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07-10-2012 TOA Finding of Fact and Record of Decision VAAAVON TOWN COUNCIL rf FINDINGS OF FACT AND RECORD OF DECISION co--Co- ° ` ° R ' ° ° CONCERNING THE PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT APPLICATION FOR THE VILLAGE (AT AVON) The following findings of fact and are made in accordance with Avon Municipal Code Section 7.16.060(e)(3), Reviewing Authority: 1. Settlement Term Sheet. The Avon Town Council approved a Settlement Term Sheet on October 7, 2011, with Traer Creek LLC, Traer Creek Metropolitan District, BNP Paribas, and other parties to the consolidated cases 2008 CV 385 and 2010 CV 316 pending in Eagle County District Court. Implementation of the Settlement Term Sheet included in part the preparation of an application to amend the Village (at Avon) Planned Unit Development Guide and Development Plan in order to implement various terms stated in Schedule 3 of the Settlement Term Sheet. 2. Application Submitted. A preliminary PUD Application (the "Application "), consisting of an Amended Planned Unit Development Guide for the Village (at Avon) ( "Amended PUD Guide "), was submitted to the Community Development Department of the Town of Avon (the "Town ") on March 23, 2012 by Harvey Robertson of RMT Architects, representing the owners of the Village (at Avon) property (the "Applicant "). 3. Determination of Completeness. Pursuant to Avon Municipal Code ( "AMC ") §7.16.020(c)(1), a determination of completeness was submitted to the Applicant by letter from Matt Pielsticker of the Community Development Department on April 3, 2012, within ten (10) days of the application submittal. The Applicant was informed that items remained outstanding. 4. Town Staff Initial Comments. Town staff provided the Applicant with initial comments on April 27, 2012. A letter from Eric Heil, Town Attorney, provided initial comments regarding title insurance exceptions. Additional comments were provided by Matt Pielsticker of Community Development Department and Justin Hildreth of the Engineering Department. 5. Application Complete. On May 7, 2012 the Application was determined to be complete. 6. Referral to other Agencies. The Amended PUD Guide was referred electronically via the Town's website, www.avon.org/referral, to other agencies for review and comment TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 1 of 10 on May 8, 2012 pursuant to AMC §7.16.020(c)(2). The following agencies were notified for referral: Eagle County Planning, Eagle County School District, ECO Trails, Eagle River Water & Sanitation District, Eagle River Fire Protection District, United States Forest Service, Department of Transportation, Eagle County Health Service District, Department of Wildlife, Colorado State Land Board, Colorado Geological Survey, Colorado Mountain College, Eagle -Vail Metropolitan District, Eagle County Sheriff, ECO Transit, Eagle Valley Library District, Upper Eagle Regional Water Authority, Buffalo Ridge Affordable Housing Corporation, Buffalo Ridge II, Xcel Energy, Holy Cross Electric, Comcast, Beaver Creek Metropolitan District, Beaver Creek Property Owners Association, Beaver Creek Resort Company, Vail Resorts, Union Pacific Railroad, and the Public Utilities Commission. Referral comments were due May 29, 2012, twenty (20) days after referral. 7. Staff Comment Letters to Applicant. On May 17, 2012 Matt Pielsticker of the Community Development Department submitted revised Initial Review Comments to the Applicant. On May 21, 2012 Town Engineer Justin Hildreth submitted his second round of comments on behalf of the Engineering Department to the Applicant. 8. Joint Work Session with Town Council. On May 8, 2012 Planning and Zoning Commission ( "PZC ") and the Town Council held a joint work session for an introductory presentation of the Amended PUD Guide and the Consolidated Amended and Restated Annexation and Development Agreement and overview of the review schedule. Version 8 of the Amended PUD Guide was submitted to both bodies at the May 8, 2012 meeting. 9. Notice of Public Hearing. On May 25, 2012, pursuant to §7.16.020(d), a notice of public hearing was published in The Vail Daily for the June 5, 2012 Planning and Zoning Commission meeting to review the Traer Creek LLC Village (at Avon) Preliminary Planned Unit Development application. 10. Referral Comments Received. Two referral comments were received by the Community Development Department on May 29, 2012, including: A comment letter by Eagle County School District Board signed by President Jeanne McQueeny and a comment letter by Colorado Parks and Wildlife signed by Department Area Wildlife Manager Perry Will. Colorado Parks and Wildlife submitted comments regarding impacts on habitat and wildlife and lack of mitigation measures to reduce the impacts. The Eagle County School District Board submitted comments regarding amendments to the VAA PUD to change the school site dedication requirements. 11. Staff Report to PZC. Matt Pielsticker submitted a Staff report to the PZC dated June 1, 2012. On May 31, 2012, the Applicant submitted Version 9 of the Amended PUD Guide. Due to the receipt of the Version 9 of the Amended PUD Guide late in the day on May 31, 2012, staff was not able to review the changes in Version 9 and include such changes in the Staff report analysis for the application. At the request of Town staff, the TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 2 of 10 Applicant submitted a memorandum on June 1, 2012 detailing revisions to Version 8 that are reflected in Version 9. The Amended PUD Guide Version 9 was also distributed to Council on June 1, 2012. 12. Preliminary Public Hearing before the Planning and Zoning Commission. On June 5, 2012 the PZC held a public hearing on the Application and reviewed the Application for approximately four (4) hours. The PZC continued the public hearing to June 11, 2012 in order to further review the Application. 13. Applicant Response to Staff Comments. On the morning of June 8, 2012, representatives of the Applicant and Town staff participated in a four (4) hour conference call with the Applicant for the purpose of clarifying, addressing and resolving staff comments. On June 8, 2012 and June 9, 2012 the Applicant submitted memorandums detailing responses to staff comments on Versions 8 and 9. 14. Notice of Public Hearing. On June 8, 2012, pursuant to §7.16.020(d), a notice of public hearing was published in The Vail Daily for the June 19, 2012 Town Council meeting to review the Traer Creek LLC Village (at Avon) Preliminary Planned Unit Development application. 15. Continued Preliminary Public Hearing. On June 11, 2012 the PZC conducted the continued public hearing and continued with further review of the Amended PUD Guide for approximately six (6) hours. At the conclusion of the meeting, PZC noted that PZC was not able to conduct a complete review of the Application but due to the stipulated schedule submitted to the Eagle County District Court, took action to provide recommendations related to Vested Property Rights, School site dedication, Planning Area J, Design Review Board Powers, and Parkland Dedications. The PZC listed sixteen (16) issues that were not addressed given the amount of time afforded. 16. Preliminary Public Hearing with Town Council. On June 19, 2012 the Avon Town Council held a public hearing on the Application and reviewed the Application for approximately five (5) hours. The Council received substantial public input from five (5) members of the public. The Council continued the public hearing to June 26, 2012 in order to further review the Application. 17. Version 10 of PUD Guide. On late June 21, 2012, after business hours, the Town staff received via e -mail Version 10 of the PUD Guide which incorporated numerous revisions as stated in Applicant's memoranda dated June 8 and June 9 and to incorporate responses to other issues discussed at the Planning and Zoning Commission Public Hearings and discussed at the June 19, 2012 public hearing conducted by the Avon Town Council. Town staff was afforded minimal opportunity to review Version 10 of the PUD Guide prior to the June 22, 2012 time for copying and delivering materials to the Avon Town Council and prior the June 26, 2012 Avon Town Council public hearing. TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 3 of 10 18. Continued Preliminary Public Hearing. On June 26, 2012 the Town Council conducted the continued public hearing and continued further review of the Amended PUD Guide. 19. Review Timeframe, Scope of Changes. The Preliminary PUD Review process and schedule has been reduced from the minimum permitted timeframe allowed in the Avon Municipal Code to accommodate the request of the other litigating parties in order to implement the Settlement Term Sheet. The reduced timeframe for review and public hearings has negatively and adversely affected the ability of the Avon Planning and Zoning Commission, the Avon Town Council and the Avon Town staff to conduct a complete and comprehensive review of the Preliminary Planned Unit Development Application. At the same time, the Preliminary Planned Unit Development application presents numerous and comprehensive changes to all aspects of the Village (at Avon) PUD Guide which greatly exceeds the changes contemplated in the Settlement Term Sheet. 20. Implementation of the Settlement Term Sheet. The application proposes many revisions to the existing PUD Guide and PUD Master Plan which would implement matters set forth in Schedule 3 of the Settlement Term Sheet and at the same time proposes numerous changes the existing PUD Guide and PUD Master Plan which are not directly related to implementing matters expressly identified in Schedule 3 of the Settlement Term Sheet. The Avon Town Council finds that further consideration of proposed revisions to the PUD Guide and PUD Master Plan which are not directly related to implementing matters expressly identified in Schedule 3 of the Settlement Term Sheet may be beneficial to the Avon community to the extent such revisions improve the overall quality of the Village (at Avon) PUD and reduce the potential for future conflicts in the interpretation and administration of the Village (at Avon) PUD. 21. Findings of Fact Related to Specific Aspects of the Application. The Town Council has considered the Staff Report from Matt Pielsticker dated June 15, 2012, public comments, applicant testimony, and makes the following Findings of Fact related to specific aspects of the Preliminary PUD Application: A. Extension to Vested Property Rights. The Planning and Zoning Commission recommended approval of a six year extension of vested property rights along with reasons and conditions stated in the PZC Preliminary PUD Findings and Recommendations. B. School Site Dedication. The Application proposes approximately 3.6 acres in Planning Area I (now referred to as Planning Area E) and the remaining approximately 3.7 acres will be satisfied through future conveyance in Planning Area M (now referred to as Planning Area I). Planning Area E is encumbered by numerous utility easements which reduce the useable acreage of the site and which bisect the TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 4 of 10 usable acreage of the site. The Stone Creek Charter School provided correspondence dated June 5, 2012 and June 13, 2012 which states that the utility easements and encumbrances limit the ability of the school to fully utilize the property. The Eagle County School District provided written comments on May 29, 2012 and oral comments objecting to the split school site proposal. The Planning and Zoning Commission recommended that Council not approve the school site dedications as proposed in the application. C. Planning Area N- South. The application proposes changing a portion of the Community Park in existing Planning Area N (Planning Area N- South) situated adjacent to the northwest corner of the I -70 /Post Boulevard interchange side from park use to commercial zoning (proposed Planning Area J) to specifically allow hotel /lodging in addition commercial uses such as gas station, convenience retail, restaurant and similar uses. Due to the construction of the Post Boulevard interchange and Swift Gulch road, existing Planning Area N has become bifurcated by Swift Gulch road which negatively impacts the functionality of Planning Area N as a cohesive regional park site. The location of existing Planning Area N -South adjacent to the 1 -70 interchange reduces the utility and attractiveness of this area for outdoor park uses. The application proposes to relocate the 5.8 acres park land in proposed Planning Area I, J, and /or K to be determined at the discretion of the developer. The Planning and Zoning Commission recommended approval of the change of use of existing Planning Area N -South from park land to commercial in the PZC Preliminary PUD Findings and Recommendations. Version 10 of the PUD Guide proposes minimum standards to address the planning and siting of park lands in proposed Planning Areas I, J, and /or K. D. Hotel Use for Proposed Planning Area J. Existing road and utility infrastructure exists (assuming construction of water storage tank) to support hotel use. Hotel use adjacent to or in close proximity to the I -70 /Post Boulevard interchange is likely to be a viable commercial use. Development of Planning Area J is likely to be very visible from I -70, which presents both opportunities for marketability and commercial viability as well as concerns about design and character of the Town of Avon's primary eastern gateway. E. Road Access to Proposed Planning Area I (current Planning Area M). Planning Area I is currently isolated and surrounding by steep topography, the Eagle River and the Union Pacific Rail Road line. Viable alignments for the construction of a road to access Planning Area I are limited and are complicated by property ownership patterns. Construction of a road across the Forest Service Village Parcel (situated between proposed Planning Area J and proposed Planning Area 1) is likely to be highly visible from I -70 and other locations. The amount of cut and fill required for construction of an access road can be reduced by reducing the minimum required TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 5 of 10 road width profile and by constructing a pedestrian/recreation path separately from the road in a manner similar to the Swift Gulch road construction. F. Hillside Density (Proposed Planning Areas K and RMF -1). The existing PUD Guide allows for a maximum of 280 residential units to be served off a cul -de -sac. G. Administrative Subdivision Approval. The PUD Guide permits "Superblocks" and potential building massing which may impact adjoining neighborhoods. The Administrative Subdivision approval process does not set forth a procedure or mechanism to notify the general public or permit public hearing or comment by the general public. H. Maximum Commercial Density. Potential impacts of eliminating the maximum commercial density as currently defined in the PUD Guide have not been fully analyzed and are unknown. I. Municipal Code Exceptions — Exhibit G. The application proposes a new Exhibit G which itemizes specific sections of the Avon Municipal Code which do not apply to the Village (at Avon) project. Exhibit G establishes a new regulatory format along with changes to the Vested Property Rights language and the change to utilize the Avon Municipal Code as exists on the "Effective Date" as defined in the CARADA. The full extent and effect of selective exemptions from sections of the Avon Municipal is not currently understood. The necessity of specifically exempting specific sections of the Avon Municipal Code is also not understood. The duration of the proposed exemptions and the applicability of amendments to the Avon Municipal Code or regulations of general applicability to the Village (at Avon) is also not understood. J. Procedural Modifications and Public Review. The application proposes significant changes to the review procedures and ability of the general public to receive notice of various development applications and have the opportunity to comment. At the same time, the application proposes significant greater flexibility in land uses throughout the Project. Due process is an essential right of the residents and property owners of Avon, including noticed hearings allowing for an informed public to provide input to decision makers. Appropriate opportunities for public awareness and participation in the development application review process often result in identifying potential negative impacts of specific development proposes and potential conflicts between land uses and promotes compatibility between land uses. K. Buffering. Changes in the permitted uses to allow additional commercial uses and expanded commercial uses in Planning Areas A, C, D and F may create additional adverse impacts to adjoining neighborhoods. TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 6 of 10 L. Water Allocation Calculation and Tracking. The water rights are described as Single Family Equivalent, which does not conform with the description of consumptive use credits in the Traer Creek Water Storage Tank Agreement, 1997 Water Service Agreement, and the 1999 First Amendment to Water Service and Tap Fee Agreement. The proposed on -going control and approval of water rights allocation by the Master Developer presents unique implications for the administration of the build -out of the Project. M. Wildlife Mitigation Plan. The Town received comments from Colorado Parks & Wildlife which may not accurately assess the potential wildlife impacts of the application. The applicant has proposed revisions in Version 10 of the PUD Guide to further define maximum building envelopes for Planning Area K. N. Master Developer. The definition, role and duration of the "Master Developer" presents long term changes from the current PUD Guide, which changes are not fully understood. O. Subdivision. The application proposes significant changes to the applicable subdivision review criteria and procedures. BASED ON THE FINDINGS OF FACT STATED HEREIN AND BASED ON THE REVIEW CRITERIA SET FORTH IN AVON MUNICIPAL CODE §7.16.060(E)(4), THE AVON TOWN COUNCIL HEREBY APPROVES THE PRELIMINARY PLANNED UNIT DEVELOPMENT APPLICATION WITH THE FOLLOWING CONDITIONS: 1. In accordance with AMC Section 17.16.060(e)(3) the approval of the Village (at Avon) Preliminary Planned Unit Development application shall vest no rights to the applicant other than the right to submit a final PUD development plan. 2. The final PUD development plan application shall be submitted in a complete form to the Town staff at least by noon on Tuesday nine days prior to the Thursday noon deadline for meeting packet for the Planning and Zoning Commission to allow the Town staff adequate time to prepare a complete and comprehensive staff report. 3. The application shall be revised to eliminate any changes which reduce the public review process for all development applications. 4. The application shall be revised to propose an appropriate opportunity for public notice and meaningful public input for administrative subdivisions for Planning Areas A, B, C, D, E, F and J. TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 7 of 10 5. The application shall be revised to eliminate the administrative subdivision process for Planning Areas K, I and RMF -1. 6. The application shall be revised to eliminate the language regarding water rights tracking and allocation and water rights tracking and allocation shall be addressed in the CARADA. 7. The application shall be revised to conform with the terms in the CARADA where necessary and appropriate. 8. Planning and Zoning Commission shall be afforded the entire 35 day timeframe from the initial public hearing on Final PUD review as set forth in AMC Section 7.16.020(e) if needed to provide a complete recommendation to the Avon Town Council. 9. The Planning and Zoning Commission shall specifically review and provide recommendations on the following matters: a. The effect of revisions to the Vested Property Rights language; the effect of restricting the ability of the Town to apply future amendments of the Avon Municipal Code to the Project; the effect, interpretation and consistency of exempting selected sections of the Avon Municipal Code to the Project as set forth in Exhibit G; and the effect of adopting definitions which replace or supplement definitions in the Avon Municipal Code. b. The effect of changes to the public review process for all development applications in the Village (at Avon). c. The effect of any changes to the scope and authority of the Design Review Board. d. The effect of general changes to the description of use categories for all Planning Areas. e. The specific effect of adding new uses to Planning Areas. L The impact of proposed revisions on existing neighborhoods adjacent to the Project and the effectiveness of any proposed development standards or other methods to mitigate potential negative effects with particular regard to establishing or maintain effective buffers between incompatible uses. g. Planning considerations related to eliminating the residential density for proposed Planning Area I. h. Planning considerations related to the access road to proposed Planning Area I including minimum road development and design standards. L Planning considerations related to changes the minimum and maximum required percentage mix of residential and commercial uses within Planning Areas A, C, D and F. TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 8 of 10 j. The effectiveness of existing and proposed procedures and development standards to address potential conflicts and impacts of various land uses internally within the Project which may arise from proposed revisions to uses. k. The size, shape, location, access and other site characteristics of Planning Area B as relates to its intended use, including the size and use of water features and /or impoundment areas. 1. The effect of proposed revisions and clarifications to address wildlife impacts. Proposed revisions and clarifications shall be forwarded to the Colorado Department of Wildlife for additional comment and review provided that such referral shall not extend or delay the time frame for review by the Planning and Zoning Commission. m. The current and projected capacity of the Eagle County School District and the projected student generation from the Project shall be further analyzed and considered. n. The impact of utility easements and other encumbrances on the usability of Planning Area E and any potential safety issues which arise from the presence of gas utilities. o. The effect of the definition and authority of the Master Developer. p. The effect of water rights allocation and method of tracking and accounting. q. The effect of proposed changes to the definition of residential unit and resident uses for proposed Planning Area K as relates to the total potential traffic impact and emergency vehicle access for development served by a cul -de -sac. r. Planning considerations related to dedication of Open Space Tracts OS -9 and OS -10. s. Planning considerations related to the proposed hotel building height of 135' for Planning Area A and Planning Area I. t. Planning considerations related to the reduced minimum width of current East Beaver Creek Boulevard (proposed "Main Street "). u. Planning considerations related to monument signage. v. Planning considerations related to the impact of Interim Uses and Temporary Uses. w. Planning considerations related to telecommunication uses and definitions. x. Planning considerations related to changes in sign permits. TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 9 of 10 y. Planning considerations related to minimum design standards on Planning Area J regarding hotel use. Z. Planning considerations related to the impact of easements on Planning Area E and how such easements affect the intended use of Planning Area E. 10. The Planning and Zoning Commission shall review and provide recommendations on such other matters as deemed appropriate during Final PUD Review pursuant to the role, duties and review criteria established in the Avon Municipal Code. 11. The Avon Town Council expressly reserves the right to review any and all aspects of the application for compliance with the applicable review criteria for Final PUD review and approval of the Preliminary PUD shall not be deemed to be a final approval of any aspect of the PUD amendment application. APPROVED BY THE AVON TOWN COUNCIL BY A VOTE OF SEVEN (7) IN FAVOR AND ZERO (0) OPPOSED on July 10, 2012. By: Attest:', °} Rich Carroll, Mayor Catherine Mythen, Deputy Town Clerk TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE AVON TOWN COUNCIL Page 10 of 10