The preparations appeared impeccable. The lawyer was well prepared, the architect explained the intricacies of the site, the visuals were complete and the participants all sincere. City Council even adjourned into executive session in the middle of the public meeting to consider their decision. But in the end, Cherry Hills Village denied a resident’s request for a floodplain development permit based upon the words of the code, which state that exceptions are only to be made based upon “exceptional hardship.”
“As much as I understand the need, this does not rise to the level of exceptional hardship,” said Mayor Pro Tem Alex Brown, who was chairing the council session that evening. “While the other possible locations may not be ideal or as esthetically pleasing, they are still possible.”
The special flood hazard area permit had been requested, not for construction of a building in the flood plain (in fact the applicant had already amended the design and footprint for a new home to sit above the flood plain), but for a swimming pool, which would be tucked below the main structure and fall partially within the flood plain.
“It’s all in the word ‘exceptional,’” said the resident’s lawyer David Foster. “In your code, it is synonymous with the word ‘variance.’ They’ve done everything asked of them, redesigned the house and moved the house footprint. Putting a pool across the road from the house and in the line of fire from golf balls from the country club and nearer neighbors is not safe. And I remind you that when you redo the city center, you’re going to need an exception yourself. Granting this exception does not create a precedent. I suggest that council needs to consider all relevant factors.”
The review and subsequent denial followed a split vote in the city’s Planning & Zoning Commission only weeks prior. The 3 to 3 P&Z tie was effectively a denial of the request. Per city rules, residents who encounter such denials may still take requests to City Council, as P&Z functions in an advisory-only capacity to council.
“In the end, a variance is an extraordinary remedy,” said Councilman Earl Hoellen. “This is not an extraordinary situation based on the code language.”
The engineers and architects who came up with a solution say that the site, portions of which sit in the 100-year flood plain along Little Dry Creek, is extraordinary. According to their statements, the plan they created represents the optimal configuration for the site.
“In all my years of experience, this is the first project I’ve seen with so many challenges,” said experienced architect Don Ruggles, who has designed more than 100 homes in the Village. “This site has everything; trees they want to protect, a flood plain, a neighbor’s driveway cutting through the property, an oddly-shaped lot, a 75-foot construction set back from the driveway. This is the safest, most out-of-sight spot. Frankly, this pool deserves to be in this spot.”
The roughly 2.7 acre site on a creek bend is owned by Erik and Mollie Hellen. The property, officially located at 1530 E. Oxford Lane, is a complicated site with an access driveway crossing it that breaks it into two parts. A significant portion of the property, sits in the flood plain for the creek.
“I am very sympathetic to this request,” said Councilwoman Klasina VanderWerf. “It’s a swimming pool, after all, not a building. The lot has an appendage, probably to bring it to 2.5 acres, but that doesn’t mean the owners can do something with that piece.”
Given the city’s experience with flooding following last June’s torrential rain in the Denver metro area, scrutiny of such requests is now serious business. New homes cannot be built in flood plains, nor can ancillary structures without a permit exception.
“This rises to a higher standard of review,” said Councilman Mark Griffin. “I’m sympathetic, but after what we experienced from recent floods, we need to be able to tell people that flood plains are flood plains and the rules are there for a reason.”
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