze not even in Boulder County's more conservative floodhazard area. If future studies show the azea is within a floodplain, courts are still permitted there and will not cause harm to anyone. They are also outside other statewide interest areas. It is also an appropriate use by zoning, and there are not any wetlands, wildlife, or important habitat areas, as the Boulder County office stated in response to the CU application. Finally, traffic should be light most of the time. About four times a year there would be events that would increase traffic. Ed Pearlmutter, legal council from the fum of Bernbaum, Weinshank, and Eason explained that the university has been referred to the City of Boulder Planning Board for review because of the US 36 Intergovernmental Agreement with Boulder County. The County Commissioners set a deadline of August 15 under a standstill agreement. The university is an applicant to Boulder County as Boulder County is to the city. The County HB 1041 guidelines are, at times, excessive. The issue before the Planning Boazd is quite simple: aze the county guidelines being met? As for the Boulder Valley Comprehensive Plan's defmition of New Urbanism, the county guidelines are what will be used in making a fmal determination on this, not the BVCP of the city. Mr. Cowles to Mr. Pearlmutter- which guidelines do you consider "excessive?" Mr. Pearlmutter -Boulder County HB 1041 guidelines are the most aggressive in Colorado. The radius for the interchange area is quite big; protection of flora and fauna maybe go beyond what H.B. 1041 was meant to do in 1974; dust control is somewhat excessive; consideration of surface water quality/visual quality is not in the statute; there is broader consideration of terrestrial and aquatic life; and delegating authority via the IGA to the city of Boulder is not within HB 1041. Mr. ICrueser- why did CU choose to straddle two zoning districts and go into open space-designated land? Mr. Lipton- the siting of the facility is being proposed based on our framework plan and conceptual land- use assessment that the university conducted last year. This is a framework that, taking a look at the larger issues surrounding this site and its opportunities and constraints and applying the goals of the university as well as the community- have come up with this framework plan. I'm surprised it's not part of the presentation. I have a board and I can talk about that a little bit if you'd like. In the plan, we outline areas where the regents have generally agreed would make sense as wildlife habitat, areas where we believe we could accommodate as much as 800 acre-feet of flood storage that would protect from flood danger 1100 structures downstream from the property, and areas where we could also establish facilities in the long term, if approved by all the appropriate bodies, including the Colorado Commission on Higher Education. The location of the courts were determined by taking them out of where the flood storage would be, although we would see that as an opportunity for other types of athletic or recreational fields, and into an area that we consider to be developable for building sites, but we took it out of the floodplain and floodstorage area and actually put it on one of the future development sites as a way to decrease the impact from potential floodwaters. We didn't specifically take into account the county or city comprehensive plans, since, as a sovereign entity, the university does its own planning and takes its planning through a different process than the local government, until we mn into the 1041 issues which we certainly do dispute, but we aze trying to work cooperatively with the city and county just to try to overlay our planning with the 1041 requirements. Mr. Lipton showed the framework plan to the board members. Mr. Cowles- can we see wetlands on this framework plan? /_~ Mr. Linton- they were researched and we plan to protect portions of them, but they are not shown on the plan. Mr. O'Hashi- what sort of tennis courts will they be? Mr. Lipton- they must be scheduled for use. They'll be for competitions only, maybe for high schools, tennis clubs, etc, and maybe for intramural. They'll meet the big 12 requirements for court design. They aze intended to be long-term courts but they may need revamping, or maybe would be moved down the road at some point. The boazd discussed the zoning areas into which the courts fall. Mr. Billin sQ lev- said these courts are allowed by-right. In addition, they are not in a floodplain or floodhazazd area. Ms. Nielsen opened the public hearing. Public Hearing John Wiener, 875 33rd Street- talked about hydraulic studies that aze being done for this area now. If the soil permeability changes after constmction it might change and perhaps raise the risk of flood. He also warned that because the University of Colorado has "Sovereign Immunity" it cannot be committed to any financial responsibility if a hazazd happens. Therefore, the City of Boulder might be accountable. Doue Yaser, P.O. Box 3671 Boulder pointed to page 17e of the guidelines, and said the University of Colorado's plan violates riparian vegetation. This area is a recovering wetland, with two rare bird species which make it important. All parties are overlooking this. The berm is seeping because water comes into the azea- more proof that this is a recovering wetland. He questioned whether CU really did a wetlands analysis. If they did, why did they dig drains to dry out the area? The Boulder County website shows sinuous fluvial deposits that go through the CU facilities. That's evidence this is the floodplain and the hazards might be very real. He reminded the board that in 1997 there was a large flood at Colorado State University that cost millions of dollars and five lives because a railroad bed berm similar to the one on CU South failed near the campus, sending thousands of cf/s of water into an area behind a supposedly"protected" area. Ellen Willis. 2895 Lafayette Drive- said she is concerned about the process; the City maintains rights over the IGA. She wonders why the HB 1041 guidelines are being used and she is concerned that the citizens aren't being represented properly. She mentioned a concern about traffic impact and would like to see more research on the left-turn lane. She told the Planning Boazd that it must mle tonight, not just offer an opinion or referral. There is a need to test the importance of the IGA. If it's not being used tonight, maybe it won't ever be. Alison Burchell 1270 Chambers Drive (spoke for an additional three minutes with a donation of time from Don Glenn) brought some new research fmdings from the National Hazards Center annual workshop as reasons why the tennis courts should not be permitted. She said she spoke to several federal department heads, including Director Buckley of FEMA, and toured the pit and berm areas of the property with them. She read comments from these people, including: that it is awell-recovered former mining area and that it might be a potential flood zone. Also, the pit area was called "the ideal space" to store floodwaters to a large extent, and there was concern for the potentially adverse impact on the downstream neighbors of pulling any of this land oui of the floodplain and crediting the berm. Director Buckley directed the S. Boulder Creek issue to be a "hot button priority issue" for the new Region 8 director. She mentioned a court case called Dercheff vs. Broomfield 1980, where the city of Broomfield was held liable in tort for its granting approval for a subdivision development whose storm runoff /'f dumped water onto downstream properties. She asked, "At what point do al] the rules and regulations take precedence over the health, safety, and welfaze of the citizens in this community? Mr. Tam- with respect to the floodplains, there hasn't been a federal Letter of Map Revision (LOMR) issued. The existing map boundaries aze from a 1986 study and were put in place in 1996. An application to the federal government waS made to certify the berm as a lery. The government says the berm itself meets section 65-10 with respect to structural stability, but other areas of concern remain, including the need to do before-and-after floodplain analysis, and'an interest in the new hydrology. Mr. Spitzer- should courts have warning signs on them explaining the purpose of the berm and the potential for flooding. Mr. Tabor- if you think they will be wet, then it's a good idea. Gilbert White, 624 Peazl Street, a retired CU professor agrees that the information provided by Mr. Taylor and Allison Burchell is accurate and helpful. He wants to emphasize that 1) flood potential is going up nationally and more than half the flood damage is from floods larger than the 100 yeaz flood: 2) as a member of an independent review panel in Boulder from 3 yeazs ago ha believes the hydraulics on S. Boulder Creek have to be re-examined. We shouldn't use the present maps on floods because they may be changed dramatically. This is very concerning to households in neazby areas, but it's related to the whole matter of what all citizens of Boulder could be exposed to. Flood protection standards are changing, and are being seriously appraised and maybe changed. Signs would be useful, but more important is the safety of the homes. The hydrology advisory committee is working on determining how much water would flow, etc. so we don't yet have enough accurate information to make a decision. Mr. Mole asked Mr. White to predict the way water would flow if there was a flood. Mr. White guessed that the water would flow around the berm and under the bridge. Ms. Nielsen- what do you recommend as a location for the tennis courts? Mr. White- I can't say. I'd like to know where a 500 yr. flood frequency level would be and maybe in a year we'll know. I would it would be best to put off a decision on this property for a year until we had a much better view of the hydrology and hydraulics. If you tell me that under certain 1041 regulations you have to have a report in a certain number of days, I'd say that is too bad. You want to get what is the best judgement for the citizens of Boulder who are going to be affected. Mr. Cowles asked Mr. White whether the members of the hydrology advisory committee and the independentreview panelrepresentparticularorganizations. Mr. White- said that members of the board do not represent organizations. They simply are experts in the field of hydrology. Robert Sharp. 5995 Marshall Drive (spoke foran additional three minutes with a time donation from Tom Gilligan)- argues that the tennis court area can't be "open space." It's an institution use and they are not permitted. Boulder County is mistaken when it refers to this as a `private facility'. In his opinion, CU is an institution and they are planning to hold national competitions here. He believes it is also a "new urban use." He went to all the IGA meetings between 4-5 cities and their counties, and none of them contemplated permitting institutional recreational facilities in agricultural areas as a way of preserving agriculture lands and criteria. He asks the Planning Board to deny the tennis court proposal based on both of these points tonight. He asks the board to also consider degradation of the environment, the energy used in commuting to the site, protecting the quiet, and jeopardizing the visual quality from /~ US 36. He asked why gravel parking lots aze allowed when paved drives are required elsewhere. The proposal will "create nuisance factors" (guideline #8) for the homes there. Lvnn Segal, 538 Dewey- this is pristine land in Boulder and how it was required, etc, was a messy process. Over the yeazs, the renewing of the contract de-emphasized the purpose of keeping it a wetland. It is some of the last land and it must be preserved. The city must standup for all that went into preserving this in the past. Further development in the azea was never supposed to happen. Boulder County wasn't cazeful to see that the agreement was maintained. Legal ramifications are not a good reason to allow the courts to be built. Ms. Nielsen closed the public hearing. The boazd took a 10 minute break. The boazd discussed when to hear action items A and C. Board Questions Ms. Nielsen to Mr. Lipton- are you considering future floodplain studies? Mr. Lipton- we have been through the process and have met requirements for flood danger today. The university has worked with the city and county and they are willing to dedicate many acres to contain flood waters. Until the new hydrology study is done, the independent review panel suggests using the Taggert study for now. The university cannot wait to expand into this area. The proposal meets the ordinance requirements. The County Commissioners could move the line if they were concerned, but they haven't done so. The city is presently issuing building permits in that area. Why should CU be treated differently? The board discussed procedural issues with Mr. Gordon. Mr. Mole asked Gilbert White, are the courts protected by the berm, and are they subject to significant risks from the flood? Mr. White- recommends you be most concerned with what is downstream if the courts are developed. Mr. Cowles to Mr. Tavlor- is there more than one way to mitigate the safety of downstream neighbors? Would the flood-control methods on the CU property cost about the same as another mitigation method? Mr. Tavlor- it depends. Creating improvements on the property might affect costs of flood control measures in the future. If you consider just storing water behind US 36 and not doing anything to the ground (i.e., the courts) then the dam should be at 5270 feet, which would match the bridge. If you did that, the courts would be inundated. Mr. Cowles to Mr. Lipton- why did you divert water on the property? Mr. Linton- to collect drainage from the sloped area and funnel it into a drainage pond to sustain habitat. We went through all approving agencies before beginning this project. Today we might have had to do a 1041 review, but at that time we didn't have to. Mr. Cowles- how much land was affected by the diversion pipe? Mr. Linton- we never measured, but this is not relevant to tonight's decision. Board Discussion Ms. Nielsen- proposed a way to handle the board discussion. /~; Mr. O'Hashi-concerned with item 14 within Attachment A of the memo, 1041 Review Standards Checklist. Mr. Spitzer concerned with items 9 and 14, and section J3+4 at the end of this attachment. Ms. Nielsen- concerned also with item 10. Ms. Pommer- want to keep in mind the scale of the project: 6 acres of a 308 acre site. Mr. Mole- lets pay attention to BVCP 4.12 for agriculture discussion, Mr. Cowles- staff lists criteria for which there isn't enough evidence to determine whether CU meets it or not. Mr. Mole- yes. I would expect to see the university supply us with letters from experts that prove it is meeting these criteria, but they didn't do so. This is not very credible in my opinion. Mr. O'Hashi- this is New Urban Development (NUD) based on the defmition within the BVCP because the courts are to be used for competition and must be up to regulation [read from a CU webpage that is already assuming relocation of the ICittridge courts]. Mr. Cowles- it is New Urban Development (NUD) because of the sentence in policy of 1.2.2 that comes before a+b, "NUD is defined to include. ,." it doesn't say it shall mean a+b, implying that New Urban Development can be other things as well. To my knowledge, there's not another place in open space land or MXR-E or in ED zones of the county, where you can find asimilar-sized parking lot, etc, without water or sewer services. City and County must talk about this annexation policy. CU is sidestepping this with port-o-potties, etc. Ms. Pommer- I did not interpret policy 1.1.2 as having such leeway. I do not think it is New Urban Development, and you can find large parking lots in open space. Mr. Mole- I agree with Mr. Cowles. I don't see any mandatory language for what constitutes NUD. Parking lots, etc are NUD. Ms. Nielsen- I don't think it constitutes NUD. Many uses are allowed in these zones, and there is busy parking at many other open space lots. We can't use these reasons to say it's NUD. Ms. Pommer- we have to look at the tennis courts only- just 6 acres. These are not good agriculture lands that need to be protected (BVCP 4.12) Mr. S~tzer -I think the courts create a hazard for neighbors (4.16) Mr, Krueeer to Mr. Taylor- if the berm broke, would the courts flood? Mr, Tavlor- water might flow into site, but I wouldn't be sure it would cross the courts. I think the berm would withstand a 100 year flood. Ms. Nielsen- the map we are using says the area is okay and is not a floodplain, so it would be hard to prove that our decision was based on other -not yet determined- information. Mr. O'Hashi- I agree. CU does not want to see the courts be damaged Mr. Mole- I agree that if floodplains are not mapped, we cannot use potential floodplains as findings of facts. I'd like to use the BVCP. Mr. Snitzer- I'm concerned about an increase in single occupancy vehicle traffic. Mr. Linton- I can't say for sure how students would get out to the site. CU might provide a shuttle if there were many students. Mr. Billinesley- there have been many elaborate structures constructed on open space, including sports complexes, that don't have facilities. Therefore, I don't think it is NUD. The university will have to come back if they want additional facilities. We need to use only the information we presently have in making a decision. Ms. Nielsen- I think CU isn't following the spirit of the law by going ahead with construction while there are so many unknowns about flood danger. There could be much better information soon, so why isn't CU putting off the construction? Mr. Linton- the university won't need police, fire, or emergency services from the City of Boulder. Mr: O'Hashi- I consider this to be NUD because of city staffs description under the memo findings. I see it as full-blown development. Mr. Snitzer- I agree because of it's size, professional quality, and its close proximity to the city. It's not rural. Ms. Pommer yes, but this doesn't preclude annexation of the property. Ms. Nielsen- at Walker ranch there are many people but no facilities. Mr. Mole- I think we are sending a strong message about how we will interpret the 1041 guidelines in the future. Our threshold seems to be these tennis courts. I wish that the university would be more honest, more kind, and more concerned about the citizens. Mr. Krueeer- since the county approved the project for both zoning and floodplain regulations, I'm not comfortable with developing a different definition of NUD. Mr. Spitzer- I would support J3, but it is too general. Can we make conditions about maintaining a scenic view from US36? Mr. Cowles- putting an urban activity at a distance from the growth boundary is inconsistent with a J4, . "preserving desirable existing community patterns ...." Ms. Pommer- I don't agree because there are churches that are allowed in similar locations. Mr. Krueeer- I agree with Mr. Cowles because it doesn't "preserve desirable existing community patterns." They could have put the courts elsewhere. Mr. Mole I agree. They don't need to be in the middle of the fields. Mr. Gordon be careful with definitions of open space. There can be things built on it. ~ ;~ Mr. Cowles yes, it certainly goes beyond the urban growth boundary. Mr. Spitzer- I want to refer to sections of the BVCP that talk about maintaining/containing city life. He believes the tennis courts will affect the entranceway to the city. He mentioned sections 2.28, 6.02, 6.08, 2.04, 2.06, 2.07 Mr. Gordon- would the board please think of which specific community patterns they feel are not being maintained? Mr. Mole- earlier in the discussion I hadn't been completely comfortable saying the project was New Urban Development, but now with these policies being sited, I'd vote the proposal down for the reasons Mr. Spitzer mentioned. What's most useful tonight is to go through the regulations carefully. Ms. Nielsen- I am not convinced. We need a better foundation for our decision. We have some work ahead of us. The proposal is not of the scale that I feel comfortable saying is an urban pattern outside of the desirable existing pattern. Mr. Cole- the board might want to discuss further that this property might be annexed in future. In light of this use being allowed under county zoning, whether the fact that it's area 2 precludes uses that are allowed under county zoning that are not strictly rural uses. It sounds like you think we are fudging the edge of the city -not respecting this edge- because we are placing this use on land that is past the edge. So you should discuses whether or not the use is consistent with the area designation of eventual annexation and whether that precludes county uses. Ms. Nielsen- That's a good point. I don't agree that there is a "consistent urban pattern" to be followed here. The Gateway site is similar. I sympathize with the points made, and ideally I'd like to see the courts closer to the main campus, but I'm not happy to rest a denial on this criteria. I thinks it's too vague. Ms. Pommer- I agree with Ms. Nielsen and like the Gateway example. Things that concern her about voting down this proposal are: this site's proximity to the existing urban boundary, it's area 2 designation, and the chance of it coming forth as annexation and the uses that could be allowed and services needed there. These 12 courts can't create significant problems- they use just 6 acres and the use being proposed is allowed. J4 isn't something I can base a decision on. Mr. O'Hashi- Gateway has had problems getting extended urban services. Businesses there tend to go out of business quickly. The tennis courts, which are anchored within an educational institution, are different from Gateway Park that will eventually "go away." Board Motion Mr. Gordon reads back Mr. Spitzer's motion: not to approve the application because of the determination that this project would undercut desirable community patterns with regard to the City's commitment to a walkable city, a reduction of SOV,... Mr. Spitzer- I don't know that you need to include all those reasons. Just our testimony will show that a lot of other policies were discussed, too. Mr. Gordon- so I'll end at "patterns." Mr. Spitzer- well, maybe we do include those... Ms. Pommer- you won't get a list of policies from me. /% Mr. Mole- most important, I want the process to be right. If we can't give our attorney good findings for court, I might flip the other way. So, we need to be explicit.. Mc. Spitzer- okay, let's not make those policies inclusive. Ms. Nielsen- I would argue that the "walkable city" policy doesn't work because this policy applies to the city only. So, I'm not confident with that. Friendly Amendment to the Motion Mr. ICrueeer- friendly amendment to suggest wording to Mr. Spitzer: Planning Board recommends the project not be approved, based on criterion J4, that the proposed development does not preserve desirable existing community patterns and as evidence the board cites the following policies including but not limited to:... 2.04, 2.06, 2.07, 2.28, 6.02, 6.08. Mr. Spitzer- likes this suggestion. Mr. Cowles- seconds the motion. Mr. Spitzer read each of the six policies and commented that a section from 2.04, i.e.: "The City prefers redevelopment and infill as compared to development in an expanded service area in order to prevent urban sprawl and create a compact community," is the main gist of this policy. Ms. Pommer- I can't support the motion. Protecting "City Edges" doesn't work because, for example, tree planting could mark the gateway of the city. This is only 6 acres within 308, a small part of that entryway area. The "Walkable City" policy doesn't apply because there are altematives such as RTD and crosswalks, and convenient access from the major Table Mesa Park and Ride. Traffic impacts are minimal for these 6 acres of courts; studies show just 100 cars a day and, in addition, there is a condition to put in a turn lane. With other things on the site the cumulative effects might add up but we azen't dealing with cumulative tonight. We are only looking at the courts. Ms. Nielsen- as for policy 6.02, I agree with Ms. Pommer that concern about single occupancy vehicle impacts doesn't work because there are plenty of alternatives. CU also says they would provide a shuttle if needed. The new Bear Creek bike path from Williams Village is very easy to use in order to get to the courts. Ms. Pommer in addition, I think the proposal to move the courts actually helps to maintain the overall idea for Boulder's layout because it keeps the law school closer to town. I'd prefer that the courts be far away rather than the law school. Mr. Cowles- what is the distance from Table Mesa Park and Ride to the courts? Mr. Linton- within about 1800 feet from Table Mesa you can reach the courts. Mr. Cole- why not have some more discussion about this issue and how it relates to other similar facilities where there are recreational uses on the edge of the city, like Valmont park which is a distance from downtown? Ms. Nielsen- yes, I think there are similarities to Valmont and North Boulder Community park. The difference is that they are in the annexed city. ,~7C• Mr. Krueeer- no, policies 6.02 and 6.08 are specific to say more than just reduce single occupancy vehicle traffic. Policy 6.08 says, "traffic impacts from a proposed development that cause unacceptable community impacts shall be mitigated." There is no proposal from CU to mitigate impacts. [Continuing to read] ".. ,strategies to reduce the VMT generated by the development will include all modes of travel as well as travel management programs. The design of new development will especially focus on providing continuous modal systems throughout the development, on connecting those systems to those surrounding the development, and on providing connections between the modes." One policy specifically said "foot and pedestrian preferences" 2.041ays out preferences in the way that the desirable community pattern should involve. [reading] "The City and County will, by implementing the BVCP, insure that development will take place in an orderly fashion which will take advantage of existing urban services and shall avoid leapfrog patterns, non-contiguous scattered development within the Boulder Valley. The city prefers redevelopment and infill as compazed to development in an expanded service azea." What is area 2? It's an expanded service azea. In order to prevent urban sprawl and create a compact community, we have called out all of the policies that.cleazly support how this proposal does not preserve desirable existing community patterns as stated in the BVCP, Ms. Nielsen- having a mitigating traffic plan isn't one of the criteria we aze looking at. Also, CU students get EcoPasses, and CU said they'll extend shuttle service if there is enough demand. Mr. Spitzer- I think Valmont Park is totally different. It's an infill park, surrounded by houses with many more pedestrian passes. Mr. Cowles- maybe we should remove policy 2.07, because that speaks to major entryways and avoiding future strip-malls, etc. These tennis courts, with the sketches we've seen from the university, don't seem to undercut this policy. Mr. Mole- as a compromise, I would like to keep the first sentence and get rid of the second in policy 2.07. I think this interchange onto US36 is a major entryway and we should preserve its natural setting and appearance. All we're doing is supporting 74 with things we can articulate on the basis of the plan. I agree that strip malls are unlikely here, but the first part ofthe policy we could use. Is our attorney, Mr. Gordon, comfortable with what the board has given him as ammunition? Mr. Gordon- if you want to make this fmding by referencing this policy, that's up to you, but you may want to be more clear about what community patterns you aze talking about. Mr. Spitzer- accepts striking last sentence from this policy. Mr. Gordon- read back the motion, and said that if they wanted to start to take out portions of a policy, they might need to re-draft the wording because, as the motion is now, a number of policies were being noted under the catch phrase, "including but not limited to.." Mr. ICrueg_er- corrected him to make sure the motion reads "the proposed development does not preserve desirable existing community patterns." The criteria is stated in a very specific way, and it does not meet that criteria. I agree with Mr. Mole, and striking the last sentence of that policy would be okay. I agree this has been identified as a major entryway and it needs to be protected and enhanced in order to emphasize and preserve the natural setting and appearance of the community. I think that's a good finding and it clearly states something about a pattern that we're trying to maintain. The unfortunate reference to strip malls can be deleted by a friendly amendment. r. S itzer- I don't know that this needs to be part of the motion itself. Our testimony about strip malls is in the record. ~/ Mr. Cowles- I don't want to cite sections of the BVCP in support of our motion, but at the same time excise portions of that, so I won't pursue a friendly amendment. Mr. Cowles to Mr. Gordon- if we had accepted the staff memo, we would have been adopting many pages of findings of fact. We don't have time tonight to have you draft findings of fact and come back to our next meeting with those and still get them to City Council on time. Mr. Gordon- true. I don't think you need to adopt all these findings of fact if they are not relevant.... I don't think you have to make findings about the others in particulaz. You can just tell me that you accept the staffls findings of fact accept as to criterion such and such, but as to this one we argue such and such. Mr. Spitzer- that will take a long time if we try to do it tonight. Mr. Gordon- the planning board recommends that the proposed development be denied because the proposed development does not preserve desirable existing community patterns, as required by J4, and as reflected in several BVCP policies including... Mr. ICreueer- if this goes into court on a 106 procedure, does the record of the testimony and discussion become part of the record upon which the court would make a decision? Mr. Gordon- yes I think so. Ms. Nielsen- shall we check to see if things are clear for motion wording, who made it, etc...? Mr. Gordon- repeated back that it was a motion by Mr. Spitzer, amended by Mr. ICreuger, and seconded by Mr. Cowles. The board confirmed this. Mr. O'Hashi- for the record I'm not against tennis and I'm not a strong proponent of sports, particularly at the collegiate level, and I don't have a problem with the location of the proposal, but I'm thinking that J4 gets as close to the notion of"New Urban Development" as we can get within the context of what everyone can be comfortable with. He'll support the motion. Vote The board voted 5-2 to support the motion, Ms. Pommer and Ms. Nielsen dissenting. Second Motion Mr. ICrueeer- we could have avoided a lot o this if we had started discussions on an annexation agreement between the city and county of Boulder. It's only going to get more and more difficult as proposals come forward. He wants to suggest, and see if there is board support for, a recommendation to both CU and the CC that they start discussions on an annexation agreement for this parcel. Does the board support this? Mr. O'Hashi- was encouraged to see the framework plan that was brought forward. He hopes we have this process to move forward on this tennis court project or other projects on this site. Mr. Cowles- made a motion that Planning Board recommend to City Council and the University of Colorado Board of Regents that they enter into discussions right away aimed at forming an annexation agreement with respect to this property that's owned by the university. ~~~ Mr. Linton- asked if he could comment. Ms. Nielsen- said no. Mr. Spitzer- seconded the motion. Second Vote The board voted 5-2 to support the motion, Ms. Pommer and Ms. Nielsen dissenting. Ms. Pommer- said she is not supporting the motion because she wants to have this discussion in another context, another frame of reference and at a more reasonable hour. C. Public hearing and consideration of a recommendation to City Council on the Boulder Valley Regional Center Transportation Connections Plan (BVRC TCP). Project Manager: Bob Whitson 7. ADJOURNMENT The meeting was adjourned at 12:25 a.m, on Friday, July 19, 2002. ~( "-