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HomeMy WebLinkAboutWater Board - Minutes - 04/24/2008Fort Collins Utilities Water Board Minutes Thursday, April 24, 2008 Water Board Chairperson City Council Liaison Doug Yadon, 484-3611 David Roy Water Board Vice Chairperson Staff Liaison Gina Jarrett, 493-4677 Robin Pierce, 221-6702 Roll Call Board Present Chairperson Doug Yadon, Vice Chairperson Gina Jarrett, Steve Balderson, Mike Connor, Johannes Gessler, David Pillard and Gary Wockner Board Absent John Bartholow, Eileen Dornfest, Phil Phelan and Reagan Waskom Staff Present Brian Janonis, Bob Smith, Marsha Hilmes-Robinson, Dennis Bode, Carol Webb, Carrie Daggett, Jim Hibbard, Terri Bryant, Kevin Gettig, Susan Hayes, Brian Varrella and Robin Pierce Meeting Convened Chairperson Doug Yadon called the meeting to order at 5:17 p.m. Citizen Participation None Minutes of March 27, 2008 Board Member Mike Connor moved to approve the minutes from the March 27, 2008 meeting. Board Member Steve Balderson seconded the motion, and it passed unanimously. Floodplain Variance for 806 W. Magnolia St. Chairperson Yadon reviewed the procedural by-laws for the floodplain variance hearing. There were no other parties with opposing views present at the meeting. Fort Collins Utilities Floodplain Administrator Marsha Hilmes-Robinson presented a request for a floodplain variance for construction of a basement in a new single-family residential structure at 806 W. Magnolia St., (Lots 15 and 16, Block 288 of the Loomis Addition). The site is in the City -designated Old Town Floodplain. The variance would allow construction of the lowest floor and heating, hot water heater, electrical and other mechanical equipment below the regulatory flood protection elevation. The property's relationship to the 100-year floodplain was reviewed. The floodway (depicted on the map) does not actually touch the property boundary of the parcel in question. In addition, Old Town contains areas of moderate risk, typically meaning water accumulation of less than 1 foot. This is important to note in this particular case due to the lack of floodplain regulations in the moderate risk area as decided by Council. However, if a structure touches even a portion of the high -risk floodplain, it is subject to the floodplain regulations. The site plan was used to highlight the portion of this property that intersects with the Old Town Floodplain. The basement will not be in the portion that intersects the floodplain. Applicant Rich Thornton addressed the Board regarding the design structure and mitigation measures that the applicants considered as they planned the project. The front half of the structure is proposed to be slab -on -grade, with the finished floor being equal to the top of foundation (over 18 inches above base flood elevation). The topography shows the diversion of flow away from the structure by the use of built up fill that sheds water toward the street, as well as build-up at the 100-year floodplain boundary to divert flow around the perimeter of the structure. The proposed basement contains two window wells on the north side to keep them out of direct contact with west to east flood flows. Cross -sections of the structure were displayed. There is an egress requirement for the basement. The applicant proposed the window well top elevation be at a height of 5,014 (over 18 inches above base flood elevation). A monolithic pour for top of foundation around the perimeter of the structure will provide the option of hanging the floor joists on a rim board embedded into the foundation. The applicant does not plan to have any gas -fired mechanical equipment in the basement, reducing the risk of fire hazard if water reaches the basement. A sump pump on a separate circuit is proposed that will hopefully reduce potential for shorts. The electrical supply for the pump will be in the ceiling. A waterproof sealer will be applied to the concrete around the exterior to mitigate water seeping in. Additionally, the applicant noted that no living space is proposed for the basement, therefore there is no sewer line into the basement. By eliminating a sewer line, the applicant feels this drastically reduces the risk of basement flooding caused by sewer back-ups. The applicants are proposing a deed restriction on the property and are working with staff and the City Attorney's Office on a draft that would designate the basement for storage use with no option for temporary living quarters. Staff has prepared two variance options for the Board to consider. The first option is to deny the variance based on regulations adopted in City Code. The second option is to grant the variance to allow a basement with the lowest floor, heating, hot water heater, electrical and other mechanical equipment below the regulatory flood protection elevation with the following conditions: 1) The basement will not be converted to living space. 2) A deed restriction, as agreed upon by City staff and the applicant, will be filed with the Latimer County Clerk and Recorder's Office prior to issuance of the building permit. The deed restriction shall require the basement to not be finished into living space until such time as the property is removed from the floodplain by a capital improvement project. 3) The first floor, foundation walls, and top of window wells will be constructed to the regulatory flood protection elevation as outlined in the variance. 2 4) The additional flood mitigation measures outlined on the plans including the foundation sealant, sump pump, floor joist design, etc., will be constructed as outlined in the variance. 5) The basement will be located completely within the moderate risk floodplain. Staff recommends approving variance option #2 with the stated conditions based on the following reasons and has a proposed motion for the Board to consider: 1) The applicant has worked very closely with staff to mitigate the flood damage potential for this particular property, including the deed restriction measure to protect against living space, thus avoiding creating a life safety issue. 2) If the entire structure were in the moderate risk floodplain, a basement would be allowed. 3) The applicant has adequately addressed the relevant factors stated in City Code, Sec. 10- 28(e)(1-9). Chairperson Yadon opened the floor to questions by the Board. Board Member Gary Wockner asked for clarification on the term "existing structure FAR issue." Staff and the applicant responded that this relates to a log cabin (existing historical structure) at the back of the lot. The square footage of the cabin counts in the total Finished Area Ratio (FAR). Set -back and building height requirements were posing an issue. There is a limited amount for Finished Area Ratio (FAR) available on the lot size, thereby reducing the amount of finished area available for use in the new structure. Board Member Wockner addressed a question to staff on the deed restriction placed on this structure until such future point in time that it is removed from the floodplain by future Old Town Basin Master Plan improvements. Water Engineering and Resources Operations Manager Jim Hibbard responded that the Old Town Master Plan calls for a significant storm sewer down Magnolia Street that will likely remove a lot of properties in this area from the floodplain. The Magnolia Street sewer is in a 25-30 year timeline and somewhat higher in the ranking than other capital improvement projects. However, since it's not planned for within the next 5-10 years, the decision on this variance should not count on that project. Vice Chairperson Gina Janett noted that the restriction disallowing residents in the basement applies to the original owner, but is there a regulatory process in place to know that it won't be used for that purpose by a subsequent owner? What is the City's liability for granting this variance if there is a flood resulting in property damage or loss of life? Deputy City Attorney Carrie Daggett responded that there are two ways that the City will be able to enforce the restriction against current and future owners. As long as the house is there, the authority of the variance applies to it. Even a subsequent owner could potentially be found in violation of the floodplain code if they break one of the conditions outlined in the deed restriction, resulting in an illegal structure. The deed restriction is an extra layer of protection on file with the County. The City will have customary enforcement power if the terms of the variance are violated, and there will be both contractual means and regulatory means in place for enforcing the variance. The additional contractual means provide visibility to the public and subsequent property owners. From a liability standpoint, there are code provisions and language in place that are intended to reduce the chance that the City would in some way be held liable for violation of a floodplain variance. The deed restriction also includes language that similarly addresses any liability issues that may be asserted in the future against the City. Vice Chairperson Janett asked if deed restrictions are normally presented to the prospective buyer prior to the transaction. Ms. Daggett noted that the range of involvement by buyers in the pre -sale process can vary a great deal, and that in some instances where no financing is being used, a title company may not even be involved in a transaction. Where one is involved, the title company would likely identify the deed restriction by including it on the list of exceptions to coverage, which should be provided to the buyer prior to closing. Whether the buyer would make note of the deed restriction would depend on how informed or attentive the buyers were. Board Member Connor asked for clarification regarding the applicant's statements about limiting gas -fired appliances and equipment in the basement of the structure. Staff responded that the safety benefits from that type of restriction are not clear. The applicant clarified his line of thinking on this, indicating that if water gets into the basement, equipment becomes buoyant. In the case of a gas -fired furnace or water heater, it presents a potential fire hazard. He thought it was a risk avoided with choosing electric appliances. The applicant noted his willingness to have such a restriction added as a variance condition. Board Member Connor asked staff for input on such a condition. Ms. Hilmes-Robinson noted that they looked at it from the standpoint of damage potential, and concluded that either way, there is potential for damage and dollars at risk for ruining the equipment. There is some risk involved in a fire situation, but it wasn't a primary concern to staff in their initial evaluation. Ms. Daggett noted that, from the legal standpoint, there is no reason why restricting gas -fired appliances and sewer lines in the basement could not be added as conditions. Mr. Hibbard noted his agreement that restrictions against having a sanitary sewer line in the basement would mitigate a lot more risk than removing the gas -fired appliances from the scenario. Chairperson Yadon stated this can be part of any motion the Board chooses to offer and requested clarification from Ms. Daggett. If the Board chooses to develop a condition that the applicant or staff has not recommended, it should be based on a reasonable understanding that it was a reasonable and defensible condition to advance one of the goals in the Code, to avoid attaching additional unnecessary or improper conditions. Board Member Balderson asked for the definition of living space, a term used in the proposed variance condition. Ms. Hilmes-Robinson responded that it would be considered a space with any type of finishing to it, i.e. bathroom, bedroom, family room, etc. This basement is strictly for storage and equipment. Any type of remodel submitted for this space would be required to go through the building permit process for a close review. Board Member Balderson asked whether the ordinance and regulations are meant for life safety or property damage. Staff's primary concern is for life safety, and the secondary concern is alleviating risk for property damage due to how easily the basement can fill with water. Use of a sump pump is a tool to help, but it doesn't solve all the problems. Chairperson Yadon pointed out the potential for a scenario with someone living in the basement on an airbed, possibly with children in the space. Ms. Daggett noted the deed restriction prohibits finishing the basement, but also prohibits occupation or use of it as any type of living space. ll Included in the deed restriction is a provision establishing that the City has the right to do an inspection at any reasonable time to determine if someone is living in the basement. If occupants are found there, it would be a violation of the variance. Chairperson Yadon asked whether a ping pong table would constitute a violation. Ms. Daggett noted that a gray area would exist, and determining what constitutes occupation can be a challenge. Chairperson Yadon asked for clarification as to how staff considers the line on the flood map for this type of regulatory purpose. Ms. Hilmes-Robinson verified that they consider this the actual line. If they were to put the house all the way back behind the line shown on the floodplain map, there would be no floodplain restrictions and no need for variances. Any property owner can survey their property to demonstrate that their house is above that line. Two -foot elevations are used for creating the map. It's not an absolute. That's why we have the freeboard as a safety factor that addresses the limits of the flood elevation mapping to increase the likelihood that structures will be elevated as needed for the actual flood elevations. According to FEMA guidelines, the City is required to look at the nearest hundredth of a foot, even though there will never be another storm that produces these same results. However, in the regulatory world, a line must be identified. The applicant was invited to make a closing statement and declined. Board Member Connor moved that the Board approve the variance for 806 W. Magnolia St., with the stated conditions as recommended by staff and the additional condition restricting addition of a sewer line at any time, because based on the record it has been shown that 1) the variance is the minimum necessary, considering the flood hazard, to afford relief; 2) there is good and sufficient cause for the variance to be granted; and 3) the granting of the variance will not result in any increased flood heights, any additional threat to public safety or to public or private property, any extraordinary public expense, any nuisance or trespass, any fraud on or victimization of the public, or any conflict with existing local laws or ordinances. The motion was seconded by Vice Chairperson Janett. There was discussion following the motion. Board Member Wockner asked why staff did not recommend the restriction on sewer lines in the basement. Ms. Hilmes- Robinson responded that it wasn't brought up as part of staff's discussions of the variance. The Board voted following the last item of discussion, and the motion to grant the variance was unanimously approved. Boxelder Master Plan The Boxelder Master Plan is scheduled to go before Council at the May 27 Work Session. Staff is seeking direction from the Board to make certain they represent the thoughts of the Board when the plan is presented. Action is tentatively scheduled for the July 1 Council Regular Meeting. Planning and Development Manager Bob Smith provided an overview of the history and issues surrounding Boxelder Creek and neighboring Coal and Indian Creeks. These creeks create a floodplain where all three converge next to I-25 below Wellington. Boxelder has a long history of incidents with flood waters causing property damages, crop damages and deaths. There are 670 structures and about 5,000 acres in the floodplain. Many structures were built in the area before the floodplain was identified. Mr. Smith pointed out the relationship of Boxelder Creek to the Fort Collins city limits and growth management area. The floodplain on Boxelder Creek was updated in 2002, at the same time that the City-wide master plan was being done. The master plan was adopted in 2004 without recommending improvements to mitigate the flooding along Boxelder Creek. A stability analysis was performed on Boxelder Creek, including erosion buffer limits and improvements needed to mitigate damages. A regional alliance with Wellington and Larimer County was formed, resources were pooled to hire a consultant, and the master plan that is being presented was the result. The plan has been adopted by Wellington and Latimer County, and implementation planning is underway. Fort Collins has not adopted the master plan as yet until cost, fee and fair share discussions can take place. Latimer County submitted a Pre -Disaster Mitigation (PDM) Grant through FEMA for Clark Reservoir (a related improvement project) this year. Notification on the grant is expected in late May to early June. There may be an opportunity for a second grant for the Edson Detention Storage Site to eliminate the flows into Cooper Slough, if the grant program is still in place. The window of opportunity for this program is diminishing. The funds are becoming more competitive and, in some cases, are being earmarked for other projects. Larimer County is the lead agency that applied for the grant, and they are hoping this regional alliance can be created to receive the grant, and therefore take on the obligation of the local match. If City Council does not vote to proceed with the alliance, the County by itself probably doesn't have the local match and may have to turn down the grant. In that scenario, Wellington may decide to proceed on their own since they receive significant benefit. Board Member Wockner asked for clarification on estimate of damages. These are based on 100- year floods. The present worth figure represents a compilation of all floods, typically across 50 years, not just 100-year events or 2-year events. Based on feedback from technical and financial advisory committees, the alliance is recommending an alternative based on regional storage and conveyance. Mr. Smith provided an overview of Phase 1 and Phase 2 of the project. Phases 2 and 3 deal with infrastructure. The project would divert flow from Coal Creek to Clark Reservoir, and 100-year peak flow was portrayed with a map of before and after project volumes. The Edson site is in the Indian Creek vicinity. This project requires both sites to accomplish the end goals. Improvements have been sized to reduce the Wellington area floodplain and eliminate the flow along I-25, while retaining the flows of Boxelder Creek on its historic path. CDOT is opting out of being part of the alliance, but will be performing work on culverts along I-25. The alliance has deliberated carefully about communities that will benefit from the project without participating in it financially, such as Timnath. Mr. Smith covered potential funding sources. Board Member Connor would like all other options to be considered before looking at funding through bonds. It is envisioned that an Inter -Governmental Agreement (IGA) would be composed of representatives from each entity: Wellington Town Board, City Council, Latimer County and citizen representatives. The IGA sets the foundation for exact numbers to gain commitment of all parties. A rate study is currently underway and is looking at imperviousness across the whole G9 basin for the Phase 1 improvements (generation of storm water determines what fees are assessed to single-family homes versus commercial customers). Wellington intends to have a storm water fee in place to address the Coal Creek issue but also help solve other local needs. Fort Collins Utilities would not increase rates; it would use an apportionment in the budget of existing fees collected. Vice Chairperson Janett asked about the undeveloped land in the area that will be moved out of the floodplain where housing or other development may eventually occur. Raw land is not charged fees, and this initiative would provide the option for development and new structures. Mr. Hibbard responded that when undeveloped land develops, it would be required to pay plant investment fees and then also begins paying monthly fees. Rate of development can determine how quickly loans are paid off. If a property develops in the area before the improvements are in place, the development would have to comply with floodplain regulations. In addition, the developer would have to channelize the approximately 3,000 cfs flows along I-25 via culverts, including every road crossing. The flow split would continue to happen, and properties in the area would have to figure out how to channelize the overflow. Our current strategy with Larimer County and Wellington envisions forming this authority with the County Commissioners, and our City Council would retain authority to review rates. The County wants to have a receptacle to put the money into. If the County does not receive the grant, we still want to form the regional entity as a basis for cooperation and a way to formalize working together on studies and alternatives. Staff would like to know the Board's concerns, and what they'd like staff to look more closely at before we go any further. The concerns of the Board may well be reflective of the same concerns that Council may have. Board Member Johannes Gessler is concerned about Timnath's absence in the plan. From the technical side, staff has a very convincing reason to proceed. Board Member Wockner noted that this is framed as an effort to prevent damage. What part of the discussion was about bringing developable land out of the floodplain? Mr. Smith responded that it was recognized as one of the benefits. We could not address the problems in Cooper Slough without that occurring. There were also discussions at the Council level on economic development and the I-25 corridor zoning plan. Board Member Wockner feels that aspect should be brought forward and readily identified as the primary reason for this project. Chairperson Yadon noted residents who have not yet benefited from stormwater programs are paying the fees. This would be the first opportunity for the County to participate, but overall, health and safety are driving this project. Mr. Hibbard noted that the purpose of the stormwater program is not narrowly defined in the City Code as only protecting existing structures. It is there to protect natural habitat, economic blight and facilitate development. Board Member Wockner suggested inserting a slide with the number of acres of developable land if this project goes forward, citing a development focus. Board Member Connor also would like the safety factor portrayed, i.e. history of deaths by drowning when flows have crested. It would also be good to break out what is being facilitated by Phase 1 versus the rest of the phases. Board Member Balderson would clarify who is going to facilitate these projects and staff costs associated with administration of the project. Vice Chairperson Janett asked about the recommendations of the Natural Resources Board. Mr. Smith confirmed that adoption was recommended as long as the project was compatible with the City plan. They also recommended the properties in the floodplain pay higher fees than properties outside the floodplain. The group has deliberated on a method for basing that additional cost, i.e. land use, etc. Chairperson Yadon noted the public might not grasp that development can still take place without going forward with this plan. Board Member David Pillard asked how this ranks with other potential projects and stormwater needs in terms of population density. Mr. Hibbard addressed this question. If this is being looked at as limited to a City project, it would not be a high priority. However, when ranking projects, Fort Collins Utilities has always talked about the opportunity for regional cooperation and public and private partnerships. The City's share of the local match for the grant at $200,000-300,000 might be better spent elsewhere if this were solely a City project. However, the chance to leverage it with the FEMA grant and also engage the County to at last establish a stormwater utility is a benefit to the City that outweighs the option to spend it elsewhere. While this project is limited to this particular basin, it sets an important precedent for bringing the County along to participate in other areas in the future. Board Member Wockner asked if we are approaching the Boxelder floodplain differently than the policy we use to deal with the Poudre River. Buffer zones on the Poudre River are 300 feet, and buffers on natural creeks are 100 feet. The plan for Boxelder Creek itself is to correct some stability issues and leave it as natural as possible. There are differences in floodplain regulations between the Poudre River and streams. It's a different type of flood; therefore a different emphasis is placed on the river. The Poudre River floodplain regulations are stricter than those for Spring Creek, Fossil Creek and Boxelder Creek. Council felt the risks are higher with the river. Mr. Smith clarified we're not sending the flood elsewhere; we are storing the water and releasing it at a controlled rate. This item will be on the June Water Board agenda in preparation for the Council regular meeting on July 1. Staff will ask for a Board recommendation at that time. Board members are free to share ongoing thoughts and additional remarks in the next two weeks via e-mail sent to the entire Board. Feedback in the next two weeks would be helpful to staff as they prepare for the May 27 Work Session presentation. Chairperson Yadon noted that in sharing feedback in this manner, opinions expressed are those of individual Board members. The Board has not made any official recommendation on the item at this time. CWD Update Board Member Balderson will send out the Engineering Committee report on this topic. If you'd like to reschedule Kevin Gertig's presentation for a future Board meeting, please let Robin Pierce know for the agenda. Strategic Issues Discussion This item is pended to a future meeting. Committee Reports Chairperson Yadon asked that notes from the committee meetings be circulated by the respective chairs if Board feedback was needed on any items. CoWARN Agreement Regulatory and Government Affairs Manager Carol Webb is asking the Board to recommend the adoption of a resolution to Council authorizing the City Manager to enter into an intergovernmental agreement with the Colorado Water/Wastewater Agency Response Network (CoWARN). CoWARN is a statewide agreement to formalize utilities providing mutual aid to other utilities during times of emergency. It was activated for the first time during the salmonella outbreak in Alamosa. A steering committee was formed among various interested cities and the State Department of Health. Participation is strictly voluntary and based on each utility's capacity to assist. Participating utilities will be reimbursed per a FEMA rate schedule by the member requesting assistance. Fort Collins Utilities would like to formalize our participation with this agreement. Benefits are two -fold, soliciting donation of resources by the utility, as well as the opportunity to receive support and resources in an emergency. Board Member Pillard asked whether Fort Collins has had a prior need for aid that went unmet because we were not participating in this group. There haven't been any issues specific to water/wastewater needs. However, other events, such as the 1997 flood, have prompted the need for a more organized support system. In the event of this flood, we received assistance, but it involved a lot of steps to pull it together at the same time emergency response to the event was key. There are also day-to-day cooperative operations that take place between area utilities on a smaller scale. From the City Attorney's standpoint, this agreement would avoid delays in utilities providing the necessary assistance. It also helps the City respond more quickly and removes the need to delay action while a written agreement is prepared and finalized. Within the City, there will be several designated officials who can authorize activation of the network, likely Carol Webb, Steve Comstock and Kevin Gertig. Board Member Balderson recommended we think through our process for activation. 91 Vice Chairperson Janett moved that the Board recommend that Council authorize the City Manager to enter into the CoWARN Mutual Aid and Assistance Agreement. Motion was seconded by Board Member Wockner, and it passed unanimously. Tri-City Annual Meeting Utilities Executive Director Brian Janonis announced that Fort Collins is hosting the Tri-City Annual Meeting with the counterpart Boards and other invited guests from Loveland, Greeley, Fort Collins -Loveland Water District and Elco Water District on Thursday, May 22, 6-8:30 p.m. at the Fort Collins Country Club. Robert Renner, AWWARF Executive Director, will be speaking on "Strategic Planning and Organizational Development for Water Utilities." Draft EIS of NISP Proiect Vice Chairperson Janett noted that the draft EIS on the NISP Project is due out tomorrow, and the Board has discussed reviewing it as a group. In terms of timing, Mr. Janonis prefers the Board do this simultaneously with staff's review of the report. The document will be available online. Vice Chairperson Janett will canvas the Board by e-mail to determine an evening to have a Committee meeting of the whole in the next week or two for the purpose of determining how the Board wants to respond, and she will coordinate with Ms. Pierce to handle communication to the Board and public posting. Chairperson Yadon noted that everyone is free individually to read and comment on your own. The Board has been asked by Council Liaison David Roy to provide him the Board's input on the topic. The comment period is 90 days. Mr. Janonis offered for Utilities to make CDs for the Board members. All Board members will be invited to the initial review meeting. Following that, Vice Chairperson Janett will meet with the Committee chairs. Staff Reports Treated Water Production Summary and Outlook Reports are in the board packet. Other Business None Future Agenda Items None Adiournment The meeting was adjourned at 7:41 p.m. Abbi n Pl.lML Robin Pierce, Water Board Staff Liaison 10