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Wednesday, September 27, 2023

Town council rejects appeal on building project

Illustration courtesy Reynolds Ash + Associates

At a special meeting on Dec. 15, the Pagosa Springs Town Council considered an appeal to a decision made by the town’s Design Review Board for a proposed mixed-use development at 232 Pagosa St., currently the empty lots between Pagosa Baking Company and Alley House Grille. 

By Derek Kutzer | Staff Writer

At its special meeting on Dec. 15, the Pagosa Springs Town Council considered an appeal to a decision made by the town’s Design Review Board for a proposed mixed-use development at 232 Pagosa St., currently the empty lots between Pagosa Baking Company and Alley House Grille. 

Back in September, the Design Review Board approved a sketch plan for the project, which prompted business owners Kathy Keyes and Kirsten Skeehan as well as neighborhood homeowners Sarah and Robert Nemeth to appeal the decision. Collectively, the appellants argued that the proposed three-story building would be out of character with the East Village neighborhood and in violation of the Land Use and Development Code (LUDC). 

According to Planning Manager Cindy Schultz, the LUDC was originally adopted in 2009 and has been amended various times. 

Attendance at the meeting required town staff to limit in-person access in the council chambers and create an overflow area where interested citizens who arrived after in-person capacity had been reached could view the meeting on a big-screen broadcast. 

During public comment there was some confusion about the rules of deliberation, as many concerned citizens lined up to voice their opinion on the building project, but were reminded by Mayor Shari Pierce that public comment was not allowed on the issue of 232 Pagosa St., as per the rules stated in the agenda. This led many guests who had signed up for public comment to withdraw. 

After public comment passed, Pierce reminded everyone that the council’s role was not as a “legislative,” but, instead, the council would play a “quasi-judicial” role.

 “The burden of proof,” she said, would be on the appellants, since the Design Review Board had already approved the sketch plan. 

The council’s role, then, would be to “affirm, reverse or amend” the Design Review Board’s decision, Pierce explained, with an additional option to “remand,” which essentially sends the sketch plan back to the Design Review Board for further consideration.

Each party — the two sets of appellants and the building applicants — had 30 minutes each to present their evidence to the council. 

Stepping up to the plate first was concerned neighbor Robert Nemeth, who is a retired architect and engineer. 

Nemeth carefully outlined nine areas where, he believed, the sketch plan is in violation of the LUDC. 

He expressed worry about the message it would send if the LUDC is “allowed to be violated.” 

Would future developers attempt to “skirt the rules?” he asked, continuing, “Why have an LUDC if it’s not enforced?” 

But the applicants, represented by owner Marty Rose and architects Brad Ash and Lauren Davis, made the argument that out of the nine areas where Nemeth thinks the project is in violation of the LUDC, at least seven of those were open to varying interpretation. 

Rose, who is also owner of the adjacent Alley House, argued that the appellants overemphasized the idea of “quaintness” in the neighborhood, pointing out that the original buildings on the lots were torn down some years ago and that many recent building projects — at Voormi, Neon Mallard and other places — have strayed from the traditional Victorian style of the neighborhood. 

Instead of “quaintness,” Rose emphasized “diversity” as a principle that should be valued in the neighborhood as well.

The word “interpretation” came up over and over throughout the proceedings, and whether or not the three-story building would be “harmonious” with its East Village surroundings and whether it meets the LUDC’s provisions on “mass and scale” could largely be in the eye of the beholder, the applicants argued. 

Nemeth also brought up the sketch plan’s 8-foot setback in the front compared to the LUDC’s 15- to 20-foot setback for the East Village neighborhood. 

He further made an argument about the LUDC’s density standards for this neighborhood, arguing that the building’s proposed eight residential units would require a “density bonus” in order to comply with the LUDC. 

To these discrepancies, the applicants emphasized that the design submitted and approved by the Design Review Board was only a sketch plan. 

Ash noted that the Design Review Board had already required that the developers address these LUDC discrepancies before the project enters its final major design phase. 

“We take those recommendations,” he said, “and bring the changes at final review.” 

Keyes and Skeehan, owners of Pagosa Baking Company, not only took issue with the LUDC discrepancies, but also stressed the building is out of sync with the Downtown Master Plan (DMP), adopted in early 2007. 

On this front, Keyes talked a lot about the “mass and scale” sections within the DMP, stating the proposed building is “an overshoot” of the community vision laid out in that plan. 

She cited segments in the DMP’s design principles such as: “respect the mass and scale of buildings traditionally constructed downtown; maintain the character of an authentic, rural mountain town; respect established development patterns exhibited by the neighborhood context.” 

According to Keyes, the proposed large three-story building violates each of these principles. 

It was also noted during the meeting that such guidelines could also be considered open to interpretation. 

Skeehan agreed, saying, “It is about interpretation.” 

She added, “We believe that the [Design Review Board’s] interpretation was not right. We just think they got this one wrong.” 

According to Skeehan, both the LUDC and DMP were adopted for situations like this — “to make good neighbors,” she said — and, when taken together, the planning commission should have rejected the sketch plan outright. 

Schultz explained in a later interview that while the two plans work in conjunction together, the LUDC “codifies” the “vision plan” laid out in the DMP. 

It’s the codes in the LUDC, Schultz said, “that detail how we bring about regulation to make the visionary plan occur.” 

When the Design Review Board deliberates on proposed sketch plans, it’s mainly those specific codes within the LUDC determining whether an applicant has met the development code. However, these codes were designed to reflect the guiding principles of the DMP, according to Schultz. 

Looking more specifically at the LUDC, the property in question sits within the Mixed-Use Town Center zoning district as well as the Downtown East Village Overlay.

Community Development Director James Dickhoff explained to the council that the Design Review Board’s rationale for its previous approval of the sketch plan was “from a code perspective.” 

Dickhoff acknowledged two areas where the sketch plan did not comply with code — two of the same areas Nemeth had pointed out in his appeal presentation. 

The proposed 8-foot setback “does not comply” and the developers would need to apply for a “density bonus” in order to build eight residential units, according to Dickhoff. 

But Dickhoff explained that these two issues are still in the process of being worked out with the applicants. 

Council member Mat deGraaf later described these as “dynamic issues.” 

Other than these two sticking points, Dickhoff’s opinion was that, overall, the applicants had “met the intent of the code.” 

He said, “if council decides we were wrong about anything, they can certainly send it back” for further consideration. 

The council then asked questions of both the appellants and applicants, as well as asking Dickhoff some clarifying questions about town codes.  

Council member Gary Williams wanted assurances from Dickhoff, asking, “If the appeal is denied, is there opportunity to work out these issues down the road?” 

Dickhoff replied, “Yes, I think we can. We are very concerned about starting a precedent, because it’s hard to reign that back in.”

Next, the meeting moved to council deliberation. 

Council member Brooks Lindner, weighing both the DMP and LUDC, said that “aside from the setbacks, it passes muster with the codes.” 

Council motioned to affirm the Design Review Board’s original decision approving the sketch plan for 232 Pagosa St. When it came to a roll-call vote, the motion was carried unanimously. 

“Change comes hard to a town. If I were in your shoes,” looking straight at the three appellants, “I would feel the same way,” Williams said. 

deGraaf appealed to the principle of “balance,” indicating that the town should seek “balance between our history and where we are going.”

Skeehan indicated, when all is said and done, everyone must live together in this small community.

The proposed development will now move to final review. 


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