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Planning Commission denies Judges’ Hill subdivision

Wednesday, March 2, 2011 by Kimberly Reeves

Last week, a combination of circumstances gave the Planning Commission the unique opportunity to reject what appeared to be a legally conforming subdivision on an acre lot in the Judges’ Hill neighborhood.


As Chair Dave Sullivan explained to the commission, the standard set out in city code and state law is that if a subdivision meets all of its requirements, the commission may not deny the subdivision. In fact, most subdivisions are placed on the commission’s consent approval or consent denial list.


In the case of the lot on Vance Circle, however, a variance was sought to cut setbacks for a critical environmental feature from 50 to 25 feet. That put the case into play and gave commissioners a chance to consider the merits of the subdivision. A similar case was heard, and denied, by the Zoning and Platting Commission last month.


Assistant City Attorney Sabine Romero warned that the commission’s role should be limited to whether the subdivision of a particular lot meets city code and state law.


“If you can put your answer in that box, that would be the proper interpretation,” Romero said. “The variance, per se, is not before you. How the staff has assessed the subdivision of the property is what’s before you.”


The final vote to deny the subdivision was 5-3, with Chair Dave Sullivan, Commissioner Jay Reddy, and, ironically, former Environmental Board Chair Dave Anderson voting in favor of the subdivision. Commissioner Mandy Dealey was absent.


“I don’t like this one bit, but that rationale makes sense in my mind,” Anderson said of the strict constructionist interpretation of code. “I’m not going to be able to support this either.”


Commissioner Danette Chimenti, on the other hand, said a subdivision case heard, and denied, by ZAP on Feb. 2 appeared to take environmental features into consideration, giving the two land use commissions greater discretion. Legal advice took place in closed session with Assistant City Attorney Deborah Thomas, however, so Chimenti said she could only assume what had occurred.


“I wasn’t there, but there was some legal advice given that they did have the authority to consider the critical environmental feature as an issue and not to dismiss that as an administrative variance,” Chimenti said.


Opponents hit the case on a number of points, including the validity of the environmental variance. Neighbors provided maps, drafted by their own hired geologist, that showed rim rock crossing three properties, but environmental scientist Scott Hiers defended his decision to commissioners, noting that the standard is 50 continuous linear feet without a break.


There were questions about deed restrictions also. As neighbor and attorney Ray Langenberg noted, owner Raynaldo Ortiz signed the same deed restrictions every other owner in the subdivision had signed when he bought his acre lot back in 2004. Other subdivisions had gone up in the neighborhood, Langenberg said, but only after a property owner had gotten the requisite three-quarters of his neighbors to agree to the change.


Planner Sylvia Limon advised the commission that the deed restrictions are between Ortiz and his neighbors and not Ortiz and the city. Limon further clarified that state law only allows cities with more than 1.9 million residents to consider deed restrictions in zoning cases.


Anderson suggested sending the case back to the Environmental Board but Sullivan noted that the board’s involvement would give the property owner the right to appeal the subdivision case to Council. Sullivan said he had doubts that the actual second home could be built without an additional cut-and-fill variance.


Chimenti said it was difficult not to consider the deed restrictions issue, even if it was supposed to be off the table. Ortiz could have met and lobbied his neighbors for his subdivision, she said, just as others had before him.


“Basically, I went out and looked at the property,” said Chimenti. “They talk about putting another house on that lot, but I don’t know where they would put it. … I don’t know who would live there.”


Early discussion during the hearing also centered on whether a neighborhood-backed petition of opposition would require a super-majority vote by the Planning Commission. In the end, that turned out not to be an issue.

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