City Council Regular Meeting 2/7/2017 – Littleton Crossing

City Council Regular Meeting         7 February 2017                Citizen Minutes

Debbie Brinkman was absent.

Public Comment

Lindsay ? from the High Line Conservancy – she thanked council for adopting the High Line Canal Vision and Action Plan.

Patrick Fitzgerald said he was a heavy user of the High Line Canal and looked at the proposed plan and was disappointed with the lack of action in the plan. He valued the canal as a greenway and there was no mention of how water will be supplied in the future. The leaky nature of the canal has sustained the trees and they won’t survive with just the natural rainfall.

Susan Stein bought her home in downtown Littleton and will be moving in this March after renovations are complete. She is concerned with the density of Littleton Crossing – 64 units is just too much. She is concerned about the impact of light pollution, traffic – 64 units does not serve anyone well.

Carol Brzeczek spoke to zoning code violations. She sited the violations associated with Littleton Crossing and said the Subdivision Exemption code continues to be interpreted to combine properties when the code only addresses the division of properties. This misinterpretation is one of the reason we have The Grove. She said codes get waived, interpreted, relaxed or ignored most times in the developer’s favor and citizens are left with a development that negatively impacts their quality of life and their community character. She said there are penalties for violating the city code – $2,650 per day and up to a year in jail. Who will suffer the penalties of the code violations – the former city manager, the community development director or the council – or all of the above?

Deanna Cook told council that the 2013 rezoning of the Nevada Street property was unlawful and it has hard to imagine that Michael Penny (former city manager) did not know the zoning issues related to the property. In her endeavor to learn the history of the rezoning she has been told that documents are missing – she asked council where they were. They were either taken, lost or destroyed. She said that the developer was OK with threatening citizens. Of the three options staff provided for council this evening – none were acceptable because they do not correct the problem. The city has to bear the consequences of their mistakes. She asked council to instruct the staff to revert the unlawful rezoning – it is “within your authority” to do so.

Kathy Hartgraves – she and her daughter live near Sterne Park and asked several questions about the proposed March 7th meeting on the Littleton Crossing. She asked who “staff” was and if this was a done deal.

Jessica Alizadeh (sp?) represented the Littleton Crossing property owner. She referenced a strongly worded letter sent to council the same day and mentioned that her client traveled from MT to Littleton under great inconvenience to meet with staff prior to this council meeting. She said her client deserves to have their Site Development Plan (SDP) issued forthwith. The zoning, they believe, was not improper. Zoning mistakes are made everyday – humans make the decisions therefore mistakes are made. The clock has run out on reversing the mistakes. However, her client met with staff to come up with a compromise for the citizens and council. She told council they had no authority over the matter and the SDP needed to be issued in a few days and once her client has his SDP in hand he would be willing to sit down and discuss the issues.

Paul ?? moved into Nevada Place 18 months ago and loves it there. He looks forward to the empty lot across the street from his residence to be developed but he objects to the illegal, illegitimate, and illconceived plan. He told council it was not staff’s role but the council’s to fix this. Council was elected to represent the citizens – he asked, whose side will you be on – the developer’s or the citizens?

Steve ?? moved into Nevada Place in the Fall of 2014 and takes exception to the proposed development. The former city manager, Michael Penny, was fired for egregious conduct and this land was rezoned illegally under his leadership. The council’s most important job is to build public trust, which is built on ethical conduct. When this property was rezoned it was passed on a 4/3 vote. Given the facts today if the rezoning came forward what would the results be? Council needed to ‘belly up to the bar” and allow their insurance to kick in.

Karen Will (?) said she was struck by the attorney’s mention of the great inconvenience her client suffered to come to Littleton. She said when this project is done he will leave and they will be left with the development.

John Schauer (?) grew up in Littleton – he was an alter boy in the church that was demolished. He implored the council to listen to the people.

Jose Trujillo would like to see the finances of the project.

Pam Chadbourne did not think the development was a threat – she could be wrong but she does not believe it will be bad for downtown. She scolded the council for not following through with the code update.

Emma Falter thought an impartial investigation should be conducted on the zoning of Littleton Crossing.

Consent Agenda

Adoption of a resolution of support for the High Line Canal vision and Action Plan passed 6/0.

Certification of the January 17, 2017 regular meeting minutes were approved 5/1 with Doug Clark dissenting.

General Business

City Manager recruitment update – Bruce Beckman said they conducted a three day interview process for three candidates and none were selected. The search will continue. Phil Cernanec moved to authorize the consultant to begin the recruitment process again. Bill Hopping seconded and motion passed 6/0.

Ordinance on first reading amending section 1-3-2 of the city code to add a new definition for minutes. (Background March 18, 2014 under Debbie Brinkman’s term as mayor the definition of minutes was changed to mean a video recording. Since that time there have been numerous complaints about the lack of written minutes.) The proposed new definition would be “the minutes of records will be written action minutes. Action minutes shall mean: motions, the vote of any motion, and the name of any citizens speaking under public comment and/or public hearings and their stance.” The video recording will continue to be available.   Peggy Cole moved to approve the new definition and schedule a second reading on 2/21/17. Motion was seconded and Bill Hopping moved to amend the motion in case there is a conflict or need for clarification between the action minutes and the video recording the video recording shall be consulted for interpretation. The video recording shall be kept in perpetuity to provide clarification of action minutes when needed. Cernanec seconded.

The deputy city clerk, Colleen Norton, told council that the video was not going anywhere – it is their policy to keep them and convert when they move to a different format. Cole thought that any clarification needed would happen within the first couple of months and that in perpetuity was a long time. Attorney Ken Fellman said the retention record is established by the Colorado Archives and he thought the video had to be kept for seven years. (Actually the Colorado Archives, last I checked which was within the past 3 months, said the video only needed to be kept until the written minutes had been approved.)

Doug Clark objected to the amendment saying that they needed to pick one form of the other. He agreed that keeping the video forever is good but they needed to be clear about which of the two is the official record. Minutes need to reflect what happened because that is the official record and if written minutes are the official record, which he preferred, they will be motivated to get them right.

Hopping’s amendment passed 4/2 with Clark and Valdes dissenting. The main motion passed 6/0.

Council Protocols – An additional paragraph was being considered for inclusion. It read:

Council expects civility among and between Council, Boards, and members of the public while in meetings. Disrespectful, DISRUPTIVE OR INTIMIDATING behavior will not be tolerated. SHOULD THIS BEHAVIOR OCCUR, THE MAYOR MAY STOP THE MEETING TO ADDRESS THE BEHAVIOR AND MAY REQUEST STAFF ASSISTANCE IF WARRANTED. Any person who makes offensive, insulting, threatening, insolent, slanderous or obscene remarks or becomes boisterous or who makes threats against any person or against public order and security wile in the Council Chamber shall be removed at the direction of the Mayor from the meeting, unless permission to remain is granted by the majority of the council members present.

(The ALL CAPS language is new language.)

Valdes moved and Hopping seconded. Cole amended the motion to strike the second and third sentences. She thought everyone in the council chamber should be treated with respect and the language makes the general sense adversarial and counter productive. Hopping said if the language was stricken then the opposite is true. Cole said no – the first sentence sets the expectation for civility. Hopping said the reason for the additional language is because some citizens had told him they felt intimidated by people in the chamber to testify. Cole said they could deal with that. People have told her after meetings that council members body language and facial expressions are not respectful even of each other. Cernanec suggested they insert the word disruptive before boisterous in the third sentence. Cole accepted the change as friendly so her amendment included the suggestion. The amendment passed 5/1 with Valdes dissenting. Main motion passed 6/0.

Legislative Rules

This change would eliminate the second public comment portion of the end of the meeting. Motion passed 6/0.

Littleton Crossing

Staff made a presentation and informed the council that their recommendation was different than what was presented in the staff communication. Mark Relph, acting city manager, reviewed the rezoning process for the property on Nevada St. He told council that the interpretation for the unobstructed open space, the parking and the minimum lot size for rezoning was different in 2013 than today. (The code has not been changed – just the interpretation by staff.) The appeal for the rezoning expired 30 days after it was rezoned. He mentioned that legal risks vary with the different options.

He suggested:

  • Staff could continue to negotiate for a compromise
  • The administrative process continues
  • Release a public description of the legal issues the council has to consider
  • Return to council for discussion in a study session
  • Update the code and highlight this issue in the process


Cernanec said the project has been going on for over a year and there has been some “learnings.”

Mark Relph talked about the need for a process when staff makes an interpretation of the code that it gets documented in “Administration Orders” that become public and part of the code. He talked about the need to update the code starting with a vision statement and a Comprehensive Plan.

Valdes said he was on the Planning Commission when it was first rezoned and he was on council when it came for rezoning in 2013. At that time he opposed the rezoning based on the density. He would like to see discussions with the property owner continue.

Clark asked if he missed Relph’s recommendation. Relph said he would like to continue to negotiate and process the SDP and building permit – they are required by code to proceed.

Cole asked about incentives – Relph said he was willing to consider any option.

Hopping said the developer’s attorney made it clear that they were willing to work with us and Hopping would like to sweeten the pot. He suggested that they might be willing to redesign the building to accommodate and correct the zoning issues. He said we need affordable housing but the CHFA process did not allow Littleton to rule our city as a home rule city.

Clark moved to direct staff to take immediate action to address any and all of the identified code issues related to non-compliance of this project.

Beckman we need to address Chapter 32 of the Charter.

Fellman asked for more clarification – If the motion is to fix the code problems by refusing to grand a SDP unless changes are made then I do think there a myriad of legal issues. He did not want to take action based on a threat of litigation – before the developers threatened litigation we were told by citizens that they would sue if we did not do something.   The city will get sued no matter what we do – just a matter of who. Is the direction to staff to take action to somehow bring the zoning back prior to 2013? I think one of the claims we could be faced with is the claim that council members are in violation of the Charter by telling staff what to do. You have received three separate memos this last week – the issues are fluid and will be different next week.

Clark said we have multiple violations of the code and various obligations of the staff at various times of the process about how things get fixed. I am not telling staff what to do but to look at the code, the project and the violations and then determine the alternatives. There’s no point in citizens coming down and talk about the character of what they desire when we can’t follow our own code. I don’t’ believe we have the trust of the citizens in the process.

He made it clear that this was not a low income housing issue. It is a zoning issue following on the heels of The Grove. And even though there were obvious problems with code on The Grove nothing stopped it. I have reached my limit. The motion says exactly what it says.

Fellman said as long as council understands that council is not directing staff to do anything except to determine if the code was followed. Staff will look at code, state statute and federal law and will act appropriately. It may not be what anyone on council wants.

Relph said staff would provide feedback to council ASAP.

Clark restated his motion. Hopping said the 30 day period has passed and they are locked in at this point. Attorney Fellman said once errors are made it is easier to fix them going forward.

Hopping thought the motion sounded punitive. There’s not a remedy on this project and he is reluctant to tell staff to do their job by way of a motion.

Beckman did not think the motion was necessary. It was a tremendous disappointment that council finds themselves in this situation. Staff let us down. He remembered the rezoning from 2013 but did not remember any discussion that this would be anything but appropriate.   Clark noted that neither Mark Relph or Jocelyn Mills was working for the city in 2013.

Beckman said it is council’s responsibility to act on zoning and they expect staff to represent all the information to council to make a decision. It is not council’s role to be land use experts – this it tough when things come up and we find things could have been done better. He voted against the rezoning in 2013. Zoning is a contract with the community – it gives them a sense of security in the largest investment they will ever make. Four years ago there was a lot of discussion about the “bookends” on either side of Nevada St and he doesn’t think Summit understands that. Council has certainly learned something about CHFA. (Colorado Housing Finance Authority)

Hopping mentioned the housing study that is underway and due in May.

That was the end of the discussion………….Clark’s motion failed on a 2/4 vote with Clark and Cole the only two ayes.

Public Comments

Jim Scheffler – a new resident to Littleton from MN and is interested in getting a recycling program going in Littleton. He was very involved in MN and his passion is recycling.

Pam Chadbourne expressed concern about the Historic Preservation Board (HPB) process. When the Littleton Mixed Use was before the HPB staff brought an edited version of the standards for HPB to consider. The Goals and Objectives were not provided or considered and the code says that they will be applied. She noted that Jocelyn Mills, Mark Relph and Mike Braaten were all involved in the approval of the Grove.

Carol Brzeczek expressed appreciation for her involvement in the city manager interview process and commented on how impressed she was with the way the staff worked together in conveying their recommendations to the council. Citizens do not get to see the entire director level staff members interact and it was clear that they all respect one another.

She told council that her last check of the Colorado Archives a video recording of a meeting only needed to be kept until the written minutes were approved. She agreed with Clark that there needed to be one set of minutes – otherwise how would anyone know if the written minutes were accurate without going back and reviewing the video. She mentioned the protocol that would allow citizens to be removed from meetings and told council that it is a two way street that there are reactions from them towards citizens but we had no way to remove them from a meeting so be aware of their own conduct. Lastly she reminded council that CHFA has a review of their process annually and Littleton needed to participate in making recommendations to make their process better.

Jessica Alzidah said her client would continue discussions and she apologized for overstating the inconvenience of the developer to come to Littleton. There had been a death in the family and he had to miss the funeral to be here. She said he would be available between 8 and 10 Wednesday morning to meet with staff.

Patrick Fitzgerald commended the staff in identifying the code violations and commended the council for supporting staff.

Kathy Hartgraves was surprised that there wasn’t a remedy. Littleton needed to face the consequences.

Steven Drunk asked council, respectfully, when does the buck stop? Who takes action for previous council’s egregious behavior?

Council Reports

Cole thanked everyone for speaking.

Clark asked staff to take a look at 5485 So Broadway – the Subdivision Exemption code is used to divide property and that is not the case on that property. He also wanted to discuss what their insurance covers and what it does not cover.


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