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HomeMy WebLinkAboutPlanning And Zoning Board - Minutes - 03/15/2018Jeff Schneider, Chair City Council Chambers Jeff Hansen, Vice Chair City Hall West Jennifer Carpenter 300 Laporte Avenue Emily Heinz Fort Collins, Colorado Michael Hobbs Ruth Rollins Cablecast on FCTV Channel 14 & William Whitley Channel 881 on Comcast The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. Regular Hearing March 15, 2018 Chair Schneider called the meeting to order at 6:00 p.m. Roll Call: Carpenter, Hansen, Heinz, Hobbs, Rollins, Schneider and Whitley Absent: Rollins Staff Present: Gloss, Yatabe, Tatman-Burruss, Everette, and Gerber Chair Schneider provided background on the board’s role and what the audience could expect as to the order of business. He described the following procedures: • While the City staff provides comprehensive information about each project under consideration, citizen input is valued and appreciated. • The Board is here to listen to citizen comments. Each citizen may address the Board once for each item. • Decisions on development projects are based on judgment of compliance or non-compliance with city Land Use Code. • Should a citizen wish to address the Board on items other than what is on the agenda, time will be allowed for that as well. • This is a legal hearing, and the Chair will moderate for the usual civility and fairness to ensure that everyone who wishes to speak can be heard. Agenda Review Planning Manager Gloss reviewed the items on the Consent and Discussion agendas, stating that all items will be heard as originally advertised. Planning and Zoning Board Minutes Planning & Zoning Board March 15, 2018 Page 2 of 7 Public Input on Items Not on the Hearing Agenda: None noted. Consent Agenda: 1. Draft Minutes from January 18, 2018 P&Z Hearing 2. Draft Minutes from February 15, 2018 P&Z Hearing 4. Continuance for Harmony Commons Lot 5 Child Care Center to March 29, 2018 Public Input on Consent Agenda: Frank Bruster, owner of MidiCi, 3581 E. Harmony Rd. - Stated the reasoning for wanting to pull the Continuance for Harmony Commons Lot 5 Child Care Center are due to changes to the parking lot structure to half the number of spaces as originally proposed. Chair Schneider reiterated that the consent item was for continuance, not discussion. He asked if Mr. Bruster wanted to continue to have the item pulled. Mr. Bruster stated he would come back and speak during the March 29th hearing and that the item could stay on consent. Chair Schneider did a final review of the items that are on consent and reiterated that those items will not have a separate presentation unless pulled from the consent agenda. Member Carpenter made a motion that the Planning and Zoning Board approve the Consent agenda for the March 15, 2018 Planning and Zoning Board hearing as originally advertised. Member Whitley seconded the motion. Vote: 6:6. Discussion Agenda: 3. OIL AND GAS LAND USE CODE CHANGES Project Description: Updates to Land Use Code Sections 3.8.26 (Residential Buffering) and 5.1.2 (Definitions) as they relate to development near existing oil and gas operations, including updates to setbacks and disclosure requirements. Recommendation: Approval Secretary Gerber reported that Harv Teitelbaum of the Sierra Cub, expressed concerns about the health risks and safety hazards related to fracking. Kevin & Adrian Krause questioned the setback requirements for plugged/abandoned wells, and expressed concerns about health and safety risks, lack of long-term data, and potential reductions in property values. This email included an article about an oil spill near Berthoud. Laura Shaffer supports the proposed Land Use Code changes. Marsha Lotz commented that it would be important to hear from Prospect Energy regarding soil and groundwater testing. Max Moss, with HF2M Colorado, and Angela Milewski, with BHA Design, expressed concerns about impacts of the proposed changes on the Montava development project, particularly for plugged and abandoned wells. They proposed alternative changes that they would support. Nancy Matkin supports the code changes, except the reduced setback for plugged/abandoned wells, and would also like to know exactly where the well near her is located. Staff and Applicant Presentations Planner Everette, Senior Environmental Planner, gave a brief overview of this project in relation to the code changes that will be considered and how they relate to the buffer standards around existing oil and gas operations. Additional information is available for discussion if needed. Planning & Zoning Board March 15, 2018 Page 3 of 7 Clarifying Questions Member Carpenter, asked Planner Everette to revisit the Montava piece in regard to a school and what would happen. Planner Everette explained that the property is currently owned by the Poudre School District and is intended for a new High School. The buffer for high occupancy building units would be measured from the edge of the oil and gas operation site to the nearest corner of an occupied building. Currently this would not prevent a school from being built on this site, if the buffer were to apply, it would prevent an edge of the school building from being located in that buffer. Montava is partnering with the School District to determine the exact location. Member Carpenter asked if the School District would have to work around this so that we did not have any piece of the school in the zone. Planner Everette explained the complicating factor with schools is the review process which is different than the typical Type I, Type II processes. Public Input (3 minutes per person) Vickey McLane, 1607 Ticonderoga Dr., supports a 500ft. setback for plugged and abandoned wells. Mrs. McLane stated it is not known by the City or COGCC how many wells and their locations have been plugged and abandoned and if they have been plugged properly. Mrs. McLane feels that all plugs fail sooner or later, so we are not dealing with absolute permanence on these plugged and abandoned wells. It is important that we have a maximum setback to protect human health and safety and she feels the records are very clear about the dangers of not having an adequate setback. Gayla Maxwell Martinez, 3378 Liverpool St., asked what the reasoning that is the data or evidence on which these proposed setback distances are based? She is not asking for an explanation of the legal or conventional precedent, but such precedence does not constitute good planning for our current realities or recognition of new knowledge and understanding that might guide us to better choices for our community’s future. Quoted Dr. Sandra Steingraber. Staff Response Planner Everette responded to Ms. McLane. Requirements we have built into the alternative compliance that would help us to identify the exact location of the wells, this would be a requirement for the developer to locate any wells on their property including the ones that we are aware of and pinpoint with GSP the exact location of those wells. We would also require investigation in to when and how those wells were plugged using any historic research and data that we can find, as well as any site investigations that may need to occur. There are methods such as ground penetrating radar that can be used to assess what is happening underground. Soil, ground water and soil gas testing will also be required to determine whether any impacts are occurring. Alternative compliance requires a point-in-time snapshot of what is happening on-site in terms of testing, and does not require further ongoing monitoring, which is something that could be considered. Planner Everette responded to Ms. Martinez. Regarding the scientific reasoning for the setback distance and concerns about fracking, impacts to human health and the impacts of oil and gas operations on air quality and various pollutants that can impact air quality and public health. Those studies that have been done to our knowledge have been done for active oil and gas operations. We do not dispute any of the findings that were stated. One of the stated goals of these code changes would be to incentivize developers to work with operators to remove active oil and gas operations and to permanently plug and abandon those wells so that those air quality impacts would not be occurring in proximity to our residents within the City limits. Articles have been reviewed and reasoning distance for setbacks come from the Colorado Oil and Gas Conservations Commissions standards for their new wells and matching those standards. Board Questions / Deliberation Member Hobbs asked Planner Everette to explain what other cities in Colorado are doing in terms of instituting reciprocal setbacks. Planner Everette responded that it is variable along the Front Range and that the City looked at the best practices. It is inconsistent and a majority did not have reciprocal setbacks or the number varied widely, some matched the States requirements, some were narrower and some communities have adopted wider requirements. The only community found to have a setback from plugged and abandoned wells is Longmont at 150’. Planning & Zoning Board March 15, 2018 Page 4 of 7 Member Hobbs asked what the process would be if the State mandates setbacks that are different from what the proposed code change will be. Will we be back to square one? Planner Everette stated that the City of Fort Collins would increase if the State increased. Member Hobbs asked for clarification regarding the State not having a setback for plugged and abandoned wells. Planner Everette responded that is correct. Member Hobbs asked, what if they instituted a setback? Planner Everette responded that it covers both active and plugged and abandoned wells and that the default buffer would be 500’ unless a developer sought alternative compliance. Member Heinz asked about legal liability and the City. Mr. Yatabe responded that it is a very fact specific inquiry. It is difficult to answer but generally the City has quite a bit of governmental immunity along those lines, but there are exceptions and we would have to examine it at that time. Member Heinz asked if in general there could be liability back on the City? Mr. Yatabe responded that it depends on what is happening, and that he could not say that there is not potential liability, but again it is a very fact-based inquiry. Member Hansen spoke to the map of Montava regarding two wells near the site that are not on the property in question, if these are abandoned wells that need testing and monitoring set up, I do not see the incentive that you were hoping for because the owner of that well is not affected by that property, has that been thought through at all? Planner Everette pointed out the two wells and stated that the developer would be impacted by the buffers around those wells even though the wells are not on their property, the developer would still have an incentive to try to work with the adjacent property owner to do the site investigation. They would need to determine if it is in their best interest. Member Hansen asked, so they just must hope that their neighbor is willing to cooperate with them? Planner Everette responded yes. Member Hansen asked if the standard would have to apply if it were just outside the City limits? Planner Everette responded yes, if a well was affecting the development property then we would be considering those wells that are outside the City limits. Member Whitley asked about monitoring. I believe we are asking for the installation of permanent monitoring for the future use. How easy would it be to convert that to active monitoring in perpetuity if there is a problem with say methane leaking? Planner Everette spoke to soil and ground water monitoring on an annual basis, this is not a continuous monitoring. Air quality monitoring can be continuous and this is what Longmont is doing. Member Whitley asked if Longmont was the only community doing this? Planner Everette responded that Longmont is the only community that she is aware of that has a comprehensive program where they are evaluating all their plugged and abandoned wells in particular and that is something the City has chosen to fund. Member Whitley assumes that they have more plugged and abandoned wells than we do. Do you have an estimate of the liability of the cost of putting in air monitoring around Fort Collings? Planner Everette responded that Longmont has a comparable number of wells to Fort Collins. Planner Everette asked for a moment to look up the costing. Chair Schneider asked Planner Gloss or Mr. Yatabe asked about the setbacks at time of final plat and if existing developments would not have these setbacks put onto them. For instance, if an individual wanted to add onto their home, could they with the new setbacks in place? Planner Everette responded that the setbacks would apply to any project that had to go through the development review process. No, they would not be held to the new setback standards, if they were submitting for an unplatted project, then the setbacks would follow the Land Use Code. Member Schneider asked for clarification in that an existing home could be added to and would not have to comply because of the setbacks at the time because you already have a building there. Planner Everette deferred to Planner Gloss and Mr. Yatabe. Mr. Yatabe spoke to the intent and that this was for projects moving forward, however; he would like to speak to Planner Everette and staff for further clarification. Chair Schneider asked if there is an existing daycare or in-home daycare within the new setback, are they ok or would you consider them non-conforming? Planner Everette would like to get and research for clarification. Planner Gloss responded that he believes this would be a legal non-conforming use, that it is an existing condition that new regulations are creating the non-conformity, although we should be clarifying in the code change to make certain that the language is crystal clear. Chair Schneider talked of his concern with school sites and PSD development. Example, they do not have to follow our setbacks, correct? They follow their own rules and regulations. Planner Gloss, as you recall, they are bound by the Site Plan advisory review which follow State statutes and the three criteria are based on the location character and extend of the development relative to our adopted plans. That is the charge of the Board when that development plan would come in for the School District. It is hard to say until you have something in front of you, Planning & Zoning Board March 15, 2018 Page 5 of 7 exactly how you would apply this criteria in that case. Member Schneider asked if there have been any conversations with PSD to ask if they will comply? Planner Everette responded that there is not been any direct outreach to PSD. Member Schneider asked if this was time pressing issue or should we get some clarifications on the code language before we make a recommendation to Council to make sure that we have our information that we need, since we will potentially be the governing body on interpreting these rules and regulations for future work, is this something that we might want to consider tabling to get better clarification? Planner Everette responded that this is not something that has urgency that is being mandated. This would be up to the Board to consider. Member Schneider addressed the Board regarding their thoughts to any uncertainty or needed clarification. He does not want to push this forward without having full understanding. Member Whitley shares Member Schneider’s concerns, he would like to have more time to look at it. Member Heinz asked if there was a sense of wanting to get it confirmed before we get more development proposals out in this area. Planner Everette responded that it is certainly a potential and that there is one development proposal that is actively in development review at this time that these standards would not apply to that has wells on its site that will be coming before the Board in the next couple months. The Montava project is the largest development project that we are aware of that has wells on the property, as well as adjacent properties with wells that could be affected but do not have any pending development proposals. Member Schneider asked for clarification. Wouldn’t they still have to comply because nothing has been built at this point, even if they are in the process now? Planner Gloss responded that once you have a completed development application in, you are subject to the standards that are in affect at the time of submittal. Member Schneider felt that he had heard that this would be retroactive to all development plans. Planner Everette responded that this would apply to any development plans moving forward that are submitted once this code change was adopted. For instance, if Montava were to be submitted next week, these code changes would not be in effect, they would be subject to our current code requirements. Member Hobbs shared concerns with PSD. What could we accomplish with negotiations? Would they not want to look at this on a case-by-case basis, or do you think that we could negotiate an acceptance of these setbacks in general? What do you think we could get there? Chair Schneider - As an example the City of Fort Collins put into a mandate, no more cellphone towers on City owned property, then PSD followed suite with that. I would rather move forward knowing that PSD is wanting and willing to comply with these also instead of having us go through a review and then get challenged. Member Carpenter asked if this was something that if Poudre School District was not going to do, would we consider not doing it? They either are onboard or not. Member Schneider does not disagree, but he feels it would be nice to have that communication factor established and set before we move forward, especially if there are other clarifying questions that need to be addressed. Member Heinz – Does it make sense to recommend that Council talk to PSD. Member Schneider replied no and that staff would talk to PSD. Member Schneider does not understand why communication with PSD did not happen this time, especially when we knowingly have a site with impact. Member Heinz does not feel she needs the information to make a decision. Member Carpenter feels the same as Member Heinz, she is ready to move forward with a decision, no real reason to put if off any longer, except for the legal clarifications. Member Hobbs asked Planner Everette, up until these code changes are adopted, the current status quo for the Montava project would be the State regulation or 500’ from an abandoned well, is that correct? Planner Everett responded no, If Montava were subject to the current code requirements the required buffer would be 350’, because it would be under the Fort Collins code, not the State. This would apply to both active and plugged and abandoned wells unless they pursed a modification. Member Hobbs spoke of his concern over waiting was that something could come in that would have a smaller radius from these wells from Montava. Given that we have 350” now along with a potential of having a modification like Waters Edge, Mr. Hobbs does not see any problem in delaying so that the issues could be worked out. Member Whitley asked Planner Everette if she had found the cost estimates from Longmont. She did not have that information on hand but provided alternative cost scenarios. Member Heinz asked Planner Everette to pull up previous slides and discuss the buffers and incidents that have happened in the past. Member Heinz asked Planner Everette what the approximate area that the homes were built away from abandoned or plugged wells. Planner Everette responded that in the Trinidad case the home was built directly on top of the well and that they were not aware of the well. The well was not properly plugged. In Firestone, the well was not Planning & Zoning Board March 15, 2018 Page 6 of 7 directly adjacent to the home but rather the incident was caused by a flow line leading from a well that was not plugged and abandoned, it was a shut-in well that had not been properly disconnected from the flow line. Member Heinz asked what a shut-in well was. Planner Everette explained that a shut-in well has been temporarily turned off, has not been plugged, has not been abandoned, however, there is an option for it to be reactivated if needed. Member Carpenter asked if there were monitors available for individual homes. Planner Everette has not yet followed up on that question. Member Carpenter requested the Planner Everette provide that information. Member Heinz asked about data collected from Longmont. Planner Everette stated it was private as they have yet to publish publicly. Member Whitley asked how hard it would be to change the wording to reflect Longmont’s air quality monitoring? Planner Everette responded that it would not be difficult to add that to the code changes, that you would just need to evaluate what the consequence of that would be and insure that the Board agrees on that. Member Whitley stated he had asked for the numbers, but that they were not available. Chair Schneider stated that it might be another good reason to postpone, to gather some more information, and that he would feel uncomfortable adding this as a requirement without having background. Member Heinz asked what kind of background he needed? Member Schneider responded that between cost and effectiveness, who does it, etc. Member Heinz asked if they also measuring effectiveness? Planner Everette responded by asking, if they are measuring the effectiveness of the monitors themselves? Member Heinz responded yes to Member Schneider clarified, yes, how effective are the monitors, the cost, how far do they read? Planner Everette responded that staff can get that information, we do not have that information currently. Member Schneider stated that just having that background would let us know how far away we are monitoring, what the other parameters that we are looking at and how much do they really protect. Member Whitley asked if Longmont is keeping this information confidential and how open would they be to share any of this information with us confidentially? Planner Everette could not speak to how open they would be to share confidential information; however, they will be releasing the information to the public once they have finalized their reports. Planner Everette did let the Board know that there is a presentation that the City of Longmont will be coming to the City of Fort Collins to give on March 19th that will showcase their program and maybe in that presentation might be some of the desired information. Member Whitley asked staff if they could put off consideration of this until after that meeting? Member Whitley is very interested in attending the presentation. Member Heinz asked the members of the Board if they could postpone until special meeting? Member Schneider stated that the special session scheduled for March 29th has already been posted and could not be added at this time. It would have to be discussed at April’s meeting. Member Whitley asked if postponing this for one month would be that big of a problem? Planner Everette responded that there is no issue except Council, etc. However, if the Board wishes to postpone, then they should. Member Hobbs asked Planner Everette if the people from Longmont were coming up to present to the Fort Collins Air Quality Advisory Board or the Natural Resources Advisory Board? Planner Everette stated that they are not coming up to present to those advisory boards, but that Jason Elkins was invited by the League of Women Voters to come give the presentation to the broader community. The presentation will take place at the Coloradoan at 11:30 a.m. Member Hobbs asked if it will be televised on Channel 14? Planner Everette responded that she did not believe there are plans to televise. This is not a City sponsored event. The Coloradoan may film it. Planner Gloss commented to the Board that they have the discretion to move it to the April 19th hearing or you could just continue it without a specific date. The notification would be less of an issue because it is a legislative item.