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HomeMy WebLinkAbout11.05.20 PB MinutesCITY OF BOULDER PLANNING BOARD ACTION MINUTES November 5, 2020 Virtual Meeting A permanent set of these minutes and a tape recording (maintained for a period of seven years) are retained in Central Records (telephone: 303-441-3043). Minutes and streaming audio are also available on the web at: http://www.bouldercolorado.gov/ PLANNING BOARD MEMBERS PRESENT: David Ensign John Gerstle Lupita Montoya Sarah Silver Lisa Smith Peter Vitale Harmon Zuckerman, Chair PLANNING BOARD MEMBERS ABSENT: N/A STAFF PRESENT: Charles Ferro, Development Review Manager David Gehr, Chief Deputy City Attorney Cindy Spence, Administrative Specialist III Jean Gatza, Meeting Moderator Shabnam Bista, Associate Planner Jonathan Bergelin, Code Compliance Supervisor Gerrit Slatter, Principal Transportation Project Engineer Philip Kleisler, Senior Planner 1. CALL TO ORDER Chair, H. Zuckerman, declared a quorum at 6:01 p.m. and the following business was conducted. 2. PUBLIC PARTICIPATION a) Laura Tyler, representing South Boulder Creek Action Group, spoke regarding the CU South project and advocating for flood mitigation. She said that her group supports City Council’s selection of the Variant I option and collaborative work with the university. b) Peter Mayer spoke regarding the CU South project. He asked the board to remember that if something has not been specified in the annexation agreement, then it may not get completed as the university is a sovereign entity. The annexation plan must state specifics regarding the mitigation of wetlands, a site plan, and conformity with the BVCP. 3. DISCUSSION OF DISPOSITIONS, PLANNING BOARD CALL-UPS / CONTINUATIONS There were no items to discuss. 4. PUBLIC HEARING ITEMS A. AGENDA TITLE: Public hearing and consideration of a request to determine if the restaurant use River and Woods, located at 2328 Pearl St., is in compliance with its development agreement executed for Nonconforming Use Review LUR2015-00087. This request is considered pursuant to Section 9-2-11, “Compliance with Development Agreement,” B.R.C. 1981. (case LUR2020- 00041. Board members were asked to reveal any ex-parte contacts they may have had on this item. • J. Gerstle stated that he had conducted a site visit. Staff Presentation: C. Ferro introduced the item. S. Bista presented the item to the board. Board Questions: S. Bista answered questions from the board. Applicants’ Presentations: Greg Kass, the complainant, presented the item to the board. Josh Dinar, the owner of the River and Woods, presented the item to the board. Board Questions: Greg Kass and Josh Dinar, each representing the applicant, answered questions from the board. Public Hearing: 1) Allison Cawthon, a neighbor of River and Woods, spoke regarding the airstream that is currently in the alley. She stated that it blocks the alley and her carport regularly. The activity in the alley and the music has been disrupting. 2) Laken Guza, a neighbor of River and Woods, reiterated the concerns of Allison Cawthorn. She stated that they have had to deal with noise and garbage on a regular basis. 3) Anya Grafov, a neighbor of River and Woods, reiterated the concerns of Allison Cawthorn. She stated that the restaurant has not been a benefit to the whole community. 4) Julia Romero, a neighbor of River and Woods, reiterated the concerns of Allison Cawthorn. She stated that they have had to deal with broken glass, restaurant workers smoking and blocking the alley as well as delivery trucks blocking the alley. Music has been heard six times a week. 5) Lisa Hilmes stated that she has also complained about the noise from the restaurant, obscene employees, dumpster lids slamming late at night and alcohol being served out of the airstream trailer. She offered proposals. 6) Lisa Spalding, a former member of the Beverage Licensing Authority in 2016, when River and Woods had been granted a liquor license. She recalled the outdoor area and the space with the airstream trailer had not been granted a liquor license. That space should have been designated for parking, and not the serving of alcohol and it was not zoning compliant. The bar was added without permission and was done prior to the pandemic. She requested the bar be removed and the parking space returned. In addition, three nights per week does not equal “periodic” for music. 7) Kystin Villeneuve, a neighbor of River and Woods, said that concerts were held (over thirty hours) with full bands in addition to acoustic events. She claimed employees were rude, obscene, and loud on purpose after hours on end. 8) Matt Hayden, a neighbor of River and Woods, confirmed what the other neighbors said. He claimed the noise from the concerts could be heard from Folsom Street. Applicants’ Rebuttals: • Greg Kass, the complainant, stated that J. Dinar’s comments regarding the use and location of the trailer bar were false. G. Kass stated that bar had been in the parking spot behind the restaurant, in the parking spot and not used as storage since 2016. The bar was unlicensed and was instructed by the BLA to shut down. While he has since moved, residing by the restaurant is unlivable due to the circumstances and changed the quiet neighborhood. Finally, he claimed that J. Dinar’s intention was that this location was to always be a concert venue. • Josh Dinar, the respondent, the owner of the River and Woods, stated that he had solicited community feedback before opening and applying. He said that some of the complaints he heard from the public tonight were new to him and he had addressed concerns immediately. He stated that River and Woods is not a music venue. He acknowledged that the music had not been periodic this past season, but the long-term intention is to be periodic. He said they will continue to work with the city and neighbors to be as unobtrusive as possible. Board Comments: Key Issue: Are the River and Woods restaurant’s operating characteristics in compliance with the development agreement, in particular the conditions of approval from the Nonconforming Use Review (LUR2015-00087)? • L. Smith said the in reviewing the original Use Review, the staff recommendations, and comments from the public, it would seem clear that the current or recent uses of this past summer did not meet the Use Review as written. • J. Gerstle stated that he had visited the location on a site visit. • S. Silver supported the staff recommendations. She suggested discussion the issue of amplification as well as the definition of “periodic”. • H. Zuckerman referenced that the allowable decibel level of measurable sound according to the Code (5-9-3) from the property line for Residential from 7:00 a.m. to 11:00 p.m. is 55 and for Mixed Use is 65 max. The question would be, where was the sound received. The east and west of the restaurant, there is MU-3 zoning, therefore, the measurable decibel level would be 65 limits. The back-property line on Walnut Street (south), zoned RH-2, would be limited to 55. • L. Smith said it is not unusual to have some noise conflict in a neighborhood where mixed use abuts a residential area. While the use review issues may be clear, it is more difficult to parse out the actual constraints were regarding legalities of the noise level. She welcomed feedback on some clarification on what city code allows for any usage and noise levels. • L. Montoya would like to focus in on the code and approach as a mediation. The noise situation needs to be clarified. She said that she wished there were data regarding the decibel levels presented. She said the parking needs to be clarified, how it will be fixed, meeting codes so the business can continue, and the needs of the community should be addressed. • P. Vitale stated that the board should stay focused and within the bounds of what needs to be reviewed. • H. Zuckerman instructed the board that they have staff recommendations in front of them tonight along with some conditions. These conditions are basically the same as conditions that could be applied in a Site Review. To make the use compliant, a condition could be added. The board may not be able to address the restaurant’s employees’ behavior. The board could review the approved Use Review and simply adda condition they feel is necessary to meet the conditions of approval then they could be suggested. However, it must be tied back to the original conditions of Use Review that were approved. • D. Ensign agreed to support the motion that the uses had been violated. Enough evidence had been presented to support that. Regarding the staff recommendations, he would support imposing additional conditions or modifications to carry out the purposes of the original approval. He said that the board may not need to get into enforcement at this time. Regarding additional conditions, he would be willing to discuss whether “no amplified” music as stated in the staff recommendations is enough. He said it might be nice to move the airstream from the back- parking spot and to stop serving alcohol from it to be consistent with the original uses. The loosening of COVID constrictions could affect the staff recommendation of seeking enforcement remedies as provided in Chapter 9-15, “Enforcement.” B.R.C 1981. He added if the airstream were to be used during the time of COVID for seating, he thought that would be reasonable as a temporary situation. • J. Gerstle said the question of what is amplified music is a key issue as well as how “periodic” is defined. • L. Montoya said she would like to have several days associated with the term “periodic” for the Use Review in the conditions. In addition, she would like to see an agreement on the interpretation of amplification. She said it may require more discussions between the owners and neighbors requiring them to come to agreements. She suggested the parties get some mediation. • S. Silver said that the duration of how long the music could be played is an issue as well. She disagreed with L. Montoya regarding continued discussions between the complainant and respondent. The board must revise the Use Review conditions and find if the existing Use Review has been violated. She said the only question for her would be how long music can be played on any of the three days that fall into the definition of “periodic”. • D. Ensign said that no more than three times a week was agreeable as a definition as “periodic”. • H. Zuckerman agreed with S. Silver regarding duration of music being played. The board should set some limitations. • J. Gerstle said, in his opinion, three days a week defines the restaurant as a concert venue, and he would like to see less days. • P. Vitale disagreed. • H. Zuckerman summarized the board’s discussion. There was no interest in revoking the Use Review. The whole board would like to apply additional conditions. Board members agreed, except for J. Gerstle, the term “periodic” could be defined as no more than three days a week. All board members agreed with temporary COVID-19 emergency orders to the site plan regarding the airstream trailer. They agreed the duration of play period per day would need to be stated, for example four hours. Regarding the definition of amplified music and acoustic, the board agreed limiting amplification to a single speaker. Motion: On a motion by S. Silver seconded by H. Zuckerman the Planning Board voted 7-0 to find that the conditions of the development agreement for approval #LUR2015-00087 have not been met, adopting the staff memorandum and its attachments as findings of fact. On a motion by S. Silver seconded by D. Ensign the Planning Board voted 6-1 (J. Gerstle opposed) imposes the following additional conditions to carry out the purposes of the original approval: 1) There shall be no amplified sound in the backyard outdoor area except as specified below. 2) Live music performances in the backyard outdoor area shall be limited to unamplified or amplified acoustic instruments and vocals, no more than three days per week (which would constitute “periodic” music as stated in the previously approved management plan), and no more than a total of three hours per day. The live music shall end no later than 9:00 p.m. 3) Pre-recorded background music during operation hours will be allowed but must be shut off no later than 9:00 p.m. 4) The site design and the restaurant operation shall be consistent per the approved plans for the use, except that the current site plan may be temporarily operated pursuant to a permit approved under COVID-19 emergency orders. Friendly amendment by H. Zuckerman to add the language “imposes the following additional conditions to carry out the purposes of the original approval” to the beginning of the motion. S. Silver accepted. On a substitute motion by H. Zuckerman seconded by D. Ensign the Planning Board voted 6-1 (J. Gerstle opposed) to substitute “unamplified or amplified” to paragraph/condition (2). On a substitute motion by D. Ensign seconded by L. Smith the Planning Board voted 6-1 (J. Gerstle opposed) to substitute a new paragraph/condition (3) stating “Pre-recorded background music during operation hours will be allowed but must be shut off no later than 9:00 p.m.”. • J. Gerstle opposed because he felt the decision was inadequate in terms of a remedy for the neighboring residents. This will lead to continuing concerns for the residents which they are experiencing. B. AGENDA TITLE: Public hearing and Planning Board consideration of a motion to amend the North Boulder Subcommunity Plan (NBSP) by adoption of a refined streetscape plan for North Broadway in the commercial area to reflect direction recommended in the public process for the North Broadway Reconstruction Project. Staff Presentation: C. Ferro introduced the item. J. Gatza presented the item to the board. Board Questions: J. Gatza and G. Slatter answered questions from the board. Public Hearing: No one spoke. Board Comments: • D. Ensign said that it was encouraging to see this work from staff and that the Transportation Advisory Board had unanimously approved the NBSP. He would be in support. Motion: On a motion by J. Gerstle seconded by L. Montoya the Planning Board voted 7-0 to amend the North Boulder Subcommunity Plan (NBSP) by adoption of a refined streetscape plan for North Broadway in the commercial area to reflect the direction recommended in the public process for the North Broadway Reconstruction Project. 6. MATTERS FROM THE PLANNING BOARD, PLANNING DIRECTOR, AND CITY ATTORNEY A. AGENDA TITLE: Update and board input on the CU South project. H. Zuckerman, L. Montoya, and L. Smith recused themselves. Staff Presentation: P. Kleisler presented the item to the board. Board Comments: Key Issue #1: Does the board have input on the draft Annexation Briefing Book? • S. Silver questioned the rush for an annexation when the city focus should be on flood planning and permitting. In addition, she had concern with the elements in the matrix that suggested less than full commitment to the environmental elements of the guiding principles and a real interest in trying to maximize conveyance to the city of the Open Space – Other land. She agreed with the staff’s efforts to live up the recommendation of the Open Space Board to convey all 119 acres of that land to the city. There is a broad issue of accountability on the University’s part. It will be essential for the city to identify the tools necessary to hold CU University accountable. Also, she asked what if CU should sell the land rather than developing themselves. She would hope the purchaser would have to go through a new review process and held accountable to our processes. There is no financial analysis to show what and how much this will cost the city and who will end up paying. This annexation is being treated differently than other annexations in that the city is being aske to pay for a lot of the costs. In most cases, the property owner pays for the costs and she hoped that would be the case here. • J. Gerstle said it was unclear what obligations and commitments were of each party in addition to the costs. There is a need to discuss these major issues and clear them up. • P. Vitale said he like how the book was laid out in terms of showing where we were in alignment and where we need work. He questioned how we can call out S. Silver’s issues more clearly in the book. Regarding the cost issue, he suggested calling out the fact this is a unique annexation, stating some of the public perceptions, and stating the issues and facts. It could assist with community engagement. • D. Ensign said the book is fantastic and presents this topic in a more organized manner. He suggested consolidation of the themes in a way that helps thinking of them together. He recommended the table on Page 19 be used only once, rather than repeated within the document. Also, he found the maps useful, but they had not been referenced (ex. Page 111, Access Points). People may find the book overwhelming therefore they should not be felt like something is being kept from them. The book had done a great job of incorporating the guiding principles throughout, however, there is not an example of enforceability if there is on site plan. He recommended some way to convey to the public how we think enforceability may look even though we do not have a site plan. • P. Vitale suggested more detail or community feedback in the matrix section. • S. Silver suggested the color-coded element should flow through the entire book. Key Issue #2: Does the board have input around the proposed strategy for community engagement? • S. Silver said that she was taken aback that community engagement was proposed during a pandemic. She did not believe it was appropriate. She was put off by a schedule that would place everyone in a tight time frame regarding something that is very complex and could undermine the process and make it less credible. Two and a half months would not be enough time. • P. Vitale said that since it would be virtual, it could be done at home and online and could be an advantage. He was worried it would never be the right time if we waited. • D. Ensign suggested if we acknowledge that it would be difficult for some to attend but provide mechanisms for people to engage, offering iPads or internet, it would be great. • J. Gerstle agreed with S. Silver. He said it would be appropriate to begin the neighborhood engagement efforts sooner rather than later and the Annexation Briefing Book should be ready for distribution at that time. He did not see how the proposed timetable will allow that. • D. Ensign said the public deserves to have input. We want to make people feel better and we want to have a good result. But we cannot put on the brakes and not do this. • J. Gerstle said the goal should be to evaluate what the best terms and conditions should be for an annexation for Boulder. The objective is not to get everyone in town to agree with it. He said where we can benefit from the public input is to make sure that the annexation agreement is the best it can be and for that to happen, we need the input from the neighborhoods that will be directly impacted. One or two sessions with them would be insufficient to accomplish that. • P. Vitale questioned what the engagement would look like to the other board members. He said there are themes which people would gravitate towards. • D. Ensign suggested breaking up the briefings into targeted subject matters. B. AGENDA TITLE: 2021 Planning Board Recruitment Application Board Comments: • C. Spence sent the current application to the board for feedback and asked that any edits be sent to her by November 13, 2020. 7. DEBRIEF MEETING/CALENDAR CHECK 8. ADJOURNMENT The Planning Board adjourned the meeting at 12:11 a.m. APPROVED BY _____ ______ Board Chair ___12/17/2020________________ DATE