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HomeMy WebLinkAboutcoa.lu.sp.1985 .~ ,~ ME.,RANDUII TO: THRU: FROM: City Council ~ Hal Schilling, City Manage~ Steve Burstein, Planning Office M.. RE: Municipal Code Amendments: Public Hearing Requirements October 8, 1985 DATE: ==================='================= ===================================== SUMIIARY: The Planning Office and the Planning and Zoning Commission recommend 2nd reading approval of the attached ordinance to make the following code amendments with regards to public hearing require- ments: 1. To require that public hearing notice. be given for subdivision and roD conceptual presentation before City Council. 2. To change the public hearing notification requirements as they apply to condominium unit owner s such that instead of notice being given to the condominium managers it would be given directly to the owners themselves. 3. Applicants for land use reviews are required to supply the Planning Office with the names of property owners entitled to be notified on pre-addressed stamped envelopes. PREVIOUS COUNCIL AC'lION: Council passed a motion on June 24, 1985 directing staff to prepare code amendments making conceptual sub- division and PUD review by Council a public hearing (Issue 1 below). The condominium unit notification issue arose during the review of the Aspen Mountain Lodge, with Council directing staff to resolve this issue as well. On September 9, 1985, Council approved first reading of the proposed Ordinance with some changes made. . BACKGROUND: Over the last year several issues regarding public hearing notification have been raised. The Planning Office would like to bring all of these issues before you at one time in order to make the appropriate code amendments to alleviate the confusion Over public hearing notification requirements. ISSUE 1 PROBLEM DISCUSSION: Public hearing notice for subdivision and roD conceptual presentation pefore City Council. At the end of the discussion of the amended SPA Ordinance on June 24, 1985, City Council passed a motion to direct staff to prepare code amendments making conceptual subdivision and PUD review by Council a pUblic hearing. The amended SPA Ordinance requires that Council hold a public hearing during the conceptual plan review (Section 24-7.3 (c) of the Municipal Code). Council felt that similar requirements for conceptual subdivision and PUD review would be more consistent and .~ ~ provide a useful opportunity for Council to make a more thorough review of proposals at an early stage. Under current code provisions no public hearing is held until a preliminary Plat or roD plan is reviewed by the Planning and Zoning Commission. This means that an applicant undertakes the major effort in developing a preliminary plan before adjacent property owners and other interested parties of the public are officially involved in the review process. This is potentially unfair to both the applicant and members of the public. The applicant could have made a considerable investment in the project design while unaware that member s of the public would oppose the project in part or in entirety. Conversely, interested members of the public may feel that they were left out of the proce ss until the time when a proj ect has been designed, given initial approvals, and in a sense, gathered momentum. ISSUES 2 AND 3 PROBLEM DISCUSSION: Public hearing notification requirements as they apply to condominium owners. The following language either appears in or is referred to in six separate sections of the Municipal Code with regards to public hearing notification requirements: "Owners of residential multi-family condominium units may be served by mailing sufficient copies of any such required notice (one for each owner) to the recorded address for their homeowners' association." Several condominium association managers have questioned the appro- priateness and legality of this special provision applied to condo- minium complexes. Thei r arguments are summarized below: a. Under current code provisions, the condominium association manager is placed in the position of 1) deciding whether an issue is important enough to send out notices of public hearings to condominium owners, and 2) finding the current addresses of the condominium owners. It is argued that neither responsibility should be delegated by local government to these individuals. b. In the case that there is a change in management companies for a condominium association and the new company fails to receive notification, then all of the condominium owners would also fail to receive notification. c. The time and money incurred by the association manager handling notification are alleged to be an unfair burden by some of the managers. d. There may be a statutory requirement for cities to notify all property owners, not discriminating between multi-family condo- minium owners and other property owners. 2 ~ '-'. amendment are made in terms of convenience or the ascribed capabil- ities of the management company to handle public notification in a better manner than what is the general system of notification require- ments. Neither argument should outweigh due process and statutory requirements. Code Amendments made pursuant to Issue 3 would require the. applicant to supply to the Planning Office the names of entitled property owner s (owners of property either adjacent to the subject property or within 300 feet, depending on the action) on pre-addressed and stamped enve- lopes. It is felt that this is a reasonable responsibility of the applicant I and it would reduce some of the additional work resulting from the proposed amendments requiring notification of all condominium owners (Issue 2). When Council considered this Ordinance on first reading, it was determined that applicants should also be responsible for stamping as well as pre-addressing the envelopes. The Ordinance has been reworded to reflect this change. The argument that there would be a greater chance for inaccuracies in addresses that may invalidate the public hearing is of some concern. The statutory language specifying the acceptable sources of names and addresses (C.R.S. 31-23-215) is proposed to be added to the Municipal Code to better guide the applicant in preparing valid lists of property owners. Furthermore, the Planning Office feels that it is important to keep the language of all public notification requirements consistent for the sake of simplicity. Therefore, each of the eight amended sections would read essentially the same. There code amendments do not have a net effect of making the Municipal Code a more wordy or complicated document. It should be noted that the City Attorney has made some changes to the body of the sections to be amended in an attempt to further clarify public hearing procedures. The length of the ordi- nance is simply the result of having the wording apply to a variety of public hearing requirements and making sure that it is clear to all who read the ordinance, particularly our codification service. ADVISORY COMMI2TBB V02B: The planning Commission held a public hearing and recommended approval of these code amendments on August'6, 1985 by a vote of four (4) in favor, two (2) against. RBCOIIMBRDBD II>'.rIOlll: The Planning Office recommends approval of this ordinance by the following motions: "Move to approve Ordinance No. Reading. " , Series of 1985 on 2nd SB.9 4 ~ ,-. " ko:, MEMORANDUM RE: Paul Taddune, City AttornE Steve Burstein, Planning Office;b 6S Code Amendments - Notice of Public Hearings to Adj acent .Property OWners July 22, 1985 TO: FROM: DATE: ======================================:===========:=================== Aspen Planning and Zoning Commission wil~ consider a code amendment on August 6, 19S5 to change public hearing notification requirements as they apply to condominium unit owners such that instead of notice being given to the condominium managers, it would be given directly to the owners themselves. A question was raised by one condominium manager, Fred Smith, whether or not there is a statutory requirement for notification of all property owners including condominium unit owners. I would like your opinion on this issue in particular. Attached are two cases that may pertain to the issue: Glennon Heights vs. Central Bank and Trust (65,8 P 2nd 872) and City of Fort Collins vs. James T. Doonez (496 P 2nd 316). The other cases you suggested. in out 7-18 discussion could not be located because the volumes were out from the County Court Law Library. They are: Center Land Company (619 P 2nd ,82). Hallmark vs. Gunnison (650 P 2nd 556) McCarther B. Zabka (494 P 2nd 89) Positive and negative aspects of this code amendment are listed as follows: Pros: 1. The condomini urn association manager would not be the only party responsible for t.he notification of condomini um owners. The manager would not be in the position to (1) decide whether an issue is important enough to send notices to condominium owners or (2) be responsible for finding the current addresses of condominium owners. 2. The condominium association would incur less cost for mailings and less time spent on public notices. 3. In the case that toe condominium association management has changed, and a new management company fails to receive notification, the condominium owners would still receive notification. 4. Any potential law suit challenging the current code provision would be avoided. Cons: 1. Most condominium associations have by-laws or articles that define the management company's responsibilities with respect to notifications. 2. Generally the notification process has been working effectively through the condominium manager I s assumption of respon- ~,. !~I~___~' Zt; "~~~3~1'$)'fi~~~:ii8':'i;\i;:,__"_ ,zr ~f.:ib:!'~,~"" _1 m.p,.~:_~~. I 1..L. ",1.,,_,,) .r'\ '-'. The Planning Office contacted some seven condominium association managers, a title company and the County Assessor's Office to find out if they believe the proposed code amendments would be a benefit or diservice to the public. The majority of persons spoken with felt that the proposed code amendment to delete the above language would not be a public benefit. The reasons are summarized as follows: a. Condominium associations in Aspen generally have articles of incorporation or by-laws that define the management company's responsibilities with respect to notification. The notification process has worked effectively through the delegation of this task to the management companies. b. The abil ity of the condominium manager to discern which issues really effect the interests of the condo owners and which issues are inconsequential can save a lot of unnecessary mailing. c. The local condo manager is more likely to perceive the signifi- cance of a proposal and attend the pUblic hearing than an out-of- town condo owner. d. The assessor's records of property owners are some times out-of- date or inaccurate; and the condo association is in a better position to know how to communicate with condo owners. e. Inaccuracies in the list of addresses could invalidate the public hearing. f. The additional expenses and time required by the proposed amendment would burden the applicant, the Assessor's Office and the Planning Office. Non-compliance on the part of the applicant could be the result. In a memorandum dated July 30, 1985, the City Attorney reviewed State Statutes, caselaw, and the American Law of lOfting to analyze this issue. While he could not determine from his research that the City is clearly required by Statute to notify all property owners, he recommended in favor of the code amendment. He reasoned that "the proposed Aspen Code Amendment would establish the benefit of any doubt in favor of due process. q In a conversation with the Pitkin County Assessor on July 30, 1985 it was stated that while the office is over-worked at the present time, it is willing to supply the names and addresses of property owners entitled to notification including condo owners upon request. The PI anni ng Off ice consider s due process to be the most important issue in this consideration of the code amendment. While the notifi- cation process undoubtedly will become somewhat more complicated and expensive than at present, the condominium owner public would not be treated differently than other property owners, and consequently would be more fairly served. Most of the arguments against the code 3 '. :~- 3. 4. 5. 6. 7. ~ ! I ~ -,' -""'" ,-""'" sibilities. If the local manager of a condo association is notified, he or she is more likely to care about the proj ect, and more likely to attend the public hearing. The assessor's records of condominium owners addresses are frequently inaccurate. In many cases, the association is listed as the owner's address. Testimony to this point is made by the large number of returned notification lette.rs that the Planning 'Office receives. A condominium management company should be in a better. posi ti on to know how to communicate with condominium owners. The additional expenses and time required from a land use applicant, often assigned to the title company, may encourage non-compliance with this code provision. Most condominium managers surveyed in Aspen do not feel the present mailings are an undue burden. '~ . . I ~1/lI,......." - 2 - - lllt c:.l. ~'.+ ,-~ "~"",_.r~~;<"~:",,,,,.y.:,~_,4' "...~_J ~ ,-., ....~ MEMJRANDUM FROM: City Council ~ Hal Schilling, City Manage~ Steve Burstein, Planning Office AK- TO: THRlJ : RE: Municipal Code Amendments: Public Hearing Requirements DATE: Septembe r 9, 1985 ===================================================================== SUMMARY: The Planning Office and the Planning and Zoning Commission recoIlUllend 1st reading approval of the attached ordinance to make the following code amendments with regards to public hearing require- me nt s : 1. To require that public hearing notice be given for sub- division and PUD conceptual presentation before City Council . 2. To change the public hearing notification requirements as they apply to condominium unit owners such that instead of notice being given to the condominium managers it would be given directly to the owners themselves. 3. Applicants for land use reviews are required to supply the Planning Office with the names of property owners entitled to be notified on pre-addressed envelopes. PREVIOUS COUNCIL AClION: Council passed a motion on June 24, 1985 directing staff to prepare code amendments making conceptual sub- division and PUD review by Council a public hearing (Issue 1 below). The condominium unit notification issue arose during the review of the Aspen Mountain Lodge, with Council directing staff to resolve this issue as well. BACKGROUND: Over the last year several issues regarding public hearing notification have been raised. The Planning Office would like to bring all of these issues before you at one time in order to make the appropriate code amendments to alleviate the confusion over public hearing notification requirements. ISSUE 1 PROBLEM DISCUSSION: Public hearing notice for subdivision and roD conceptual presentation before City Council. At the end of the di scussion of the amended SPA Ordinance on June 24, 1985, City Council passed a motion to direct staff to prepare code amendments making conceptual subdivision and PUD review by Council a public hearing. The amended SPA Ordinance requires that Council hold /' I....' .~ a public hearing during the conceptual plan review (Section 24-7.3 (c) of the Municipal Code). Council felt that similar requirements for conceptual subdivision and PUD review would be more consistent and provide a useful opportunity for Council to make a more thorough review of proposals at an early stage. Under current code provisions no public hearing is held until a Preliminary Plat or POD plan is reviewed by the Planning and Zoning Commission. This means that an applicant undertakes the major effort in developing a preliminary plan before adjacent property owners and other interested parties of the public are officially involved in the review process. This is FQtentially unfair to both the applicant and members of the public. The applicant could have made a considerable investment in the project design while unaware that members of the public would oppose the project in part or in entirety. Conversely, interested members of the public may feel that they were left out of the process until the time when a project has been designed, given initial approvals, and in a sense, gathered momentum. ISSUES 2 AND 3 PROBLEM DISCUSSION: Public hearing notification requirements as they apply to condominium owners. The following language either appears in or is referred to in eight separate sections of the Municipal Code with regards to public hearing notification requirements: "Owners of residential multi-family condominium units may be served by mailing sufficient copies of any such required notice (one for each owner) to the recorded address for their homeowners' association." Several condominium association managers have questioned the appro- priateness and legality of this special provision applied to condo- minium complexes. Their arguments are summarized below: a. Under current code provisions, the condominium association manager is placed in the position of I} deciding whether an issue is important enough to send out notices of public hearings to condominium owners, and 2} finding the current addresses of the condominium owners. It is argued that neither responsibility should be delegated by local govern- ment to these individuals. b. In the case that there is a change in management companies for a condominium association and the new company fails to receive notification, then all of the condominium owners would also fail to receive notification. c. The time and money incurred by the association manager handling notification are alleged to be an unfair burden by some of the managers. 2 1"*'\. .1"*'\ d. There may be a statutory requirement for cities to notify all property owners, not discriminating between multi-family condominium owners and other property owners. The Planning Office contacted some seven condominium association managers, a title company and the County Assessor's Office to find out if they. believe the proposed code amendments would be a benefit or diservice to the public. The majority of persons spoken with felt that the proposed code amendment to delete the above language would not be a public benefit. The reasons are summarized as follows: a. Condominium associations in Aspen generally have articles of incorporation or by-laws that define the management company's responsibilities with respect to notification. The notification process has worked effectively through the delegation of this task to the management companies. b. The ability of the condominium manager to discern which issues really effect the interests of the condo owners and which issues are inconsequential can save a lot of unneces- sary mailing. c. The local condo manager is more likely to perceive the significance of a proposal and attend the public hearing than an out-of-town condo owner. d. The asse ssor' s records of property owners are some times out-of-date or inaccurate; and the condo association is in a better position to know how to communicate with condo owner s. e. Inaccuracies in the list of addresses could invalidate the public hearing. f. The additional expenses and time required by the proposed amendment would burden the applicant, the Assessor's Office, and the Planning Office. Non":compliance on the part of the applicant could be the result. In a memorandum dated July 30, 1985, the City Attorney reviewed State Statutes, caselaw, and the American Law of Zoning to analyze this issue. While he could not determine from his research that the City is clearly required by Statute to notify all property owners, he recommended in favor of the code amendment. He reasoned that "the proposed Aspen Code Amendment would establish the benefit of any doubt in favor of due proce ss. " In a conversation with the Pitkin County Assessor on July 30, 1985 it was stated that while the office is over-worked at the present time, it is. willing to supply the names and addresses of property owners entitled to notification including condo owners upon request. 3 f'!"",. f'!"", The Planning Office considers due process to be the most important issue in this consideration of the code amendment. While the notifi- cation process undoubtedly will become somewhat more complicated and expensive than at present, the condominium owner public would not be treated differently than other property owners, and consequently would be more fairly served. Most of the arguments against the code amendment are made in terms of convenience or the ascribed capabil- ities of the management company to handle public notification in a better manner than what is the general system of notification require- ments. Neither argument should outweigh due process and statutory requirements. Code Amendments made pursuant to Issue 3 would require the applicant to supply to the Planning Office the names of entitled property owners (owners of property either adjacent to the subject property or within 300 feet, depending on the action) on pre-addressed stamped enve- lopes. It is fel t that this is a reasonable responsibility of the applicant; and it would reduce some of the additional wor k the proposed amendments requiring notification of all condominium owners (Issue 2). The argument that there would be a greater chance for inaccuracies in addresses that may invalidate the public hearing is of some concern. The statutory language specifying the acceptable sources of names and addresses (C.R. S. 31-23-215) is proposed to be added to the Municipal Code to better guide the applicant in preparing valid lists of property owners. Furthermore, the Planning Office feels that it is important to keep the language of all public notification requirements consi stent for the sake of simplicity. Therefore, each of the eight amended sections would read essentially the same. It should be pointed out that these code amendments do not have a net effect of making the Municipal Code. a more wordy or complicated document. The length of the ordinance is simply the result of having the wording apply to a variety of public hearing requirements and making sure that it is clear to all who read the ordinance, particularly our codification service. ADVISORY COMMITTEE VOTE: The Planning Commission held a public hearing and recommended approval of the se code amendments on August 6, 1985 by a vote of four (4) in favor, two (2) against. RECOMMENDED K>TION: The Planning Office recommends approval of this ordinance by the following motions: "Move to read Ordinance 5.2. , Series of 1985". "Move to approve Ordinance Stl..., Series of 1985 on 1st reading". SB.9 4 ~ ~. ) 130 asp SPEN CITY ree t 611 MEMORANDUM DATE: July 30, 1985 TO: Steve Burstein FROM: City Attorney RE: Code Amendments - Notice of Public Hearings to Adjacent Property Owners In response to your request for information in connection with the public hearing to adjacent property owner code amendment dated July 22, 1985, I have the following comments: 1. Although there may be some question with regard to its applicability to a "home rule" as opposed to a "statutory city", Section 31-23-215, C.R.S. (a copy appended for your information) contains the following language. "... Any plat submitted to the commission shall have sub- mitted with it the names and addresses of all surface owners, mineral owners, and lessees of mineral owners to whom notices of a hearing shall be sent as their names may appear upon the plats or records in the County Clerk and Recorder's office and as their most recent address may appear in a telephone or other directory of general use in the area of the property or on the tax records of the municipality or the county. No plat shall be acted on by the commission without affording a hearing thereon. Notice of the time and place of such hearing shall be sent to said persons by registered mail not less .than five (5) days before the date fixed therefor." Assuming for the purposes of argument that this section applies, a determination would have to be made from a review of the plats or records in the County Clerk and Recorder's office as to whether the condominium owners may be defined as "surface owners". 2. In the case of zoning, and to the extent that it is appl ic- able to a home rule city, I refer you to Section 31-23-304, copy appended, which provides as follows: ~ ~ , ) Memorandum to Steve Burstein July 30, 1985 Page Two " However, no such regulation, restriction or bundary shall become effective until a public hearing thereon at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen (15) days' notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality." It does not appear that this section requires direct notice. 3. The Glennon Heiqhts and Fort Collins cases appended to your memo do not clearly answer the notice question. The Fort Collins case is not on point, but the Glennon Heights case observes that some jurisdictions have held that state or federal constitutional due process provisions require "public notice and a hearing prior to the enactment or amendment of municipal zoning ordinances". In zoning, as opposed to subdivision, matters, the Colorado courts do not seem to have addressed the question of whether the federal and state due process provisions require individual notice beyond the notice by publication currently required by statute. For your information, I am appending a copy of Sections 4-11 through 4-13, of Anderson, American Law of Zoning, which generally discusses notice and hearing requirements. This text is cited in the Glennon Heights case, and I note a reference to the Illinois case of National Boulevard Bank v. County of Will, 445 NE2d 891 (1983), holding that due process does not require that an owner of land adjacent to land subject to a proposed zoning amendment be "per- sonally notified" of a hearing on the amendment. This case may contain a discussion of the issues being considered. Certainly, the proposed Aspen code amendment requiring mailed notice directly to condo owners would establish the benefit of any doubt in favor of due process and, unless clearly impracticable, it is recom- mended by my office. PJT/mc - . ,~ ,.-, MEMORANDUM FF.O~! : Aspen Planning and Zoning Commission Steve Burstein, Planning Office Municipal Code Amendments: Public Hearing Requirements TO: RE: DATE: August 6, 1985 =====~=============================================================== \, '-. SUMMARY: The Planning Office rec( Commission to recommend that City code amendments: nends Ll.~t,-the Planning and Zoning :ouncil ~ approve the following 1. To require that public hearing notice be given for sub- division and pUD conceptual presentation before City Council. 2. To change the public hearing notification requirements as they apply to condominium unit owners such that instead of notice being given to the condominium managers it would be given directly to the owners themselves. 3. Applicants for land use reviews are required to supply the Planning Office with the names of property owners entitled to be notified on pre-addressed envelopes. BACKGROUND: Oll.er the last year several issues regarding public hearing notification have been raised. The Planning Office would like to bring all of these issues before you at one time in order to make the appropriate code amendments to alleviate the confusion over public hearing notification requirements. . . ISSUE 1 PROBLEM DISCUSSION: Public hearing notice for subdivision and PUD conceptual presentation before City Council. At the end of the discussion of the amended SPA Ordinance on June 24, 1985, City Council passed a motion to direct staff to prepare code amendments making conceptual subdivision and PUD review by Council a public hearing. The amended SPA Ordinance requires that Council hold a public hearing during the concep lal plan review (Section 24-7.3 (c) of the Municipal Code). Council ?It that similar requirements for conceptual subdivision and pUD .-;view would be more 'consistent and provide a useful opportunity for Council to make a more thorough review of proposals at an early stage. Under current code provisions no public hearing is held until a Preliminary Plat or PUD plan is reviewed by the Planning and Zoning Commission. This means that an applicant undertakes the maj or effort in developing a preliminary plan before adj acent property owners and other interested parties of the public are officially involved in the review process. This is potentially unfair to both the applicant and m.embers of the public. The applicant could have made a considerable investment in the proj ect design while unaware that members of the pUblic would oppose the proj ect in part or in entirety. Conversely, interested members of the public may feel that they were left out of the process until the time when a proj ect has been designed, given initial approvals, and in a sense, gathered momentum. ISSUE 1 RECOMMENDED MOTION: A. "Move to recommend that City Council amend the sentence of Section 20-10 (d) to read as follows: language is bolded, old language is crossed out). "Within thirty (30) days of receipt of the Planning Commission recommendation and at a ~e9H~~-~~ft9 public hearing noticed according fir st (new " '), '1V\1"',l t .... ~ I (J ~-I } 31-23-214 :,>'" 'el'''/ r / 658 Government - Municipal 31-23-214. Subdivision regulations. (I) Before any commission exercises the powers set forth in section 31-23-213, it shall adopt regulations governing the subdivision of land within its jurisdiction and shall publish the same in pamphlet form, which shall be available for public distribution, or. at the election of the commission. the regulations may be published once each week for three consecutive weeks in the official paper of the municipality or county in which such subdivisions. or any part thereof. are located. Such regulations may provide for the proper arrangement of streets in relation to other existing or planned streets and to the master plan. for adequate and convenient open spaces for traffic. utilities. access of fire fighting apparatus, recreation. light. anti air. and for the avoidance of congestion of population. including mini- mum area and width of lots, In the territory subject to subdivision jurisdiction beyond the municipal limits. the regulations shall provide only for conform- ance with the major street plan. (2) Before the adoption of the regulations referred to in this section. a public hearing shall be held thereon in the county in which said territory. or any part thereof. is situated, A copy of such regulations shall be certified by the commission to the county clerk and recorders of the counties in which the municipality and territory are located. Source: R & RE. L. 75, p, 1150. S J. Cross reference. For registration of subdivi. Sitlll d~veJopers. see pari 4 of art ide 61 of title I:!. Law review. l~. "Subdivision Re!.!u- lations and COllipui:,ory DcdiC:lfions". scc-:lY Dicta :!99 (196:!). 31-23-215. Procedure - legal effect. (I) The commission shall approve or disapprove a plat within thirty days after said plat has been submitted to it: otherwise such plat shall be deemed approved and a certificate to that effect shall be issued by the commission on demand unless the applicant for the commission's approval waives this requirement and consents to an exten- sion of such period. The ground of disapproval of any plat shall be stated upon the records of the commission_ Any plat submitted to the commission shall contain the name and address of a person to whom notice of a hearing shall be senL No plat shall be acted on by the com.mission without affording a hearing thereon_ Notice of the time and place of such hearing shall be sent to said address by registered mail not less than five days before the date fixed therefoL Similar notice shall be mailed to the owners of land immedi- "tely adjoining the platted land. as their names appear upon the plats in the cOllnty clerk and recorder's office or upon records in the county assessor's office alld as their addresses appear in the directory of the municipality or 011 the tax records of the municipality or county_ (2) Every plat approved by the commission. by virtue of such approval, shall be deemed to be an amendment or an addition to or a detail of the Illunicipal plan alld a part thereoL Approval of a plat shall not constitute or effect an acceptance by the public of any street or other open space shown upon the piaL From time to time. the commission may recommend to the governing body amendments of the zoning ordinance or map or additions thereto to conform to the commission's recommendations for the zoning regu- lations of the terrilory comprised within approved subdivisions. The commis- o - Iv I --':> '2- "I J 7-__ 659 sion has the restrictions g requirements tive zoning 0 shall be stat' shall have th and with the of amt:::l1dmcn or map of th, ing for any pi body of the te Source: I) CLS_ See lOll 31-23-216, the owner or transfers or'\i to or exhibitil been approval appropriate GJ dollars to the agreed or llCgl and bounus in ess of selling! alties or from enjoin such t1 in any court f( action inany;.c Source: R, . , Cross refcrcm.'C monumentationti subdivisions prior , )X.51-IO!. 31-23-217. shall not acc<,,! or lay or autlJ. street within;:.ti1 a major street;, (a) Has b:e status of a put (h) Corre,!. .' street on.a, ..I street on a~~ the governing with a streeto or an appro\CC street is first 659 Planning anu Zoning 31-23-217 sian has the power to impose use, height. area, or bulk requirements or restrictions governing buildings and premises within the subdivision if such requirements or restrictions do not authorize the violHtion of the then effec- tive zoning ordinance of the municip:dity. Such requirements or restrictions shall be stHted upon the plHt prior to the approval and recording thereof. shall have the force of law. and shall be enforceable in the same manner and with the same sanctions anu penalties ano subject to the same pov,/crs of ,1111t;;nJIl1Cnt or repeal as though set out as a part of the zoning ordinance or map of the municipality_ No action taken under this section shall be bind:..; ing for <lilY purpose until such action has been approved by the governmental 1. body of the territory affected or Hny part thereoL .--.._~ Source: R & RE. L 75, p. 1150, Ill. C.J.S.See!01 CJ,S.. Zoning. ~ 87. 31-23-216. Penalties for sales in unapproved subdivisions. Whoever. being the. owner or agent of the owner of any land located within a subdivision. transfers or sells, agrees to sell. or negotiates to sell any land by reference to orexhibition of or by use of a plat of a subdivision before such plat has been approved by the commission and recorded or filed in the office of the appropriah ""(;\<.\,,,,"y clerk and recorder sh;1I1 P~\Y <l p\:n,d\y l)f \m~ !11.ll)Llr\.~d Dollars to tIle lIlunicipalit)., ror. \,.':lcl1 lot or pured :\0 transferred, or sold. or agreed or negotiated to be sold. The de!-;criptiol1 of such lot or parcel by metes and bounds in the instrument of transfer or other document used in the proc. . ess of selling or transferring shall not exempt the transaction from such pen- ,dties or from the remedies provided in this section. The municipality may enjoin such transfer or sale or agreement by action for injunction brought in any court of competent jurisdiction and may recover the penalty by civil action in any court of competent jurisdiction. Source: R & RE. L. 75. p_ 1151.Ill. Cross reference. For the requirements of monumental ion of external !wundaries of all subdivisions prior to recording of a phl1. see ~ 3X-5J-IOJ, Am. Jur. See x2 I\m. Jur.2d. Z\ll1inu ,Illd PJannin~. ~ 24t-:. ~ C..J.S~ Sc(' 101 C.J.S.. Zoning. S 417. 31-23-217. Acceptance and improvement of streets. (I) The municipality shall not acccpt. layout. open. improve. grade. pave. curb, or light any street or lay or authorize water mains or sewers or connections to be laid in any street within any porti'lIl of a territory for which the commission has adopted a major street plan unless such street: (H) Has been accepted or opened as or otherwise has received the legal status of a public street prior to the adoption of such plan; or (h) Corresponds with a street shown on the official master plan or with a street on a subdivisi.on plat approved by the planning commission or with a street on a street plat made by and adupted by the commission. However. the governing body may accept any street not shown on or not corresponding with a street on. the official master plan or on any approved subdivision plat or an approved street plat if the ordinance or other measure ~lccepting such street is first submitted to the cOIllmission for its approval and. if approved vacancies :0] of the 1 a Zoning ces; how. s_ size of and other )r vegeta. :ory of the lal1enge the ~ v. Ci1yof I, COUrt, 638 ,commis- preSent , its rela- purpose 15 de vel- lce with conven~ conomy e provi. ,d other uul and ,ign and )motion ies and >UTt,638 ,endum ~olis v. J, rcises Tning ,..,', Planningand~~~ ;isubdivision of land within its jurisdiction and .shall publish the same in ,a1Ilphlet form, which shall be available for public distribution, or, at the iIection of the commission, the regulations may be published once each week for three consecutive weeks in the official paper of the municipality or county ~ which such subdivisions, or any part thereof, are located. Such regulations IUlY provide for the proper arrangement of streets in relation to other existing I)! planned streets and to the master plan, for adequate and convenient open spaces for traffic, utilities, access of fire fighting apparatus, recreation, light, !lid air, and for the avoidance of congestion of population, including mini. ~um area and width of lots_ The regulations may also provide for waivers from subdivision requirements and may establish different requirements applicable to subdivisions of different sizes. densities, or types of dwelling units. In the territory subject to subdivision jurisdiction beyond the municipal limits, the regulations shall provide only for conformance with the major street plan. . (1.5) Subdivision regulations adopted under provisions of this section may proteCt and assure access to sunlight for solar energy devices by considering in subdivision development plans the use of restrictive covenants or solar easements, height restrictions, side yard and setback requirements, street orientation and width requirements, or other permissible forms of land use controls. ' (2) Before the adoption of the regulations referred to in this section, a pi. :.,e ;"uring shall be held thereon in the municip31ity'. A copy of such regu- lations shall be certified by the commission to the county clerk and recorders of the counties in which the municipality and territory are located. Source: (1.5) added, L. 79, p. 1163, ~ 12; (I) amended, L. 81, p. 1512, i 2; (2) amended, L. 83, p. 1262, ~ \. , 31-23-214.1. Subdivision plan or plat. access to public highways. No person may submit an application for subdivision approval to a local authority unless the subdivision plan or plat provides, pursuant to section 43-2-147, C.R.S" that all lots and parcels created by the subdivision will have access to the state highway system in conformance with the state highway access code. Source: Added, L. 80,p. 796, ~ 59; amended, L. 82, p, 627, ~ 35. 31-23-215. Procedure - legal elTect. (I) The commission shall approve or disapprove a plat within thirty days after said plat has been submitted to it; otherwise such plat shall be deemed approved and a certificate to that effect shall be issued by the commission on demand unless the applicant for the commission's approval waives this requirement and consents to an exten. sion of such period. The ground of disapproval of any plat shall be stated upon the records of the commission. _ Any plat submitted to the commission shall have submitted with it the names and addresses of all surface owners, mineral owners, and . lessees of mineral owners to whom notices of a hearing shall be sent as their names may appear upon the plats or records in the county clerk and recorder's office and as their most recent addresses may appear in a telephone or other directory of general use in the area of the 31-23-216.5 Government - Municipal \ property or on the tax records of the municipality or county. No plat s~ I be acted on by the commission without affording a hearing thereon_ No' of the time. and place of such hearing shall be sent to said persons by tered mail not less than five days before the date fixed therefor. Source: Amended, L. 79, p. 1167, ~ 3. . 31-23-216.5. Additional enforcement. fine or imprisonment - abatement removal. (1) In addition to any other remedies, the governing bOdy of all)' municipality may provide by ordinance that it is unlawful to erect, construct. reconstruct, use, or alter any building or structure or to use any land in viola- tion of any municipal subdivision regulation, and the governing bOdy 1Oa,- enforce obedience to such ordinance by fine or imprisonment as provided in section 31-16-10L (2) In case any building or structure is or is proposed to be erected. con- structed, reconstructed, altered, or used or any land is or is proposed to be used in violation of any municipal subdivision regulation, the municipality. in addition to other remedies provided by law, may institute an appropriate action to prevent, enjoin, abate, or remove the violation to prevent the occu- pancy of the building, structure, or land or to prevent any illegal act or use in or on such premises. Source: Added, L. 81, p. 1513, ~ 3. 31-23-225. Major activity notice. Cross reference: For duties of the state geologist upon receipt of a notice, see ~ 34-1-103(4). 31-23-227. Allocation of powers or duties. The governing body of a munici. pality may, by ordinance, assume and exercise any power granted to or dut)' placed upon the municipal planning commission by this part 2 and may, by ordinance, delegate to the municipal planning commission or other appropri- ate municipal body any power granted to or duty placed upon the munici~ governing body by this part 2, providing that the right to appeal to the mumcl- pal governing body is retained in any such delegation; except that the power to impose fines and penalties may not be delegated. Source: Added, L. 83, p. 1263, ~ L PART 3 ZONING 31-23-301. Grant of power. (1) Except as otherwise provided in section 34-1-305, C.R.S., for the purpose of promoting health, safety, morais, or the general welfare of the community, including energy conservation and the pro- motion of solar energy utilization, the governing body of each municipal!ty is empowered to regulate and restrict the height, number of stories, and Size of buildings and other structures, the percentage of lot that may be occupied. Planning and Z eof yards, courts, and other open ''Jieight and location of trees and other '''lI~f buildings, structures, an~ I~nd for t ,0" es. Regulations and restrIctIOns of I lleight and location of trees and other. buildings, structures, trees, or veget~tl ... tion. Such regulations shall provld/ ine and vary their application in h: intent and in accordance with general tions. Subject to the proVISIOns of . the end that adequate safety may be , power to establish, regulate, restrIct, storm or floodwater runoff channel or ff channel or basin has been deslgna r conservation board, in order to less damage to property resulting fron waters. Any ordinance enacted uni . pt from the operation thereof any bUl ry proof is presented to _ the board' sed situation of such bUIldmg or sU convenience or welfare of the public. &.urce: Amended, L. 79, p. 1163, ~ 13. ~ references. As to licensing and regu. . .... of group homes for the developmentally led, see 127-10.5-133, law reviews. For comment "Regionalism or hialism: Th~ Land Use Planner's ", see 48 U. Colo_ L Rev. 575 (1977). article "Cumulative Impact Assessment .;Weste~ Energy Development: Will it - n1" see 51 U. Coto. L Rev_ 551 (1980)_ ~.' "de "Winning the Rezoning", see I1 La~. 634 (1982). For article, "The ".'ng -RelationShip Between Environ- tal Regulations and Colorado Water '/, see 53 U.Colo. L Rev. 597 (1982). For ."Referendum and Rezoning" , see 53 U. .L. Rev, 745 (1982)_ GmeraI assembly has power to legislate . < regulations applicable to statutory ~i~jes, distinguished from home rule cIties. n Heights, Inc. v. Cental Bank & Trust, P.2d 872 (Coh 1983), _ . Subsection (4) constitutes a legItimate . . n on the legislative powers delegated statutory cities. Glennon Heights, Inc. v. Bank & Trust, 658 P.2d 872 (Colo. Scaie ~ authority to enact legislation for the of developmentally disable? citizens its police powers. Glennon Heights, Inc. .\1entTal Bank & Trust, 658 P.2d 872 (Colo. J- SF z< e! tl R ~1 n f: ~ ;Cf4 C(!: lJ1 I( :>5: -sS " "~ .. )8 669 Planning and Zoning 31-23-304 district. This section is specifically not to be construed to permit violation of the provisions of any zoning ordinance or resolution with respect to height, setbacks. area. lot coverage or external signage or to permit architectural designs substantially inconsistent with the character of the surrounding neighborhood_ This section is also not to be construed to permit conducting of the ministerial activities of any private or public organization or agency Of to permit types of treatment activities or the rendering of services in a manner substantially inconsistent with the activities otherwise permitted in the particular zoning district. If reasonably related to the requirements of a particular home. a local zoning or other development regulations may. with- Ollt violating the provisions of this section. also attach specific location requirements to the approval of the group home. including the availability of stich services and facilities as convenience stores. commercial services. transportation. and public recreation facilities. e:;; " r,' 80') it:, , ~~ . il' In ~ 11- . J- Source: R & RE. L. 75. pp. 1156.934. S s I. 58; L. 76. p. 695. S 2. Am. Jur. See Xl Am. Jur..::!d. Zoning and Planning. S 9 3X. 39. 41. 42. 44M46. 69. c.J.S. See 6.::! c.J.S.. Municipal Corporll- tions. 9 2.::!6(1): 101 CJ.S.. Zoning. 9 2. Annotator~s note. Since 9 31-:!3<~03 is simiM Jar 10 ~ 31-.:!3<:m3 before the 1975 recodificn- tion of Ihis lille. relevant cases have been included under this ~ection. Law re,'iews. F~)r note. "The Effect of !.;IFlu Use Lcgislalion 01 ;;',,- C\_llnon Law of NlJis:lIl~c in Urhan Areas . see 30 Dk:ta 414 (195'1). Fl)r mliclc. "Recent Dcvelt)pments in Zoning Law in Colorado". see 3'1 Dicta ~II (196:!). Implicit in this authorization of. zoning power is 3 broa,d IC,gislative discretion of how to achieve the decla.ed objectives. anu as long <IS the zoning pnwisions are within the author- ized purposes :lnt' clmform to statutory guide- lines. mere diS<lgrecment with zoning dassifi~ cations ,IOu district regulations will not suffice us ;,\ re<lson 10 set them aside. Napro Co. v. Town of Cherry Hills Village. 180 Colo. 217. 504 P.2d 344 (197:!). Reasonable means must be used to terminate nonconforming uses. Comprehensive zoning contemplates the existence of nonconforming uses and. to ultimately and effectively i.lccomplish Ihe end sought 10 be accom~ plished. il is inherenl that reasonable means must he afforded to terminate nonconforming uses. Service Oil Co. v. Rhodus. 179 Colo. ,,5. 5(}() P.2d 807 (1972). Specific authorit). necessary for city agency to expand nonconformin~ use. A nonconform- ing use cannot be expanded by the issuance of :l license or permit or by an on.ler from any city agency unless the <lgency is given specific <lulhority to countermand or override the terms of the zoning on.linance by the charter or within the provisions of the zoning ordi- nance, Cily of Greeley v. Ells. 186 Colo. 352. 527 P.:!d 53~ (1974). 31-23-304. Method 'of procedure. The governing body of such municipality shall provide for the manner in which such regulations and restrictions and the houndaries of such districts are determined. established. enforced. and, from time to lime. amended. supplemented. or changed. However, no such regulation. restriction. or boundary shall become effective until aftera'public hearing thereon at which parties in interest and citizens shall have an -c5j)pOr- i,i.,iilY 10 be heard, At least fifteen days' notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality. Source: R & RE. L. 75. p. 1156. s I. Am. Jur. See X:! Am. Jur.:!d. Zoning and Pl<llll1ing. ~ S 49-54. C.J_\). 'See 02 c.J.S.. Municipal Corpora- tions. S 2:!6(1I): 101 C.J.5.. Zoning. S II. Quasi.judicial function subject to certiorari review. Enactment of ,l rezoning ordinance by the legislative body of a city, governed by both state zoning st~tutes as well as the eel facility~ Adams d Citizens, Inc. \' Colo. 79, 580 P.l<i lay regulate certaiD location. The gen. reserved to munic. ~ several aspects of ::>0 of grOUp hom~ pacts on the neigh- gulation is not tan- ;uch homes within 1110n Heights. Inc. 58 P.2d 872 (Colo. itted. The pOWers J)' this section and lodious enough 10 'ety and aesthetic 1mber and tyPe of : zoning districts. Unlimited Ass'n. 'eliew. Since the not specify a time 3D-day time frame ipplicabJe. Norby 231,577 P.2d 277 [ames v, City of 15,592 P.2d 1336 be made in <:lngestion in her dangers; t and air; to In of popu- quate provi- )ther public nsideration, ,culiar suit- of buildings . municipal- dentiaJ neigh- 'ncern. Group' bled persons Planning a~f~~j143-307 itted in residential neighborhoods as a group home'on the single family characteris- er of statewide COncern. Roundup tics of the neighborhood or on the peace and ation, Inc. v. Board of Adjustment, 626 quiet of the neighborhood, in addition to the :2dl154 (Cola, Ct. App. 1980). . , attitude of general. hostility in the neighbor- .~ general ~ssembly, by ~nactmg thiS hood towards this proposes facility. Adams tdJQn and sectIon 31-23-301 mtended that County Ass'n for Retarded Citizens Inc v pup h?mes for th~ dev:elopmentally disabled City of Westminster, 1% Colo. 79, 580 F.2d xconsldered a re,slden,tIaI use o,f property and 1246 (1978) jat they be permItted m all residential zones, _ : . ~ificalJy including those zoned for single Applied In .Wood Bros. Homes v; CIty of -y dwellings. It is inconsistent with this Colorado Spnngs, 42 Colo. App. 15,592 P,2d nt for a city council to base its denial of a J336 (1978); Glennon Heights, Inc. v, Central Fial use permit on the adverse effects of the Bank & Trust, 658 P.2d 872 (Colo. 1983). 31-23-304, . Method of procedure. This section expressly applies only to amend- JleDts made by municipalities of their own ordi- unres, and not to enactments of the general 1Uembly. Glennon Heights, Inc. v. Central Bank & Trust. 658 P_2d 872 (Coh 1983)_ Statutory city may not provide for automatic RWning when plat not approl:'ed. While a statu- ,tory city may provide that property being rezoned may not be used until the plat of the rezoned property is approved, it may not pro- vide for automatic rezoning to the prior classi- fication if the plat is not approved. Spiker v, City of Lakewood, 198 Colo. 528,603 P.2d 130 (1979)_ '31-23-305. Ct.;.;.,,;",,. Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified, or repealed. In case, however, of a protest against changes in regulations or restrictions, or changes in the zone district applicable to particular land, which protest is filed with the municipal clerk at least twenty-four hours prior to the governing body's vote on the change and is signed by the owners of twenty percent or more of the area .of land which is subject to the proposed change or twenty percent or more of the area of land extending a radius of one hundred feet from the land which is subject to the proposed change, disregarding intervening public streets and alleys, such changes shall not become effective except by the favorable vote of two-thirds of all the mem- bers of the governing bOdy of the municipality. The provisions of section )1-23-304 relative to public hearings and official notice shall apply equally 10 all changes or amendments. - Source: Amended, L. 81, p. 1513, ~ 4. This section expressly applies only to amend~ II:lents made by municipalities of their Own ordi~ l!ances, and not to enactments of the general assembly, Glennon Heights, Inc. v. Central Bank & Trust, 658 P.2d 872 (Colo, (983)- 31-23-306. Zoning commission. Law reviews. For article, "Winning the Rezoning", see 11 Colo. Law. 634 (1982), 31-23-307, Board of adjustment. (1) The governing body shall provide for . ment of a board of adjustment consisting of five members, each 10 be appointed for three years, unless the governing bOdy by ordinance e.stablishes a different number of members or term of office. The governing body may provide by ordinance for filling vacancies on the board, for desig- nation of alternate members, and for removal of members for inefficiency, ..!Ii %~ ~t: ~ 4.10 AMERICAN LAW OF ZONING no requirement of a planning review is imposed by the enabling statute or a local charter or ordinance." D. NOTICE AND HEARING ~ 4.11. Generally. A hearing on a proposed legislative act may have a variety of objectives. Its prime purpose may be to inform the legislators concerning the merits of the proposal. It may be intended to inform the public and to sound out public opinion. But in the usual case, the legislative hearing has no relation to the ulti- mate validity of the legislative action." A legislative hearing preliminary to the enactment of a zoning ordinance may serve to inform the legislators and to provide a forum for the expression of public opinion, but it serves an additional purpose. It affords to persons who own land which will be affected by the proposed ordinance an opportunity fe' mally to protest," and to appear and present testimony and 72. Lebanon v Woods, 153 Conn 182, 215 A2d 112 (1965), A state statute authorizing the es- tablishment of a metropolitan plan- ning commission with power to re- view proposed zoning . amendments and recommending appropriate action does not subtract from the authority of a county legislature to adopt and amend zoning regulations. Abrams v Legbandt, 312 NE2d 113 (1974, Ind App). Where, as a whole, the zoning ena- bling act under consideration evinces a legislative intent to place the rec- ommending and legislative functions in separate munjcipal bodies as to original zoning by-laws, and where, as in the instant case, the town meeting divested the planning board of the recommending . function and placed that function in a board of its own creation, the town meeting failed to follow with strict compliance the re- quired procedures, which is the rule if a governing authority is to have the right to exercise zoning power. Can- ton v Bruno, 361 Mass 598, 282 NE2d 87 (1972); citing 1 and 3 Anderson, 198 American Law of Zoning ** 4.10 and 17-18 (1968). 73. A zoning ordinance will not be declared invalid solely on the ground that there was insufficient evidence adduced at the hearing before the legislative body to support the mea- sure. A hearing. on a proposed zoning ordinance is legislative in character. Following the hearing, the legislative body may consider matters not brought up at the hearing in deter- mining what legislation will serve the public interest, Charlestown Home- owners Asso. v La Coke, 507 SW2d 876, error ref n r e (1974, Tex Civ Appl- j . 1 J 74. Where notice of a public hear- ing on a proposed county comprehen- sive plan was calculated to inform any interested citizens of the need to be present if they wish to inform themselves or to express their views relative to the plan, it was adequate. Washington County Taxpayers Asso. v Board of County Comrs., 289 Md 454, 306 A2d 539 (1973). * 4.33, infra. i j i I I REPEAL OF ZONING ORDINANCES ~4.11 argument against the adoption of the proposed measure. Unlike the usual legislative hearing, the public hearing on a proposed zoning ordinance or amendment is required by law." A notice of hearing to a property owner may be required by the due process clauses of the state and federal constitutions." An enabling act" or an ordinance which does not require notice and hearing may be held to deprive a landowner of his property without due process of law." While the legislative authority has the power to enact or amend zoning regulations, affected property owners have the right to be heard on the specific matter under consider- ation. Failure of the legislative body to conduct an appropriate hearing, after notice which affords a fair opportunity to be heard, will render the regulation invalid." A zoning ordinance 75. The Adirondack Park Agency may deny an application for an amendment to the land use map with- out a hearing, but the issues of fact may be tried de novo by a reviewing court. Saggolf Corp. \". fA\'v\i~~'1nCe, 82 Mise 2d 100, 367 NYS2ri 683 (1975), Procedural amendments to a zoning ordinance may be adopted without prior notice and hearing, CEEED v California Coastal Zone Conservation Com_, 43 Cal App 3d 306, 118 Cal Rptr 315 (1974)_ See ~ 4_03, supra_ See generally Symposium on New England Zoning, Zoning in. New Eng- land, 36 BU L Rev p 331 '(1956), Harris, Zoning, 21 U of Miami L Rev 195 (1966), 76. Due process and equal protec- tion require only an opportunity .to be heard prior to a law's enactment. F. p, Plaza, Inc, v Waite, 230 Ga 161, 196 SE2d 141 (1973), cert den 414 US 825, 38 L Ed 2d 59, 94 S Ct 129; Bell v Studdard, 220 Ga 756, 141 SE2d 536 (1965). 77. Gilbert v Stockton Port Dist, 7 Cal 2d 384, 60 P2d 847 (1936)_ While most enabling acts mandate a notice and hearing prior to eriactR ment (see, for example, Idaho Code ~ 50-404), some require no legislative hearing after the zoning commission has reported (see, for example, Kan Gen Stat ~ 12-708), Annotation: Validity and construc- tion of statutory notice requirements prerequisite to adoption or amend- ment of zoning ordinance .or amend- ment 96 ALR2d 449, 78. Masters v Pruce, 290 Ala 56, 274 So 2d 33 (1973), citing Anderson, American Law of Zoning VoL 1 ~~ 4.03 and 4.11 (1968); Dahman v Ballwin, 483 SW2d 605 (1972, Mo App), The practice of holding monthly hearings does not rise to the level of arbitrariness or constitute, a violation of due process, Higginbotham v Bar- rett, 473 F2d 745 (1973, CA5 Ga)_ 79. Pima County v Clapp, 23 Ariz App 86, 530 P2d 1119 (1975); CEEED v California Coastal Zone Conserva~ tion Com" 43 Cal App 3d 306, 118 Cal Rptr 315 (1974); Allen v Donovan, 43 Del Ch 512, 239 A2d 227 (1968, Sup); State ex reL Stephens v Jacksonville, 103 Fla 177, 137 So 149 (1931); Pend- ley v Lake Harbin Civic Asso_, 230 Ga 631, 198 SE2d 503 (1973); Bowen v Story County Board of Supervisors, 209 NW2d 569 (1973, Iowa); Kirk v Hillcrest, 15 III App 3d 415, 304 NE2d 452 (1973); Citizens for Better Govern- ment v County of Valley, 95 Idaho 199 ~ 4.11 AMERICAN LAW OF ZONING RE adopted after a public hearing may be declared invalid if the notice required by statute was not given in an appropriate manner," was not timely," or was insufficient to apprise the public of the nature and scope of the regulation which was finally adopted." Even compliance with statutorily required modes of notice may not be "sufficient notice." An Illinois court has held that where the name and address of the owner of a parcel which was the subject of a rezoning hearing are known to the city, actual notice is required by due process considerations, even where the state required only notice by publication." A zoning amendment is not invalid simply because the legisla- tive authority received additional information after the close of the public hearing relating to such amendment." In some jurisdictions an applicant for a zone change has a _ right to insist that the agency in which zoning authority is ~ 320, 508 P2d 550 (1973): Bowling Green-Warren County Airport Board v Long, 364 SW2d 167 (1962, Ky): Baltimore v Mano Swartz, Inc., 268 Md 79, 299 A2d 828 (1973): State ex reI. Spiros v Payne, 131 Conn 647, 41 A2d 908 (1945), noted, 44 Mich L Rev p 522 (1945): Gordon v Warren Plan- ning & Urban Renewal Com. 388 Mich 82, 199 NW2d 465 (1972): Kra- jenke Buick Sales v Kopkowski, 322 Mich 250, 33 NW2d 781 (1948): Wip- pier v Hohn, 341 Mo 780, 110 SW2d 409 (1937): Pyramid Corp_ v De Soto County Board of Supervisors, 366 F Supp 1299 (1973, DC Miss): Bryant Development Asso, v Dagel, 531 P2d 1320 (1975, Mont): Lima v Robert Slo- cum Enterprises, Inc_ 38 App Div 2d 503, 331 NYS2d 51 (1972): Estabrook v Chamberlain, 240 App Div 899, 267 NYS 425 (1933), affd 240 App Div 1006, 268 NYS 1015: Schierloh v Wood, 230 App Div 788, 244 NYS 651 (1930): Keiger v Winston-Salem Board of Adjustment, 281 NC 715, 190 SE2d 175 (1972); citing 3 Anderson, Ameri- can Law of Zoning ~ 21.22 (1968); Wintersville v Argo Sales Co., 35 Ohio St 2d 148, 64 Ohio Ops 2d 88, 299 NE2d 269 (1973): Brookings v Martin- son, 61 SD 168, 246 NW 916 (1933): Flanders Lumber & Bldg. Supply Co. 200 i '! vested dispose on at the hearing. 1 court review, on; record of the leg much the same hearing, where introduced." :t t ~ 4.12. Timeline! The Standard notice of heari~ hearing on a pr statutes of the s. time which musl all impose some Where the eni between notice I ordinance invali v Milton, 128 Vt 38, 258 A2d 804 (1969); Barrie v Kitsap County, 84 Wash 2d 579, 527 P2d 1377 (1974): Glaspey & Sons, Inc_ v Conrad, 83 Wash 2d 707, 521 P2d IJ,"S('?74); Edelbeck v Theresa, 57 W "" ~'" "72, 203 NW2d 694 (1973). 80. ~ 4,13, infra_ See also, Edelbeck v '!'heresa, 57 Wis 2d 172, 203 NW2d 694 (1973), 81. ~ 4.12, infra. 82. ~ 4_14, infra. Whether notice of a proposed Zon- ing ordinance is sufficient under the applicable statute is a pure issue of law and not fact. Federal Bldg_ & Development Corp. v Jamestown, 112 RI 478, 312 A2d 586 (1973l- 83. "Therefore, where as here the names and addresses are actually known to defendant, and legally pro- tected interest of property owners are at stake, due, process mandates actual notice to the parties. n American Oil Corp, v Chicago, 29 III App 3d 988, 331 NE2d 67 (1975). 84. Hawkes v Town Plan & Zoning Com. 156 Conn 207, 240 A2d 914 (1968). 1 i j 85. Louisville & Planning & Zoning SW2d 861 (1964, Board of County 0< 219 A2d 58 (1966)_ But denial of a'" upheld if it is rea although the reco such a change. I Comrs. v Farr, 2~ 923 (1966): Sander 249 Miss 656, 163'E Where the zoni void at inception compliance, the;.:c precluded from "'" by his failure to In of the board's acta< De Soto County Bi 366 F Supp 1299 C A zoning ordin~ elared invalid sO: that there was jj adduced at the legislative body H sure. A hearingc( ordinance is legi Following the he body may coo I j I 1 . 1 , ~ 1 I 1 REPEAL OF ZONING ORDINANCES ~ 4.12 vested dispose of his application on the basis of evidence adduced at the hearing. A refusal to reclassify land may be subject to court review, on the record." Where this situation obtains, the record of the legislative hearing is dealt with by the courts in much the same manner as any record of an administrative hearing, where the decision must be based upon testimony introduced_" ~ 4.12. Timeliness of notice. The Standard State Zoning Enabling Act requires that a notice of hearing be published at least 15 days before the hearing on a proposed zoning ordinance is held. The enabling statutes of the several states vary with respect to the minimum time which must elapse between notice and hearing, but nearly all impose some notice requirement. Where the enabling act prescribes the time which must elapse between notice and hearing, failure to comply renders a zoning ordinance invalid." The requirement is str':'".J; ~onstrued," even 85. Louisville & Jefferson County Planning & Zoning Com_ v Coin, 382 SW2d 861 (1964, Ky); Strickler v Board of County Comrs_ 242 Md 290, 219 A2d 58 (1966), But denial of a zone change will be upheld if it is reasonably debatable, although the record would support such a change. Board of County Comrs. v Farr, 242 Md 315, 218 A2d 923 (1966); Sanderson v Hattiesburg, 249 Miss 656, 163 So 2d 739 (1964), Where the zoning ordinance was void at inception for statutory non- compliance, the challenger was not precluded from maintaining an action by his failure to make a timely appeal of the board's action_ Pyramid Corp, v De Soto County Board of Supervisors, 366 F Supp 1299 (1973, DC Miss). A zoning ordinance will not be de~ clared in valid solely on the ground that there was insufficient evidence adduced' at the hearing before the legislative body to support the mea- sure. A hearing on a proposed zoning ordinance is legislative in character. Following the hearing, the legislative body may consider matters not brought up at the hearing in deter- . mining what legislation will serve the public interest. Charlestown Home. owners Asso. v La Coke, 507 SW2d 876, error ref n r e (1974, Tex Civ Appl- 86. Zoning commission improperly rezoned area from residential to com- mercial, where applicant for the change offered no testimony, where evidence relied upOn came from a prior ex parte meeting by the commis- sioners whose minutes were not intro- duced. and where the basis for the decision was unclear. Kloter v Zoning Com_ of Vernon, Fire Dist, 26 Conn Supp 495, 227 A2d 563 (1967); Dade County v Carmichael, 165 So 2d 227 (1964, Fla App); Montgomery County Council v Kaslow, 235 Md 45, 200 A2d 184 (1964); Hedin v Board of County Comrs, 209 Md 224, 120 A2d 663 (1956); Temmink v Board of Zon- ing Appeals, 205 Md 489, 109 A2d 85 (1954)_ 87. National Trallsp. Co. v Toquet, 123 Conn 468, 196 A 344 (1937)_ Where a statute requires that a 201 ~ 4.12 AMERICAN LAW OF ZONING where prejudice to a property owner is not shown." Four days' notiGe is not sufficient where 5 days are required;" 14 days' notice fails to comply with a provision for 15 days' notice.'l In computing the time between notice and hearing, the courts of Connecticut" and Delaware" have held that neither the date of publication nor the date of hearing may be included. Presum- ably, this rule will not obtain if a different local rule of construc- tion requires that the day of publication be ignored but that the day of hearing be included. If the hearing is not held on the day set forth in the published notice, a new notice apparently is required: Thus, where a hearing was scheduled and a notice published in 1953, but the hearing was not held until 1954, the subject ordinance was invalid for failure to meet the notice requirement." On the other hand, failure to publish a timely notice due to an error may be corrected through a rescheduling of the hearing." Where a city ordinance imposes a more stringent notice require- ment than is prescribed by the city charter, compliance with the charter is sufficient.96" A municipal orulnance which incorporates by reference the thing be done "at least" or Unot less than" so many days before a fixed time, it is meant that the given num~ ber of days must elapse between the two terminal days and is applicable to notice of change under zoning laws. Carson v McDowell, 203 Kan 40, 452 P2d 828 (1969); Brown v Sperry, 23 Ohio App 2d 163, 52 Ohio Ops 2d 205, 261 NE2d 351 (1970). Where ordinance requires notice of a proposed zoning amendment to be sent not more than 20 or less than 10 days before the hearing, to all land- owners within 250 feet of the prem- ises to be rezoned, failure to comply renders the amendment inapplicable to the complaining landowner. Si- barco Stations, Inc_ v Town Board of Vestal, 29 App Div . 2d 907, 288 NYS2d 8 (1968), app dismd 22 NY2d 668, 291 NYS2d 362, 238 NE2d 751, revd on other grounds 24 NY2d 900, 301 NYS2d 637, 249 NE2d 478; Tru- man v Irwin, 488 SW2d 907 (1972, Tex Civ App)_ 202 notice provisio rates subseque tion of the nol tion of the not ordinance paS! upheld." 88. See generally ~4.05, supra. 89. Kelly v Philadelphia, 382 Pa 439, 115 A2d 238 (1955). ~ 4.13. Public~ Nearly all 0: ment that a ] ordinance be ] general circuli more than one notice be mail concerned wit] the state has l city, at least I addresses of aJ actual 11 90. Alderman v West Haven, 124 Conn 391, 200 A 330 (1938). 91. Island Park v J, E. B. Associ- ates, Inc. 21 Misc 2d 249, 190 NYS2d 77 (1959). I :; ~ i j 97. 2525 East 1\ 33 Misc 2d 102 (1962), a/fd 17 ~ NYS2d 759_ See also Old WI Misc47, 83 NYS2 98. See genera~ sweig, Planning,; a summary of sUi States, Chart No': See Northern i Ramapo, 26 N~ 286, 259 NE2d 72: 99. Helms v Cb 122 SE2d 817, 96. Where the st< "notice . . . shaH: of a legal adverUi a newspaper. . .: lication in each.6 different dates id Acres, Inc. v Z<i Hartford, 163 Go (1972). 1. A Texasst 92. Alderman v West Haven, 124 Conn 391, 200 A 330 (1938). 93. Ullman v Santow, 39 Del Ch 130, 160 A2d 582 (1960), remanded 39 Del Ch 427, 168 A2d 135 (Sup), 94. Taylor v Shetzen, 212 Ga 101, 90 SE2d 572 (1955). I I 1 ~ { 95. Kershaw v Upper Merion Tp., 26 Pa D & C2d 243, 79 Montg Co LR 5 (1961). 96. Kelly v Philadelphia, 382 Pa 439, 115 A2d 238 (1955). ! l ? REPEAL OF ZONING ORDINANCES ~ 4.13 notice provisions of the State Zoning Enabling Act also incorpo- rates subsequent amendments to such act. Accordingly, a reduc- tion of the notice period imposed by statute will effect a reduc- tion of the notice period required by the ordinance, and a zoning ordinance passed after statutory notice has been given will be upheld." ~ 4.13. Publication or service of notice. Nearly all of the state zoning enabling acts include a require- ment that a notice of a public hearing on a proposed zoning ordinance be published in an official paper or a newspaper of general circulation in the municipality." Some statutes require more than one publication." Statutes in some states require that notice be mailed to property owners, I or to municipal officials concerned with the measure under consideration.' Even where the state has required only notice by publication be given by the city, at least one court has held that where the names and addresses of affected landov::,,~ are known, "due process man- dates actual notice to the parties.' In addition, some enabling ~ 4 _"J- ~ )'f' ! , , t j 97. 2525 East Ave_, lnc_ v Brighton, 33 Misc 2d 1029, 228 NYS2d 209 (1962), aifd 17 App Div 2d 908, 233 NYS2d 759_ See also Old Westbury v Foster, 193 Misc 47, 83 NYS2d 148 (1948), 98. See generally Anderson and Ro- sweig, Planning, Zoning, Subdivision: a summary of statutory law in the 50 States, Chart No_ 2 p 186 (1966)_ See Northern Operating Corp. v. Ramapo, 26 NY2d 404, 311 NYS2d 286, 259 NE2d 723 (1970). 99. Helms v Charlotte, 255 NC 647, 122 SE2d 817, 96 ALR2d 439 (196lJ- Where the statute provided that Unotice . . . shall be given in the form of a legal advertisement appearing in a newspaper. . . at least twice," pub- lication in each of two newspapers on different dates is sufficient. Jarvis Acres, lnc_ v Zoning Com_ of East Hartford, 163 Conn 41, 301 A2d 244 (1972). 1. A Texas statute, for example, f~ '~ ~ ^i~' requires that notice of hearing be mailed to property owners within 200 feet of a proposed zone change. Ver- non Tex Anno Rev Civ Stat ~ 1011f. Lawton v Austin, 404 SW2d 648 (1966, Tex Civ App), error ref n r e, Where the legislative intent was to give each voter in the municipality an opportunity to study the proposed zoning plan before voting on it, mail~ ing a single copy to "Mr. and Mrs." in the case of husband and wife was substantial compliance with the stat- ute which required an individual let- ter to each voter. Milton v Le Claire, 129 Vt 495, 282 A2d 834 (1971). See also Wanamaker v El Monte, 200 Cal App 2d 453, 19 Cal .Rptr 554 (1962); Dent v Kansas City, 214 Kan 257,519 P2d 704 (1974)_ 2. Bohan v Southampton, 227 NYS2d 712 (1962, Sup), 3. American Oil Corp. v Chicago, 29 III App 3d 988, 331 NE2d 67 (1975). 203 S 4.13 AMERICAN LAW OF ZONING acts require that the subject land be posted.' Personal service of notice upon affected property owners usually is not required.' And where a statute required a mailing as well as a publication of notice to parties affected by the proposed ordinance, the former was held to apply only to ordinances of limited applica- tion, not to those affecting the entire municipality.' As is true of procedural requirements generally,' the require- ments for publication, service, and posting are mandatory; fail- ure substantially to comply with them results in an invalid ordinance.' Commenting on a statutory requirement that notice be given in a specific manner, an Arizona court said: "Such a rule is no mere 'legal technicality,' rather it is a fundamental safeguard assuring each citizen that he will be afforded due process of law.'" A requirement that notice be published in a newspaper is not met by informal news items which inform readers of the hear- ing, where no paid legal notices are published." The legislative authority of a municipality will be regarded as having satisfied the requirement that notice be pu' FsRd where its minutes disclose that notice was published in its official organ.n Publica- tion in a newspaper, rather than in an official organ of the municipality, is adequate, and an enabling act which permits 4. Barrett v Daffron, 126 Ga App 601, 191 SE2d 494 (1972); Baker v Montgomery County Council, 241 Md 178, 215 A2d 831 (1966); Lima v Rob- ert Slocum Enterprises, Inc. 38 App Div 2d 503, 331 NYS2d 51 (1972). Where posting in lieu of publication is authorized by the enabling act, an ordinance is valid without publica~ tion, the notice of hearing having been posted in three places. Medina v Rose, 69 Wash 2d 448, 418 P2d 462 (1966), amd 422 P2d 822 (Wash). 5. Elgar v S. H. Kress & Co. 280 App Div 621, 116 NYS2d 527 (1952), app dismd 308 NY 767, 125 NE2d 115, vacated 308, NY 773, 125 NE2d 162, revd on other grounds 308 NY 533, 127 NE2d 325; Cohen v Valley Stream, 23 Mrsc 2d 1017, 189 NYS2d 110 (1959). 204 such public~ process of 11 tion in the circulation j the municip Failure tc official ma) ordinance, ' legislative enabling ac by propose': Where tl been met, t because so hearing_" , act are m' may be ref although tJ ~ 4.14. Cor A notict 6. Wanamaker v City Council of El Monte, 200 Cal App 2d 453, 19Cal Rptr 554 (1962), 7. ~ 4.03, supra. 8. Gendron v N augatuck, 21 Conn Supp 78, 144 A2d 818 (1958); Bal Harbour Village v State, 299 So 2d 611 (1974, Fla App), cert den 311 So 2d 670 (Fla); Addis v Smith, 226 Ga 894, 178 SE2d 191 (1970); Carson v McDowell, 203 Kan 40, 452 P2d 828 (1969); Bowling Green-Warren County Airport Board v Long, 364 SW2d 167 (1962, Ky). 9. Hart v Bayless Invest. & Trading Co, 86 Ariz 379, 346 P2d 1101 (1959). 10. Gendron v Naugatuck, 21 Conn Supp 78, 144 A2d 818 (1958). 11. Old Westbury v Foster, 193 Misc 47,83 NYS2d 148 (1948). 12. Notice lative of due v Waite, 23 (1973), cert , 2d 59, 94 S Realty Co_! (1956)_ Statutory notice of th ing on any or repeal a by publicati eral circull week for t~ to the date be interpr weeks to il of the fir change in date of th, of the noti, the three the hearin, v Faria, (1973). '{)~~-,Jf- REPEAL OF ZONING ORDINANCES ~ 4.14 such publication does not deny to affected property owners due process of law." Publication in a newspaper of general circula- tion in the municipality is sufficient even though the paper's circulation is small in relation to the total number of persons in the municipality:" Failure to give required notice to a municipality or municipal official may be regarded as fatal to the validity of a zoning ordinance. Thus, a zoning ordinance was held void where the legislative authority did not comply with a provision of the enabling act that municipalities within 500 feet of land affected by proposed zone changes be notified." Where the publication requirements of the enabling act have been met, the resulting ordinance will not be held invalid simply because some ,of the property owners failed to learn of the hearing." And if the mandatory requirements of the enabling act are met, additional requirements prescribed by ordinance may be regarded as directory, and an ordinance may be upheld although the local requirements were not met." ~ 4.14. Contents of notice. A notice of hearing will be reviewed not only to determine I ,J' .t ~, 1 4: i I ~ 1 ~ ,1' I I I 1 ! f i j 12. Notice by publication is not vio- lative of due process. F, P. Plaza, Inc. v Waite, 230 Ga 161, 196 SE2d 141 (1973), cert den 414 US 825, 38 L Ed 2d 59, 94 S Ct 129; Orr v Hapeville Realty Co_ 212 Ga 649, 94 SE2d 682 (1956). Statutory language requiring that notice of the time and place of hear- ing on any petition to enact, amend or repeal a zoning ordinance be given by publication in a newspaper of gen- eral circulation at least once each week for three successive weeks prior to the date of such hearing, is not to be interpreted as requiring three weeks to intervene between the date of the first notice of a proposed change in zoning ordinance and the date of the hearing. One appearance of the notice of the hearing in each of the three calendar weeks preceding the hearing date is sufficient_ Sullivan v Faria, 112 RI 132, 308 A2d 473 (1973). 13. Corpus Christi v Jones, 144 SW2d 388 (1940. Tex Civ App), errOr dismd_ 14. Bohan v Southampton, 227 NYS2d 712 (1962, Sup); Marcus v Spring Valley, 24 App Div 2d 1021, 265 NYS2d 985 (1965)_ Where the city gave 17 days notice prior to the enactment of a compre- hensive zoning code and subsequent ordinance, which reenacted several previous ordinances, the published no- tice of hearing cured any defects in the previous zoning ordinances. Wil~ liam Murray Builders, Inc. v Jackson- ville, 254 So 2d 364 (1971, Fla App)_ 15. Braden v Much, 403 III 507, 87 NE2d 620 (1949); Helms v Charlotte, 255 NC 647, 122 SE2d 817, 98 ALR2d 439 (1961); Blankenship v Richmond, 188 Va 97, 49 SE2d 321 (1948), 16. Puma v Norristown Borough, 404 Pa 475, 172 A2d 828 (1961)_ 205 vas al- 'oposa] o A2d er the )pears (1980, 'aring ,ct to lVea of a g the P2d ~e of d of- :tion , Ga on the )es ew :48 rs to ,g 'e p 1 REPEAL OF ZONING ORDINANCES ~4.1l lis to zoning is left to the legislature. Houston v Board of City Comrs., 218 Kan 323, 543 P2d 1010 (1975). . > A municipal ordinance giving a city council authority to pass a zoning regulation without planning board approval was con- trolling notwithstanding an ordinance requiring planning board approval of proposed rezonings prior to submission to the city council. Szyszkoski v Lansing, 64 Mich App 94, 235 NW2d 72 (1975). ' . Where state statute relegates the city planning commission to an advisory capacity, legislative acts of the commission are annulled. Thus amending lln ordinance and granting a condi- tional use permit were acts not within the power of the planning commission. Link v Coos Bay, 23 Or App 648, 543 P2d 1082 (1975). "The purpose of requiring submission to the planning commis- sion is to give the legislative body the advantage of the commis- sion's expertise on land use planning with respect to the pro- posal that it must either adopt or reject." Wilgus v Murfrees- . boro, 532 SW2d 50 (1975, Tenn App). Under Texas law a municipality may not delegate its legisla- tive power to amend a zoning ordinar:c .~,.a planning commis- sion. Thus an ordinance requiring a t'-'H,e-fourths vote by the city council to override a planning commission recommendation is an invalid delegation of power and also places an undue burden upon property owners. San Antonio v Lanier, 542 SW2d 232 (1976, Tex Civ App). The Planning Commission's role is often advisory in nature and the legislative body is not required to follow its recommen- dations. In such schemes, the purpose for Planning Commission review and report is to provide the legislative body with the benefit of expert planning opinion and once this opinion has been given, there is no need to refer a proposal back to the commission where the legislative decision is adverse to its rec- ommendations. Pruden v Trabits, 370 NE2d 959 (1977,Ind App). A statute which requires a local legislature to submit its initial comprehensive roning ordinance to a planning board for recommendation, applies equally to a subsequent comprehensive revision of the ordinance. George v Edenton (1978) 294 NC 679, 242 SE2d 877. D. NOTICE AND HEARING g 4.11. Generally. A public hearing required prior to enactment of a zoning 105 ~4.1l AMERICAN LAW OF ZONING amendment "provides a forum for the expression of public opinion and also affords to persons who own land which will be affected by the proposal an opportunity formally to protest and to appear and present their views against the adoption of the proposed measure." Schaus v Town Board of Clifton Park, 83 Misc 2d 726, 372 NYS2d 952 (1975); citing Anderson, American Law of Zoning * 4.11 (1968). . . Revamping of zoning legislation meets the requirements of due process if adequate notice of a public hearing on the specific changes is given. Golden Gate Corp. v Narragansett, 359 A2d 321 (1976, RI). Restriction on parties to presentation of direct and rebuttal evidence before the county board of commissioners in a proceed- ing to amend the county's comprehensive plan satisfied proce- dural due process requirements. South of Sunnyside Neighbor- hood League v Board of Comrs., 559 P2d 512 (1977, Or App); citing, Anderson, American Law of Zoning. "[A] zoning ordinance which does not comply with the zoning requirements is void." Southside Civic Asso.v Guaranty Sav. Assur. Co., 329 So 2d 767 (1976, La' revd (La) 339 So 2d 323. An amendment is invalid if the notice requirements were not substantially met notwithstanding that a hearing was held and that several hundred people attended it. Melville v Salt Lake County, 536 P2d 133 (1975, Utah). Failure of notice was fundamental error cognizable on appeal despite .the parties' failul:l0;o-l.'a.ise-it.-Skagg.s West, 312 So 2d 549 (1975, Fla A resolution of the zoning commIssion declaring a mora ium on the acceptance of zoning permit applications was illegal and of no effect since the resolution was adopted without noti e to e public and without a he. aring. SUj.te-e:;,:_r:el~Brodie vowers, 1 n 147 362 A2d 884 (!~ . Pursuant to city ordinance, authority of Planning and Zoning . Board exceeds that of a recommendatory body; due process under city charter and ordinance requires that Board grant notice and opportunity to be heard, to an affected landowner, of a hearing to consider rezoning of property. Gulf & Eastern Development Corp. v Ft. Lauderdale, 354 So 2d 57 (1978, Fla). A Notice for a public hearing in response. to a request for a special permit "to permit construction of an 8-unit apartment 106 REPEAL' building at 415 N. Ven content to comply with due process requiremen: thereby put on inquiry Kennedy v South Coal Com., 68 Cal App 3d 66C The notice provisions the notice be published i the notice only to utili (tenlal ot due process or 70 !vIicn' App 188, 254 N A statewide planning public hearings precedi plans and implementat retroactively to invalidl zoning ordinance. Schm' Com., 29 Or App 665, 56 A zoning ordinance a by the submission of a ~ Department and the C authorized to impose OIl the uses specified and t'Jn was required to be ent:t' that where a landowne:r construct 83 condominil units was a zone chanl notice and hearing. Nes! P2d 1340. Where the hearing re, more stringent in the Ie Municipalities Planning controlling. Swinehart , 405 (1976). The section of a zoniI and a new hearing for s' ment were held inapplic sion in a proposed zoni ready present during th was amended. Fassman 336. City ordinances estah were invalid and could ~ f public : will be test and 1 of the 'ark, 83 merican lents of specific :59 A2d ~ebuttal )roceed- proce- lighbor- r App); zoning ty Sav. I So 2d ere not "ld and t Lake appeal 312 So ~iurn r~l ajld It! e to owers, Zoning )rocess grant ner, of :astern la). ; for a irnent REPEAL OF ZONING ORDINANCES ~4.11 , ! 1 t r ! f , i i , , f r I I I I building at 415 N. Venice Boulevard" was deemed sufficient in content to comply with the s~atutory requirement. It satisfied due process requirements since the recipient of such notice was thereby put on inquiry as to any further information needed. Kennedy v South Coast Regional Coastal Zone Conservation Com., 68 Cal App 3d 660, 137 Cal Rptr 396 (1977). The notice provisions of the state enabling act, requiring that the notice be published in a newspaper, and reQuirin!r mailing of the notice only to utilities and railroads, did not constitute a demal of due process or equal protection. Karpenko v Southfield, 75 Mich' App 188, 254 NW2d 839 (1977). A statewide planning goal adopted in 1974 which required public hearings preceding governmental adoption of land use plans and implementation of ordinances could not be applied retroactively to invalidate decisions made under the 1968 city zoning ordinance. Schmidt v Land Conservation & Development Com., 29 Or App 665, 564 P2d 1090 (1977). A zoning ordinanc;.'.?-Jlithorized the creation of SU-1 districts by the submission of a specific development plan to the Planning Department and the City Commission. The Commission was authorized to impose conditions; the landowner was limited to the uses specified and the conditions imposed; the district change was required to be entered on the zoning map. The court held that where a landowner obtained a change to an SU-1 district to construct 83 condominiums, a change to permit 287 apartment units was a zone change subject to statutory requirements of notice and hearing. Nesbit v Albuquerque (1977) 91 NM 455, 575 P2d 1340. Where the hearing requirements for a zoning amendment are more stringent in the local ordinance than in the Pennsylvania Municipalities Planning Code, the provisions of the latter are controlling. Swinehart v Borough of Pottstown, 1 Pa D & C3d 405 (1976). The section of a zoning ordinance which required new notice and a new hearing for substantial changes in a proposed amepd- ment were held inapplicable where the change involved a provi- sion in a proposed zoning ordinance and the plaintiff was al- ready present during the public meeting at which the proposal was amended. Fassman v Skrocki (1978, Pa Cmwlth) 390 A2d 336. City ordinances establishing supplemental f100dway districts were invalid and could not be enforced against property owners 107 ~ 4.11 AMERICAN LAW OF ZONING conducting landfill operations due to the fact that the city did not follow statutory notice requirements. Morland Development Co. v Tulsa (1979, Okla) 596 P2d 1255. It was improper for the city council to rezone land from residential to industrial without giving public notice of the hearing. Cowan v Gulf City Fisheries, Inc. (1980, Miss) 379 So 2d 524. A town board may convene in executive session to discuss pendin~ le.gisla!io?, but suc~ a session must be called by a resolutIon IdentIfymg the subject matter, and passed by a major- ity of the membership. Daily Gazette Co. v Town Bd., Cobleskill (1981) 111 Misc 2d 303, 444 NYS2d 44. The proposed amendment to change plaintiffs district from "commercial and residential" use to "commercial and indus- trial" use is invalid due to the towns failure to meet the statutory requirement of holding at least one public 'hearing prior to final action. K~lakowski v Clarendon (1981) 139 Vt 519 431 A2d 478. ' Notice and hearing requirements of the Planning Enabling Act do not apply to emergency zoning measures designed to preserve the status quo pending the adoption of or amendments to comprehensive zoning plans. Jablinske v Snohomish County (1981) 28 Wash App 848, 626 P2d 543. ' Where notice provisions of a county zoning resolution are more stringent than those prescribed by due process the county provisiOJ;s must be ~ollowed. Therefore, a governmental agency m rezonmg must strlCtly comply with the notice requirements in the zoning ordinances. South Jonesboro Civic Asso. v Thornton (1981) 248 Ga 65,281 SE2d 507. Ordinance rezoning property owners' parcel from commercial to resi~en~ial adopted by.the city was invalid where the property ?wners tImely and specIfically objected to the notice as being ma?equate and showed prejudice in being unable to prepare, venfy, and file a counterpetition. Ft. Pierce v Davis (1981 Fla App D4) 400 So 2d 1242. ' The city'~ ~ailure to gi~e notice or hold any public hearing before recelvmg the ordmance and having its first reading rendered the ordinance invalid as a matter of law. Grady v St. Albans, 297 SE2d 424 (1982, W Va). "California views zoning ordinances as legislative while vari- ances and subdiv~ion map approvals are adjudicative; therefore, adequate protectlOn under state and federal constitutional reo 108 REPEA ! ! ( . r ;, uirements is fulfilled q . . " by the provlSlOns lor mg." Gilliland v Coun Cal Rptr 73 (1981, 2d Ct 2227. Failure to give pr reclassification of Ian< may be challenged in tory appeal. Cavallar A2d 1042 (1983). A provision in a to to adopt emergency ~, effective date of ordl permit tl;e Counc~l u and hearmg requlren Falcun Corp., 306 SE: An ordinance is in was not adoPtP~~rt provisions of :,' /\:, , Pa Cmwlth 122, 456 ' Under county code ing, county coun?il ] sectional or distnct 1 the record produced plan. JMC Constr. ( 456 A2d 931 (1983). \ I ~ 4.12. Timeliness d Where ordinance published in a ne~ notice was first publ failure to comply Vi rezoning. Timelines~ requirement which i to landowner is sho SE 2d 695 (1976); C ~ 4.12. Zoning ordinance' of public hearing VI town zoning ordina SE2d 695 (1976) eel' A statute that re the city did )evelopment , land from )tice of the ;s) 379 So 2d Cl to discuss called by a . by a major- 1, Cobleskill listrict from and indus- {) meef the blic hearing 139 Vt F>1.9 ng Enabling designed to amendments nish County solution are s the county ontal agency uirements in v Thornton commercial the property ice as being to prepare . , LS (1981, Fla blic hearing irst reading Grady v St. while vari- e; therefore . ' .tutlOnal re- REPEAL OF ZONING ORDINANCES ~4.12 , I , t , I f f , i I ! [ i I I f I' quirements is fulfilled when zoning is enacted by the city council by the provisions for the landowners to have notice and hear- ing." Gilliland v County of Los Angeles, 126 Cal App 3d 610, 179 Cal Rptr 73 (1981, 2d Dist) app dismd (US) 72 LEd 2d 840, 102 S Ct 2227. Failure to give proper notice of a hearing on a proposed reclassification of land is a jurisdictional defect. Resulting action may be challenged in a separate action, without taking a statu- tory appeal. Cavallaro v Town of Durham, 190 Conn 746, 462 A2d 1042 (1983). A provision in a town charter which enabled a Town Council to adopt emergency measures was limited to acceleration of the effective date of ordinances. The emergency provisions did not permit the Council to adopt ordinances without following notice and hearing requirements as prescribed in the charter. Vinton v Falcun Corp., 306 SE2d 867 (1983, Va). An ordinance is invalid which' regulates the use of land, but was not adopted after substantial compliance with the notice provisions of PMPC ~~ 608 and 609. Edgeworth v MacL":cJ 72 Pa Cmwlth 122, 456 A2d 682 (1983). Under county code provisions, as part of comprehensive rezon- ing, county council may, with or without modification, approve sectional or district zoning amendments based on the evidence of the record produced in the process of approval of the master plan. JMC Constr. Corp. v Montgomery County, 54 Md App 1, 456 A2d 931 (1983). ~ 4.12. Timeliness of notice. Where ordinance required notice of public hearings to be published in a newspaper 15 days prior to hearing and the notice was first published 12 days before the hearing, the Town's failure to comply with the notice requirement invalidated the rezoning. Timeliness of notice in zoning matters is a mandatory requirement which is strictly construed even where no prejudice to landowner is shown. George v Edenton, 31 NC App 648, 230 SE 2d 695 (1976); citing 1 Anderson, American Law of Zoning ~ 4.12. Zoning ordinance held invalid because only twelve days notice of public hearing was given instead of fifteen as required by a town zoning ordinace. George v Edenton, 31 NC App 648, 230 . SE2d 695 (1976) cert gr 292 NC 264, 233 SE2d 391. A statute that required the plan commission to give ten days 109 ~4.12 AMERICAN LAW OF ZONING prior notice of a public hearing considering a petition for reclas- sification did not require that the. reclassification petition and preliminary plans be filed ten days prior to the public hearing. Schererville v Vavrus (1979, Ind App) 389 NE2d 346. ~ 4.13. Publication or service of notice. Where four publications of notice are required, a single publi. cation is not substantial compliance. Melville v Salt Lake County, 536 P2d 133 (1975, Utah). The notice provisions of the state enabling act requiring that the notice be published in a newspaper and requiring mailing of the notice only to utilities and railroads, did not constitute a denial of due process or equal protection. Karpenko v Southfield, 75 Mich App 188, 254 NW2d 839 (1977). The requirement that written notice of a proposed zoning amendment be given to the clerk of an adjoining town under certain circumstances is mandatory. Substantial compliance is not effected by written notice directed generally to the town. , Atiyeh v North Hills, 91 Misc 2d 365, 398 NYS2dW$ (1977). An amendment to a city zoning ordinance ,bid, .Jxtended the city's zoning authority one mile beyond the city limits was invalid because the ordinance was not amended in compliance with the enabling statutes in that: 1) the notice of the amend- ment did not give any warning to landowners outside the city limits what the subject of the proposed amendment was; 2) the boundries of the newly zoned areas were inadequately described and; 3) time limits for posting notice of hearings were not complied with. Sellers v Asheville, 33 NC App 544, 236 SE2d 283 (1977). . Where defendant did not give any notice to plaintiff that it was changing zoning nor did it hold a hearing to consider advisibility of such a change, adoption of general annual zoning notice by defendant village five months after purported reverter did not operate to reclassify plaintiff's property, even though ordinance included an official zoning map showing that property was rezoned. Kamysz v Wheeling (1978) 65 III App .3d 629, 22 III Dec 29, 382 NE2d 349. Before rezoning a tract of land by amendment, notice must be given to the adjoining landowners as required by an ordinance. Lee v Simpson (1980, NC App) 261 SE2d 295. Where comprehensive zoning ordinance requires public notice of proposed changes to be published at specified intervals, ordi- 110 REPEAL OF ~; 1. . . .. enacted without D8I1~bed regulations ar' preserI a r Markets v 1] Gi8n~e~ ra) 385 So 2d 2: cert county plannHl ;<Where . - . t' ce of a heanng on pre no 1 than county seat, i~ othe~ounty seat, but ~1l1 the er of general CIre newspap . 'd McInt. changes are VOl . . 317, 620 P~d 696. . ; City ordmance proh:b. dwelling outside of deslgI, 'ded that every ordl ProVl ffi . I ewe . .theoC1an. tHne mpublished. Wichit never 2d Di (1980 Tex Civ App . A ~oning ordi~8;nce w~ was not in wntmg a~ ordinance was not pabh M. Freeman AssocIates, Sup). d t. A zoning amen men.. to post notice of hearl1 that some residents ob Marksville, 411 So 2d.ff,! Due process oes not n land subject to a. pr<!l notified of a hearml?i.JJ Bank v County of Wll\, . 891 (1983). ~ 4.14. Contents of not A notice that there" a less restrictive n:ti where the proper~y In: lti-family classlfica~ :~cation. SouthsideCI So 2d 767 (1976, La ~ A notice of hearnt disclose some of the H posed amendment a1\ t f i T , r 5 " " f- " :l t 3 t r g r 1 y 1 e e t- REPEAL OF ZONING ORDINANCES ~4.14 nances enacted without prior public notice pursuant to the prescribed regulations are not enforceable. Schwegmann Bros. Giant Super Markets v Donelon (1980, La App) 383 So 2d 433, cert den (La) 385 So 2d 274. Where county planning and zoning commIssIon published notice of a hearing on proposed zoning changes affecting an area other than county seat, in a newspaper of general circulation in the county seat, but failed to publish a general notice in a newspaper of general circulation in the area affected, the zoning changes are. void. McIntyre v Mohave County (1980) 127 Ariz 317,620 P2d 696. City ordinance prohibiting the use of a mobile home as a dwelling outside of designated areas was void where city charter provided that every ordinance shall be published at least one time in the official newspaper of the city and such notice was never published. Wichita Falls v 1. J. & Frances Streetman (1980, Tex Civ App 2d Dist) 607 SW2d 644. A zoning ordinance \Vas invalid where the proposed ordinance was not in writinfc.:,.:;:;,j. where notification of the proposed ordinance was not published in all the county newspapers. Carl M. Freeman Associates, Inc. v Green, 447 A2d 1179 (1982, Del Sup). A zoning amendment is invalid where the municipality failed to post notice of hearing as required by law, notwithstanding that some residents obtained notice by publication. Tassin v Marksville, 411 So 2d 1240 1982 La Due process oes not require that an owner of land adjacen land subject to a proposed zoning amendment be personally notified of a hearing on the amendment. National Boulevard Bank v County of Will, 112 III App 3d 608, 68 III Dec 247, 44 891 (1983). ~ 4.14. Contents of notice. A notice that there would be a change from a single-family to a less restrictive multi-family classification was inadequate where the property in question was actually unzoned, and the multi-family classification was therefore a more restrictive clas- sification. Southside Civic Asso. v Guaranty Sav. Assur. Co., 329 So 2d 767 (1976, La App), revd (La) 339 So 2d 323. A notice of hearing is fatally defective where it fails to disclose some of the property which will be affected by a pro- posed amendment and does not accurately state the matter 111 , ^ ~ to the standards of Section 20-13, the city Council shall approve, conceptual presentation." B. "Move to recommend that City Council amend the first sentence of Section 24-8.8 to read as follows: (new language is bolded, old language is crossed out) "Section 24-8.8 Concept ual presentation -- City Council ~~ew public hearing. Within thirty (30) days of receipt of the planning commission recommendation and at a ~e~Hi~--~~~~ public hearing noticed according to the standards ,,{ Sect ion 24- 8.10. the city council shall appro,!, disapprove, or approve with modifications .the crceptual presentation. ISSUES 2 AND 3 PROBLEM DISCUSSION: Public hearing notification requiremenbs..as they apply to condominium owners. The following language either appears in or is referred to in seven separate sections of the Municipal Code with regards to public hearing notification requirements: "Owners of residential multi-family condominium units may be served by mailing sufficient copies of any such required notice (one for each owner) to the recorded address for their homeowners' association." cv~~ ~fSJ) ~ Several condominium association managers have questioned priateness and legality of this special provision applied minium complexes. Their arguments are summarized below: L{jihIloH-J I"p .WIt' f ,tt.t"'J'-t, l It p",At p'lr \{ p.ft.-I;, \ b. ,f,;lll<f ;.. pV>IIH L-8j"\;1-j the appro- to condo- a. Under current code provisions, the condominium association manager is placed in the position of 1) deciding whether an issue is important enough to send out notices of public hearings to condominium owners, and 2) finding the current addresses of the condominium owners. It is argued that neither responsibility shou:Ld be delegated by local govern- .ment to these individuals. . In the case that there is a change in management companies for a condominium association and the new company fail.s to receive notification, ..1-ten all of the condominium owners would also fail to recei , no.tification. c. The time and money incurred by the association manager handling notification are alleged to be an unfair burden by some of the managers. d. There may be a statutory requirement for cities to notify all property owners, not discriminating between mUlti-family condominium owners and other property owners. The Planning Office contacted some seven condominium association managers, a title company and the County Assessor's Office to find out if they believe the proposed code amendments would be a benefit or diservice to the public. The maj ority of persons spoken with felt that the proposed code amendment to delete the above language would not be a public benefit. The reasons are summarized as follows: a. Condominium associations in Aspen generally have articles of incorporation or by-laws that define the management company's respon.sibilities with respect to notification. The notification process has w.orked effectively through the delegation of this task to the management companies~ b. The ability of the condominium manager to discern which issues really effect the interests of the condo owners and which issues are inconsequential can save a lot of unneces- J~ 1 2 '.,.1' I I I I IJ\1 I ,) ,\",1> ~\'l 'f1l~<:J ..A 1,.'fI~~' I ~t I I I I I I I I I I I I I I I I I I I I ! L4JV'~( ~" f'o'" () , . 1"""'\ .--- . , c. sary mail ing. The local condo manager is more likely to perceive the significance of a proposal and attend the public hearing than an out-of-town condo owner. d. The assessor's records of property owners are some times out-of-date or inaccurate; and the condo association is in a better position to know how to communicate with condo owners. Inaccuracies in the list of addresses could invalidate the public hearing. The additional expenses and time required by the proposed amendment would burden the applicant, the Assessor's Office, and the Planning Office. Non-compliance on the part of the applicant could be the result. Ina memorandum dated July 30, 1985, the City Att,o.rney reviewed State Statutes, caselaw, and the American Law 9f Zoning to analyze this issue. While he could not determine from his research that the City is clearly required by Statute to notify all property owners, he recommended in favor of the code amendment. He reasoned that "the proposed Aspen Code Amendment woul'-establish the benefit of any doubt in favor of due process." e. f. In a conversation with the Pitkin County Assessor on July 30, 1985 it was stated that while the office is over-worked at the present time, it is willing to supply the names and addresses of property owners entitled to notification including condo owners upon request. The Planning Office considers due process to be the most important issue in this consideration of thE! code amendment. While the notifi- cation process undoubtedly will become somewhat more complicated and expensive than at present, the condominium owner public would not be treated differently than other property owners, and consequently would be more fail;ly served. Most of the arguments against the code amendment are made in terms of convenience or the ascribed capabil- ities of the management company to handle publi c not i fi cat i on in a better manner than what is the general system of notification require- ments. Neither argument should outweigh due process and statutory requi rement s. Code Amendment 3 would require the applicant to supply to the Planning Office the names of entitled property owners (owners of property either adjacent to the subject property or within 300 feet, depending on, the action) on pre-addressed ~ envelopes.~A 1;1-\1;' ypt l1-J;n v i'!rlt'lre313 of the Flall1llllY Offl"", il,JicatcEl e.. th", el.~el~e-. It is felt v that thir. is a reasonable responsibility of the applicant; and it would reduce some of the additional work created by Code Amendment 2. The argument that there would be a greater chance for inaccuracies in addresses that may invalidate the nublic hearing is of some concern. The statutory language specifying Ie acceptable sources of names and addresses (C.R.S. 31-23-215) is pl~'J?osed to be added to the Municipal Code to better guide the applicant in preparing valid lists of property owners. Furthermore, the Planning Office feels that it is important to keep the language of all public notification requirements consistent for the sake of simplicity. Therefore, each of the five amended sections would read the same in this respect. ISSUES 2 IIND 3 RECOMMENDATION: The following language should replace the existing language regarding public notice to property owners adj acent to or within 300 feet of the subj ect property: "A list of names and addresses of all property owners (adjacent to/within 300 feet of the property shall be supplied as they 3 -1 " .~ ~ appear upon plats or records in the Pitkin County Clerk and Recorder's Office and as their most recent addresses roaya.ppear in a telephone or other directory of general use or the tax records of Pit ki n COllnt.y. 1'1' licants shall supply these names to the Planning Office on pre~ddressed,j- ctampee envelopes :'w-i\;b t-l)&~ lI,cpeR/Pitkjn Pl:af-u=tinl3 Off, G'Ci t2tnrR 3.doro~. n ./ ,/ This new language would appear in the following sections of the Code: . Section 20-13 (a) Preliminary Plat Public Hearing (adj acent property owners). . Section 24-8.10 (a) Preliminary PUD Plan Public Hearing (adjacent property owners). . Section 24-7.5 (b) Precise SPA Development Plan Public Hearing (property owners within 300 feet). . Section 2-22 (c) (1) and (2) Use and Non-Use Variance Public Hearings (property owners within 300 feet). . Section ,24-12.3 (c) (2) Zoning Code Amendment Public Hearing (property owners within 300 feet). Noted in parentheslis above are the groups of prope,rty owners entitled v to pUblic hearing notification for each section of the Municipal Code. SB.9 4 ~- .1""', r) ." .. , . MEMORANPUM FROM: Hal Schilling, City Manager Glenn Horn, Planning Office Lee Miller Letter TO: ' RE: DATE: June 24, 1985 ===========================~======================~================= INTRODUCTION Please reference my May 7, 1985 memorandum addressing two bills from Lee Miller. I received a call from Lee Miller today inquiring about the status of the attached bills. BACKGROUND I spoke with Lee Miller at the end of April concerning procedures for pUblic notice. At that time I indicated to Lee it was likely that the City would be considering a code amendment to change the existing public notice procedures. Lee was very upset with the existing procedures due to the costs incurred by his property' management office for delivering public notices. During my discussions with Lee he indicated to me that Bill Stirling had led him to believe that the City of Aspen would reimburse him for his mailing costs. I discussed Lee's comments with Bill Stirling. Bill said that he would like to reimburse Lee and would try to work something out when we received a statement from Lee. On May 7, 1985 I forwarded Lee's statements to Mayor Stirling request- ing advise concerning the matter. I have not heard anything from Bill yet. Today L~e Miller called to inquire about the status of the .unpaid bills. It appears that we have placed ourselves in an awkward position based upon the public hearing procedu res in the Ci ty of Aspen Munic ipal Code. Section 20-13 of the Code indicates that .owners of multi- family condominium units may be served by mailing sufficient copies of such required notice to the record address of their Homeowners Association fifteen days (15) prior to the hearing date." The Planning Office always notifies con~ominium management companies of impending public hearings. Generalty, the management company is the only legal address of mUlti-family units provided to our office by applicants. There is no authority given within the Code to reimburse one management company for their notification costs and not others. Janet Raczak made a few phone calls to management companies in the Aspen area in order to determine whether or not the public notice requests made of property management companies are unreasonable. I"""'- ,-, Attached is a memorandum from Janet documenting the results of her survey. Based upon Janet's limited research, it does not appear that other management companies in the community find the public notice system to be as burdensome as Lee Miller. CONCLUSION Lee Miller is sometimes very difficult to deal with. So far, I have a cordial relationship with him. However, based upon his discussions with Bill Stirling he anticipates the City to reimburse him for two public notice mailings. Please advise me on how the Planning Office should handle this matter. GH.13 I ( I ~! I { . ;. , ,- i;' '. .~ 't, ! .1; \, ;1 i' 2 /""'\ MEMORANDUM TO: Glenn Horn FROM: RE: Janet Racz alt Public Notice Requirements in City of Aspen DATE: June 25, 1985 ============================================================= I did a telephone survey with the following condominium manage- ment companies in order to see whether any of the management companies felt the current policies regarding public notices were unfair, unreasonable or a hastle. Following are the results of that telephone survey: 1. Aspen Alps - I spoke with Sandra, a front desk clerk at the Aspen Alps. She explained that it was no trouble to send out the notices and that they merely placed the notices in the Owners' Statement which goes out mid-month each month. I also spoke to Pam who explained that if the notice comes and does not coincide with the Owners' Statement, she mails them out individually. She said it does cost time, office supplies and postage, but that they have a computerized list of addresses so it isn't that much trouble. She mentioned that she would prefer not to have to do it, but since the legal address is in care of their management operation, there is not much of a choice. It is their responsibility to notify owners. 2. The Gant - I spoke to Molly Campbell. Molly gets the notices, and makes a decision, as the manager of the complex, whether she feels it is mandatory to notify each individual owner in the complex. For example, if she receives notice of the neighbors making a small addition to their deck, she would monitor on behalf of the owners and would not notify them individually. Should she receive a notice of anew ski area development (e. g., Little Annie), she would notify the owners immediately. Depend- ing on the importance and significance of the development, she determines whether the notices should mailed out immediately or if it the notices can be enclosed with the Owners' Statement. Molly did not feel that it was, particularly inconvenient to her to notify the owners but, instead, felt it was her responsibility as the manager to notify the owners. She explained that her Association budgets for postage and mailings and if she must mail the notices out separately, the cost comes out of the postage budget. It she goes over budget because of the mailings, she felt it is a small price to pay considering the possible affects of a major development on the owners property. 1'"'\, ~ 3. Coates,' Reid & Waldron - John Howard explained to me that he had never received notices of the sort. He went on to explain to me that he feit that he, as a manager of condo- minium complexes, had been hired by the Board of Managers or Board of Directors of each complex, to manage their complex, which would include notifying them of any public process that may affect their units. He said that is the purpose of a management body. Should he receive these notices, he would send them out, as he felt it was his responsibility as the manager. 4. Aspen Club Condominiums - Teresa Fairbanks, of the Aspen Club Condominium management operation, explained that she sends the notices out with their owners' statements and therefore does not spend extra time or postage. I I I }: " ~ ,'j i::: {1!' ~: ~ /' ~ il \ I ., 0 .1 t: to' ., l' f t ~ ~ "" ~: f""', r-.. MEMORANDUM TO: Bill Stirling, Mayor FROl.!: Glenn Horn, Planning Office Hal Schilling, City l!anager THRU: RE: Lee Miller Letter DA'rE: l-lDY 7, 1985 ========~~==~====;:=~=======~====~============~=======~~====~=========== As you requestdr I am f6nu:,rding copies of the bills that Lee Hiller sent us for public notice. I am not sure hOH you \~ant to deal .,ith this issue. Please advise. cc: Alan Richman .1 , I I , l ! ,! i:t, I' i: :~ : :1; I' , , ~n 1 I _.1. ", j ~ ji 'I: '-;j Ii ;! '-. 11ay 1, 1985 1"'"'. ~, CoNDOMINIUM RENTAL MANAGt:MENT. INC. 747 South Galena Street Aspen. Cok>rodo 81611 (303) 925-2260 MonoolnQ ,AoentlO1 . FoschlnQ Hous . Rtth Avenue . Afpenbllck . TIppie Inn . Durant . TIppie todQe Aspen Planning and Zoning Commi ss ion 130 S. Galena St. Aspen, CO 81611 Attn: Glen D m@[g D~[g,~ . MAY - 2 I9&> :w Dea r G.l en, RE: Public Notice Here is another notice that was sent to our Owners. Below is a break-down of our charges: 1) 2) 3) 4) . 5) Xeroxing 150 copies @ 15~ each $ 22.50 Printing of Mail Labels - 150 @ 3~ ea 4.50 Envelopes @ 3~ ea 4.50 Postage @ 22~ ea 33.00 Labor - Stuffing Envelopes , Affixing Mail Labels Posting - 1 hour 18.00 . , 6) . Lee's coordinating time 15.00 $ 97.50 BALANCE DUE ou for your attention and assistance. 510 " M l" l. M;n" t1anager LLM:go ~\ / .' I"'"' ^ PUBLIC NOTICE / RE: Aspen Motmtain POP, - Preliminary puD/subdivision - Residential and Lodge Components NOTICE IS HEREBY GIVEN that a public hearing will be reopened at a Special Meeting of the Aspen Planning and Zoning Commission, on April 30, 1985, at a meeting to begin at 5:00 P.M. in City Council Chambers, 130 S. Galena, Aspen, Colorado, to reconsider all elements of the preliminary PUD/Subdivision submission for the residential and lodge components of the Aspen Mountain PUD which is generally bounded by Galena Street to the east; Monarch Avenue to the west; Durant Street'to the north; and the base of the Aspen Mountain Ski Area to the south. Included within the Aspen Mountain PUD are the fOllowing projects: (1) Aspen Mountain Lodge; (2) Top of Mill; (3) 700 South Galena; and (4) Summit Place. / For further information contact the Aspen/Pitkin Planning Office, J 130 S. Galena, Aspen, CO 81611 (303) 925-2020, ext. 225. s/Perry Harvey Chairperson, Aspen Planning and Zoning Commission ============================================~=================== Published in the Aspen Times on April 11, 1985. City of Aspen Account. \., , ~' , , ~ CONDOMINIUM RENTAL MANAGeMENT, 'INC. 747 Soulh Galena 5tieet Aspen. CoIo<odo 81M 1 (3QS) </25,2260 Managing }Qent for . foschino Hous . Fifth Avenue . Alpenblic:k . TIppie Inn . Duront . TIppie lodQe Aspen Planning and Zoning Commission 130 S. Galena St. Aspen, CO 81611 ATTN: Glen D rn@rno\Wrn ,n MAY - II9&> ~ April 26, 1985 ... RE: Notices sent to our Owners CA'f' ~,-7 Dear Glen, Thank you for taking the time to call me this week concerning the Notices that we have sent to our owners. 8elow is a break-down of our charges: 1) Xeroxing 150 copies @ 15~ each 2) Printing of Mail Labels - 150 @ 3~ ea 3) Envelopes @ 3i ea 4) Postage @ 22i ea 5) Labor - Stuffing Envelopes Affixing Mail labels' Posti ng - 1- hour 6) Lee's coordinating time $ 22.50 4.50 4.50 33.00 i , I ! !; a f; 18.00 15.00 BALANCE DUE $ 97.50 Thank you for your attention and assistance. SinCfJ;tJ A Lejb~t . Manager \. LLM:ss .; 1 Cane 85-7 I"'"' ,~ BEFORE TUE CIL OF ASPEN BOARD OF ADJOST&_.T / AL'L PROPERTY OWNERS AFFEcrEJ> BY THE REQUESTED ZONING OR USE VARIANCE JJESCRHlED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the Council Room, City Hall, Aspen. Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views. protests or objection~'_ If you cannot appear personally at such meeting. then you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. The particulars of the hearing and of the requested variance are as follows: Date and Time of Meeting: Date:May 2, 1985 Time:4:00PH Owner for Variance: Appellant for Variance: name: l>.spen Joint Venture Hensel Phelps Construction ~daress: P.O. Box CC Aspen, CO 81612 P.O. Box 0 Greeley, CO Location or description of property: Location: Aspen Mountain Lodge Project Description: Variance Requested: to utilize a 6 foot chain link fence with upper rail, to surround and secure all limits of construction and construction staging areas. Sturdy permanent gates shall be erected throughout the fence as needed to allow access. This fence structure should UQt create the visibility concerns while providing for project safety and security. Section 7-141(0) (2). On corner lots no fence, retaining wall, shrub, tree or similar obstruction shall be erected or maintained which obstructs the traffic vision, nor on corner lots shall any fence, retaining wall, shrub, tree or similar obstru- ction be erected or maintained which exceeds a height of forty-two (42) inche s, measured f rom street grade, wi tl)in thirty (30) feet f rom the lot corner. (AMe) Section 24-3.7 (c), Fences,\hedges or \Ialls shall be permitted providing that they shall not exceeo six (6) feet above grade. Fences visable from the street shall be constructed of wood, stone, wrought iron or masonry. Plans showing proposed construction, material, location and 1eight shall be presented to the building inspector ,before a permit is issued. )uration of Variance: - Temporary I"'"' Case 85-7 ,-.. BEFORE TilE CITY OF ASPEN BOARD OF ADJUSTMENT / ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE uESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amend~d, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or Objections. If you cannot appear personally at such meeting, then you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding ',;hether to grant or deny the request for variance. The particulars of the hearing and of the requested variance are as follows: Date and Time of Meeting: Date:May 2, 1985 Time:4:00Hl Owner for Variance: Appellant for Variance: Name: l>.spen Joint Venture Hensel Phelps Construction Address: P.O. Box CC Aspen, CO 81612 P.O. Box 0 Greeley, CO / Location or description of property: Location: Aspen Mountain Lodge Project Description: Variance ReQuested: to utilize a 6 foot chain link fence with upper rail, to surround and secure all limits of construction and construction staging areas. Sturdy permanent gates shall be erected throughout the fence as needed to allow access. This fence structure should UQt create the visibility concerns while providing for project safety and security. Section 7-141 (a) (2) , On corner lots no fence, retaining wall, shrub, tree or similar obstruction shall be erected or maintained which obstructs the traffic vision, nor on corner lots shall any fence, retaining wall, shrub, tree or similar obstru- ction be erected or maintained which exceeds a height of forty-two (42) inches, measured from street grade, within thirty (30) feet from the lot corner. (AMC) Section 24-3.7 (c), Fences, hedges or walls shall be permitted providing that they shall not exceed six (6) feet above grade. Fences visable from the street shall be constructed of wood, stone, wrought iron or masonry. Plans showing proposed construction, material, location and height shall be presented to the building inspector ,before a permit is issued. Duration of Variance: - Temporary Aspen/Pit 130 s ing Office -. .~ 1985 Mr. Lee Miller Condominium Rental Management Inc. 747 South Galena Street Aspen, CO 81611 Dear Lee: As you know, pursuant to your letters of April 26 and May 1, 1985, I have been investigating the possibility of the City of Aspen reimbursing you for public notice costs incurred by your management company. I have discussed this matter wi th Hal Schilling, City Manager and Paul Ta ddune, City Attorney. Despi te any representations made to you by other city officials, there is no way that we can find to reimburse ,you for your expenses. To do so, the City of Aspen would" be"e.xtending favored treatment to your management company as compared to other local management companies which incur similar expenses. We are sorry that we cannot reimburse you for your past costs. Fortunatel) "e City of Aspen is capable of amending the City'~ {.cipal Code to change the public notice procedures which now require homeowner's associations to forward notices to property owners. Although you have experienced frustrations in the past regarding the public notice process, it will be changed. The Planning Office has scheduled the consideration of a code amendment intended to change public notice procedures for the August 6, 1985 City Planning and Zoning Commission meeting. Steve Burstein of the Planning Office is the planner responsible for preparing the code amendment. He is well aware of your concerns. Please feel free to call Steve in the next few weeks to discuss the proposed code revision. I encourage you to attend the public meetings to insure that the code amendment which is ultimately adopted is acceptable to you. We regret that the City of Aspen cannot do anymore to address this matter. GH/nec Sincerely, ~ Glenn Horn, AICP Aspen/Pitkin Planning Office cc: ~~ -, ......... - MEMORANDUM RE: Alan Richman, Acting Planning Director Glenn Horn, Senior Planner Janet Raczak, planning Administrative Assistant Code Amendment - Notification Requirements TO: FROM: DATE: May' 28, 1985 =~=z=============~=====================================~============= In the past, I have been able to keep fairly good tr~ck of publ~C notices but it appears that the system has been breaklng down a blt more often than it used to. I believe this is primarily due to the amount of other work we have. been accomplishing other than caseload and code amendments. In order to relieve the Planning Office of the burden and responsibi- lity for possiblY mis-noticing or not-noticing, I would like to propose an alternate system for incorporation into and amending the codes. After a short conversation with Cindy about the system that Garfield County Planning uses, I would like to propose that we amend the code to follow the same type of system. Following is an explanation of how their system works with a few modifications which I have incorporated to fit our needs. The applicant is required to publish public notice and is also responsible for notice to adj acent property owners. At the time the application is received the applicant is sent a letter as follows: Dear , has at I am writing to inform you that your application for been scheduled for .review before the on . Enclosed is a copy of the notification requirements. will be noticed when the application goes before (After review by the P&Z, please call the Planning schedule a time and date for the public hearing before of County Commissioners.) If you have any questions, please contact me at this office. This case . Office to the Board Sincerely, '., ... , 1. '/ 2. r-" 'r-, ;ification requi.~ments would be as follows: Copies of the Public Notice must be mailed by the applicant to all (adjoining property owners) (property owners within 300 feet) of the subject property by certified return receipt mail at least (fifteen [15}) (thirty [30}) days prior to the date of the public hearing. Receipts must be submitted at the pUblic hearing. A Public Notice must be pubplshed once in a newspsper of general circulation at least fifteen (15) days prior the date of the public hearing. The Planning Office will provide the Public Notice form which must be signed by the Planning Director before it is submitted to the newspaper. The Proof of Publication which will be sent to you' along with your bill, must be submitted at the public hearing. 3. A sign (24" x 36") must be posted on the property, in a conspicuous place on the premises for which application has been made, at least ten (10) days prior to the hearing date. The Planning Office has a mylar for blueline reprodu- ction (charge is $3.00) for use by applicant (if they wish to use it) for posting on property. The appropriate notice information for the type of application would 'be sent to the applicant. Please give me some feedback. J *- .o---<,-,J ':1- ,I C-tt, : ,( " 1/'",,)- 'Lf::z;~.,? ;)_ '7 , . , - , . )..-..LC-: ' _r t..".t.."".\..,.~^~.._~ _:-'j. C' (0k,(f'"j C -+-;J ,~ l/\ \ ) c...-.j j .I ,,'v_,,"- , :, I I. H -;f'\" .:......~ ........"/'~"",,.,,.. I' '-." -,;;;l"' -- / I / , " -- -.. /"""'; , , /"""'; Copies of the. ~lic Notke'must be sent by the applicant to all adjoining property owners an<l-property Owner;. wiLlI;n :?on. fee-t:- of the subject property by certifi ed return recei pt mail at least five (5) days prior to the hearing. Receipts must be submitted at the public hearing. 5. A Public Notice must be published once in a newspaper of general circulation at least fifteen (15) days prior to the hearin~. The Planning Department will provide the Public Notice form which must' be signed by the Planning Director before it is submitted to the ne~lspaper.'The Proof of Publication which will be sent to you alonLIi!Jb_Y2J"I:,J~i n".must-be,submi tted at-the publ i.c heari ng._ ,C " /" ""." .~ r-- ~ THE CANTRUP ESTATE POST OFII'Ct Box 795:5 ASPEN. COLOll'AOO 81612 SPENCE" F. SC""FFEII CHIC' EU:CUT,VC OFFICER 13031 92!5-9038 1303' 925"9513 Decellber 10, 1984 HAND IELIVEl€D Aspen City Oouncil 130 S. Galena Aspen, (X) 81611 Re: Proposed Ordinance No. 29 Series of 1984 Honorable Mayor and Council Members: The Cantrup Estate, owner of the Aspen Meadows property, protests the public hearing on, arx:i objects to, the proposed Ordinance No. 29, Series of 1984 for the reasons set forth herein. On t::ehalf of the Estate I request that this letter be made a part of the record of the public hearings held in connection with that proposed Ordinance. As I stated at the public hearing on first reading held on October 22, 1984, it ~uld be error for the City to proceed with the hearings or to take any action with respect to tr. ?Osed Ordinance since the City ha::l failed to give a::lequate rotice of the public hearings t::efore the Planning and Zoning Oommission as well as the City Council to the owners of property which ~uld be affected by the proposal. Section 24-12.3 (C) provides that a public hearing before the Planning and Zoning Oommission on proposed amendments to the Zoning Code or Zoning District Map may only t::e held when notice of such hearing is given as follows: "1. Notice shall t::e plblished once in a newspaper of general circulation in the City at least 15 days prior to the hearing date. 2. A written notice of said hearing shall t::e sent by first class mail at least 15 days prior to the hearin;! date to property owners within the area of the proposed mange and within 300 feet thereof. Owners of residential multi-family condominium units may be served by mailing sufficient copies of any such required notice (one for eadl owner) to the record address of their home owner's association." The proposed Ordinance No. 29 clearly purports to amend Sect,ion 24-2.1 and Section 24-3.4 as well as dlange through repeal and reenactment Article 7 of Chapter 24. Beyond the specific relevant provisions of the Municipal Code and the other objections and concerns raised herein and rrentioned in Illi appearance before the Oouncil, I believe it is a well settled axian in zoning and land use law that whenever a nunicipality undertakes to mange, nodify, ,/ . t"""'\ ...-, I / December 10, 1984 Page 2 or in any way affect zoning of property, at a minimum, the property owners IIY.l5t te given notice and an opportunity to te heard. Neither the Cantrup Estate nor the Aspen Institute, beneficial owner of a portion of the Meadows property, had been given aITj notice prior to any of the public hearings which were held on the proposed Ordinance. As a ronsequence, I believe that the proposed Ordinance, if adopted, would te fatally defective. At the October 2200 public hearing I also stated I1!f cpinion, which I reiterate here, that there is a substantial question as to the jurisdiction of the City to take any action with respect to the zoning of the Aspen Meadows property, including the academic parcel, during the pendency of the litigation in the Pitkin COunty District Court between the Aspen Institute and the City. I have written to the City Attorney and conferred with him regarding the legal issues with respect to notice and the pending litigation and would respectfully suggest that you obtain an opinion fran him regarding those issues before proceeding with the public hearing. , With respect to the specific provisions of the Ordinance itself, I believe that Section 24-7.2 (C) effectively eliminates the standards purportedly intended to be i.I1plemented as part of the Ordinance and gives,,-- both the Planning Cbmnission and the City Council tco Imlch latitude to restrict or limit an applicant' s ability to develop its property. It is I1!f view that the language contained in that subsection rould have a significantly deleterious effect on the of any property subject to the Ordinance and OJuld be construed to te tantallOunt to the taking of property or property rights without just rorq;>ensation. ' '. Subparagraph (d) seeIllS to indicate that the Aspen Meadows, which would COll"e within the purview of this proposed Ordinance, would be subject to the growth manageIrent quota system. The report of the Aspen Meadows Advisory Board ,to the City of Aspen dated September 11, 1981 recornnends that development of the Aspen Meadows property te exempt from the Growth ManageIrent Plan. Thus, unless a specific exemption is stated in the proposed Ordinance, the recornnendationwould seem to bei.I1plicitly if not explicitly rejected. Since that issue has apparently not been discussed in previous public hearings prior to I1!f bringing it to the Council and P & z' s attention at the last study session on Monday, December 3, 1984, I would suggest that it be specifically crldressed in the Ordinance before final a:'Ioption. trulY;13s SFS:mvb cc: Janes B. Holden, Esq. Donald C. McKinlay, Esq. Paul J. Taddune, Esq. Charles D. Brandt, Esq. '\ ~" ~ PUBLIC N01'ICE RE: CH~ES IN PUBLIC HEARIN; NOTIFICATION REQUIREMENTS NOTICE IS HEREBY G N EN that a public hearing will be held on -aii.r4':::::'2-3'~ 1985 at 5:00 P.M. before the Aspen Planning and Zoning Commission, in City Council Chambers, 130 S.Galena, Aspen, Colorado, to consider amendments to Sections 2-22 (c) (2), 20- 13(a), 24-7.5(b), 24-8.l0(a), and 24-l2.5(c) (2) of the Municipal Code of the City of Aspen, Colorado, which would change the public hearing notification requiremetns as they apply to condominium unit owners such that instead of notice being given to the condominium managers, it would be given directly to the owners themselves. For further information, contact Planning Office, 130 S. Galena, Aspen, CO 81611 (303) 925-2020, ext. 223. SSl PUBLIC NOTICE .' " RE: CH~ES IN PUBLIC HEARIN; REQUIREMENTS NOTICE IS HEREBY GNEN that a pUblic hearing will be held on August 6, 1985 at 5:00 P.M. before the Aspen Planning and Zoning Commission, in City Council Chambers, 130 S. Galena, Aspen, Colorado, to consider amendments to Sections 20-10(d) and 24-8.8 of the Municipal Code of the City of Aspen, Colorado, which would require public hearing notice to be given for subdivision and PUP conceptual presentations before City Council. For further information, contact Planning Office, 130 S. Galena, Aspen, CO 81611 (303) 925-2020, ext. 223. s/Welton Anderson Chairman, Aspen Planning and Zoning Commission ================================================================ Published in the Aspen Times on JUly 18, 1985. City of Aspen Account. i""". ~ MEMORANDUM 'TO: \ / FROM: Steve Burstein Alan Richman RE: Initiation of Code Amendments DATE: June 25, 1985 ===================================================================== Based on Council's motion at the end of the SPA discussion on 6/24, I would like you to take forward the fOllowing Code amendments to P&Z at your earliest convenience. 1. Amend Section 20-10(d) to read as follows: (new language is bolded, old language is crossed out) "(d) Within thirty (30) days of receipt of the planning commission recommendation and at a ~r~~ mee~~ft~ public hearing noticed according to the standards of Section 20-13, the city council shall approve, disapprove, or approve with modifications the conceptual presentation. Failure of the city council to act within thirty (30) days shall be deemed approval except that the city council may delay action for lack of sufficient informa- tion upon which to make a decision until such information is made available. If the plan is disapproved, reasons for such disapproval shall be stated in the minutes. If the recommend- ation is for approval subject to modifications, the nature of the required modifications shall also be indicated in the minutes." 2. Amend Section 24-8.8 to read as follows: (new language is bolded, old language is crossed out) "Sec. 24-8.8 Conceptual presentation -- City council ~~ew public hearing. Within thirty (30) days of receipt of the planning commission recommendation and at a ~~ljtl:iiM'-~H.t'Ilj public hearing noticed according to the standards of Section 24-8.10, the city council shall approve, disapprove, or approve with modifications the concep- tual presentation. Failure of the city council to act within thirty (30) days shall be deemed approval except that the city council may delay action for lack of sufficient information upon which to make a decision until such information is made available. If the plan is disapproved, reasons for such disapproval shall be stated in the minutes. If the recommendation is for approval subject to modifications, the nature of the required modifications shall also be indicated in the minutes. Approval by the city council shall lapse unless a preliminary plan is submitted pursuant to the provisions of section 24-8.11 within six (6) months of final conceptual approval (Ord. No. 71-1975, Section 1)" I expect you to develop a memo explaining these changes, as well as to insure that the P&Z review, is noticed in the paper fifteen (IS) days in advance of their consideration of these proposals. Please see me if you have any questions. cc: Hal SChilling Paul Taddune AR.26 ~~CI_!')) 11>,1(;,+':"11 fr."r"f; OrJ'^A",')Y,tf,bm!c+'o," I Aj'ttt'J>J,.....,.:;&.o to 1.o~,~; DtJj,'>\l\:\lt.ll """" ^ MEMORANDUM RE: Steve Burstein Alan Richman M- Initiation of Code Amendment TO: FROM: DATE: July 1, 1985 ====================================================================== At the instruction of the City Manager and the City Council we should initiate a code amendment as soon as possible. The purpose of the amendment would be to eliminate the following sentence from the Code: "Owners of residential multi-family condominium units may be served by mailing sufficient copies of any such required notice (one for each owner) to the record address of their homeowners' association fifteen (15) days"prior to the hearing date." This sentence appears in the fOllowing sections of the Code: 0 2-22 (c) (2) ., 0 20-1j' (a) 10-~3 0 24-7.5 (b) 0 24-8.10 (a) 0 24-12.5 (c) (2) We need to evaluate whether the elimination of this prOV1Slon will have a positive or negative effect on our public notice provisions in the following areas: 1. Accuracy of assessor's records regarding addresses of condominium owners versus records of the secretary of state for record address of homeowners' association. 2. Janet and Glenn have surveyed some condominium managers and found that they do not believe the mailings are an undue burden. We should contact more such people to find if taking responsi- bility away from them would be a disservice or a benefit to the public they serve: 3. Cost of additional mailings, and who should pay for the ? " additional staff time and resources. We should also talk to the , title insurance companies, to find out whether providing these names will substantially increase the cost to applicants of providing adjacent ownership lists. \i I suggest that you contact Glenn and Janet before proceeding to the P&Z review of this item. Please see me for additional background on the origin of this issue. cc: Hal Schilling Bill Stirling Paul Taddune r ~ ,...... TO: " THRU: FRO~l: RE: DATE: f"""', $';),(00" ~ ' ,-, MEMORANDUM Aspen City C04ncil Hal Schilling, City Manager Alan Richman, Planning and Development Director \~ Continued Public lIearing - Ordinance 20 - SPA June 24, 1985 ==============================================~====================== SUMMARY: The Planning Office recommends 2nd reading approval of Ordinance 20, amending Section 24-7 regarding Specially Planned Areas. PREVIOUS COUNCIL ACTION: Council tabled action on Ordinance 20 at the meeting on !-lay 28 so that, this item could be finally decided by the newly elected members. ' BACKGROUND: At your meeting on May 28th, we reviewed a series of very minor changes to the Ordinance made jointly by myself and the City Attorney based on your directions. Additionally, several sections of the Ordinance were discussed where more substantive revisions were made. These sections, which are underlined in the attached ordinance, are as follows: 1. 2. ~" ;"", ,\~1. \ ."'de- \ I ",i ?)f:.' 'ol'V$i<i.e,;~,y ''7 +~ r'II~TI--t>f' f"'to, r S'''w'v(a^''I'''-~~c.. , "c__..,,;idA'iH<1-J'f(lji<W: -j" -, . pI.' ': i.,.._" n,fSf,l) ~t7f)(f' "fe~If..M',r ili'l~'~ I' ''j' 4. , Page 3, top, Section 24-7.l(c) - Council agreed at the prior meeting to add the underlfned language to insure that construction or substantial modification of storage build- ings, ski lifts and the like require SPA review. Page 4, top, Section-1i.=J-,_3(cl - Council directed the Planning Office to add languag~ing conceptual SPA review before Councii a public hearing. The appropriate language has been added for your conside,ration. If ad..2P~ recommend that Council direct staff to prepare Code amend- ments making conceptual subdivision and PUD rev iew by Council a public hearing as well. Page 6, bottom, Section 24-7.7(b) - This section was originally discussed at our work session on May 9, and staff was directed to make changes to the language. Our proposal did not totally satisfy Council, and so we hav~ modified the language slightly to state that the adverse effects of the proposal be minimized rather than mitigated. In all other respects, this language is identical to that reviewed on 1.lay 28. Page 7, top, Section 24-7.,9 - Council agreed that the underlined language accurately reflected its intention with , ~-~p~ - .-. ,~.' ......... , <, "" '~':~';R:'~~?JI"~' >~ .__""'.r " r-'1 I"""., respect to review of minor activities on sites where no SPA plan has yet been filed. PROBLEM DISCUSSION: The Planning Office has identified no further problems with respect to the proposed Ordinance. However, in our discussions with potential applicants, we have found one problem to bring to your attention. (,,"~ ~'f\: [\r/':'r.;~ .., As you know, the proposed Ordinance requires applicants to go through a conceptual plan review process pr ior to submission of a precise plan. FUrther, the Ordinance requires that growth management allot- ment applications be submitted in conjunction Idth precise plan applications. Therefore, a concern has been raised' about the date of the commercial (August 1) and lodge (October 1) competition submission deadlines. - - Historically, the Planning Office has supported postponement of the GMP submission dates when the City is revising its own regulations and appl icants are uncertain of the submission rules. In the case at hand, the SPA regulations have only recently come into clear focus, and the procedu res for submi tting an SPA anel GI'IP appl icat i on at the same time will only be certain upon passage of brdinance 20. There- fore, applicants have been unable to process their cOlTceptu,rtplans and cannot move forward into the precise plan/GNP submission phase in a timely manner. Based on the above considerations, the Planning Office supports the po~tponpment of the cnrnmprcial aLl~~ment submission date for the CC/C-l zone districts and the lodge 'allotment submission elate for all zone districts except the L-3. HO~IE:~ver, we defer to'the City Attorney for a final opinion on this matter. Should he and the Council agree with our conclusion, a reasonable date for these subrnission would be December 1. ~~ ADVISORY CO~rnITTEE VOTE: The P&Z Resolution No. 85-2, which was sent to YOLl earlier, recommended unanimously in favor of the SPA Code revisions. RECOIDIENDED MOTION: , "Move to adopt Ordinance 20, Series of 1985." \'\it~,~)- i ,... t...',,,.,, 1'Ifvf(~:),"i.i'" ., n~love to postpone the submission date for commercial development applications in the CC/C-l zone districts and lodge development applications in all zone districts, except the L-3 zone district, for the year 1985 only froJ;1 August 1 and October 1, 1985, respectively to December 1, 1985." AR.12 2 , .