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January 3, 2007

COMMISSIONERS PRESENT:
Bill Marino, Chair Michael Rohr
Bunny Malm George Brown III
Rich Urbanowski

COMMISSIONERS ABSENT:
John Plotkin - out of town
Tracy Sheffield - Ill

STAFF PRESENT:
Roger Wadnal, Comprehensive Planning & Research Manager
Rob Smetana, Principal Planner
Paul Rice, Principal Planner
Mark Doering, Principal Planner
Vicki Kaufman, Secretary to the Planning Commission
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Following are the minutes of January 3, 2007 Lakewood Planning Commission Public Hearing. A permanent set of these minutes is retained in the office of the City Clerk.
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The roll having been called, a quorum was declared and the following business was conducted:

Case Number OA-06-003: Request of Mike Rock, to consider amending the Zoning Ordinance to add Article 22 creating the Transit Mixed Use (TMU) zone district.

ROB SMETANA, Principal Planner, entered into the record the Staff Report, case file and associated materials for Case OA-06-003.

COMMISSIONER MARINO accepted the items for inclusion into the case records.

The public hearing was opened at 7:10 P.M.

MELVIN REAMS, 899 24 ½ Road, Grand Junction, Colorado 81505, is here representing his father, Warren F. Reams, and his uncle, Dwight Reams, who own the property at 903 Sheridan Boulevard and whole-heartedly support the project.

MARTY FLAUM, 10023 Irving Street, Westminster, Colorado 80031, is representing Jeff Gray, a landowner in the area who couldn't be here tonight. Mr. Gray's concern is that he has only a six-month window before his properties, if left vacant, would become a non-conforming use and then the properties might sit vacant for a few years.

O'DELL ORR, 1390 Nelson Street, Lakewood, Colorado 80215 stated he wonders by what authority is the City of Lakewood changing the zoning without any kind of a public vote? A banker may not want to finance any business in the area after the zoning has been changed. His company has over 8 million dollars invested in the area. In Utah they have to notify the bank holders or financial institutions as well as its citizen's. There are no signs posted, no notification that a rezoning is being done in the affected areas. He stated he has talked to Dan Caplis and "the people on the radio". Dan Caplis looked into it and said it does look like the City of Lakewood has filed for variances without the people knowing. We're all for development. We don't want to slow down development but where is the guarantee for landowners?

COMMISSIONER MALM asked if Mr. Orr was saying that tonight's meeting is the first he heard of this?

O'DELL ORR stated he had been to one other meeting that he and his neighbors heard about through the grapevine. At that meeting, Rob Smetana did say he would be sure Mr. Orr was on the mailing list from now on.

GARY EDELEN, 1320 Oak Street, Lakewood, Colorado 80215, stated he supports the mixed-use zoning but in creating non-conforming uses, what would the economic impact be to those properties?

COMMISSIONER MARINO asked how he found out about this meeting and has he been to other meetings?

GARY EDELEN stated he has been to a lot of other meetings and has been involved in the citizen input of the process. He received a mailed notice.

JOHN MARVIN PITNEY, 1645 Lee Street, Lakewood, Colorado 80215, asked if someone received a notice in the mail about tonight's meeting, did that mean they were in the transit mixed use zone area?

DONALD GRANTHAM, pastor of a church over by the Stapleton area, stated the church owns some property off of Colfax and Miller Street. It is vacant land now but he is wondering if the City is thinking of using eminent domain to take that property?

COMMISSIONER MARINO stated that, based on the many meetings he has attended pertaining to the TMU there has not been any discussion about seizing any properties.

BEVERLY FEESE, 1811 Arapahoe Street, Lakewood, Colorado 80401, asked when the zoning would take place and how does she sell her property, or does she need to sell it to someone who wants to develop it into a commercial property?

COMMISSIONER MARINO stated that issue was one of the key points in many of the meetings. If you have a residence and want to keep it as a residence, you can.

The public hearing was closed at 7:31 P.M.

COMMISSIONER MARINO asked Staff to explain the process that was referred to in the statement "By what authority has this taken place"?

ROGER WADNAL, Comprehensive Planning & Research Manager, stated the whole process for station area planning started with a blank slate in November 2005, with a series of public meetings. What came out of the meetings of public input, were the four Station Area Plans. The Station Area Plans were brought forward together as Comprehensive Plan amendments.

An implementation action of the Comprehensive Plan amendments was to adopt a Transit Mixed Use Zone District. The next step would be to re-map the properties within those districts to the Transit Mixed Use Zone District. Staff sent a notice to every property owner and all tenants in the project area for the meeting tonight.

COMMISSIONER MARINO said the City of Lakewood does not require a vote for the City to rezone a property and asked Staff to explain what is in the charter or the ordinance related to rezoning.

ROGER WADNAL stated rezoning of property occurs as an action by the City Council. Planning Commission recommends and City Council actually changes the zoning. In 1980, the City set a precedent and re-mapped properties through a legislative action of City Council. The TMU re-mapping would follow a similar process. Re-mapping is not the action occurring tonight but it would be brought forward as a future action for City Council to consider.

COMMISSIONER MARINO stated that a typical rezone occurs when an applicant request a piece of property be rezoned. The Planning Commission evaluates it under the Comprehensive Plan and the Zoning Ordinance and votes to recommend approval by City Council. In this case, the City is coming forward to first create a new zone district and then to apply that zone district to properties that have other zone designations. The difference here is that the property owner isn't coming forward to ask for rezoning. Many of the property owners have been very involved in the process. Some have been more involved than others for a variety of reasons. If a property owner is against having their property rezoned, what steps can they take?

ROGER WADNAL stated he would recommend the property owner talk to Staff.

COMMISSIONER MARINO stated that he thinks the property owners need to get with Staff and get more information.

ROGER WADNAL stated that, with the exception of 25 properties, the majority of the 800 or so affected properties are conforming uses. The six-month issue refers to the non-conforming uses only. He encouraged residents to talk to Rob Smetana or himself and they could advise them of the steps available.

COMMISSIONER MALM stated that if the TMU District is approved by City Council, property owners are under the impression it will automatically cause their property to be rezoned. Can Staff clarify what will happen with approval of the TMU Zone District?

ROGER WADNAL stated the City has a number of zone districts now but none that allows much in terms of mixed use. Tonight Staff is asking to establish a new zone district that could potentially be used in specific areas. Tonight's action is only recommending that Council approve a new zone district.

COMMISSIONER MARINO stated that the Commission is voting tonight to recommend approval or denial of a new zone district. Once the TMU Zone District is approved by City Council, before the re-mapping occurs, a citizen can apply for a rezoning of their property to the TMU Zone District. Should re-mapping go forward, the City would rezone property. But that is not happening tonight. So citizen's who have questions about the process need to get their questions answered by Staff. It seems impossible to tell citizen's when the re-mapping would take place because it is a public process and will need to take as long as necessary for citizen's to be able to provide their input.

ROGER WADNAL stated it is anticipated to be within the next three months.

COMMISSIONER MARINO asked Staff to speak to the six-month time frame referenced in questions earlier.

ROB SMETANA stated there is not a specific statement in the TMU Zone District Ordinance that talks about the six-month period. It is actually referenced in Article 16 of the Lakewood Zoning Ordinance that says, generally if a non-conforming use ceases to exist there is a 180-day period where a new user can come in with the same type of operation and move into the business and continue the non-conforming status. This rule would only apply to the 25 properties that Staff found would become non-conforming.

ROB SMETANA stated that out of the 800+ properties only 25 would become non-conforming uses. A property ceases to be non-conforming 180 days after it becomes vacant. Then the non-conforming use would lapse. This is a standard that is in place now across the City.

COMMISSIONER URBANOWSKI asked if the six-month time period for non-conforming uses would apply when the zoning changes?

ROB SMETANA stated that is correct. The uses that would not be permitted would be: adult business, drive-ins, junk yards, kennels, mini-warehouses, motor vehicle service and repair facilities, outdoor storage and pawn broker businesses. All of these non-conforming uses could continue as long as the owner wants. It only becomes a prohibited use if there is a six-month gap in operation of the use. The businesses can even expand by up to 20%. Staff made every attempt to keep businesses operating the way they are as long as they want.

COMMISSIONER MARINO re-opened public hearing at 7:55.

O'DELL ORR stated the banks, in his opinion, would not be willing to loan money to properties that have been rezoned to mixed use. The rezoning problem is that a property owner will not be able to get refinancing and people need to know they will not be able to get financing on the property once the zone designation changes.

COMMISSIONER MARINO asked if the City could provide guidance, or assistance, or expertise to landowners regarding financing? Would the City be able to provide a bank with information that would show the bank how economic viability would come out of the rezoning?

ROGER WADNAL recommended they contact City of Lakewood Economic Development Department where they could be put in touch with someone to answer their questions.

COMMISSIONER MARINO wanted to have the citizen with the question about outdoor storage to come up and raise his concerns to get them answered.

GARY EDELMAN asked if, for example, all 5-C zoning uses would continue?

ROB SMETANA stated that almost all 5-C uses would continue. In Mr. Edelman's situation, having a business with outdoor storage is a non-conforming use, if tomorrow he left his business and then three months down the road somebody with an identical business wanted to come in and use that property for outdoor storage, they could do that. As long as it is not vacant for longer than 180 days, it could continue as a non-conforming use.

KUMAR MERCHANT, 1370-1390 Wadsworth Boulevard, Lakewood, Colorado 80214, asked if a business could come in and buy three of four residential properties along the TMU zone area and make the properties into a business like a bar with rental apartments above it?

ROGER WADNAL stated that could occur, however one of the key elements of the TMU district is the Performance Based Review Process. This process takes a look at how the new land use would interact with the existing land use, taking into consideration neighbor concerns. As part of the process the neighbors would have an opportunity to give their input.

COMMISSIONER MARINO stated that if you read Article 22 of the TMU Zone District Ordinance, there is a reference to Article 7, which is the Performance Based Review Process, the essence of that article is a respect for adjacent land use and land users.

MARK DOERING, Principal Planner, stated that as part of the Performance Review Process, City staff coordinates meetings between the person who is proposing the development and the affected property owners adjacent to the property. Staff makes sure the developer and the adjacent property owners start a dialogue. This is a process the City follows now and will continue.

COMMISSIONER MARINO asked Staff to explain if a person received notification does that mean they are in the TMU Zone District?

ROB SMETANA stated not necessarily, Staff tried to go above and beyond City Code requirements to notify citizens. Staff sent notification letters to all properties within the proposed station boundaries, and to the properties 500 feet outside the boundaries.

COMMISSIONER MARINO asked Staff if they could answer the concern about eminent domain?

ROGER WADNAL stated again that tonight the action is to amend the Zoning Ordinance. Later the re-mapping of properties will be brought forward. Eminent domain is not part of the action for consideration.

COMMISSIONER MARINO stated there was a body of business members who last year created guidelines of how eminent domain could be used in the City of Lakewood. The right Staff person to contact would be Becky Clark, Director of Community Development.

COMMISSIONER URBANOWSKI wanted to amplify what was just stated that there are no plans to utilize eminent domain as part of this process for the Transit Mixed Use Zone District. It does not mean the City might not later come up with a plan but not now. The Urban Renewal Plan imposes strict restrictions on imminent domain.

COMMISSIONER URBANOWSKI wanted to make the following statement to help citizens understand: This whole process came about because staff knew light rail was coming through and it would put development pressure around where the stations are. The City is trying to plan for that development so it works better with the neighborhoods. It is going to be a long process. Fastracks is not expected to come in until 2012. First staff came up with the Station Area Plans, which have been adopted, to show where the areas are. Next staff drafted the ordinance so there will be language to show how the ordinance works. Then there is potential for re-mapping after this ordinance is in place. The re-mapping will eventually happen, but will not drive out existing businesses. We are not re-mapping tonight.

COMMISSIONER MARINO stated that there would be many more meetings to come before the re-mapping. The tools the City has been pursuing for redevelopment/revitalization of West Colfax Avenue have been in place for years along with the West Colfax Redevelopment Committee. One of the tools that the committee used was to develop a zone district for mixed use for the eventual light rail that would be coming. Now it is here and staff is implementing recommendations from that committee years ago.
COMMISSIONER ROHR noted that, per the notification procedure it is not staff's responsibility to notify banks and financial institutions. As a person who is in the land development business, he is aware of numerous resources around the country that will provide money for a multitude of things. There were over 1,900 property owners notified about tonight's meeting whether or not they were in the boundaries of the TMU area. He also encouraged property owners to speak to staff.

COMMISSIONER MALM mentioned that this process has been ongoing since 2005. She would urge all property owners to get involved if they haven't been to the many, many meetings that have been held already, and to tell their neighbors and friends to get involved in the process. She noted the City has an excellent staff and they would be more than willing to discuss any concerns any citizen might have.

COMMISSIONER MALM made the motion based on past meeting information that has been provided, testimony received from participants and staff, and based upon the review and analysis of staff, the staff Recommendations and Findings of Fact and Conclusion numbered 1-8 as contained in the Staff Report, to have Planning Commission recommend to City Council that they approve the Transit Mixed Use Zone District as an amendment to the City of Lakewood Zoning Ordinance and that the commission direct Staff to forward the zone district ordinance, Case OA-06-003, to City Council for approval at their regular City Council meeting on January 22, 2007.

COMMISSIONER BROWN seconded the motion.

COMMISSIONER MARINO stated for the record that there have been 14 public workshops, 7 public meetings, this has been on a Planning Commission Study Session Agenda 6 times, the Commission has had 3 dedicated Study Sessions on this, there have been 2 joint Study Sessions between the Commission and City Council, and the Commission has considered TMU issue twice in public hearings. Hundreds and hundreds of people have been involved in this process for over a year. Rob Smetana should be commended for the work he has put into this document. The Planning Commission aggressively tackled the document trying to meld it into the Performance Based Review Process. He is commended for his character and courage in the handling of this process, as well as Paul Rice and Roger Wadnal and Mark Doering and the rest of staff who have worked on this.

Motion passed by a vote of 5-0 with two commissioners absent.

ITEM 2: APPROVAL OF MINUTES
Minutes from the public hearing meeting of December 6, 2006 were approved. The vote was 5 ayes, 0 nays with 2 commissioners absent.

ITEM 3: GENERAL BUSINESS
COMMISSIONER MARINO wanted to discuss correspondence from Ms. Dushinski and Bryan Fleenor regarding JC Journey's Group Home, a case heard by Planning Commission in December 2006.

PAUL RICE stated Ms. Dushinski and Bryan Fleenor were upset with the City process and how the case was handled. Ms. Dushinski does have an opportunity to appeal the Planning Commission decision to district court. The commissioners and all City Council members were given a packet of information she provided and a Staff response that was a brief history of that particular case.

COMMISSIONER MARINO stated there was a request in her correspondence to have Planning Commission rescind their approval of the Special Use Permit. The commission would have to have facts or finding that would lead to the commission rescinding their decision. Is there any interest by the commission to rescind that decision?

COMMISSIONERS said no.

COMMISSIONER MARINO stated the case is now out of the commission's hands and can be heard in district court if so desired.

COMMISSIONER URBANOWSKI asked if Mr. Dushinski was made aware of the requirements to go to district court?

PAUL RICE stated yes she was.

COMMISSIONER MARINO stated, and it is in the minutes, that the commission did ask Ms. Dushinski if she approved of the project and she said she did.

COMMISSIONER MARINO wanted to know if there would be a Study Session or a Special Meeting on January 31st?

MARK DOERING stated there would be discussion tomorrow with the City Manager on whether or not to have the Special Meeting.

COMMISSIONER MARINO stated if there is not a Special Session on January 31st, he would like to have a Study Session, as was requested at the last public hearing, on that night to address the items outlined in General Business of the previous public hearing.

There was discussion about the need for a public hearing to elect officers in January.

ADJOURNMENT

Meeting adjourned at 8:35 P.M.

Date approved

Vicki Kaufman, Secretary to the Planning Commission

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