Victor Reopens Birch Crossing annexation

VICTOR — When the city council approved annexation for Birch Crossing in May, it attached 14 conditions for a proposed 158-unit development, but the developer abandoned the project over zoning. The property's three owners are left asking the council to strike the conditions. The council voted 3-0 on Aug. 26 to reopen the approval and send it to the Planning and Zoning Commission and a new public hearing.

Spencer Stewart, Francisco Lazalde, and Val D. Kunz wrote to the mayor and council on July 16 that they "accept and would agree to the annexation and the RS-7 zoning designation approved at the public hearing," and asked that all 14 be removed. "A common thread runs through the conditions," their letter reads. "Nearly all were drafted around the specific D&B Partners project, which will not be built, or they duplicate requirements already imposed by City code on every development."

D&B Partners, LLC had proposed 146 apartments in seven buildings on the property's RM-2 portion and 12 duplex and townhome units on the RM-1 portion. The council annexed the ground and assigned RS-7 single-family zoning on May 27 instead, and the sale contract between the company and the owners was later terminated. The developer "has since stepped down," Planning and Zoning Director Kim Kolner told the council, "but the 3 property owners would still like to see this through."

The property "consists of three parcels held by three separate, unrelated owners," their letter says, "and the parcels may or may not be developed congruently in the future, if at all."

The condition requiring the developer to extend Birch Street to Baseline Road "was designed around a unified project that will not occur," they wrote. The condition requiring a bond at 125 percent of infrastructure cost "presumes a single, coordinated project that no longer exists." The condition withholding building permits until the improvements plan is finished "presumes a unified project that will not occur."

Others they call redundant. The requirement that the owner comply with all applicable law "adds nothing that the City does not already possess," they wrote, and street trees along Baseline Road are "already required by Article 12 of the Land Development Code." In place of the conditions, the letter argues, "the City can and should rely on its already-established development code."

Two conditions govern housing the zoning no longer allows. Condition 12 requires that 60 percent of the multifamily units be deed-restricted against short-term rental, with no rental shorter than 30 days. Condition 13 requires that 30 percent of the duplex units and 15 percent of the multifamily units be deed-restricted to a qualified local household. Multifamily housing, which Victor defines as three or more units, is not a permitted use in RS-7.

Asked whether striking 14 conditions would require a new public hearing, Kolner said "not necessarily." "I would say a redeliberation," she said. "If you wanted to grant the reconsideration to the detailed extent that they're requesting in their memo, then the reconsideration again would not be of a new hearing, no new information. Based on the existing record, you could choose to remove those conditions or amend those conditions in ... whatever way you want."

"So they're asking us to reconsider based upon a different development, and yet we have to legally reconsider based on the current record," Council member Amy Ross said. "When the situation has changed substantially. But why would we reconsider based on what the existing record says when it's now different?"

"I'm not interested in reconsidering based on the current record because it's no longer valid," Ross said.

"Why wouldn't we just close out this application and start a new one?" Council member Emily Sustick asked.

"I'm open to that," Ross said.

Kolner had laid the routes out at the start. The council could grant the reconsideration "for just rewriting the reason statement," she said, or hold "a re-deliberation where you're not opening any new public hearing or public comment, just about have a new discussion based off the existing record. Or you could go to have a new public hearing." The last option "is to deny the reconsideration and stay true to the original approval and form in which that existed with the conditions." That would leave the owners judicial review "if they feel that there was an error being made," or the chance to "just reapply with a different new record to be established."

She would not pick one. "Completely up to you," she said. "That's up to you guys."

Sustick questioned sending the file back down at all. The Planning and Zoning Commission had already held two meetings on the parcel, where "there was like a lot of pushback about the big apartment buildings," and the commission "sort of kept coming back to what they thought was the appropriate zoning for that area."

"Wouldn't they say the same thing if they're doing their job?" Sustick asked.

Ross, Sustick, and Stacy Hulsing voted to reopen. Erica Linnell, sworn in earlier that night, abstained. Ross, who was absent from the May hearing, said after her vote that she "did read the materials and watch the video."

"I'm not the legal expert in this," Kolner said, but an applicant who reaches a new hearing this way probably cannot ask for a second one. "They weren't happy with the first vote, they had an opportunity for a second vote, they don't get a third vote."

Nothing is final either way. Victor's written decision says the development agreement and annexation ordinance "will be prepared for a future public hearing." Neither has been adopted. Asked what happens if the owners decline the new hearing, Kolner said their "application would be withdrawn and they'd submit a new one if they choose to." The 13.38-acre county land island inside city limits would remain as county land if the owners choose that route.

Kolner put the Planning and Zoning hearing at "the end of September or potentially early October." It has not been noticed.

Victor Reopens the Birch Crossing Annexation, and Its 14 Conditions Are Back in Play

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