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HomeMy WebLinkAboutminutes.apz.19921117 ~ !(C/ RECORD OF PROCEEDINGS PLANNING & ZONING COMMISSION NOVEMBER 17. 1992 Chairlady Jasmine Tygre called meeting to order at 4:30pm. Answering roll call were Tim Mooney, Sara Garton, Bruce Kerr, Roger Hunt and Jasmine Tygre. Richard Compton arrived immediately after roll call. David Brown arrived at 4:50pm. COMMISSIONER COMMENTS Roger: I am not going to be here on December 8 for the Bell Mountain project. The Transportation implementation Committee has identified that whole block as being a preferred location for underground parking as a whole. Following all our plans in the past, I am really concerned that they would build something there with parking underneath it which would not be able to interface well with the whole plan. Jasmine: I share your concern. Members of this commission have talked about the super block for a long time and this is what we would all like to see. MINUTES SEPTEMBER 22. 1992 Roger made a motion to adopt minutes of September 22, 1992. Tim seconded the motion with all in favor. STAFF COMMENTS Leslie: I want to remind you all of the joint meeting tomorrow night with County from 5 to 7 for the Aspen Area Community Plan. And then November 23rd at 1:00pm to 5:00. PUBLIC COMMENTS There were none. DESIGN WORKSHOP/U.S. WEST SUBDIVISION Leslie presented the notice. (attached in record) She then made presentation as attached in record. Roger: My concern is the rezoning of the 22 some odd square foot parcel from R-6 to Office. That means that if the building is razed and the property is re-developed that a building could be built back in that portion. Correct? Leslie: First off the allowable floor area of the Office Zone property would include this new 2254 lot area purposes. And you are correct. However you review the on site parking required. It PZMll.10.92 would ostensibly be growth management project for any additional square footage. Roger: If they decided to completely re-design the property, raze it and reconstruct a great big building up to the size of the allowable envelope by going underground parking for example, you could end up with substantial structure back in that piece. And is that desireable in the R-6 which is surrounded by the R-6 zone except for the telephone switch. Or should we restrict that property even though it is rezoned that it is allocated for surface parking. Sara: So you would like to deed restrict that part of the land? Roger: Yes. I am just asking the question, can we or should we? Leslie: The rear yard setback for principle building is 15 feet. So if you look on the map I included in your memo--they have broken it down-- Roger: They are showing the alley as 15ft. After further discussion on this and using maps-- Bruce: Is the re-zoning necessary? Is parking not a permitted use in R-6 or is there something about the subdivision that requires that all be the same zone? Why do you have to re-zone it at all? Leslie: Parking is allowed in the R-6 zone to meet your off- street parking requirement in the zone district. What we thought we would do is re-zone it when we were doing a lot line adjustment. We do not consider the rezoning only because it would stretch out the new development process. But we realized we had to go through subdivision it was a two-step process. We thought why don't we just go through re-zoning and clean it up so when someone with this zone district now when they look at the plat it shows Office mumble. Bruce: Why create a little blip on the zone map? Jasmine: Yes. If it is not necessary to rezone, why rezone? At some time in the future if the applicant or the future applicants want to come in for additional development on the property then that is the time to clean it up depending on what is going on at the time. David: ? Is there an intent in the rezoning to increase the FAR Do we have non-conformity currently? Leslie: No. The rezoning whether it states Office or whether it 2 PZMll.17.92 states R-6-- ? they could include the additional 2250 for lot area purposeS:- So floor area of the structure there is potential to increase the floor area. But remember any new net leasable that goes on that property ___mumble___. ?: They would have to put parking places elsewhere on the property or get us to pay cash-in-lieu if they wanted to put the structure back there. So that gives us ample recourse saying "No, we have got to do it on site--do an underground-- Roger: Well, if they raze the whole thing they could do it. That is the point. Bill: There is a couple points. One is that it is our understanding that the building is ___mumble___in the office zone anyway. If there were a scenario whereby the building were razed and there was an attempt to rebuild I think the FAR regulations would prevail and even with this additional 20sqft there would be less than the building that is on the site right now. The second thought is that we understood that that was the district that would make parking legal and conforming. That is our interest. We have no specific program to try and expand the building. Jasmine: We are not concerned with your use of it at all. I think the Design Workshop plan is generally approved by the members of the Commission. We are concerned with down the road. Jasmine asked for public comment. There was none. MOTION Richard: I move to recommend to Council approval of the subdivision between the u.S. West property and Design Workshop, Inc. property with conditions #1 through #11 listed in the Planning memo dated November 17, 1992. (attached in recored) David seconded the motion with all in favor. MOTION Sara: I move to recommend to Council approval of the map amendment for the parcel conveyed to Design Workshop inc. from R-6 to Office. David seconded the motion with all in favor except Roger and Bruce. Jasmine closed the public hearing. 3 PZM11. 17 . 92 CITY SHOP MASTER PLAN ADOPTION Jasmine opened the public hearing. Roxanne made presentation as attached in record. David: What is the energy package anticipated to address Council's concern? Jack Reid: We truly haven't gotten that far. One of the suggestions was waste oil heating to augment whatever system we put in. Used engine oil can be directed directly into an overhead heater for the shop and burned as fuel. The County shop has that in place and we plan to use it in ours. And we plan to investigate other ways. We haven't gotten that far specifically with what we can do. David: Is that a clean burning fuel similar to natural gas? Reid: It is a petrol. I don't know--I am not familiar enough with it to tell you. I think the technology has come around to it. They are awfully efficient. Roger: The problem is the metal oxides from the additives of the lubricating oils is all I can think of. I am just not familiar with this process. Jasmine asked for public comment. There was none. MOTION Roger: I move to adopt the city Shop master plan as proposed with the recommendation that energy efficiency become one of the priorities during the development of phase #2 and in construction and direct staff to prepare a resolution for the Chairman's signature. Bruce seconded the motion with all in favor. Jasmine closed the public hearing. ZALUBA NON-COMPLIANCE Jed Caswall, city Attorney: Staff has been working diligently with the applicant and the applicant's attorney since last week in an effort to see if some type of resolution could be presented to the P&Z as opposed to going forward with the show-cause hearing for revocation of the 8040 Greenline. Pursuant to those negotiations the staff has been able to work out 4 PZM11.17.92 a proposed resolution for adoption by the P&Z which would do the following things: First and foremost it ____?____ Secondly it would--again if P&Z approved--it would amend the current 8040 Greenline approval to add some very specific time-oriented conditions that the applicant has to comply with or we would be right back where we are today which would be another show-cause hearing for revocation of the 8040. It also has with it--I don't know where the actual documents are at this time. Leslie: It is with Marti. Caswall: Financial security and the long and the short of it is as follows: There would be one, two, three, four, five new conditions. And these conditions may very well just be a re- statement of earlier conditions which address all of the issues that have been raised before about re-vegetation, the retaining wall and the payment of fees. And it sets essentially July 1, 1993 to complete everything that the applicant is supposed to complete. If the applicant fails to do that by that date an $80,000 lien against the property can be foreclosed upon by the city. It also provides that in the event the property is sold during the term of this amended resolution or 8040 Greenline approval that the new owner has to either stand in the shoes of the current applicant to perform and substitute another financial security to insure compliance. I don't have the final draft of the document. Again Marti must have it. And I don't also have the final draft of the security agreement. Leslie: Staff went back and forth with Marti today making corrections on these documents. She has corrected documents ___mumble___ Caswall: P&Z needs to amend the current 8040 Greenline as to the design of the retaining wall. We have made it clear to the applicant that all of these approvals and suggested amendments are subject to your approval. You may recall when we had the show-cause hearing back in the summer that you set July 1st, 1993 as the deadline to actually do the upper road and finish all of that. And now that we have lost the construction season the idea being is that we would move all deadlines to July 1, 1993. I think that about sums it up. I wish the applicant was here. 5 PZM11.17.92 Jasmine: What I don't understand about this is that this is all that we went through last week and we said this was not acceptable. Leslie: No. It's not. For example the document that Marti handed out to you at that meeting Jed had not had a chance to look at. There were no firm deadlines in that document. Jasmine: No. But we didn't like the idea of the lien. Leslie: But what we are presenting to you tonight is, as Jed said, a lien. Jasmine: But we said that we didn't want that. Leslie: But you didn't vote on that. Jasmine: We informally voted on it. Leslie: You tabled the hearing. And this is our presentation to you. And what we are presenting to you tonight is a document that sets firm deadlines for completion of the work. And it also identifies a dollar amount of $80,000. Our security is in the form of a lien. What we are also asking you to consider is an amendment to the original wall plan. As I told you before it is a substantial change to what was approved before so it therefore is not a staff level approval. This does not negate any future amendments to the original 8040. The original 8040 was for a single family dwelling and site specific building envelope. All that we are presenting to you tonight is the fact that Mr. Zaluba started work. He did not complete the work. And we are trying to get to a situation to complete that work. Jasmine: I don't understand why we are doing this. It just seems to me that this is the same thing that we have gone through in the last sixteen meetings more or less. Caswall: Before the Board really starts to discuss maybe you had better open the public hearing and note that the applicant is not here and start making a record on this. Before you do that however I would note that this is just being proposed to you as an alternative. You are not in any way bound by what the staff is presenting here. You can go forward with the show cause hearing to determine whether or not the 8040 Greenline should be revoked on the grounds as set forth in the notice to show cause that was served on the applicant. You are not bound by anything that is being suggested here. It is just that there has been a lot of work done by the Planning and Engineering staff and the applicant's attorney over the last week to try to see if we can come to an 6 PZM11.17.92 accommodation that meets the concerns as staff understands the concerns as voiced by the P&Z of the applicant's financial situation. Jasmine: Shall we open the public hearing with the applicant not being here? Caswall: I think you can go ahead and open it and indicate that it was noticed for it today and that they are not here. She is here somewhere. Bruce: Before you open the public hearing I want to ask--I abhor closed sessions and executive sessions. But I have some questions since this potentially involves legal action, I have some questions I would like to ask of staff and specifically counsel relating to this matter. Procedural questions and--I don't know if that is proper even for the P&Z Commission to do that. Caswall: You are subject to the Open Meetings Ordinances as adopted by the city and the open meetings as adopted by the State Legislature. That law basically allows this Board to go into executive session to discuss basically personnel matters, matters of contract negotiation and pending or potential litigation. To the extent that the Board feels that this matter involves potential litigation, I believe you could go ahead and entertain a motion and go into executive session on that basis. If the question however relates to procedural issues it would be my recommendation that you discuss those types of issues in the public form. Jasmine: Maybe we can do the procedural questions before we open the public hearing and then if it turns out that there is something having to do with the potential litigation at that point we might want to go into executive session. Bruce: I said last week was that I was getting mixed signals from staff. And what I would like to determine is whether what Jed just presented to us in brief form is the recommendation of staff. And if so if that recommendation is based upon what is really best for the project or whether that recommendation is based on avoiding potential litigation. That is where I am coming from. Caswall: This proposal before you has nothing to do with the threat of litigation. In my judgement based upon the conversations I have had with staff as to what went on at the last meeting I don't perceive anything that has gone on irregular here in terms of the procedure. The applicant was duly served a written notice informing them of the nature of the hearing that was to occur last week. I helped prepare that notice so in my judgement it is legally sufficient to put the applicant on notice as to what was to go on. 7 PZM11. 17 . 92 It is also my understanding that the P&Z after tabling a certain amount of evidence from staff continued that preceding to this date. And the applicant's attorney is now here and I don't see that there is anything from a procedural standpoint that was improper or subject to challenge by the applicant. I don't think the applicant is challenging anything. I will let her speak for herself on behalf of the applicant. But I don't think there is a challenge to the way P&Z is proceeding. Sara: My procedural question, Jed, is I understood you to say we were also going to entertain an amendment to the 8040. Doesn't that have to be a notice for a public hearing again? Caswall: Not in my judgement. Again, if the P&Z feels it is so substantial that the public should be heard on it-- Leslie: The 8040 was never a required public hearing. Sara: Because there was so much correspondence with the neighbor, that is my concern. Caswall: They were on notice of this today. To my knowledge they were noticed. Jasmine: So the reason this is a public hearing tonight is because of the non-compliance show-cause hearing is the reason that it is a public hearing. Is that correct? Caswall: There is no requirement that it be published. Jasmine: A non-compliance hearing and a show cause hearing need not be a public hearing? Caswall: No. Because basically what you are doing here you are dealing with the applicant specific rights under his approval and they are the only ones that is required to have notice. Jasmine: So then I don't really have to open the public hearing unless we all want to. Right? Caswall: It is a public hearing to the extent that the applicant is entitled to have a hearing. We can open to the public for the people who are here. They can be heard if the P&Z feels that their testimony could help them. It is not a public hearing proceeded by published notice. Leslie: The original 8040 was not a published hearing. The July 21st meeting we let John Kelly who is Rappaport's representative know what we were doing because of the complaints due to the 8 PZM11.17.92 unfinished nature of the road and the drainage. As we have noted in several of our correspondence to you and told you in several meetings that the road had been refinished and the drainage taken care of. We have not heard from John Kelly or Susan Rappaport. I think Rob met with them on site and unless things deteriorate in the future they are fine. We did not notify them of this. Roger: My direction is basically I would like to see this thing, the problem up there completed, finished, out of our hair. And to that end if it is the P&Z's desire to go along the line that you described, Jed, is there a way of linking that to if they do not comply with these by such-and-such a date that is an automatic revocation of the 8040? Caswall: It can't be automatic. In my judgement they are still entitled to some type of pre-revocation hearing. But if in fact they fail to comply with the terms of the conditions of the proposed resolution which hopefully we can hand out to you can take a look at it, the City could go against the security and get the work done. Roger: Yes and the problem with the security interest as I understand it is basically the city is out the money until the property is sold or they can recover the money from the lien. Where do we get the cash to do it is what I am saying. Caswall: You are right. The City goes ahead and advance it's own funds and do the work while it is foreclosing on the lien. Or it can commence foreclosure on the lien and not commence remediation on the road until such time that the lien is foreclosed and the cash has been made available. As a practical matter that is not an easy process. When you have to go to court, you have to sue. You have to foreclose on the lien. The property has to be sold and the City's interest has to be satisfied out of the proceeds from a court's jUdicial sale. Roger: What you are saying is if there is non-compliance on July 1, 1993 then we just basically have to initiate this procedure and it is this whole thing allover again. Caswall: But keep in mind right now we have no financial security on the property. Jasmine: But that was a condition of the last approval was that we had-- Caswall: Right. But we don't have it. Pickett: The resolution that we have prepared in ___mumble___ I 9 PZM11.17.92 think puts on a little bit better condition because at this point by our agreeing to be ? without any kind of challenges to you ___mumble___ by July 1st if they are not completed. You are in a better position because you have security we have agreed to. She mumbled more here. So hopefully this puts you in a better position and it will buy us some time to get through the winter and hopefully the contract that we have right now ? . -- Jasmine: I guess what I don't understand is that didn't we previously go through this and weren't we supposedly having some kind of a financial guarantee about this work? What makes that proposal different from this proposal? Caswall: The difference is that the reason why you are here is based upon a show-cause notice served on the applicant that they have failed to comply with posting--the security that you required last time. Jasmine: Yes. So now we are telling them that we will give them another few months to put up more security. Caswall: Well, here it is. It just needs to be executed. And so you are right. You are at where you were last time. Unfortunately. That is where you are at though. And so there is no security. And that is the basis for one of the grounds for the show-cause. David: Just to refresh me. The agreement we made this summer was to ask for a bond. Is that correct? Caswall: It said "Bond or other financial security approved by the City Attorney". David: And why are we not pursuing a bond? Why is this easier than a bond? Pickett: We applied for a bond and bonds are really structured for developers. And it would take a lot to get a bond. And we tried to get a letter of credit. And they were not able to do that because ---mumble---. Caswall: My slant on that is the applicant just doesn't have any money. This is a no-cash method to provide security. David: In spite of evidence that other members of the Board do not feel--there have been some efforts to improve the road and mitigate any drainage. All our conditions in the summer were not fulfilled. But I think there has been at least some evidence of good faith to 10 PZM11.17.92 move a little bit forward and I would be inclined to accept this. Sara: Jed, why does this secure $80,000? Where is the $80,000? Caswall: from the there is In the property. The court orders the property sold and proceeds from the sale the city gets it's $80,000. Now probably other mortgage holders. Jasmine: Do we know anything about other liens on this property? Pickett: I represented at the last hearing that it is 20 to 25% incumbered. Caswall: There is sufficient equity in the property at this point in time that if the city--and this lien will obviously become of record--and any interest taken in the property after this is recorded would be junior to this. There is sufficient equity in the property to satisfy this as long as we get the thing filed within a reasonably short period of time. Jasmine: You know this for sure? Caswall: I am basing this upon the representations of Ms. Pickett. Jasmine: I think it would be helpful to have that information. Bruce: I have an editorial type question. I am wondering whether in our attempts by staff and potentially this commission to accommodate this applicant, we are going far beyond what I perceive as the City's obligation to applicants. We gave an 8040 Greenline approval to this applicant many, many months ago. In return for that approval we required certain things to be done. The way I look at it it is like a contract. They gave us something and we gave them something and now we are being asked to go beyond what I think should be the City's proper roll with applicants. So I am wondering where the City should assume the burden. It seems to me the burden is on the applicant to fulfill it's part of the obligation to comply with the approvals. And it seems to me we are bending over backward. My concern is not to--it may be a good deal for the City. It may be a good deal for the applicant. My concern is about what kind of precedent we set for future applicants in any number of kinds of things where the applicant doesn't fulfill it's part of the bargain and then they come and ask us to pick up a little bit more of the load. That is really what bothers me the most about this. i Jed and Marti are both here with a legal doctrine called the clean hands doctrine. And basically what I remember about that is if when you come in to court of equity to ask for mercy of the courts, 11 PZM11.17.92 you have got to come in with clean hands. You have to have done everything you are supposed to have done in order to get that kind of remedy--that equitable kind of remedy. And it is my feeling that we don't' have an applicant that has done everything that they are supposed to do and has come in here with clean hands. They haven't paid their fees. They haven't complied with the previous conditions. So I am prepared to hear more comments from the Commission and prepared to hear from the applicant. But my inclination at this point is exactly where I was a week ago when I made the original motion. Tim: I am with Roger. I think that we should take the shortest means to get what the City needs in an 8040 Greenline review. And I am not so sure that adopting this proposal and adapting our thinking to Mr. Zaluba's needs is the shortest way. I think that the most amount of pressure that we can put on Zaluba in bringing his property up to the standards which we asked him to when we gave him the 8040 might be to revoke his 8040. It is my idea, and there could be some discussion on this, that if we continue his 8040 and we allow him to sell the property he passes on this bad situation to the new owner. And we are no closer to getting compliance to the 8040 that we need. And I think that then it perpetuates the problem to another applicant. And it perpetuates the problem to minimizing the standards that we required in the beginning and accepting standards that are below what we originally enacted. I think that if Mr. Zaluba doesn't have an 8040 Greenline Review, he doesn't have the right to build a home there. And in order to get a return on his investment and move forward with his investment he needs to sell the rights to build a home there. Therefore, he is going to go in and do the work that we originally asked him to do. He is going to come back to us in compliance. He is gong to come back to us with the requirements that we asked to begin with. Then we will give him another 8040 Greenline Review. Then he can go and sell a building site and a proposed home site. That is my thinking now. I think that Zaluba has been in constant non-compliance. And I think that this is just a paperwork shuffle to get Zaluba off the hook and to put somebody else in those shoes. And it still doesn't get the City closer to what we need. My second idea is that if Zaluba is trying to sell this property for two million dollars for us to lien the property for $80,000 that is something that basically he can write off in the cost of what he is going to make in profit. He is trying to sell land. He is trying to sell designs for a house and he wants somebody to come in and buy either a built house or plans for a house. I think built into his profit margin is $80,000 worth of profit that this 12 PZM11. 17 . 92 really doesn't put any pressure on him to perform. If it were some kind of substantial amount of money that could get his attention I really think that we would have some kind of lien against this property. Richard: I know we are all tired of this. But as I understand it the only leverage we can get on the property is this lien. If we revoke the 8040 then he is sitting on a piece of property with a potentially dangerous road cut on it. But unless we go back and sue him after some fashion on that basis we are not anywhere. And it seems to me this, unfortunately, is the best deal we can cut at this point. Now if staff or counsel has any other suggestions on what we might gain by revoking 8040 besides getting this out of our hair temporarily I would like to hear about it. I agree with David. I think this gets us to where we want to go still within the timeline that we agreed upon back in August. David: I think what Tim is proposing is reasonable. There is a clause in here that says that upon the sale $80,000--would be given the city to guarantee this. So if the sale does occur over the winter the City is given a chunk of change to affect these modifications without going through the process of a lien even if the future buyer makes no effort to perfect the approval. I wonder if the most expeditious way to get there is to keep the approval for the development right in place, to help sell the property, to help keep the value up and help get the transfer of the property so the $80,000 is given to the City so the Engineering Dept can then guarantee or make sure that it does the original changes take place. This might only be rhetorical but if this applicant really is without funds and the 8040 is revoked, what guarantee do we have that they will find additional funds to re-apply and then get back the 8040. Richard: Or that he will sell the property during the next 5 years. Tim: I think it becomes his responsibility to do that and not ours. We are almost appointing ourselves to be his partner and to see him through this. If we revoke this he has to get it done before he can go further because he has got to come back to us and say "I am in compliance and now I want my 8040 and then I have the ability to sell the property". If we hold his hands through this whole thing we are basically his partner in this. And it is like Bruce's question "How far do we go with every applicant who doesn't know how to do a road right? I want to make it as easy as possible for Mr Zaluba to get in 13 PZM11.17.92 compliance and if sometimes it is the hard way, this might seem like the hard way. But to me the logic seems that it is the most direct way to get him to do what he has to do and not to get us to do what we want him to do. Jasmine: I would like to do a straw poll of the members of the Commission as to whether they wish to proceed with the show cause hearing or wish to entertain another method of going. Leslie: Joe did do some work on the road. And he canted the road back into the slope and our staff's feeling in discussion with the engineers is that the road is in a stable condition for the winter as far as the drainage problems. Originally when you approved the 8040 and our recommendation with that was to have the road cut one of our biggest concerns and issues was the retaining wall because we didn't want the slope to eventually erode back. The road cut right now is fine. It is not in a dangerous situation. But our goal was to try to get this wall up to stop continuing erosion. Sara: I hear 2 very good arguments going on here and I have a lot of problem as Bruce does as to just how far do we take somebody. How far we have to be a partner in resolving this development situation. If we should choose to accept this resolution I want to be sure that Mr. Zaluba is being billed for city Attorney time, extra Planning Dept time and extra Engineering staff time. Caswall: There is nothing billed from the City Attorney. Sara: Well, he should be. Leslie: Or Engineer. have worked on it. I have calculated the additional hours I Sara: I also agree with Tim. The figures seem too low to me. Caswall: It has to be reasonably related to the actual cost incurred over our goal being achieved. And staff has calculated that. It may seem low but it accurately reflects the security necessary to do the work and the fees as owed the Planning Office. Jasmine: But the attorney and engineer cannot be billed for that? Caswall: There is no basis under the Municipal Code to assess those kinds of costs. Bruce: Marti has already indicated there may be a contract working. And at the time of sale we get $80,000. Now it is our burden to do whatever has to be done up there. And we mayor may "",,.."^ 14 PZM11.17.92 not have enough money with $80,000 to do it. If we don't do it right--if the city goes up there and has to do this stuff and we don't do it right, what is our potential exposure to that landowner-the person who has bought that lot with this 8040 Greenline approval and wants to build a house-there is all kinds of things like this that trouble me about us getting into this partnership relationship. Pickett: It is not your burden at that point. That just gives you your letter of credit and the July 1, 1993 deadline is imposed on the new owner. And at that point if the new owner has not done these improvements then you have the right to go through that court order. That at that point you are substituted out. Your deed of trust goes away and instead you have a letter of credit. Bruce: So we don't have $80,000 cash. Pickett: That is correct. Caswall: The point of any security is to have funds available so that eventually if worse comes to worse the City does the work. If you are concerned about the City doing the work you might as well not require the security because the whole point of the security is so the city itself can do the work or we can hire a contractor to go out and do the work. The figure as calculated by the Engineering Dept for the work also contains essentially 30% contingency to make sure it will cover everything. So obviously if the city hired somebody to do the work and they did it negligently then the city would look to whoever did the work. If the City does it itself I suspect that the governmental immunity act will protect the City from any claim that might arise out of some type of unfortunate incident that may arise out of that. Bruce: The difference I see in this situation and the typical subdivision bond or whatever it is we take as security is--we have already got a track record here of non-performance and non- compliance. And it seems to me that we would accept this knowing we might get into that situation. When you take subdivision bonds you hope and pray that you will never have to use that bond. Your intent is not to fall back on that security. Your intent is for the applicant to perform. And that is all I am asking for in this case. Our intent is to get this applicant to perform. And not to get into the situation where we are having to hold their hand. Jasmine: I would like to hear from the Engineering Dept and then I am going to just informally poll the Commission as to which direction to take. Otherwise we can just go on and spend yet more hours on this application than we already have spent which is far 15 PZM11 . 17 . 92 in excess of any other single item of business that we have had since I have been on this commission. Rob Thomson, Engineering: If we had not started receiving complaints when he constructed this first part of the road where there wasn't any drainage problem with the Rappaports, we probably wouldn't even be in here right now. In fact because we were getting complaints and then we started to go back into the files and look at them, I don't know the whole process of the conditions of 8040 that there was any time constraints on it but that is why I started working with Leslie in trying to find out where to go with the road. From there it has generated into a push for us to try and get them to do things. Obviously in the future for 8040s we are going to put some time constraints on it. Jasmine: That is very helpful but part of the problem that we have had as a Commission is that we do these regulations. We spend a lot of time not only on these endless non-performance parts of it but the original 8040 Greenline took a lot of time. It took several hearings. We were very, very specific about conditions because this is a vulnerable slope. That is what happens with 8040 Greenline. It is not a flat piece of land. That is why you have the 8040 Greenline Review. And it is our hope that although it is a very sensitive building site that all the hours that we spent in drafting these conditions would be so that you didn't have these kinds of situations. Then you have an applicant who like other applicants has other problems--the end result is we are doing all this stuff and it is all for naught. All the things we did 2 years ago in establishing these conditions means absolutely nothing. We are almost exactly where we were then. I wonder whether we should ever bother putting conditions on anything because when an applicant doesn't feel like or is unable to comply with those conditions it is just a big "so what!". And I really feel very indignant about it. Nobody takes care of me when I make a mistake. If I overbalance my checkbook, even though I am not a criminal, I still have to pay the consequences. When you don't perform to the expectations that you have led other people to believe and they have made certain arrangements based on your word as to what things you are going to do and you don't do it, you get in trouble. I don't see why applicants need us to go out of our way to go through these contortions with them. I really find this very upsetting. Tim: It seems to me that in realizing that there is a 30% contingency and it is $80,000 that the whole problem if there is 75% equity in this property and it costs $55,000 for him to come into compliance with the 8040 Greenline Review it seems to me that it is just nothing but disinterest on Zaluba's part. He could go 16 PZM11. 17 . 92 out with that 75% equity and go to any substantial lending institution and borrow $55,000 and bring that 8040 Greenline Review on line. And I think that it just shows me that he is just not interested in doing it. He is interested in us doing it. And he is interested in us doing it in the 11th hour and 55 minutes. I just think that this is a problem with the applicant--not with the process. That is my final point. Jasmine: I would just like to know whether you would like to proceed with pursuing the alternative arrangement or do you want to continue with the show cause hearing. Richard: I want to pursue the amendment to the 8040. What I am looking for here is what I perceive the public interest--the city interest which is having the road stabilized. It is not an issue for me whether we are holding the applicant's hand and helping him along. We are pursuing our interest in this matter and I think that is the best way to get to it. Sara: I would like to revoke the 8040 for a couple of reasons. And I always try to be thorough in my roll as a member of the Planning and Zoning commission. We do have the responsibility to represent the public with the best planning possible. However we also are a semi judicial Board and I do not feel the applicant has done anything in my experience in working with the applicant to show that he is going to abide by this resolution as well. I admire his attorney. I have to thank her. She has been terrific through all of this. But I would like to revoke the 8040 Greenline. Tim: I agree with Sara. Jasmine: I agree with Sara as well. Roger: I don't disagree with you three. However I would be willing to proceed with an amendment if we can also get an agreement from the applicant that if it is not complied with by this date, that they agree to forfeit the 8040 Greenline. I don't know if this is possible. I am so damned tired of this. But I do want to get the problem solved and if it can be solved without more horrible energy put into this on our part. By horrible I mean apparently unproductive energy. I would be willing to go along that way. So I guess I am leaning towards amendment if we can get the applicant to agree that if they are not totally in compliance by that date they give up their rights to the 8040. Bruce: I think I have made my position pretty clear. Although I must say that if there is a way that can be structured along the lines that Roger has just proposed, I might be inclined that way. In other words there is an absolute drop-dead date. 17 PZM11 . 17 . 92 Caswall: If the applicant wants to waive their right in advance to have a hearing on that and that was clearly spelled out mumble probably suffice and then withstand a subsequent court challenge if the applicant came back and said "Well, I said that then but I really didn't mean it and now I want to reverse that" and then challenge it. David: In an effort to avoid all of us sitting through another 8040 Greenline Review application by the applicant should we revoke it now, I am inclined to agree with Roger's position. What that means is what Tim was suggesting that the best way to get him to improve the situation is to come back--revoke the 8040, make him come back in, apply for the 8040 in order to solve it. What that means is we are going to start from scratch. We will have a whole new 8040 Greenline application. I am not interested in going through that. Therefore to avoid that I am inclined to go along with what Roger said. Pickett: I was going to speak to that matter about waiving in advance that right to a hearing. I am not sure that is enforceable. But the point I was making earlier was that if you have another show cause hearing at that point mumble we don't have any defense anymore. We are saying to you tonight that we are agreeing to all of these things. If you have your revocation tonight, we do have some challenges that there has been some work with the staff. We have met a lot of the conditions. We have been trying to work with them. So if that helps any--I am just not prepared on behalf of my client tonight to waive that. Tim: I am wondering in order to re-hear an 8040, we already have basically the 8040 in tact. We know what the 8040 needs are on that property. All we have to do is vote on it. And in order for him to come back he would have to comply with the original 8040. This changes the requirements of the original 8040 and gives him a different construction program. It is in our best interest to stick to our original ideas of what we need on that property--not to compromise. Pickett: There have been some changes from the City ____mumble. MOTION David: I move that we vote to accept the resolution as put before us. My motion would be to vote to accept it as put before us. Richard: premature. I would like to second that. I just feel it is Procedurally I think we should either have a motion to 18 PZM11.17.92 look at this and if it is not acceptable then we go to the show- cause hearing. Bruce: doing. We are in the show-cause hearing. That is what we are Jasmine: Not necessarily because if we decide to go with the amendment then we won't be doing a show-cause hearing. Richard: It just sounds like your motion says "Well, we are going to accept this without having discussed it". And I am afraid-- and I want to-- I support you on that but I don't want to lose anybody because they haven't had time to hash it out. Roger: If that fails for a second I am prepared for another one. Richard: So do you want to change your motion. David: No. I refer to my esteemed colleague. Sara: Could we have clarification--are we in a show-cause hearing right now? Caswall: hearing. Well, the Chairperson has never formally opened the MOTION Roger: I move to consider the amendment with security that we consider that at this point. And I really want to get in there the idea that it doesn't have--I don't think it has too much of a- -in my mind anyway, it doesn't have too much of a chance of proceeding much farther than our considering it at this point. If we don't get some sort of a positive sign from the applicant that they are willing to waive further-- Jasmine: Well, Roger, we don't know what that motion is. That motion doesn't make any sense because we can't say what the applicant is going to do or not. Basically your motion is to consider some form of amendment. Right? Roger: To consider some form of an amendment with security, yes. David seconded the motion. Roll call vote: Tim, no, David, yes, Sara, no, Richard, yes, Bruce, no, Roger, yes, Jasmine, no. 19 PZM11.17.92 MOTION Sara: I would like to recommend revocation of the 8040 Greenline Approval for Lot #3 of the Hoag Subdivision because Mr. Zaluba has failed to comply with the following conditions of approval as stipulated on the July 21, 1992 finding of the order resolution and conditions #1 through #5. Caswall: That motion would be out of order at this time in that the hearing has not convened. The applicant has not been heard. The motion should be whether or not to proceed with the show-cause hearing. Not on the merits of whether it should be mumble Sara: We don't have a choice whether to proceed or not. We need to proceed. Caswall: No. You could vote not to proceed at this time and entertain another motion. MOTION Sara: I make a motion to proceed with the show-cause hearing for the proposed revocation show-cause hearing of the 8040 Greenline for Lot #3 of the Hoag Subdivision. Tim seconded the motion. Roll call vote: Tim, yes, David, yes, Sara, yes, Richard, yes, Bruce, yes, Roger, yes, Jasmine, yes. Jasmine then opened the public hearing for the show cause hearing for the Zaluba Non-Compliance. Now how do we proceed? Caswall: As I understand you had opened the hearing at the last and this is just a re-opening of the hearing and that a number of documents and testimonies have already been entered into the record. And I believe the staff has completed their case demonstrating there has been non-compliance as set forth in the notice to show cause on that the applicant needs to forward to about that that testimony. Leslie is there any more that we need to put in? Leslie: For that November 10 show-cause hearing I included everything in the packet for the record including our correspondence in the last memo and the November lOth memo recommended our recommendation was to revoke the 8040 Greenline 20 PZM11.17.92 with the following conditions as stipulated in the July 21, 1992 Findings and Order Resolution and then I listed 5 conditions. Caswall: That is probably enough at this point. I guess the question now is whether the applicant is ready to proceed. Pickett: No. Actually I would like to request tabling just because I am very late. I am director of choirs and I really need to be there. So if we could re-schedule a time to hear it. Jasmine: Well, we knew that this was going on. Pickett: I was prepared last week and we were tabled till today and I am sorry. I talked to Jed early this morning about the situation. And if---mumble. After discussion date of December 15, 1992 was decided on. MOTION Jasmine: I will entertain a motion to continue this hearing to date certain of December 15, 1992 at 4:30 P.M. Roger: So move. Richard seconded the motion with all in favor. Meeting was then adjourned. Time was 6:30 P.M. Commission then continued with a work session on the Kraut Janic 21