July 19, 2005
Those
present (information reflects my ability to read your writing and what was
written on the sign in sheet): Sign-in sheets are enclosed for your use.
Molly
Markert, Council Member
Cathyrn Thrash, Chimney Hill
Sue
Sandstrom, Council Member
Sue Burks, Cobblestone Crossing
Marsha
Smith, Cobblestone Crossing
Rob
Werking,
Assistant
City
Attorney
Van Lewis, HRS
Mary
Avgerinos, Neighborhood Support
Terry Bellomo
Bev
Earley, Strawberry
Vinny
Roith
George Dumas
Kirt
Chiles
,
Burgundy
Pat Horton, Sausilito
Errol Rowland
,
Burgundy
Jack Rhue,
Cobblestone Crossing
Ryan
Evans
Pamela Pzerke
Ed
Kay, HRS
Shannon S. Brookshire
Jim
Heintz, HRS
Edie Reidel
Lynn
Dolan
John Lippe
Paul
Manoogian, Fairway 16
Joan B.
Richard Doby
, Fairway 16
Whitizy Heintz
Min
King, Cobblestone Crossing
Terry Moran
Mary
Lou Braum
K. Klemm
Council
Member Molly Markert began the meeting by clarifying her role as
“facilitator”. It was then
established that there were representatives present from 12 out of the 14
communities around the Heather Ridge Golf Course.
Council Member Markert acknowledged the group for their strong commitment
and accomplishments to date regarding their concern over the possible
redevelopment of the Heather Ridge Golf Course.
Rob
Werking, Assistant City Attorney, City of
Aurora
, presented a legal opinion regarding any redevelopment of the golf course.
He explained that in 1969
Heather
Ridge
was approved by the Aurora City Council as a Residential Planned Building Group
(PBG), that included (residential) R-2 zoning around the recreational amenity of
a golf course. He stated that since
this zoning/concept of a country club-like community is binding, turning the
land that is now the golf course into anything else would require a rezoning at
a public hearing. He also said that
any proposed developed sized at 50 acres or more would require a master plan
that would also need to be approved at formal hearing.
Mr.
Werking said that any site plan or rezoning pertaining to the golf course site
would first be reviewed at Planning Commission where any recommendation made
could be appealed before City Council. Also,
any decision made by City Council could then be subject to a referendum (voting
at a general election).
Council
Member Markert then introduced
Council Member Sue Sandstrom who expressed great interest regarding this issue.
Council Member Sandstrom encouraged the group to be prepared to respond
to any number of proposed outcomes for the site.
The
group then organized around three primary action groups: 1) purchase the golf
course site; 2) influence the developed of the site; 3) organize/maintain the
group which is formally called The United
Associations of Heather Ridge, Inc.
Action Group Overview
Golf
Course Acquisition Action Group will focus efforts/research around: developing a
business plan (Ed and Errol), real estate appraisal (Cathy), forming a special
district (George, Samuel, Pam, Cat), fundraising (Lynn, Jack, Jean).
Mike Hyman, Assistant City Attorney, was mentioned as a possible resource
for this group*
Influencing
Development Action Group will
focus efforts on keeping abreast of any interest expressed in purchasing and
developing the golf course, knowing City Codes and criteria for decision-making,
learning development review process including how Planning Commission and City
Council work. (Vinnie and Errol)
Rob Werking was mentioned as a possible resource for this group*
M E M O R A N D U M
TO:
Mayor Tauer and City Council
FROM:
Bob Rogers, Deputy City Attorney
SUBJECT:
Heather
Ridge
DATE:
July 18, 2005
The purpose of this memorandum is to address a question raised by a
possible application for residential development of the
Heather
Ridge
golf course. Although no application has been filed, the City Council has
requested an opinion of what the golf course is zoned and by what process, if
any, could the golf course be developed for residential uses.
Heather
Ridge
was approved by the City Council in 1969 as a Residential Planned Building
Group. According to City records the property is zoned R-2 Multiple Family
Residential.
Heather
Ridge
was developed according to site plans approved by the City. In order to add
residential density, the question is whether a rezoning is needed or could a
change be made by a site plan amendment. Zoning establishes the uses of property
including residential density, while a site plan lays out those uses “on the
ground”.
In
2002, a site plan was approved for the demolition of
Heather
Ridge
tennis facility and the construction of multi-family units on approximately 5.9
acres. A rezoning was not required for that application; however, development of
an area as large as the golf course as residential would have such significant
impacts on the surrounding community, reduction of open space, and change in the
character of Heather Ridge that the City Council could decide that a rezoning is
needed.
Generally, this question of whether a rezoning is
necessary is important because a city council is said to have greater discretion
in reviewing a rezoning compared to review of a site plan. Two
factors, however, lead me to conclude that regardless of whether a rezoning or
site plan is needed, City Council discretion is basically the same:
1. The City Council
can review the compatibility of uses in a site plan.
Aurora
’s zoning code
grants the City Council the power to deny a development plan even for a
permitted use, if it is not consistent with the Comprehensive Plan. City Code
Section 146-405 (f);
See
City
of
Colorado Springs
v. Securcare Self Storage, Inc., 10 P.3d 1244, 1247 (
Colo.
, 2000); and
2.
Heather
Ridge
is a fully developed community. A development with vacant land could apply for
a site plan amendment to layout the uses permitted by the underlying zoning
because the land has not yet been used for a use permitted by the zoning. Where
that use has already been developed, the City Council is not compelled to
approve new uses for developed property. Council has the discretion to find that
the existing use, a golf course in this case, adequately fulfills the
requirements of the zoning and the policies of the City’s Comprehensive Plan.
A person who has developed property pursuant to zoning and site plan has no
entitlement to additional uses or densities. Until an application is filed, it
is difficult to predict exactly what the impact of a development proposal would
be.
Background
Council could find that in order to develop the golf course as
residential dwellings, a rezoning of the golf course would be necessary.
Although the golf course has R-2 zoning (medium density residential), the
original applicants for that zoning in 1969 requested Council approval of a
“R-2 Planned Building Group” in order to develop their specific proposal. See applicant’s letter (attached).
A golf course was not a permitted use in an R-2 zone in 1969.
The City Council authorized the golf course use by approval of the
residential Planned Building Group. According
to the city code at that time, golf courses and country clubs were only
permitted uses in an R-2 zone with the approval of a Residential PBG.
Former
City
Code § 8-13-3(a). By Council’s
approval of the Planned Building Group for the project, “all requirements of
the zoning regulations relating to uses permitted are suspended ”and the
requirements in the PBG ordinance became applicable for design of the project.
City Code Section 8-13-2. The R-2 Planned Building Group approval by Council
established a golf course use on the property, as requested by the applicants.
It did not necessarily zone the golf course for development of
residential density.
The
Heather
Ridge
community was approved by the City Council on December 29, 1969 after public
hearings and meetings by the Planning Commission on November 19, 1969 and by the
Council on November 24 and December 22, 1969.
The Council’s actions included approval of an annexation ordinance
annexing approximately 270 acres, along with initial zonings to R-2 and
rezonings of certain parcels from N to R-2, B-1, and B-3.
The applicant was Environmental Developers, Inc. represented by Howard
Farkas and Werner Livingston. The project was described in the application
letter to Mr. Wally Paske, Aurora Planning Director, dated November 17, 1969, as
a “Master Development Plan” and an “R-2 Planning Building Group.”
(Copy attached)
The
letter also stated:
“Phase
I of this project requires our construction of an 18-hole golf course,
pedestrian underpasses, country club, model apartments, etc.”
*
* *
“We
are most anxious to proceed on this most needed development.
Our most recent estimated cost of construction to erect the condominiums,
town houses, garden and high rise apartments, motor hotel, roads, utilities,
shopping facilities, two golf courses, and other amenities exceeds $100
million.”
Mr. David Clinger was the project director for the developer.
At the special meeting of the Aurora Planning Commission on November 19,
1969, Mr. Clinger introduced the project to Planning Commission.
The minutes of that meeting state: “He
went into detail explaining the drawings of the preliminary master development
plan and further described the residential units, golf course, the pathway
system, the country club. He pointed
out that the golf course will be started immediately.
The Planning Commission recommended unanimous approval of the Planned
Building Group.”
At the November 24, 1969 public hearing, the City Council considered an
ordinance annexing 270 acres of land known as
Heather
Ridge
with simultaneous zoning to R-2. The
City Clerk read the November 17, 1969 application letter into the record.
There was discussion involving the City Attorney regarding a waiver of
annexation fees. Mr. Farkas
explained that the project would have recreational facilities that would obviate
the requirement for annexation fees or dedication of parks.
“Although they do not plan to dedicate the parks, there will be 16,000
people who will not need facilities which the City would ordinarily provide.
These facilities will be far more elaborate than most and will include
stables and a golf course.” The
City Council voted 7 to 1 to accept the petition for annexation.
On
December 22, 1969, the City Council held a public hearing for the zoning of two
parcels of land to R-2 for the
Heather
Ridge
community. At that meeting, Mr. Lee
Coulter, City Attorney and Acting City Manager (the City Manager resigned at the
meeting of November 24, 1969), is represented the nature of the application.
“Mr. Coulter stated that the applicant has authorized him to advise
that he has obligated the R-2 zones to be developed under a Planned Building
Group.” After the public hearing,
the City Council voted unanimously to approve the rezonings from N to R-2, from
N to B-1, from N to B-3, and an annexation ordinance.
Subsequent to the approval of the
Heather
Ridge
development proposal, the Planning Department file contains a letter to Mr.
Wallace Paske from Fishkin/Brin Architects regarding “master development site
plans pursuant to the zoning approval and annexation by
Aurora
.” Mr. Brin states:
“You will recall the preliminary master development plan from which we
are now detailing our construction drawings was reviewed by all the appropriate
department people of
Aurora
and your suggestions were incorporated into the approved preliminary documents.
This includes roadways, fire department access, overall drainage, water,
sewer, etc. In addition to our
nearing completion of the country club building working drawings, we are about
to start design of the golf course.” The
Planning files include a tabulation of the areas for the
Heather
Ridge
community, including the golf course, and refer to it as an “overall
development plan.” Also included
in the file is a booklet from Environmental Developers and David Clinger with
architectural elevations for the
Heather
Ridge
community. A golf course figures
prominently in the booklet/illustrations.
In a Denver Post article dated November 1, 1970, under the headline
“Summer Opening Planned for Heather Ridge Complex,” Mr. Howard Farkas and
Mr. Werner Livingston are quoted as saying that
Heather
Ridge
will contain rental apartments, swimming pools, shopping center, a hotel,
service stations, a country club and an 18-hole golf course.
“
Heather
Ridge
will cater to the needs of people,” Farkas and Livingston said in their
announcement. “The country club
and golf course and other recreational facilities are being built first.
Memberships are open now. The
apartment and condominium complexes will follow.”
Accompanying the article is a picture of Messrs. Farkas and Livingston
along with Governor John Love with the description, “The gold golf club putter
signifies that Governor John Love is No. 1 member of Heather Ridge Country Club,
planned as centerpiece of $100 million apartment and residential development.”
Conclusion
Heather
Ridge
was approved as a master plan development in the form of an R-2 Planned Building
Group. The golf course was an
integral part of that plan and of Council’s approval of the development.
The developers received R-2 zoning not for a general multi-family
residential project but for a specific Planned Building Group for a country club
community. The development of property was completed consistent with that
approval. After completion of the
project, there was no mechanism to reserve or retain any density that may not
have been developed on the project. The project was developed pursuant to a
residential Planned Building Group with no reservation of unused density.
The golf course was approved under the PBG as a golf course, not as a
repository or “land bank”for unused density.
BR/eb
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