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June 20, 2000 Legislative History

Proposed Expanded Use Ordinance

A hot issue on our legislative calendar is a proposed ordinance to regulate applications for so- called expanded uses. Simply put, anytime that you want to change the use that you are making of your property, that’s an “expanded use.” So, if you have a four-bedroom home and you want to add a new study, that would expand the use that you are making of your property.

Churches and schools are allowed in residential districts in Cherry Hills. They are what we call a “use by right” you have the “right” to “use” your property for a church or school. (Of course, you have to abide by all building requirements applicable to churches and schools.)

Some of the three schools and the eleven churches that we have here in the Village are considering an expansion of the use to which they put their property. But right now we have a moratorium on applications for expanded uses.

Therefore, until our moratorium expires in September – or earlier if we get a new law in place before then – no one can even bring an application for an expanded use of their property.

We just received a draft of a proposed new expanded use ordinance. Copies of the proposal are available from me (e-mail me at doug@tisdalecherryhills.com ) or from the Village Clerk at Village Hall (303.789.2541).

In the meanwhile, in my continuing quest to keep my constituents fully informed, I am posting here the memorandum I prepared on the issue.

I’ll continue to keep you “posted” on what we’re doing on City Council!

Updated: June 20, 2000
  TO:        Mayor and Members of Cherry Hills Village City
Council CC:        Interested Parties FROM:   Douglas M. Tisdale, Esq., Council Member DATE:   June 14, 2000 RE:        Comments on Draft CB12-00
— “The Expanded Use Ordinance”
 

Please accept my written comments regarding the draft of CB12-00, which is proposed to be heard by Council on first reading at the June 20th meeting next week. These comments are for inclusion in the information that will go out to Council for the June 20, 2000 meeting and should be made available to all interested parties. Initially I should note that this draft clearly represents a great deal of work and thought by our staff, which is genuinely appreciated and applauded. Monumental efforts such as this are always difficult, and bound to be fraught with unanticipated difficulties. This initial draft clearly reflects the thoughtful consideration by staff on a number of points and presents a framework for the crafting of what might be an acceptable form of ordinance. Having said that, the following observations are critical to a further consideration of this major undertaking.

1. Lack of Legislative Analysis Memo. This proposed ordinance is a major rewrite of existing law. And yet there is no cover memorandum of explanation detailing what is new in the ordinance insofar as policy changes are concerned. The purpose behind such a legislative analysis memo is to present the lawmaker with an articulate enumeration of the significant policies that are impacted by the proposed legislation. The expedient of a black line (to illustrate changes from existing law) does not serve this purpose, either (a) where the old section is crossed out in its entirety and the new language is all shown as new, even though borrowing heavily from the old language, or (b) where there is an entirely new chapter proposed. The need for some form of analytical memo presenting the major policy changes was discussed at our study session regarding the concept of an expanded use ordinance. At that time, I pointed out the utility — and the necessity — of providing the Council with a memorandum identifying those significant changes from the present law. This memo need not be the extensive form used for congressional reports on legislation. A simple bullet-point format will suffice, and is vastly superior to nothing, which is what we have now. Without such a memo, we are invited either to table the matter or to vote it down in its entirety, so as to allow further intelligent consideration and analysis. This result will obtain even though some of the ideas may be excellent and ripe for passage. Simply put, the process of sifting the wheat from the chaff has been rendered difficult if not impossible by the lack of such a memorandum. Remember, when dealing with churches and schools, we are dealing with uses that are a use by right. These are not conditional uses. That point is beyond argument. And a use by right may not be effectively legislated away. And a right may not be abridged by us without a significant showing. Therefore we must proceed with caution and circumspection. A legislative analysis memo would greatly assist us in proceeding carefully

2. Non-profit Recreational Facility. (Section 3.B) The draft creates a new class of uses/users: non-profit recreational facilities. No consideration is given in the draft to the existence of a for-profit recreational facility. Under such circumstances, a reviewing court or an applicant may be invited to conclude that for-profit recreational facilities are excluded from the Village. Such exclusionary zoning by implication is improper as a legislative matter, where the only distinction between the uses is the profit versus non-profit nature of the user. This must be clarified.

3. Parking — Striping. (Section 4) The draft would now require that all parking spaces for all structures in the Village, which includes all our homes, “shall be marked on the pavement.” The plain meaning of this (which is the standard a reviewing court would use) is that we must now paint at least two (2) parking spaces for each of our homes. It is unlikely that Villagers will be happy with this imposition. And any interpretation that this requirement would not apply to dwellings would fly in the face of the plain language of the proposed ordinance.

4. Parking — Tennis Courts. (Section 4) The requirement of two (2) parking spaces, which shall be marked on the pavement, for each tennis court will similarly unreasonably impact on the Villagers who have tennis courts in their backyards. Is it justifiable for us to assume that a homeowner’s tennis court would require such an additional parking burden?

5. Parking — Schools. (Section 4) The draft imposes additional requirements for parking spaces for schools. No information has been provided to us as to the necessity for such a change or, at least as importantly, as to the impact of this new requirement on the three existing schools in the Village. While the schools may in fact presently be “overparked” (that is, contain spaces in excess of the current requirements), there is no evidence in the record to reflect that fact, nor to reflect the impact of the increased requirements. Nor is there any evidence that parking has been a problem for such uses to date. An example will help illustrate the point.

 
Current Requirement Proposed Requirement
High School With Hypothetical 12 Classrooms 400 Students
60 -0-
12 80
Totals
60
92
Other Schools With Hypothetical 18 Classrooms 450 Students
18 -0-
18 45
Totals
18
63

(NOTE: These examples do not include the spaces that are already required for offices in the school. Those spaces would be in addition to the above.) Furthermore, it appears that the draft may now clarify the current practice by eliminating the requirement to include additional parking spaces based upon the presence of an auditorium. If something else is intended, however, such as requiring spaces for auditoriums in addition to spaces for classrooms and students, then that must be clearly articulated. No matter how that issue is resolved, the bottom line is that there is a significant increase in parking requirements as set forth in this proposed ordinance. Such a greatly increased standard arguably constitutes a taking of private property, which may only be done based upon some clear showing of justification and a rational relationship between the requirement and the harm sought to be remedied.

6. Parking — Sources for Standards. (Section 4) There is no information provided regarding the source for these new parking standards. If in fact they reflect state-of-the-art information from nationally recognized planning sources, the same should be disclosed. This would help in providing the legitimate basis for us to legislate what otherwise might be deemed as an unconstitutional taking of property without just compensation.

7. Lighting — Source for Standards. (Sections 5 & 6) The new “lighting code,” which applies equally to all dwellings and public buildings in the Village, is a significant change to existing law. The present standard is not particularly informative and plainly can benefit from clarification. But before we as lawmakers adopt such a sweeping change, it is incumbent upon us to articulate a standard that is fair, reasonable, enforceable and premised upon readily available information from professional planners and consultants in lighting. In addition, it would be beneficial and appropriate for us to know what other cities do in this regard before making such a wholesale change. There is presented, however, no information as to the source of this new “lighting code.” Anecdotally I may add that a walk through various neighborhoods reveals that the vast majority of existing lights on residences would violate this proposed standard. Clearly a more scientifically stated, and measurable, standard — such as no lighting in excess of one foot candle power at the lot line — would be preferable. As drafted, the moon when it is full would constitute a light source in violation of this “lighting code.” Alternative language may be found, for example, in the codes for the cities of Thornton, Aurora, Steamboat Springs, Frisco and other municipalities — all of which I found in one hour’s research on the Internet. Examples of language include: “directed downward,” “shielding,” “average of two-foot candles measured on the surface,” and the like. In the vast majority of other lighting codes reviewed, great reliance was placed upon the criteria of the IESNA, which is the professional body in the United States charged with responsibility for establishing lighting standards for municipalities and other governments. Incorporating the IESNA criteria would go a long way toward repairing this good faith but unacceptable draft of a “lighting code.”

8. Lighting — Compliance Date Inequality. (Sections 5 and 6) The draft provides that lights that happen to be on parking lots for public, semi-public or commercial areas must be brought into conformance with this new proposed “lighting code” by August 1, 2001. And yet lights on existing residences need never be brought into compliance. The problems with this approach are multiple.

(a) First, there is no articulated or articulable basis for imposing this requirement on public buildings while excusing residences — and, arguably, “private clubs” — from this requirement. If so-called “fugitive light” is the problem sought to be regulated, there is no reason to control fugitive light from one location while allowing it to exist in perpetuity from another location. Clearly, it is not a matter of public health, safety or welfare — which it must be in order for us to be able to legislate concerning it — unless it is applied equally to all locations in the Village. Nor is it sufficient to say that this model merely carries forward the structure of the present ordinance, with the mere substitution of a new compliance date. The unconstitutional actions of a prior Council do not insulate this Council from its obligation to act fairly, reasonably and equally.

(b) The time period allowed for bringing parking lots into compliance is unreasonably short and does not allow adequate amortization of the investment. Most city codes I have reviewed reflect a period of at least 48 to 60 months for adequate amortization.

 

(c) “Private Clubs” are not expressly identified here. Are they to be considered “semi-public” or “commercial” or are they to be given preferred treatment (as is the case with residences)? If so, why?

9. Proposed Chapter 19 Versus Present Chapter 17. ( Section 8 ) No discussion is presented, or comparison offered, of the differences between the proposed Chapter 19 regimen for processing expanded use applications and the existing Chapter 17 regimen for processing applications for conditional uses. To put this matter into sharper focus, we should first restate an uncontestable principle: an expansion of a use by right is still a use by right. The mere expansion of a use by right does not render it a conditional use. Therefore, a request to expand a use by right should never be made more stringent than securing a conditional use, which is a fundamentally different use, in the first instance. It is apparent, therefore, that these specific processes (proposed Chapter 19 expanded use application and existing Chapter 17 conditional use application) are theoretically distinct and justify separate enumeration. They can, however, and ought to be compared with each other in order to ensure that undue strictures are not placed on a request to expand a use by right. In short, an applicant ought to know that he will be subjected to congruent treatment by the Village in the two processes, and not have gross differences imposed upon him by the mere fact that one chapter deals with expanded use of a non-profit activity or a private club (proposed Chapter 19) while the other chapter deals with conditional uses (current Chapter 17). To seek to handcuff an applicant requesting an expansion of a use by right (and make no mistake about it: excessive regulation constitutes a handcuff) is wrong. A legislative response to the inadequacy of existing law should be carefully tailored to remedy the problem presented and not, through inadvertence or otherwise, to create new problems. As drafted, proposed Chapter 19 seeks to do too much and constitutes an excessive and improper restriction on the rights of citizens to expand their uses by right.

10. Proposed Chapter 19 — Source for Standards. ( Section 8 ) Once again, the proposal constitutes a significant change in existing law. The proposal constitutes a detailed process that takes approximately 2,000 words to describe. And yet the source for these words is not provided to us. Given the fact that thousands of other municipalities across the United States have dealt with such matters for many years, comparison with the treatment accorded in other municipalities would be a sensible part of our lawmaking function.

11. Proposed Chapter 19 — Open-ended and Undisclosed Conditions. ( Section 8 ) The draft provides that the City Council may, in processing expanded use applications by non-profits and Private Clubs, “require conditions other than the minimum requirements and conditions established in this chapter, deemed reasonably essential for the health, safety and general welfare of the public.” In truth, this constitutes the setting of a standard commonly known as “the Chancellor’s foot.” Such a standard is, in truth, no standard. Colorado law and basic notions of fundamental fairness/due process require that standards be articulated in such a manner that an applicant fairly knows what it must do in order to comply and so that a reviewing court may make an intelligent assessment of the applicant’s compliance with such requirements. Legislation is intended to be clear and comprehensible and not a mechanism for vesting virtually unfettered discretion in a City Council acting in its quasi-judicial function. To paraphrase a famous quote from cases reviewing congressional enactments, “If the city council had intended to say [x], then the city council would have said [x] in plain language in the ordinance.” Moreover, if the purpose of this entire exercise is to remedy the vague and amorphous standards of the current law, this particular proposed language merely regenerates the same infirmities of the past.

12. Site Plan — Historic Contours. ( Section 8 ) The draft proposal requires depiction of historic, existing and proposed contours on the entire site. No basis is offered for requiring historic — as opposed to existing — contours. Nor is any basis offered for requiring contours of the entire site. If the expanded use affects only a tiny portion of the site, such an extensive requirement could clearly be excessive. Moreover, how do we propose to accomplish this? Some of these structures have existed for many years and finding historic information is virtually impossible. We should not set as a requirement that which we reasonably know to be unattainable.

13. Proposed Chapter 19 — “Site-wide Application.” ( Section 8 ) Nothing in the proposal expresses that the standards of proposed Chapter 19 for the review of an expanded use application may be applied on a site-wide basis. In other words, if an applicant seeks to add additional parking spaces to the site (as may be required by the proposed increase in parking standards in Section 4 of the proposed ordinance), would such applicant be required to follow all the provisions of proposed Chapter 19 (a greatly detailed submission) and also take into account existing drainage issues across the entire site, even though only one remote portion of the site is impacted? Absent an express obligation to bring the entire site into compliance (which is likely to be an unconstitutional condition), the answer would be “no.” To avoid confusion and later litigation to clarify this, that fact should be expressly stated here.

CONCLUSION  

Based upon the above and foregoing analysis which does not purport to address all of the difficulties presented in this well-intentioned but flawed draft proposed ordinance, but only those most obvious, I submit that this draft — while worthy of a further “study session” — is not ready for submission as a draft Council bill for first reading.

Respectfully submitted,
   
Douglas M. Tisdale, Esq.
Council Member
DMT:jw

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