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Malcolm Fleming, City Manager <br />January 22, 2010 <br />Page 4 of4 <br />LIGHT, HARRINGTON & DAWES, P.C. <br />guidance on the term "general conformance," but the common meaning of "general" is "not <br />special or specialized" and "common to many." Merriam- Webster Dictionary (2005 Ed.). It is <br />our opinion that a court reviewing the issue would likely find that building heights of 95 feet <br />would not be in general conformance with the building heights set forth in Chapter 17.12 of the <br />City Code. The risk of a challenge related to this authority question carries with it the risk of <br />uncertainty regarding what entitlements, if any, exist based on those provisions of the GDP. <br />2. Revise GDP to Reflect that Modifications of Building Heights Must be <br />Obtained During PUD Process. We believe that requiring ConocoPhillips to either remove or <br />significantly qualify the reference to 95 foot buildings heights on the GDP would be less <br />susceptible to challenge. ConocoPhillips can request waivers to or modifications of the building <br />height requirements during the PUD development plan approval process. In determining <br />whether to waive or modify those requirements, City Council must apply the criteria set forth in <br />Section 17.28.110 of the City Code. <br />If this is the option the City decides to take, we recommend it require ConocoPhillips to delete <br />Note #2 and replace it with a revised note. Options for the revised note include (a) a statement <br />that "maximum building heights will conform to the City Code and CDDSG unless specifically <br />waived or modified by the City Council through the PUD development plan process;" or (b) a <br />statement of a range of building heights, with a further statement that the "proposed maximum <br />building heights in excess of CDDSG requirements require City Council approval through the <br />PUD development plan review process and are not approved by this GDP. <br />3. Amend Section 17.72.190 of the City Code. If City Council desires to <br />specifically waive or modify yard and bulk requirements during the GDP approval process, it <br />could amend Section 17,72.190 of the City Code to expressly so provide. If this is the option the <br />City desires to take, such an ordinance might also include revisions to the PCZD submittal <br />requirements, as well as criteria applicable to review of height modifications requested as part of <br />approval of a GDP or GDP amendment. An ordinance amending title 17 would require a public <br />hearing process through the Planning Commission and City Council. City Code § 17.44.020. <br />While it is legally permissible to concurrently process municipal code amendments and a land <br />use application that will be subject to the amendments, the latter would need to be made subject <br />to the former taking effect. Further, unless an emergency ordinance is used, the matters should <br />not all be heard at the same meeting. <br />Finally, it is possible under Colorado law to grant statutory vested property rights at the time of <br />zoning. The City Code does not currently allow such a grant at the time of zoning, and therefore, <br />this memo does not discuss this option. <br />If you have any questions, please contact us. <br />cc: Paul Wood, Planning Director <br />Heather Balser, Deputy City Manager <br />