HomeMy WebLinkAboutMINUTES-05/15/2007-RegularMay 15, 2007
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, May 15, 2007,
at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered
by the following Councilmembers: Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy, and Troxell.
Staff Members Present: Atteberry, Krajicek, Roy.
Citizen Participation
Bob Viscount, 1104 West Magnolia, spoke regarding Vivian Armendariz's difficulties in receiving
certification to use Dial -A -Ride services. An appeal hearing regarding Ms. Armendariz's conditional
certification was held on May 8th where she was informed that her certification had been changed
from conditional to unconditional when she uses her manual wheelchair, not her electric one. No
formal record was kept of the appeal hearing and Ms. Armendariz was informed there was no other
appeal left to her. He urged Council to again review the certification process.
The following persons spoke in support of a Resolution urging withdrawal of U.S. troops from Iraq:
Eric Fried, 4255 Kingsbury Drive
Jonathan Taylor, 3630 Capital Drive
Bill Timpson, 331 Park Street
Don Heyse, 1842 Corriedale
Ken Tharp, 601 Birky Place
Joe Kissell, 913 West Oak
Lynne Hull, 510 Whedbee
Eliza Carney, 2215 Shooting Star Lane
Mary Ackerman, 327 Mathews
Delores Williams, 415 Mason Court
Zach Heath, 408 1/2 East Elizabeth
Marla Swan, 824 Mathews
Frank Gibson, 826 Ashford Lane
Joe Stern, 421 South Howes
Steve Raymer, 806 Whedbee, Pastor of the Mennonite Fellowship of Fort Collins
Colleen Devi -Goetz, 417 East Thunderbird
Cheryl Distaso, 135 South Sunset
Maury Albertson, 604 Monte Vista
Nancy York, 130 S. Whitcomb
Joel Nevison, 1219 Mountain
Debra Stockholm, Fort Collins resident
May 15, 2007
Larry Bruns, 444 Huntington Hills Drive, spoke against adoption of a Resolution urging withdrawal
of U.S. troops from Iraq.
Caryl Schonbrun, 6327 Westchase Road, thanked City Manager Atteberry and Mayor Hutchinson
for advocating for her on the issue of her chemical sensitivities and herbicide spraying in her
neighborhood and asked for greater awareness of the wide -spread use of herbicides and the effects
on the health of the community.
Susan Williams, 400 Impala Circle, asked Council to consider providing more Dial -A -Ride services
as it is an essential service provided to many in the community.
Nancy Jackson, 3249 Silverthorne Drive, Director of Disabled Resource Services, stated the month
of May has been proclaimed by Governor Ritter as Multiple Chemical Sensitivity and Toxic Injury
Awareness Month.
Steve Frawley, 1217 South Bryan, spoke regarding Dial -A -Ride certification concerns and the
difficulties he encountered during the certification process.
Citizen Participation Follow-up
Mayor Hutchinson stated it was not appropriate for Council to consider a Resolution urging
withdrawal of U.S. troops from Iraq. Each citizen has a U.S. Representative or Senator who is
responsible for issues such as this. In contrast, Council is a non -partisan organization that represents
citizens on City issues and acts to govern Fort Collins. Councilmembers are evaluated by citizens
on their knowledge and positions on local issues, not national issues. Diverting Council time to
debate a national issue, such as the war in Iraq, lessens the amount of time Council has to delve into
local issues.
Councilmember Roy stated Council had, in the past, discussed national issues and it was appropriate
for this Resolution to be considered.
Councilmember Manvel stated Council's vote on a Resolution will not help to solve the issue of the
war in Iraq and the appropriate step was for each citizen to write his/her national representatives to
express his/her opinions. It was not appropriate for Council to address this issue.
Councilmember Ohlson stated his concerns that the Dial -A -Ride certification process had become
too severe and was excluding too many people. He had concerns with the methods of pesticide
applications and questioned whether it was a Code violation when pesticides were applied when
small children were in close proximity to the area being treated. The war in Iraq is a partisan issue
and Council is a non -partisan entity. Discussing the war in Iraq is a very partisan issue and the
Resolution was not appropriate for Council to consider.
Mayor Hutchinson stated Dial -A -Ride does go beyond ADA minimums. Users who lived outside
City limits were "grandfathered" in to provide service they were receiving and requested a staff
report on the current certification process.
PJ
May 1 S, 2007
Councilmember Brown stated it was important to recognize the sacrifices by military personnel both
past and present and to honor them.
Agenda Review
City Manager Atteberry recommended postponement of Item #7 Second Reading of Ordinance No.
062, 2007, Amending Chapter 26 Article IV of the City Code to Revise Wastewater Pretreatment
Program Requirements, for staff to respond to questions that have been raised.
CONSENT CALENDAR
6. Second Reading of Ordinance No. 061, 2007, Appropriating Unanticipated Revenue in the
Transit Services Fund for Use with Existing Appropriations for the Pose of Providing
Programming Aimed at Relieving Urban Con esg tion.
This Ordinance, unanimously adopted on First Reading on May 1, 2007, appropriates
funding the City has received from Congestion, Mitigation & Air Quality (CMAQ) to fund
three air quality related projects in 2007. This funding is a reallocation of a portion of the
2007 Transportation Demand Management (TDM) Program — funds not currently required
due to the reduction in scope of the TDM Program. The revised CMAQ funding will aid in
funding three projects which are:
The Bicycle Coordinator Program (FC Bikes) - an existing Program that seeks to
encourage citizens to utilize bicycling as their preferred method of sensible
transportation through the implementation of special events and campaigns that
emulate the many facets of bicycling,
Transfort Test Ride Marketing Program - a new marketing campaign to promote
transit use among the City's largest employers, and
Marketing for Transfort's three new routes - a campaign aimed at increasing public
awareness of the new transit fixed routes available in 2007.
Second Reading of Ordinance No. 062, 2007, Amending Chapter 26 Article IV of the City
Code to Revise Wastewater Pretreatment Program Requirements
This Ordinance changes City Code provisions in order to provide specific City Code support
for two programs currently in place, one new issue and some definition changes to align the
Code with current EPA language. The regulating of mercury waste into the wastewater
system, and the regulating of RV waste discharged into the wastewater system are programs
that are currently in place. The proposed zero discharge changes are an outcome of the annual
EPA Industrial Pretreatment Program audit during which the EPA recommended the use of
zero discharge permits to monitor certain businesses and directed the City to update some
definitions.
Ordinance No. 062, 2007, unanimously adopted on First Reading on May 1, 2007 modifies
May 15, 2007
the following wastewater industrial discharge provisions of the City Code:
Section 26-206 Definitions
Grab Sample — As directed by the EPA, the definition will be updated to be
consistent with the EPA definition. This modification will be more restrictive as a
time limitation will be specified where one did not previously exist.
Zero -Discharge - A definition of zero -discharge permit will be added to Code.
RV Wastewater - A definition of RV wastewater will be added to Code.
Section 26-318 Sampling and analysis
As recommended by the EPA, the required period of records retention for industrial
pretreatment will be changed from three to five years.
Section 26-343 Discharge limitations
Language will be added to provide the General Manager with authority to request
records from dental practices and obsolete language concerning date of mercury
program initiation will also be deleted. This modification does not increase
requirements on dental offices but does clarify the General Manager's authority. This
modification also provides a second disposal option for dentists that is not currently
available. It allows amalgam waste to be disposed of at licenced hazardous waste
facilities provided it has been labeled appropriately. Existing Code limits amalgam
waste disposal to recycling facilities.
Sections 26-308 and 26-309
Code will be modified to state that, when applicable, a zero -discharge permit maybe
issued as the result of an industrial discharge permit application. The City Code
modification provides support for existing permit application requirements.
8. Second Reading of Ordinance No. 063, 2007, Amending Certain Sections in Chanter 7 of
the City Code Relating to the Board of Elections.
This Ordinance, unanimously adopted on First Reading on May 1, 2007, amends the City
Code to conform the Code to the City Charter, as amended by the voters on April 3, 2007,
and to accurately reflect the duties of the Board of Elections.
Second Reading of Ordinance No. 064, 2007, Authorizing the PurchasingAgent to Enter into
an Agreement to Finance Vehicles and Equipment Through Lease -Purchase
This Ordinance, unanimously adopted on First Reading on May 1, 2007, authorizes the
Purchasing Agent to enter into a lease -purchase financing agreement with Koch Financial
Corporation at 4.26% interest rate. The cost of the items to be lease -purchased is
$1,070,000. Payments at the 4.26% interest rate will not exceed $119,367 in 2007. Money
for 2007 lease -purchase payments is included in the 2007 budget. The effect of the debt
position for the purpose of financial rating of the City will be to raise the total City debt by
0.22 %. A competitive process was used to select Koch Financial Corporation for this lease.
May 15, 2007
10. First Readingof Ordinance No. 065.2007. Appropriating Prior Year Reserves in the General
Fund for Cultural Development and Programming Activities and the Fort Collins Convention
and Visitor's Bureau.
This Ordinance appropriates lodging tax revenues that were in excess of 2006 budgeted
lodging tax receipts to Cultural Development and Programming ("CDP"), Visitor Events,
and the Convention and Visitors Bureau ("CVB") accounts. Lodging tax revenue for 2006
was estimated to be $610,521 and the 2006 budget appropriated an equal amount. However,
actual receipts totaled $841,586 for 2006 and the difference of $231,065 has not been
appropriated.
11. First Reading of Ordinance No. 066, 2007, Appropriating Proceeds from the Refunding
Certificates of Participation ("COPs"). Series 2007 Representing Assignments of the Right
to Receive Certain Revenues Pursuant to an Amended and Restated Lease Agreement dated
as of May 1. 2007, Between the Fort Collins Leasing Corporation and the City of Fort
Collins for the Purpose of Refundingthe he 1998 and 1999 COPS and for Costs of Issuance of
the 2007 Refunding COPS.
The Finance Department monitors the interest rate environment for opportunities to refinance
the City's debt and achieve savings for the organization. This Ordinance would appropriate
in the Fort Collins Leasing Corporation Debt Service Fund, $14,595,000 of proceeds from
the 2007 Refunding COPS issued for the purpose ofrefunding the 1998 and 1999 Certificates
of Participation that were originally issued for the construction of the City's Mason Street
Parking Structure, the 215 North Mason Office Building and an off -site Police Facility and
the payment of costs associated with the 2007 refunding transaction. This refunding resulted
in $997,419 in savings to the City over the next 11 years. The refunding was also structured
to realize $759,907 of those savings in fiscal year 2007.
12. First Reading of Ordinance No. 067, 2007, Amending Section 2-462 of the City Code to
Allow for Inclusion of a Member of the Larimer County Board of Commissioners on the
Board of Directors of the Downtown Development Authority.
This Ordinance amends the City Code to increase the number of members on the Downtown
Development Authority Board of Directors from nine to eleven, and designates that one of
the additional seats will be occupied by a member of the Larimer County Board of
Commissioners.
13. Items Relating to the North College Avenue Improvements Proiect.
A. First Reading of Ordinance No. 068, 2007, Authorizing the Conveyance of Two
Parcels of Real Property on North College Avenue to the Department of
Transportation, State of Colorado.
B. First Reading of Ordinance No. 069, 2007, Authorizing the Conveyance of a Parcel
May 15, 2007
of Real Property at North College Avenue and Willow Street to the Adjacent
Property Owner.
C. First Reading of Ordinance No. 070, 2007, Appropriating Unanticipated Revenue in
the Neighborhood Parkland Fund To Record the Transfer of Real Property from the
Neighborhood Parkland Fund to the Capital Project Fund - North College Avenue
Improvements Project.
In 2003, the City completed the North College Avenue Improvements Project. This Project
included improvements to paving, sidewalks, pedestrian lighting, crosswalks, and drainage
in the area between North College Avenue and Jefferson Street. These Ordinances will
complete the final transactions needed for this project.
14. First Reading of Ordinance No. 071, 2007, Vacating a Portion of Right-of-way as Dedicated
on the Plat of Rigden Farm Filing One.
The Rigden Farm development site is located south of Drake Road, east of Timberline Road
and west of Ziegler Road. As a part of Rigden Farm, Filing One, it was anticipated that an
unnamed street would extend westerly beyond Kansas Drive between Custer Drive and
Limon Drive. The street stub for this anticipated street was dedicated with Rigden Farm,
Filing One. Rigden Farm, Twelfth Filing Brooklyn Park Row Houses for which an
Administrative Hearing was held on February 12, 2007 shows that the street stub is no longer
needed and will be removed. Therefore, the right-of-way for the street stub is no longer
necessary and is proposed for vacation at this time.
15. First Reading of Ordinance No. 076. 2007 Authorizing the Lease of Property at the Fort
Collins -Loveland Municipal Airport to Alliance Equipment Company RLLLP for the
Storage of Construction Equipment and Supplies.
Alliance Equipment Company, LLC, wishes to lease two acres of Airport property for
outdoor storage of construction equipment and supplies. Alliance has been leasing the same
Airport property for the last three years; this is a new lease for the same area. The
Agreement is for a five-year period, beginning July 1, 2007. The new ground lease is $.10
per square foot per year; increased from $.06 per square foot per year. The rental rate is
adjusted annually by the CPI. As additional rental Alliance is required to construct an 800
foot length of chain link security fence along the east side of the leased parcel. The lease
contains adequate restrictions to prevent any incompatible land use related to Airport
operations. The Agreement will provide a continuation of this revenue source for the
Airport. Because of its length, the lease document is on file with the City Clerk's Office and
a copy will be provided upon request.
16. Resolution 2007-045 Approving the Second Amendment to the Intergovernmental
Agreement for the Joint Operation of the Fort Collins -Loveland Munici an 1 Airport
Adoption of this Resolution changes the composition of the Airport Steering Committee
2
May 15, 2007
from six members (two City Mayors, two City Managers, the Airport Manager and the
Airport Liaison) to four members (two City Mayors and the two City Managers) and adds
a liaison for each City to be appointed by the respective City Manager.
17. Resolution 2007-046 Approving the Refurbishment of Equipment for Traffic Operations as
an Exception to the Competitive Procurement Process.
This Resolution will authorize the purchase of materials, equipment and services needed to
repair and refurbish the TMT paint striper as an exemption to the use of competitive bid or
proposal as provided in Section 8-161(d).
18. Resolution 2007-047 Approving Expenditures from the Art in Public Places Reserve
Account in the Cultural Services and Facilities Fund to Commission an Artist to Create an
Art Element for the Streets Facility Project.
This Resolution approves expenditures of $24,000 for design, materials, installation and
contingency for a project with the artist team of Tim Upham and Lisa Cameron to create a
sculptural element for the Streets Facility Project.
19. Resolution 2007-048 Adopting the Recommendations of the Cultural Resources Board
Regarding Fort Fund Disbursements.
The guidelines for the Cultural Development and Programming and Tourism Programming
accounts (Fort Fund), adopted and approved through the City Manager's office, created a
three -tiered funding system for organizations that apply for grants from Fort Fund. Tier #1
was established as an annual programming fund for organizations whose primary purpose
is to present three or more public events annually. These groups may apply for funding from
Tier #1 each April. Tier #2 allows organizations that are not eligible for Tier #1 support to
apply for funding of events that are not fund-raising in nature and do not generate more than
$5,000 in proceeds after expenses. Tier #3 allows organizations that are not eligible for Tier
#1 support to apply for funding of events that generate more than $5,000 in proceeds after
expenses and are fund-raising in nature. Applications for support from Tier #2 and Tier #3
are accepted each January and June.
20. Resolution 2007-049 Adopting a 401 A Monev Purchase Retirement Plan and a 457 Deferred
Compensation Plan for the City Manager, City Attorney and Municipal Judge
Adoption of this Resolution creates a separate 401A money purchase and a separate 457
deferred compensation plan for the City Council's direct employees (City Manager, City
Attorney, and Municipal Judge), so that they can be more efficiently administered. The
Resolution also provides for some ICMA-RC recommended amendments to the plans to
increase flexibility as permitted by changes in the tax code.
The Employer Contribution on behalf of the Council Employee does not change with the
adoption of these two separate plans.
May 15, 2007
***END CONSENT***
Ordinances on Second Reading were read by title by City Clerk Krajicek.
6. Second Reading of Ordinance No. 061, 2007, Appropriating Unanticipated Revenue in the
Transit Services Fund for Use with Existing Appropriations for the Purpose of Providing
Programming Aimed at Relieving Urban Congestion.
8. Second Reading of Ordinance No. 063, 2007, Amending Certain Sections in Chapter 7 of
the City Code Relating to the Board of Elections.
9. Second Reading of Ordinance No. 064, 2007, Authorizing the Purchasing Agent to Enter into
an Agreement to Finance Vehicles and Equipment Through Lease -Purchase.
Ordinances on First Reading were read by title by City Clerk Krajicek.
10. First Reading of Ordinance No. 065, 2007, Appropriating Prior Year Reserves in the General
Fund for Cultural Development and Programming Activities and the Fort Collins Convention
and Visitor's Bureau.
11. First Reading of Ordinance No. 066, 2007, Appropriating Proceeds from the Refunding
Certificates of Participation ("COPs"), Series 2007 Representing Assignments of the Right
to Receive Certain Revenues Pursuant to an Amended and Restated Lease Agreement dated
as of May 1, 2007, Between the Fort Collins Leasing Corporation and the City of Fort
Collins for the Purpose of Refunding the 1998 and 1999 COPS and for Costs of Issuance of
the 2007 Refunding COPS.
12. First Reading of Ordinance No. 067, 2007, Amending Section 2-462 of the City Code to
Allow for Inclusion of a Member of the Larimer County Board of Commissioners on the
Board of Directors of the Downtown Development Authority.
13. Items Relating to the North College Avenue Improvements Project.
A. First Reading of Ordinance No. 068, 2007, Authorizing the Conveyance of Two
Parcels of Real Property on North College Avenue to the Department of
Transportation, State of Colorado.
B. First Reading of Ordinance No. 069, 2007, Authorizing the Conveyance of a Parcel
of Real Property at North College Avenue and Willow Street to the Adjacent
Property Owner.
C. First Reading of Ordinance No. 070, 2007, Appropriating Unanticipated Revenue in
the Neighborhood Parkland Fund To Record the Transfer of Real Property from the
Neighborhood Parkland Fund to the Capital Project Fund - North College Avenue
Improvements Project.
May 15, 2007
14. First Reading of Ordinance No. 071, 2007, Vacating a Portion of Right-of-way as Dedicated
on the Plat of Rigden Farm Filing One.
15. First Reading of Ordinance No. 076, 2007, Authorizing the Lease of Property at the Fort
Collins -Loveland Municipal Airport to Alliance Equipment Company, RLLLP, for the
Storage of Construction Equipment and Supplies.
24. Items Relating to the Completion of the Spring Cycle of the Competitive Process for
Allocating City Financial Resources to Affordable Housing and Community Development
Activities Utilizing the Federal Community Development Block Grant (CDBG) Program and
HOME Investment Partnership (HOME) Program Grants, and the City's Human Services
Program.
C. FirstReadingof OrdinanceNo. 072,2007, Appropriating Unanticipated Revenue and
Authorizing the Transfer of Appropriations Between Projects in the Community
Development Block Grant Program.
D. First Reading of Ordinance No. 073, 2007, Appropriating Unanticipated Revenue in
the HOME Investment Partnership Program.
26. First Reading of Ordinance No. 074, 2007, Appropriating Prior Year Reserves and
Unanticipated Revenue Designated for Library Improvements in the Capital Improvement
Expansion Fund and Prior Year Reserves in the General Fund for Transfer to the City's
Capital Projects Fund to Construct a Southeast Branch Library.
28. First Reading of Ordinance No. 075, 2007, Appropriating Unanticipated Revenue from the
Fort Collins Regional Library District for Continuation of Library Services for Fiscal Year
2007.
Councilmember Manvel made a motion, seconded by Councilmember Ohlson, to adopt and approve
all items not postponed on the Consent Calendar and to consider Item #7 Second Reading of
Ordinance No. 062, 2007, Amending Chapter 26 Article IV of the City Code to Revise Wastewater
Pretreatment Program Requirements on June 5th. Yeas: Councilmembers Brown, Hutchinson,
Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Staff Reports
City Manager Atteberry stated the Bike Fair, held in late April at the Downtown Transit Center, had
over 500 members of the community attend. He thanked D.K. Kemp, Bicycle Coordinator, for his
work both on the Fair and in managing the Bike Ride Program.
May 15, 2007
Councilmember Reports
Councilmember Poppaw thanked staff for its support.
Items Relating to the Completion of the Spring Cycle
of the Competitive Process for Allocating City Financial Resources
to Affordable Housing and Community Development Activities
Utilizing the Federal Community Development Block Grant (CDBG)
Program and HOME Investment Partnership (HOME) Program
Grants, and the City's Human Services Program Adopted on First Reading_
The following is staff's memorandum on this item.
"FINANCIAL IMPACT
The Community Development Block Grant (CDBG) Program and HOME Investment Partnership
(HOME) Program provide Federal funds from the Department ofHousing and Urban Development
(HUD) to the City of Fort Collins which can be allocated to housing and community development
related programs and projects, thereby, reducing the demand on the City's General Fund Budget
to address such needs. City funds for this item have been appropriated as part of the Human
Services Program in December 2006
EXECUTIVE SUMMARY
A. Resolution 2007-050 Approving the Programs and Projects that Will Receive Funds from
the Federal Community Development Block Grant (CDBG) Program and the City's Human
Services Program.
B. Resolution 2007-051 Approving the Fiscal Year 200 7 HOME Investment Partnerships For
the City.
C First Reading of Ordinance No. 072, 2007, Appropriating Unanticipated Revenue and
Authorizing the Transfer ofAppropriations Between Projects in the Community Development
Block Grant Program.
D. First Reading of Ordinance No. 073, 2007, Appropriating Unanticipated Revenue in the
HOME Investment Partnership Program.
These resolutions and ordinances will complete the spring cycle of the competitive process for
allocating Cityfinancial resources (CDBG/HOME/Human Services funds) to affordable housing
programs/projects and community development activities.
BACKGROUND
Resolution 2007-050 establishes which programs and projects will receive funding with CDBG
10
May 15, 2007
funds for the FY 2007 Program year, which starts on October], 2007, and which programs will
receive funds from the City's Human Services Program. The CDBG Commission presents a list of
recommendations as to which programs and projects should receive funding.
Resolution 2007-051 establishes the major funding categories within the HOME Program for the
FY 2007 Program year, which also starts on October 1, 2007. Specific projects for the use of
HOME funds will be determined in November as a result of the fall funding cycle of the competitive
process for the allocation of the City'sfinancial resources to affordable housing programs/projects
and community development activities.
The following table summarizes the amount and sources of available f nds:
AMOUNT
SOURCE
$1,034,986
FY 2007 CDBG Entitlement Grant
18,500
CDBG Program Income
37,958
CDBG Reprogrammed/Unprogrammed (Carryover)
64,000
FY 2007 HOME Grant or Administration
335,000
Human Services Program
$1 490 444
1 Total Fundinz Available
The CDBG Commission presents recommendations as to which programs and projects should
receive funding from the available funding sources presented above. The following tables present
the allocations recommended by the Commission to the City Council within each major category:
PLANNING AND ADMINISTRATION
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
PA-1 City of Fort Collins
$64, 000
$64, 000
$0
HOME Administration
PA-2 City of Fort Collins
$210, 697
$210, 697
$0
CDBG Administration
The CDBG FY 2007 Entitlement Grant and Program Income totals $1, 053, 486. HUD regulations
limit a maximum of20%ofthesefundsforPlanning andAdministrativepurposes,or$210,697. The
recommended amount of $210,697 represents all of the maximum 20% allowed. The amount of
CDBGfunds beingproposedfor administrative purposesforFY2007 is $1, 609less than the amount
used in FY2006. The high percentage for administrative purposes is due to a $2,772 reduction in
the City's FY 2007 Entitlement Grant amount. The HOME FY2007 Grant totals $640,931. HUD
regulations limit a maximum of 10%for Administrative purposes, or $64,093.
11
May 15, 2007
AFFORDABLE HOUSING AND PUBLIC FACILITIES
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
HO-1 City of Fort Collins—
$200,000
$200,000
$0
Home Buyer Assistance
HO-2 Fort Collins Housing
$81,923
$81,923
$0
Corporation — 366 E.
Mountain Avenue
Rehabilitation
HO-3 CARE Housing —
$200,000
Withdrawn by
N/A
Provincetowne Phase I
Applicant
Development
PS-4 Habitat for Humanity
$50, 000
$50, 000
$0
—Land Acquisition
HO-5 Neighbor to Neighbor
$35,700
$35,700
$0
—Energy Conservation
Rehabilitation for
Ponderosa, Clearview, and
Crabtree Pro ernes
PF-1 City of Fort Collins,
$22,164
$22,164
$0
on Behalf of River Song
Waldorf School — 906 E.
Stuart Street Building
Upgrades
PF-2 City of Fort Collins,
$20,000
$20,000
$0
on Behalf of Foothills
Gateway — 400 Woods Street
Backvard Accessibility
All funding recommendations in the Affordable Housing and Public Facilities category are in the
form of a "Due on Sale Loan + 5% Simple Interest. "
PUBLIC SERVICE
Applicant
Project/Program
Funding
Request
Commission's
Recommendation
Unfunded
Balance
PS-1 Education and Life
$20,000
$20,000
$0
Training Center (ELTC):
(CDBG grant)
Employment Skills Training
PS-2 Dental Care
$24,511
$24,511
$0
Assistance Program:
(HSP grant)
Women's Resource Center
RC
12
May 15, 2007
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
PS-3 Springfleld Court
$20,000
$20,000
$0
Early Learning Center
(CDBG grant)
(SCELC): Sliding Scale Fee
Tuition Assistance
PS-4 PSDICSUIPVHS:
$14,400
$0
$14,400
Community Organizing to
Reach Empowerment (Core)
Center
PS-5 Elderhaus: Therapy
$20,400
$20,400
$0
Center Activity Program(HSP
rant
PS-6 Respite Care: Sliding
$20,000
$20,000
$0
Scale Fee Tuition Assistance
CDBG rant
PS-7 Hope Infant &
$16, 000
$0
$16, 000
Children's Center Sliding
Scale Fee Tuition Assistance
PS-8 B.A.S.E. Camp:
$35,506
$35,506
$0
Sliding Scale Fee Tuition
(CDBG grant)
Assistance
PS-9 Rehabilitation and
$35,000
$25,000
$10,000
Visiting Nurse Association
(HSP grant)
(RVNA): Home Health Care
Scholarship Assistance
PS-10 Volunteers ofAmerica
$19,622
$19,622
$0
(VOA): Home Delivered Meal
(HSP grant)
Program
PS-11 Homelessness
$35,000
$35,000
$0
Prevention Initiative (HPI):
(HSP grant)
Emergency Rent Assistance
PS-12 CASA: Harmony
$8,902
$0
$8,902
House Visitation Center
Program Support
PS-13 Food Bank for
$14, 719
$14, 719
$0
Larimer County: Kids Ca e
HSP grant
PS-14 Project Self-
$22, 000
$22, 000
$0
sufficiency (PSS): Preparing
(CDBG grant)
Single Parents for Living
Wage Jobs
PS-15 Neighbor to Neighbor
$55,290
$55,290
$0
(N2N): Comprehensive
(HSP grant)
Housing Counseling
PS-16 Neighbor to Neighbor
$15, 000
$15, 000
$0
(N2N): Emergency Rent
(HSP grant)
Assistance
13
May 15, 2007
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
PS-17 Lorimer Center for
$20, 000
$0
$20, 000
Mental Health (LCMH):
Mental Health Services for
Jail Diversion
PS-18 Disabled Resource
$20, 718
$20, 718
$0
Services (DRS): Access to
(HSP grant)
Independence ATI Program
PS-19 Crossroads
$46,800
$40,900
$5,900
Safehouse: Advocacy
(HSP grant)
Program
PS-20 Catholic Charities
$45,000
$31,357
$13,643
Northern: Shelter and
(CDBG grant)
Supportive Services
PS-21 Catholic Charities
$15,000
$0
$15,000
Northern (CCN): Senior
Services
PS-22 United Day Care
$60,500
$54,000
$6,500
Center (UDCC): Sliding
(HSP grant)
Scale Fee Tuition Assistance
PS-23 Northern Colorado
$19,000
$9,160
$0
Aids Project (NCAP): Client
(CDBG grant)
Services and Homelessness
$9,804
Prevention Program
HSP rant
The CDBG FY 2007Entitlement Grant and Program Income totals $1,053,486. HUD regulations
limit a maximum 15% of these funds, or $158,023, for use in the Public Services category. The
City's Human Services Program adds $335, 000 for use in the category, for a total of $493, 023 of
available funding.
A summary of the Commission's funding recommendations by category is presented in the following
table:
Recommended Funding
% of Total
Category
$ 274,697
23.3%
CDBG and HOME Administration
367,623
31.2%
Affordable Housin
42,164
3.6%
Public Facilities
493,023
41.9%
Public Services
$1 177 507
100.0%
Total
The CDBG Commission has recommended that $1,177,507 of the available funding amount of
$1,490,444 be allocated leaving a balance of $312,937. The Commission recommends that all of
the funds from all sources be utilized except for $312,937 from the FY 2007 CDBG Entitlement
Grant. The $312, 697 will be carried over and will be available for allocation in the fall cycle of the
competitive process. "
14
May 15, 2007
Ken Waido, Chief Planner, stated the two resolutions and two ordinances under consideration
completed the spring cycle of the competitive process used by the City to allocate financial resources
to Affordable Housing and the Community Development Block Grant programs. This cycle, $1.5
million is available from two federal programs and two City programs. This spring 32 applicants
requested slightly less than $1.5 million. The review process included a review of affordable
housing proposals by the Affordable Housing Board who then prepared a listing of priority projects
for the CDBG Commission and to Council. The CDBG Commission conducted personal interviews
with each of the applicants. The CDBG Commission forwarded a proposal to Council to allocate
approximately $1.2 million. All of the affordable housing requests received are recommended for
full funding. Both of the Public Facilities requests are recommended for full funding and many of
Public Service requests are recommended for full funding. The Public Services category does have
some federal limitations as to how much money can be allocated to that program and so not all of
requests from that category received full funding.
Susan Voss, lead case manager at Northern Colorado AIDS Project, expressed thanks for housing
funding provided to the Project.
Helen Sommersall, Catholic Charities Regional Director, thanked the CDBG Commission for
providing funding to aid the homeless.
Tina Yoke, Foothills Gateway Program Coordinator, expressed gratitude for the funds provided to
assist with services for disabled adults.
Candace Mayo, Executive Director for Fort Collins Habitat for Humanity, thanked CDBG
Commission and Council for consistent support that will allow eight houses to be built this year.
Nancy Jackson, Disabled Resource Services Director, thanked CDBG and Council for continued
support for these programs that serve very low income people.
Sherry Pelton, Respite Care Executive Director, thanked staff and the CDBG Commission for
consistent support of child care for children with developmental disabilities.
Pat Parker, Crossroads Safehouse, expressed thanks for funding provided for 15 years.
Linda Preston, BASE Camp, a before and after school child care program, thanked Council for
continued support of this program. It continues to see an increase in demand for its services and the
partnership with the City provides a needed service for the community.
Cheri Rodriguez, Project Self Sufficiency Associate Director, thanked Council and CDBG for
providing support for single parents to enable them to achieve economic independence.
Councilmember Manvel asked if the Hope Infant and Children's Center is eligible to apply again for
funding in the fall cycle. Bob Browning, CDBG Chairman, stated the Hope Center will be able to
apply next year, but there will not be any Public Service funds available for the fall cycle.
15
May 15, 2007
Councilmember Roymade amotion, seconded by Councilmember Brown, to adopt Resolution 2006-
050.
Councilmember Ohlson stated the City needs to contribute more funds to these programs that aid
those in need in the community. He suggested the administrative costs for the CDBG and
Affordable Housing Programs be taken from the General Fund and not from the federal funds
provided.
Councilmember Manvel thanked staff, the CDBG Commission and all the agencies for the work
done to aid the less fortunate in the community. He would like to explore other avenues to provide
more funds for the agencies.
Mayor Hutchinson stated the current Resolution approves the distribution of federal and HOME
Program funds. He asked if any of the funds come from the General Fund. City Manager Atteberry
stated none of the funds currently come from the General Fund.
Councilmember Roy stated the CDBG grant funds greatly improve the community and there were
indications at the national level that more funding for CDBG grants would be approved.
Councilmember Ohlson clarified that taking the adminstrative costs for CDBG and Affordable
Housing from the General Fund instead of using federal dollars to cover those costs will affect the
General Fund in the 2008-2009 budget. At the April retreat, Council stated it wanted to do more
about taking care of the most vulnerable in the community and that involves dollars.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Manvel,
Ohlson, Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt Resolution
2006-051. Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy and Troxell.
Nays: None.
THE MOTION CARRIED.
Councilmember Ohlson made a motion, seconded by Councilmember Manvel, to adopt Ordinance
No. 072, 2007 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson,
Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Councilmember Troxell made a motion, seconded by Councilmember Poppaw, to adopt Ordinance
No. 073, 2007 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson,
Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
16
May 15, 2007
Items Relating to the Foothills Mall Urban Renewal Plan, Adopted.
The following is staffs memorandum on this item.
"FINANCIAL IMPACT
The Foothills Mall Urban Renewal Plan would open the Mall area to the types offinancial benefits
that have occurred in the downtown from the operation of the Downtown Development Authority,
that is, the use of tax increment financing (TIF) to help stimulate private investment to encourage
redevelopment activities. At this time, the best estimate of tax increment must be presented as a
range of potential increment that may be generated based upon the expected level of private
investment made by General Growth Partners (GGP), the owners of the Mall. The range of tax
increment to be generated is estimated to be $52-$92 million based upon an investment of $60-$I00
million by GGP.
In addition to specific financial benefits of tax increment financing, there are generalized benefits
of an economically healthy Mall, characterized by overall higher property values, rents, and retail
sales in the area as a whole. The Mall has experienced declining sales and increasing vacancies
in recent years. If the growth rate of sales tax collected at the Mall had tracked with the sales tax
growth rate of the overall City since 2002, then the annual sales tax collected at the Mall in 2006
would have been approximately $4.5 million. However, actual collections in 2006 were
approximately $3.3 million. The loss of sales tax revenue means less funding to support ongoing
operations for core City services like Police, Fire, Transportation, and Parks and Recreation, as
well as a decline in funding to Open Space and the Building on Basics capital campaign. An
increase in retail activity at the Mall will help reverse the trend and help prevent further leakage of
sales tax dollars from the City of Fort Collins to other retail destinations in the region.
EXECUTIVE SUMMARY
A. Resolution 2007-052 Adopting the Foothills Mall Existing Conditions Survey and Making
Findings Determining an Area Within the City of Fort Collins to Be a Blighted Area and
Appropriate for Inclusion in an Urban Renewal Project.
B. Resolution 2007-053 Making Findings and Approving the Urban Renewal Plan for the
Foothills Mall.
Before the City Council can adopt an Urban Renewal Plan for any part of the City, the Council must
determine the plan area to be a slum, blighted area, or a combination thereof, and designate such
area appropriate for an urban renewal plan. Adoption of Resolution 2007-052 approves the
Foothills Mall Existing Conditions Survey (a.k.a. "Blight Study') and declares the Mall area
blighted according to the criteria in State Law governing Urban Renewal Authorities. Adoption of
Resolution 2007-053 will approve the Foothills Mall Urban Renewal Plan which will assist in
elimination of the slum and blight conditions within the Mall area. The major purpose of
establishing the Urban Renewal Plan for the Mall area is to allow the use ofproperty tax increment
financing (TIF) to fix infrastructure problems that hinder redevelopment. Tax increment financing
is typically a useful financial assistance tool to be used in areas where the private sector is not
capable of showing a return on investment due to excessive costs of correcting site issues,
infrastructure deficiencies, or other issues that hinder redevelopment.
17
May 15, 2007
BACKGROUND
Colorado Revised Statutes provide for the establishment of "urban renewal areas"; primarily, for
the purpose of using property tax increment financing (TIF) to 'fix" infrastructure problems that
hinder redevelopment. The Statutes describe the findings that Council must make to approve an
urban renewalplan; and, provides a technical definition ofthe conditions that the Council mustfind
present to declare an area an urban renewal area. There is also a process that must be followed
in approving an urban renewal plan.
The Foothills Mall originally opened in the fall of 1973. For the first couple of decades of
operation, the Mall was a major regional retail offering that attracted shoppers from northern
Colorado, southeastern Wyoming, and southwestern Nebraska. The Mall underwent expansions in
1980 and again in 1989, but has experienced declining sales and increasing vacancies in recent
years with increasing competition from larger and newer retail ventures in northern Colorado. The
recent loss of two major anchor stores, Mervyn's and JC Penney, at the Mall has left larger areas
of un- and under-utilized retail space, parking areas, and other areas.
The 34 year old Mall has significant site and infrastructure problems; problems that present
significant barriers (and costs) to the economic health of the Mall as well as future redevelopment
including site layout, traffic circulation, obsolescent buildings and building systems, inadequate
public facilities and utilities, and vandalism; conditions that will only get worse over time if
significant steps are not taken; problems that will require a public/private partnership to resolve.
Tax increment financing by way of an urban renewal authority is a tool that is commonly used
throughout Colorado for a variety of economic development these purposes. Timnath, Loveland
(Centerra), Westminster/Thornton and many other front range communities use TIF as a principal
tool for funding public improvements related to redevelopment and non -redevelopment sites. TIF
has proven an effective tool by these communities to overcome significant public improvement costs
to facilitate development to assist in producing a healthy economy in a competitive regional market.
Given the lack of economic tools at the City's disposal and the effectiveness of TIF, staff believes
that utilizing TIF is the most effective tool to help keep the downtown, North College, Foothills Mall
and other targeted redevelopment areas competitive with these other communities. The obvious
advantage of using TIF is that public assistance toward the development is driven by enhancements
to the assessed valuation of the property and are funded through property tax revenues versus sales
tax revenues.
City staff has been working with General Growth Partners (GGP) for the past several years
regarding redevelopment of the Mall. The overall redevelopment of the Mall has been a high
priorityfor the City and community. All indications are that GGP is now ready to move forward
with their redevelopment plans. However, the costs ofredevelopment are significant. The use ofthe
property tax increment is key to GGP's redevelopment plans for the site and for making the Mall
competitive in the regional retail economy. The use of other public and private financing
mechanisms is also anticipated.
The Foothills Mall is specifically identified in many principles and policies of CityPlan, the City's
comprehensive plan. A major goal of City Plan is to increase economic activity in the Mall area,
and where necessary, provide the stimulus to redevelop. The Mall is a "targeted redevelopment
119
May 15, 2007
area " (see attached map). As a targeted redevelopment area, the Mall is an area of the City where
general agreement exist that development and redevelopment is beneficial. Also, redevelopment of
the Mall conforms to principles and policies to remedy infrastructure deficiencies, provide for the
strategic use ofpublic investment, and maintain and expand the City's revenue base.
In addition to the policies of City Plan, redevelopment ofthe Foothills Mall is identified in the City's
Economic Action Plan as the "single most important retail redevelopment initiative in the City. "
This plan also identifies establishment of an urban renewal plan as the "most effective manner for
the City to assist in the redevelopment" of the Mall.
Foothills Mall Existing Conditions Survey
The purpose of the Foothills Mall Existing Conditions Survey is to evaluate and determine whether
the Mall area constitutes a "blighted area " as defined in the State's Urban Renewal Statutes. The
survey (copy attachedas "ExhibitA " to Resolution 2007-052) waspreparedby aprivate consultant,
Terry Ware Associates of Denver, and evaluated a wide range of conditions in the Mall area. The
evaluation included on -site reconnaissance, interviews, and photographic documentation involving
City of Fort Collins staff from Advance Planning, Transportation, Engineering, Utilities, Fire
Authority, Police, and Building Inspection departments. The study area includes properties within
the general area bounded by:
East Swallow Road on the north, Stanford Road on the east, East Monroe Drive
(extended) on the south, and South College Avenue on the west.
The study area encompasses 72 total acres, consists of twelve real estate parcels. The area is
approximately 100% developed.
The evaluation of the area identified that conditions relevant to six (6) of the eleven (11) statutory
"blightfactors" were readily apparent and evident within the area, based upon direct observation
and review ofplanning documents and that the area, either wholly or in part, is appropriate to be
defined as a "blighted area " qualified for urban renewal plan remedies and activities as permitted
in the statute because the presence of only four (4) factors is the threshold for a finding of "blight. "
However, while evidence of "blight factors " were apparent in the study area, this does not mean
that every parcel and building exhibited evidence of the factors --some of the factors are evident on
a spot basis; some on a linear basis along streets and utility lines; and some on an area basis, in
vacant, neglected, or deficient areas within the Mall area. But when the factors are considered
cumulatively, the entire study area is affected.
Foothills Mall Urban Renewal Plan
The Foothills Mall Urban Renewal Plan (copy attached as "Exhibit A" to Resolution 2007-053) is
an urban renewal plan prepared for the Fort Collins Urban Renewal Authority and the City of Fort
Collins and describes the framework for certain public undertakings constituting urban renewal
projects and other authorized activities under the Urban Renewal Law for the Mall area. The
boundary of the area to which the Plan applies includes those properties located within the same
area studied in the Foothills Mall Existing Conditions Survey.
19
May 15, 2007
Development and redevelopment in the Mall area is anticipated to occur incrementally over a
substantial period of time. The primary focus of the redevelopment efforts at the Mall will be to
replace the two vacant anchor tenants, update the common areas of the mall, and provide new
offerings that are more in line with the demands of today's consumers. The redevelopment efforts
can be broken into seven distinct areas that will be completed as obstacles to the program are
overcome and market forces dictate. The seven areas can be roughly described as follows:
1. replacement ofMervyn's with a f ture anchor tenant,
2. replacement of JC Penney with a future mini -anchor tenant,
3. an update of the interior common areas of the Mall,
4. addition of an exterior facing streetscape along Foothills Parkway,
5. redevelopment of the Shops at Foothills,
6. redevelopment of the former Perkins site, and
7. redevelopment of The Plaza at Foothills.
Referrals and Notification Requirements
Before the Council can officially approve the Foothills Mall Urban Renewal Plan, State law on
Urban Renewal Authorities requires the Council to formally submit the Plan to the Planning and
Zoning Board for its review and recommendation as to the Plan's conformity with City Plan, the
City's Comprehensive Plan, which is the general plan for development of the municipality as a
whole. The Council is also required to formally submit the Plan to the Poudre School District
Board of Education, and the Larimer County Board of Commissioners for their review.
On April 17, 2007, the City Council adopted Resolution 2007-040 submitting the Foothills Mall
Urban Renewal Plan, and its related Existing Conditions Survey, to the Planning and Zoning Board,
the Poudre School District Board of Education and the Larimer County Board of Commissioners.
A separate notification was sent to the Larimer County Assessor's Office. Although there is no
provision in the statute requiring that the Board of Education and/or the Larimer County Board of
Commissioners to comment, in writing or otherwise, on the Plan, the school district and the county
were notified that their comments would certainly be welcome.
The City has received information from Frank Lancaster, CountyManager, that the Larimer County
Board of Commissioners unanimously support the Foothills Mall Urban Renewal Plan. Noresponse
has been received from the Poudre School District.
Prior to the Council's hearing on the adoption of the Plan, thirty days notice must be published in
a newspaper ofgeneral circulation in the City describing the time, date, place and purpose of the
hearing, and generally identifying the urban renewal area covered by the Plan, and shall also
outline the general scope of the urban renewal project under consideration. This notice was
published in the Coloradoan newspaper on April 6, 2007. Furthermore, the City must take
reasonable efforts to provide written notice by mail of the public hearing to all property owners,
residents, and owners of business concerns in the proposed urban renewal area at their last known
address of record at least thirty days prior to the hearing. Such written notice shall contain the
same information as is required to be published in the newspaper. This written notice was mailed
on April 4, 2007.
20
May 15, 2007
Planning and Zoning Board
At its regular monthly meeting on April 19, 2007, the Planning and Zoning Board adopted a
resolution (copy attached) on a vote of 6 to 1, stating that in the Board's opinion, the Foothills Mall
Urban Renewal Plan was in conformance with City Plan.
The Board also passed, on a vote of 4-3, a motion to ask the Council to review the Foothills Mall
Existing Conditions Survey in detail and to reassess which elements that constitute "blight" are
truly present at the Mall. Asa result of the motion, staff worked with the consultant to revise the
Existing Conditions Survey to identify the six factors as discussed above. A draft copy of the
Board's minutes is attached.
STAFF RECOMMENDATION
Staff recommends adoption Resolution 2007-052 which will approve the Foothills Mall Existing
Conditions Survey and declare the Foothills Mall area "blighted "according to the criteria in State
Statutes governing Urban Renewal Authorities; and staffrecommends adoption ofResolution 2007-
053 which will approve the Foothills Mall Urban Renewal Plan to assist in the elimination of the
slum and blight conditions within the Mall area. "
Ken Waido, Chief Planner, stated the area under consideration is 72 acres bounded by Swallow Road
on the north, Stanford Road on the east, Monroe Drive on the south, and College Avenue on the
west. The Mall area is predominantly owned by General Growth Properties. There are two other
property owners, Macy's and Sears. The Existing Conditions Survey is required by State law and
must be approved by Council to declare the area as blighted, according to criteria in State law. This
step is necessary before an Urban Renewal Plan can be approved. Blight is defined in State law with
specific conditions to be met. The State law has 11 factors that can be used to determine if the area
is appropriate for an Urban Renewal Plan. The Existing Conditions Survey found the area had 7
factors that met the definition of blight. The Urban Renewal Plan is proposed to help facilitate the
redevelopment of the Mall area. It will remedy those conditions that impair redevelopment and will
help implement the City's Comprehensive Plan. City Plan identifies the Mall area as a targeted
redevelopment area. The Urban Renewal Plan is not development plan. Any redevelopment project
that comes forward will go through the City's Development Process. The URP is written to comply
with various provisions in State law. It helps implement City Plan as well as the City's Economic
Action Plan.
The purpose of the Urban Renewal Plan is to identify the area and to set it up for tax increment
financing. Once the area is designated by Council, the County Assessor will freeze the assessment
on the Mall area property so the taxing entities that currently receive revenue from the property taxes
levied on the Mall area will continue to receive the current level of taxes. As a redevelopment plan
comes forward, the County Assessor will work with the developer to determine how much additional
tax will be assessed on the property, based on the redevelopment effort. The difference between the
existing tax level and the reassessed level is the increment. The increment is then used to leverage
financing, either in terms of a loan or bond issue, to do whatever is approved by the Urban Renewal
Authority to assist in the redevelopment efforts.
21
May 15, 2007
The Planning and Zoning Board is also involved in this process by providing Council the Board's
opinion as to whether or not the URP conforms with City Plan. On April 19th, the Planning and
Zoning Board conducted a public hearing and approved, on a 6-1 vote, a resolution stating that, in
the Board's opinion, the URP does conform with City Plan. The Board also approved a secondary
motion asking Council to look at the Existing Conditions Survey before approving the URP. The
requirements for public notification during this process have been met. Letters were sent to other
taxing entities, such as Larimer County and Poudre School District, notifying them of the proposal.
A letter has been received from Karen Wagner, Chairperson of the Larimer County Board of
Commissioners, indicating the County Commissioners' support for the Mall Urban Renewal Plan.
Staff recommends adopting both Resolutions to approve the Existing Conditions Survey and the
Urban Renewal Plan.
Adam Tritt, a representative for General Growth Properties, owner and developer of Foothills Mall,
stated GGP has undertaken a number of efforts over the past three years to determine the best way
to reposition the Mall. There are several challenges with redeveloping the Mall. It was last
redeveloped in 1989, under a series of retail standards that are no longer applicable today. It was
developed with the stores primarily inward facing and the trend today is for stores to be outward
facing. The underlying infrastructure, the utility lines, the parking configurations and the property
lines are in direct conflict with the developments planned to move forward. In the past several
months, GGP has acquired ownership of the property at Foothills Mall where Mervyn's and
Penney's were located and is now in a position to bring its plans forward.
Scott VanTatenhove,1212 Raintree Drive, stated the Mall should be redeveloped but should not use
the route of an Urban Renewal Plan to achieve redevelopment. Using the Blight Study to create
the URP sends a wrong message of dishonesty and favoritism to the community. The property
owner is being rewarded for the presence of blight when instead, fines should be assessed and a
determination made as to why this happened. He urged Council to not proceed with approving the
Blight Survey and the Urban Renewal Plan.
Kevin Henry, 2731 Trenton Way, stated his opposition to giving a tax break to General Growth
Properties as a reward for bad business. GGP has done nothing for several years but allowed the
Mall to stagnate and has done nothing to improve business at the Mall. He urged Council not to
approve the Urban Renewal Plan.
Councilmember Ohlson asked for the length of time the tax increment financing would be in place.
Waido stated it would last for 25 years.
Councilmember Troxell asked if the Square Shopping Center was ever under consideration for
inclusion in the URP. Waido stated it was not included.
Councilmember Troxell asked if this URP would be a separate project under the City's Urban
Renewal Authority. Waido answered in the affirmative, that the North College Plan is the only
Urban Renewal Project currently in place so this project would be the second one, if approved.
Councilmember Troxell stated the Existing Survey lacked some depth and data to strongly make the
22
May 15, 2007
case for blight. The Urban Renewal Plan is a tool and is being appropriately used as a tool but the
factors need to be stated as strongly as possible.
Councilmember Brown asked about the City's obligations to General Growth Partners and about the
amount of direction the City can give to the use of the funds raised in the tax increment financing.
Waido stated General Growth Partners would have to come forward with specific redevelopment
projects to request for utilization of the TIF, a certain dollar amount, and the City would determine
the amount that would be available. GGP would make a request to the Urban Renewal Authority
for utilization of a portion or all of the TIF to accomplish the specific projects. The URA Board
would decide whether or not to approve that utilization of the TIF. Mike Freeman, Interim Chief
Financial Officer, stated there are two parts to putting this Plan into place. Approval of the Urban
Renewal Plan is necessary and an agreement must be negotiated with GGP. The agreement will be
business oriented, performance based, very specific in terms ofwhat the Citywould consider funding
as part of an overall redevelopment plan. It would be similar to the agreement negotiated with Bayer
Properties. Those negotiations will begin soon after the Urban Renewal Plan is adopted by Council.
Mayor Hutchinson asked if this was merely a tactic of a company buying a lot of property, allowing
it to deteriorate by neglecting the maintenance and then turning to the City for assistance. Freeman
stated any retail property, particularly a major retail center such as Foothills Mall, goes through a life
cycle. It's more than deferred maintenance that has caused the decline and simply putting a new
facade on the buildings will not improve the property. It takes time to put the strategies into place
to redevelop a major property and GGP bought the property with redevelopment in mind.
Mayor Hutchinson asked when the Mall was built and what is the length of a typical life cycle of a
Mall. Waido stated the Mall was built in the early 1970s. Freeman stated the typical life cycle of
malls in the Denver area is 20-25 years and after that length of time, serious decline begins. The
question then becomes as a community and a property owner, what is to be done about the decline.
In many cases, the property owner and the community are not proactive. Through the Economic
Action Plan, Council has stated a redevelopment effort is important. The City is trying to facilitate
a redevelopment effort.
Mayor Hutchinson stated since the Mall has existed for 34 years, it is overdue for more than
maintenance and paint and clean-up.
Councilmember Ohlson asked when citizens will begin to see major efforts from GGP. Adam Tritt,
GGP representative, stated major efforts are already underway and have been for 18 months. Once
some key deals with tenants for the redevelopment are made, GGP will begin working with City staff
to begin the redevelopment.
Councilmember Ohlson asked if that was expected in the next 6-12 months. Tritt stated the hope
was to begin in 6-9 months.
Mayor Hutchinson stated there are no funds available in the TIF, unless improvements are made and
asked if that was a motivation for GGP to act quickly. Tritt answered in the affirmative.
23
May 15, 2007
Councilmember Manvel stated for the purpose of the TIF, the baseline value of the property would
be set at the 2007 valuation, which has just been set. There is no reason to wait longer to adopt this
plan as that would not increase the base value. Chuck Seest, Finance Director, stated the new
improvement will be evaluated, but a full assessment of the property, done by the County Assessor,
is done on a two-year cycle. There will be demolition during the redevelopment so the potential
exists for the value to decline at some point, then come back with the improvement.
Councilmember Roy made a motion, seconded by Councilmember Manvel, to adopt Resolution
2006-052.
Councilmember Brown stated he had spoken with County Commissioner Rennels and the County
Commissioners are very supportive of this project. He supported the Resolution
Councilmember Roy stated GGP, as a relatively new owner of the Mall, has taken steps toward
redeveloping the Mall and had not "allowed" it to deteriorate from lack of maintenance. It was good
for the City to take this step to encourage redevelopment and he supported it.
Councilmember Manvel stated the Mall did meet the criteria set by the State for "blighted" and the
support of the County Commissioners was important to show how critical it was to redevelop the
Mall.
Councilmember Ohlson stated citizens of Fort Collins look forward to a new Foothills Mall. The
partnership between GGP and the City is a good one. Council is committed to promoting infill and
redevelopment and this area is a classic example of that.
Mayor Hutchinson stated the State statute language used the word "blight" to describe the criteria
necessary for this process to be put in place. It is not a description of the property, but a list of
conditions needing to be met. This is an infill and redevelopment project that has to operate under
State law, which has some language that is difficult to understand It is the use of local money that
would not be available except for the increased value of the improvements, for improvements done
under the control of local elected officials. Some of the improvements include fixing storm drainage
problems, street access, and infrastructure problems.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Manvel,
Ohlson, Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Councilmember Troxell made a motion, seconded by Councilmember Brown, to adopt Resolution
2006-053. Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy and Troxell.
Nays: None.
THE MOTION CARRIED.
("Secretary's Note: The Council took a recess at this point in the meeting.)
24
May 15, 2007
Items Relatine to the Southeast Branch Library. Adopted on First Reading.
The following is staff s memorandum on this item.
"FINANCIAL IMPACT
On March 6, 2007 Council appropriated $5.5 million in library capital expansion fees to design,
construct, furnish and provide technology, books and materials for a southeast branch library. The
cost of the project is now estimated to be $6.6 million. Adoption of Ordinance No. 074, 2007
appropriates an additional $1.1 million for the project. Of this amount, $479,613 is availablefrom
library capital improvement expansion (impact) fees, $339,304 is availablefrom library equipment
replacement and saving reserves, and $281,083 is available from donations made to the library.
Library impact fees have been collected from new residential construction in Fort Collins since
1996. These fees are collected to pay for the impact ofgrowth on the quality of library services.
Funds must be spent within a reasonable time of collection (approximately 10 years) to provide
library materials or facilities.
Future equipment replacement needs of the library will be provided by the new library district. The
ballot language creating the new library district authorized and provided fundingfor the district to
operate the southeast branch library once it is constructed. The annual operating budget would be
approximately $750,000 - $1,200,000 depending on staffing levels.
EXECUTIVE SUMMARY
A. Resolution 2007-054 Authorizing an Exemption to the Competitive Process for the City to
Enter into a Contract with Bayer Properties for the Construction of the Southeast Branch
Library.
B. First Reading of Ordinance No. 074, 2007, Appropriating Prior Year Reserves and
Unanticipated Revenue Designated for Library Improvements in the Capital Improvement
Expansion Fund and Prior Year Reserves in the General Fund for Transfer to the City's
Capital Projects Fund to Construct a Southeast Branch Library.
Resolution 2007-054 increases the amount of the sole source authorization for the City with Bayer
Properties from $1.5 million to $2,219,1 76for construction of the core and shell of the branch
library. On March 6, 2007, Council adopted Resolution 2007-020, which provided sole source
authorization up to $1.5 million for the core and shell contract. Staff now has better estimates from
Bayer and from independent analysis and the cost of this work will likely exceed $1.5 million. The
City will only pay for the actual cost of this work but the estimated cost of the work is now
$2, 219,176.
Ordinance No. 074, 2007 appropriates an additional $1.1 million for the branch library project.
Staff is now estimating the cost of the branch library project, including furnishings, technology,
books and materials at $6.6 million. This is $1.1 million more than previously estimated. Funding
is availablefrom library capital expansion impactfees, from library equipment and savings reserves
25
May 15, 2007
and from donations to the library. Adoption of this ordinance appropriates $1.1 million from these
sources to the branch library project. Actual costs may be less than estimated. The City will only
pay actual costs. Staffwill work hard to contain actual costs without compromising the quality of
the project.
At its meeting on May 7, 2007, the Library District Board of Trustees unanimously approved a
motion supporting Council's adoption of the Resolution and Ordinance.
BACKGROUND
The City is working with Bayer Properties to include a 17,400 square foot library in the Front
Range Village development. 16,000 square feet of the library will be located on the second floor of
an attractive, centrally located building with 1, 400 feet on the first floor. The first floor space will
include a lobby, a stairway and two elevators. The library will be owned by the City and will
provide convenient and much needed library services for the community.
Area voters recently approved the new library district, including new funds to pay for the operation
of the Southeast Branch Library. This branch will help meet the goals identified in the Library
Capital Improvement Plan of four books per capita and .7 square feet per capita of library space
by 2015. The library is currently at 2.56 books per capita and .4 square feet per capita.
Resolution 2007-054
Bayer Properties has retained a construction contractor for all the buildings in the Front Range
Village development, including the core and shell of the building the library will occupy. By
coordinating the construction of the library core and shell through Bayer, the City will realize
efficiencies, benefit from economies of scale and expedite the completion of the library. The core
and shell includes the foundation, walls, roof and associated elements of the building. Because
Bayer's contractor will be constructing the first floor core and shell, it would be difficult and
inefficient to bring in a separate contractor to build the core and shell for the second floor. Having
two contractors working on the structure of the same building would also create significant
coordination issues and cause confusion regarding responsibilityfor warranty work. The cost of
the library's portion of the core and shell will be determined by the final design of the library space
but is not anticipated to exceed $2, 219,176. Under the City's agreement with Bayer, the City must
approve the design and all costs associated with construction of the core and shell on a line item
basis. The City has hired an independent estimator to verify the reasonableness of all costs.
Staff intends to utilize a competitive process to select a contractor to finish the library space. The
finish work includes the entire interior space ofthe library, everything from drywall and electrical
to carpeting, lighting and shelving.
Partnering with Bayer on the Library project maximizes use of the impact fees designated
for library services and materials. Bayer's contribution to the libraryproject is substantial.
Bayer is providing the land for the library building and paying for the infrastructure costs
26
May 15, 2007
associated with bringing necessary utilities and streets to the development and to the library
building itself.
Bayer is also providing the adjacent parking lots and paying the associated offsite
development costs and fees.
Operation Services has estimated that the cost savings to the City by partnering with Bayer
is approximately 2.2 million dollars compared to the cost of the City building a stand alone
branch library.
Ordinance No. 074, 2007
The City would use remaining library impact fees of $479,613, library equipment and savings
reserves of $339,304 and library donations of $281,083 to pay for the estimated $1.1 million
increase in cost for the design, construction and furnishing of the library, for library technology and
for books and materials.
Staff has determined the estimated increase in cost is reasonable based on the following:
Data used to estimate cost numbers for the Development Agreement phase for the Southeast Branch
Library were put together with conceptual drawings only in order to keep the agreement time frame
moving on track. The City commissioned Capstone Planning & Control to generate a "conceptual "
estimate for the 16, 000 square foot area before any of the library design for the core and shell was
accomplished. The City also asked Bayer Properties for the unit cost per square foot estimate that
Bayer would be usingfor retail/office space in the buildings in this development. Although Bayer's
numbers were somewhat higher than Capstone's, the Capstone numbers were the only itemized
estimate staffhad before the DevelopmentAgreement was written and authorized. Bayer's unit cost
estimate for retail/office space in the buildings was at $88 per square foot. The Capstone numbers
were somewhat less. After drawings were produced during the preliminary design for the library
core and shell, the City asked Bayer's general contractor to provide a detailed estimate of the core
and shell costs based upon the design drawings. The current design area of the Southeast Branch
Library has increased to 17,415 square feet with the inclusion of 1, 415 square feet on the first floor
dedicated for the library. The estimate came in at approximately $127 per square foot.
With this new information in hand, Operations Services analyzed the estimated costs and discussed
the estimate with Bayer and theirgeneral contractor Hoar Construction. In addition, we have done
unit price cost comparisons of other Libraries in our market area, specifically along the Front
Range, and have consulted with our architect/engineer, Aller-Lingle and Associates relative to the
costs. We believe the estimate received from Bayer at the $127 per square foot is reasonable and
that these costs fall within an acceptable range for a quality library space in our market area at this
time. We are recommending that the budget be brought up to meet the current design estimated cost
to produce the kind ofproject we can all say we're proud to have as a Cityfacility.
The Development Agreement provides that the City will be paying actual costs for the library core
and shell. The general contractor is required to provide the receipts showing this cost. Some
27
May 15, 2007
notable facts concerning the current construction market and this particular project include:
• Total cost of the Southeast Branch Library is estimated at $259 per square foot. (for
construction only).
• This cost falls within the range for Libraries nationwide adjusted for location.
• Cost for the new Arvada Library is very comparable in price to the proposed Southeast
Branch.
• Construction cost escalation has been running as much as 30% above lastyear'sprices, with
the costs of concrete and steel being a primary driver.
• Cost trends in the building industry continue to climb at an unprecedented rate.
• Conceptual costs for a new stand-alone library including land, site costs, development fees,
permits, etc in 2005 were estimated at $520 per square foot so the City receives at least a
$250 per square foot economy over a stand alone facility that was estimated in 2005.
It is anticipated that construction of the new library will be completed by fall of 2008. "
Marty Heffernan, Executive Director of Culture, Parks, Recreation and Environment, stated the two
items relating to the Southeast Branch Library relate to a funding issue that has come to staffs
attention as the design of the project has progressed. In early March, staff brought an ordinance to
Council, asking for $5.5 million for the Branch Library Project as well as sole source authorization
in the amount of $1.5 million so staff could work with Bayer Properties and its general contractor
who will be doing much of the work on the entire shopping center. Staff wanted to work with the
general contractor to build the core and shell of the Branch Library which will be on the second floor
of a centrally located building in the retail development. Council adopted the appropriation
ordinance and the resolution authorizing use of a sole source contractor. Since that time, Operation
Services has worked closely with the architects on the design and with Bayer Properties on the costs.
Those costs are greater than staff anticipated. The proposed ordinance requests an increase in the
project's budget to $6.6 million, which is a $1.1 million increase. The City reviews every cost item
and so pays only what is necessary. Cost of the core and shell will be $2.2 million which is greater
than the $1.5 million originally approved, so an increase in the sole source authorization is necessary
so that the Bayer general contractor can continue to be used on this project. The money is available
to do this. $479, 613 in additional library impact fees is available. This will use all the library impact
fees. $379,304 in equipment and savings reserves the library has saved for several years is available.
$281,083 from donations to the library are available for this purpose. A reserve will be left in the
library donation account. Staff has reviewed all the project costs and the $1.1 million increase
represents a $200,000 reduction from the original cost increase projection. The $200,000 reduction
was achieved through design changes, as well as shifting some costs back to Bayer Properties. Bayer
Properties is experiencing the same rising costs as the City is, only on a much larger scale. Staff will
be diligent to keep costs low and will do a competitive bid for the interior work.
Councilmember Brown asked where the impact fees would be spent if they were not spent on the
Branch Library Project. Heffernan stated the impact fees come from capital expansion fees assessed
on new residential construction and must be used for the creation of new library space or for books
and materials. The choice would be to spend the fees on library renovation or a new library some
day or spend it on books and materials.
FIM
May 15, 2007
Councilmember Brown asked if the $1.1 million in impact fees would eventually go to the Library
District or be kept by the City. Heffernan stated the impact fees must be spent for library purposes
which would benefit the Library District so if the fees were not spent this year, it is likely the fees
would go to the Library District. The reserve funds come from the General Fund and so could go
to other purposes, but it was funds saved by the library over several years, so staff views it as library
funds. The Library Board of Trustees unanimously supported the adoption of the ordinance and
resolution and fully understand the situation.
Councilmember Ohlson stated the costs of the shell had gone from $1.5 million to $2.2 million. He
questioned how the costs could have risen 50% in 2 months and how could the current figures be
considered accurate. Ken Mannon, Operations Services Manager, stated the earlier projections of
cost estimates were just an estimate. Until the final design phase of the building occurred, it was
very difficult to know the costs of materials and the cost estimates currently given should be accurate
for the project. The costs on other City building projects have also increased considerably due to the
cost of materials. The shell of the building will cost $127 per square foot. This is very comparable
to other cities' costs in building similar buildings. Arvada recently completed a comparable building
of 33,000 square feet at a cost of $145 per square foot. The cost of building a separate 10,000 square
foot building, buying the land and the development costs, would have cost $5.2 million two years
ago.
Councilmember Ohlson questioned why was the data available now was not used two months ago
to more accurately project costs. City Manager Atteberry stated the increase of costs in such a short
time occurred because the original numbers were only from the conceptual stage. Mannon stated
as of 60-90 days ago, details of the design of the building were not available and until a firm design
was produced, it was very difficult to estimate the costs. The costs should not exceed the costs now
quoted.
Councilmember Ohlson asked if the figures quoted for the Arvada library included development
costs, such as land, utilities and other development fees. Maranon stated the costs quoted for Arvada
were the costs of the shell and core only, not the development costs.
Councilmember Manvel stated the first estimate only included the second floor space and asked if
the new estimate included more square footage. Maranon stated the original estimate was based on
16,000 square feet and now the estimate is based on 17,415 square feet.
Councilmember Troxell asked about the ownership of the facility. Heffernan stated, according to
the agreement with Bayer Properties, the City will own the space. It is not a lease. The
intergovernmental agreement currently being negotiated with the Library District will determine
where final ownership will lie.
Councilmember Roy asked how the entire Bayer Properties project is affected by the rapid rise in
costs. City Manager Atteberry stated the Bayer Properties representatives have given him assurances
the project is not changing due to significantly inflating costs. He noted that one option available
to the City was to reduce the scope of the branch library project and what changes would occur if the
29
May 15, 2007
branch library was built under the original estimate. Staff concluded the community expectations of
the project could not be met without increasing the budget to the proposed amount. It is not typical
for staff to bring forward such increases in costs for any City project.
Councilmember Ohlson asked if the "Green Building" standard for public buildings would be met
with this building. Mannon stated the core and shell of the building will be a certified "LEED"
building and the interior will be "LEED Gold" certified.
Councilmember Ohlson noted if the City were building the branch library from scratch, then the
entire building would be "LEED" Gold certified to comply with the Resolution passed last year.
City Manager Atteberry stated the interior portion that the City is responsible for will be "LEED"
Gold certified. Mannon stated "LEED" Gold certification of the core and shell was a concern of
staff. Staff discussed the certification with Bayer Properties but Bayer felt it could not accomplish
Gold Certification on the building because of the type of use. It will be "LEED" certified.
Councilmember Ohlson asked if the shell included HVAC and other utilities. Mannon stated the
HVAC and other utilities are part of the interior, not the shell. The physical shell includes the box,
the windows, the roof and the skylights.
Councilmember Troxell made a motion, seconded by Councilmember Roy, to adopt Resolution
2006-054.
Councilmember Ohlson expressed his appreciation of staff s work on this project but asked for better
estimates in the future.
Mayor Hutchinson stated the original cost quote of $1.5 million was a preliminary or conceptual
estimate. The refinement was made when more design information was available which allowed a
better estimate. The difference between the estimates was based on the different methods used.
Mannon stated the original estimate was based on a cost per square foot and the new estimate is
based on actually "counting sticks."
Councilmember Manvel stated the original estimates from most City projects are not generally so
far off from the final estimate. Heffernan responded that this project is in partnership with Bayer
Properties and the City does not have as much control over it. Staff was attempting to meet Bayer's
time frame which is why the previous estimate was brought to Council before the design was
available to support the estimate. A different model is used for projects done in partnerships.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Manvel,
Ohlson, Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to adopt Ordinance
No. 074, 2007 on First Reading.
KE
May 15, 2007
Councilmember Ohlson stated the decision not to cutback on the quality or scope of the project was
a wise one.
Councilmember Manvel stated knowing the Library District Board fully supports this project is a
very positive and the right action is being taken in spending extra money to do the project correctly.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Manvel,
Ohlson, Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Resolution 2007-055
Authorizing an Interim Intergovernmental Agreement
Between the Fort Collins Regional Library District, the
City of Fort Collins and Larimer County, Adopted.
The following is staff s memorandum on this item.
"FINANCIAL IMPACT
Under the interim intergovernmental agreement (IGA) the City will turn library operations over to
the District on January 1, 2008. The District will reimburse the Cityfor the cost ofproviding library
services in 2007 up to the amount of $3,851,153 and for service improvements or additions
requested by the Trustees. The City would continue to provide support services for library
operations for 2007 and the District will pay for those services, estimated to cost approximately
$500, 000.
EXECUTIVE SUMMARY
LastNovember area voters approved the formation of the Fort Collins Regional Library District and
provided 3 mills of property tax to fund it. Pursuant to State law, on March 6, 2007 the Council
ratified seven candidates to serve as trustees on the governing board of the new District. The
County Commissioners also ratified these candidates at that time. The trustees met on March 7th
and the Cityprovided them with a memorandum outlining the City's position on the various issues
to be addressed in the IGA. The trustees have been meeting regularly and have been diligently
working on the IGA and on a multitude of other matters needing their attention.
State library law calls for an IGA to be in place within 90 days of the appointment of the Board of
Trustees. 90 days does not provide sufficient time to resolve all the issues that must be addressed
in the IGA or sufficient time to craft an IGA that will successfully establish a long-term, effective
working relationship between the parties. The Board of Trustees supports the adoption of the
interim IGA and is committed to the adoption of the final IGA in 2007.
BACKGROUND
31
May 15, 2007
The draft interim IGA is attached for review. The proposed agreement provides:
The City will continue to provide library services to the community for 2007.
1. The District will provide funding to cover the City's costs to provide library services in 2007
up to the amount of $3,851,153. This is the amount originally budgeted by the City for
library services in 2007 and includes funding to reimburse the City for costs already
incurred in providing library services in 2007. The District will pay for the cost ofsupport
services (facility maintenance, custodial, utilities, accounting, human resources, risk
management, tech. support etc)for all of 2007, estimated at approximately $500, 000. The
District will also pay for any other service improvements or additions they would like to see
in 2007, as approved by the City Manager.
3. The City and the District will enter into a final IGA before the end of 2007 with a goal of
having the IGA in place by October 1st.
4. Operation of the libraries will be turned over to the District on January 1, 2008.
5. The District will reimburse the County for the cost of the election establishing the District.
The fznalIGA will address all matters relevant to the transition of library services from the City to
the District. These include:
The use or conveyance of City real property including the Main Library, Harmony Library,
Southeast Branch Library and the Poudre Creamery properties.
2. The use or conveyance of personal property including the books, materials, shelving,
furniture, computers, etc.
3. Support services the District will purchase from the City, which may include accounting,
payroll, human resources, risk management, purchasing, information technology ano
facilities maintenance.
4. The transfer of Building on Basics (BOB) funding for library technology.
5. The possible continuation of library impact fees.
6. The transition of City library employees to District employees.
Appointment process for future trustees
8. Assignment of contracts from the City to the District, particularly the agreement with Front
Range Community College regarding the use and operation of Harmony Library. "
Marty Heffernan, Executive Director of Culture, Parks, Recreation and Environment, stated this
Resolution authorizes the execution of an Interim Intergovernmental Agreement between the City,
32
May 15, 2007
Larimer County and the Fort Collins Regional Library District. After the creation of the Library
District last November by a vote of the citizens, Council and the County Commissioners selected
a group a citizens to be the governing Board of Trustees for the District. Through that ratification
process, the District was established. State law has a provision that calls for an intergovernmental
agreement between the parties to be entered into within 90 days of the ratification of the Board of
Trustees. In staff s estimation, as well as the Trustees, 90 days is insufficient time to work through
all the issues to put together a permanent IGA that will govern the parties' relationship for years to
come. Since there are many issues still to be resolved, staff and the Trustees are requesting that
Council enter into an Interim Intergovernmental Agreement that would have the City continuing to
provide library services, but have the District pay for the services through the end of the year. The
goal is to have the final Intergovernmental Agreement in place by October and transition library
operations to the District starting January 1, 2008. City employees who are now working at the
library would be made offers by the District and, if they accept those offers, would become District
employees on January 1 st. There are many steps still to take place for this transition to be successful.
The District is willing to pay for the services the City would provide on its behalf for this year. The
amount authorized for library operations is $3,851,153 which comes from the estimated amount for
library services that was in the City's 2007 budget. The District is also willing to pay for support
services, such as payroll, accounting, financial services, human resource services, maintenance and
custodial services, utilities and other internal services necessary to operate the libraries, up to the
amount of $445,000 for 2007. That should be sufficient to cover the anticipated costs for 2007. If
additional services are desired by the District, then further negotiations with the District would take
place. The City would have ultimate decision making capabilities over major operational issues, but
the Board would be involved in the decisions.
Councilmember Brown asked how much money was collected for the District in 2006. Heffernan
stated the money was now being collected in 2007 and would be in the range of $6 million.
Councilmember Brown stated that was the amount for 2007 and asked if the mill levy was
retroactive to 2006. Chuck Seest, Finance Director, stated the mill levy was effective as of January
1, based on the property valuation as of December. To date, as of April 2007, taxes for 2006 have
been collected in the amount of $2.3 million. The District is also collecting specific ownership tax
and other taxes to which the District is entitled.
Councilmember Brown asked for an estimate of a full year of property taxes. Seest stated the
estimate was approximately $5.2 million.
Councilmember Brown asked if the City would carry the burden of the difference in taxes collected
and library costs. Heffernan stated the Intergovernmental Agreement stated the City would not
provide services at a cost greater than the amount authorized. Staff believes that is a sufficient
amount to provide services at the current level through the end of the year.
Councilmember Ohlson asked why the amount for support services changed from $502,000 to
$445,000. Heffernan stated the District had only budgeted $445,000 for support services and staff
determined that amount was sufficient to cover those service costs for the year.
Councilmember Ohlson asked if the District was paying the cost for extra staff, extra hours, and for
33
May 1 S, 2007
book drops. Heffernan stated under the terms ofthe Interim IGA, the District will reimburse the City
for all expenses for 2007.
Councilmember Manvel asked if the Intergovernmental Agreement might be finalized sooner than
October. Heffernan stated the Agreement could be finalized sooner, but the current schedule
provides a framework for negotiations.
Councilmember Manvel asked if agreement was not reached, would the Interim IGA extend past
January 1st. Heffernan stated if all parties agreed, the Agreement could be extended.
City Manager Atteberry asked if the costs to provide library services exceeds the budgeted amount,
will the City consider not providing services or will services be continued and the caps be raised.
Heffernan stated the $3.8 million in costs are accurate estimates and staff believes that providing the
current level of service will not cost more than $3.8 million. In the event that amount was exceeded,
the City would tell the District Trustees it would no longer be able to provide those services unless
additional funding was provided. The spirit of the IGA is that the cost of providing library services
is the cost for the District to bear, not the City. Seest stated since the District is funded by property
tax, 98% of that funding will be received by the end of July so it will be known where the District
stands in terms of its funding. If the District requested the City to provide other services it would
also provide the unanticipated revenue to pay for those services. City Manager Atteberry stated the
City is conscious of the costs and will work to keep them as low as possible and will not operate in
a deficit mode.
Councilmember Troxell asked if the IGA is in place by January 1st, would all transitions happen at
that time or would there be a transition time to phase in employees. Heffernan stated the hope was
by having an October 1 goal of having the IGA finalized, there would be sufficient time to transition
the employees into the District by January 1. There could be other issues that would be postponed
into the future for final determination. The goal is to reach agreement on the majority of issues.
Councilmember Roy asked who represented the City in the IGA negotiations. Heffernan stated he
did much ofthe negotiations along with Financial Director Chuck Seest and Steve Seefeld, Facilities
Project Manager, discussed the new branch library. Heffernan was the contact person to discuss the
issues, have the dialogues, then take information back to staff, especially Deputy CityManager Jones
and City Manager Atteberry.
Councilmember Roy questioned how Heffernan separated his past history with the Library with
serving the City best now. Heffernan stated he took his direction from the City Manager and worked
closely with the Deputy City Manager, as well.
Councilmember Ohlson stated the Interim Agreement did not have many details such as the
appointment process for future Trustees and asked if the final agreement will contain such details.
Heffernan answered in the affirmative. The Interim Agreement stated the City agreed to provide
services this year and the District will pay for those services and all other details are to be worked
out.
Councilmember Manvel made a motion, seconded by Councilmember Roy, to adopt Resolution
34
May 15, 2007
2006-055. Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson, Poppaw, Roy and Troxell.
Nays: None.
THE MOTION CARRIED.
Ordinance No. 075, 2007,
Appropriating Unanticipated Revenue from the
Fort Collins Regional Library District for Continuation
of Library Services for Fiscal Year 2007, Adopted on First Reading,
The following is staff's memorandum on this item.
"FINANCIAL IMPACT
The Ordinance would appropriate an additional $2.6 million in unanticipated revenuefrom the Fort
Collins Regional Library District into the General Fund to be used for continuation of library
services.
EXECUTIVE SUMMARY
The Board of the Fort Collins Regional Library District sent a letter dated April 16, 2007 to the Fort
Collins' City Council reflecting the Board's approval of reimbursing the City offort Collins in an
amount of $3,851,153 based upon actual expenditures incurred for the costs of operations and
maintenance ofpublic library services for 2007. As of the end of April, the Fort Collins Regional
Library District has collected $2,318,000 ofproperty taxes from the mill levy approved by voters
last November for funding the regional library district.
When Council approved the 2007 Budget last November, $1.2 million was also appropriated for
library services. This appropriation was intended to serve as funding during the transition of the
library services from City operations to District operations. The District and the City will need to
approve an intergovernmental agreement prior to full operations commencing under the direction
oftheDistrict. This ordinance will allowfunding oflibrary services to continue under City direction
for 2007. The City will also be reimbursed for expenses incurred during the first quarter of 2007.
From thatpointforward, the City will be reimbursed on a monthly basis. These reimbursements will
occur within thirty days after the close of the month during which the charges were incurred. "
Marty Heffernan, Executive Director of Culture, Parks, Recreation and Environment, stated this
appropriations request for funding necessary to continue operations of the Library for 2007 and also
to appropriate funding to reimburse the City for costs incurred in providing those services for the
first quarter.
Chuck Seest, Finance Director, stated in November, when the Library District was created by voter
approval it was anticipated that $1.2 million would be sufficient to administer the transitional period
35
May 15, 2007
which was expected to end sometime during the second quarter of this year. Since the transitional
period of time has been extended, this appropriation request of up to $3.8 million is brought before
Council.
Councilmember Roy made a motion, seconded by Councilmember Manvel, to adopt Ordinance No.
075, 2007 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson, Poppaw,
Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Consideration of the Appeal to the Building Review Board
on February 22, 2007 Seeking the Overturning of Certain
Interpretations, Actions, and Decisions of the Building
Official Regarding the Use and Occupancy of the
Dwelling at 505 Locust Street.
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY
On February 22, 2007, the Building Review Board unanimously upheld the interpretations, actions,
and decisions of the Building Official regarding the application of the City Rental Housing
Standards for the dwelling at 505 Locust Street in response to the Appellant Peter Schultz's
allegations of error contained in the Notice of Appeal dated November 9, 2006
The Appellantf:led a Notice ofAppeal to the City Council on April11, 200 7 seekingfurther redress
of the actions listed below which are the subject of this appeal.
Determination/interpretation not to require Jeanne Bolton, the owner of the rental premises
located at 505 Locust Street, Fort Collins (CO) (the "Subject Premises'), to obtain a permit
to convert the Subject Premises from a single family dwelling unit into a duplex as required
by Section 5-260 of the Fort Collins Code. (Note: Section 5-260 of the City Code
incorrectly references the UNIFORMB UILDING CODE, which no longer applies to single -
or two-family dwellings as the prescribing codefor new construction. The correct reference,
the INTERNATIONAL RESIDENTIAL CODE, was inadvertently overlooked as the other
inclusive code to be added to this section when it was adopted in August 2004. However,
thepermit requirements and the Building Review Board'sjurisdiction are virtually identical
under both codes.)
2. Determination/interpretation not to require Ms. Bolton to obtain a permit for a number of
required alterations and improvements to the Subject Premises, including without limitation,
installation ofstairway railing, upgrading ofwiringfor smoke alarms, and the enlargement
of basement exit windows (required structural alterations).
36
May 15, 2007
3. Determination/interpretation not to require fire -rated barriers within the Subject Premises
and not to require one or more permits thereafter.
4. Determinationfinterpretation not to require the payment of appropriate fees for conversion
of the Subject Premises from a single-family dwelling unit into a duplex and for the
alterations to the Subject Premises.
BACKGROUND
Late July 2006, the Appellant, residing at 501 Locust Street adjacent to 505 Locust Street ("Subject
Property') communicated concerns to the Mayor via email about the condition and alleged over -
occupancy status of the subject rental property built circa 1930. In response, Neighborhood and
Building Services staff investigated his concerns and followed up with a written notice to the
property owner of the subject property, Jeanne Bolton ("Party -in -Interest'), related to the
dwelling's use as a duplex and number of occupants.
From research, including results from the Occupant Search Report dated November 2, 2006, staff
determined that although the subject dwelling is listed as a single-family dwelling in the Lorimer
County records and finding no official City record indicating the Subject Property was converted
to a duplex, historically it well might have been used as a duplex prior to the late 1960s.
Furthermore, on -site inspections revealed that the interior of the garden level dwelling unit appears
consistent with materials from that era. It is important to note that City records are incompleteprior
to the mid-1960s.
With respect to concerns expressed by the Appellant regarding City Building Code provisions and
related permits:
1. The necessarypermit was obtained and final inspection approved for the installation of the
new egress windows and handrail.
2. The installation of smoke alarms and associated wiring are considered exempt from a
permit, given that the minor nature of the work was performed by a licensed electrician.
3. A 'fire -rated barrier" between units is not applicable to existing buildings; required in new
construction only.
Appellant subsequently appealed the decisions ofthe Building Official with a Notice ofAppeal dated
November 9, 2006, to be heard by the Building Review Board. The Board rendered a unanimous
decision to uphold the decision of the Building Official regarding the enforcement of the City's
rental housing standards as contained in Article VI of Chapter 5 of the City Code, and, also
determined the building permits sought and obtained by the Party -in -Interest were appropriate as
specified in the Resolution 2007-1 dated March 29, 2007. The Board also decided that whether or
not a building permit is needed for the conversion of the Subject Property from a single-family
residence to a duplex is not within its jurisdiction based on the following:
37
May 15, 2007
Section 5-259 ofthe City Code states the Building Review Board has jurisdiction to provide
final interpretations pertaining to meeting the minimum rental housing standards, but not
final interpretations of the administrative procedures by the Building Official.
2. Section 5- 30 of the City Code ,which contains a local amendment as specified in "Section
R112.2 " of the International Residential Code", states that appeals to the Building Review
Board may only be made by either applicants for or holders of a building permit. "
Councilmember Manvel withdrew from the discussion of the Consideration of the Appeal to the
Building Review Board on February 22, 2007 Seeking the Overturning of Certain Interpretations,
Actions, and Decisions of the Building Official Regarding the Use and Occupancy of the Dwelling
at 505 Locust Street due to a conflict of interest.
Councilmember Ohlson stated that quite some time ago, one of the parties -in -interest contacted him
regarding the issue under appeal. The conversation was short and no details were discussed. He did
not feel the conversation biased him in any way in this matter but he wanted to know if any party -in -
interest objected to his participation in the appeal.
City Attorney Roy asked if all parties were present.
Elizabeth Lamb Kearney, attorney representing Jeanne Bolton, property owner of 505 Locust Street
and the subject of the appeal, but not the appellant, had no objections to Councilmember Ohlson
participating in the discussion of the appeal..
Rick Zier, 322 East Oak, attorney representing Peter Schultz, the appellant, had no objections to
Councilmember Ohlson participating in the discussion of the appeal.
City Attorney Roy explained the appeals process as outlined in Chapter 2 of the City Code. This was
an appeal of the decision of the Building Review Board. Appeals can only be made by parties -in -
interest and not by members of the general public. Presentations at the appeal can only be made by
parties -in -interest. A party -in -interest is one who has either an ownership interest or a possessory
interest in the subject matter of the appeal hearing or someone who appeared at the hearing before
the Building Review Board or who submitted written comments or who was notified of the
proceedings before the Board. This was an appeal on the record of the proceedings before the
Building Review Board, which means Council had received the verbatim transcript or minutes and
any exhibits that were presented to the Board. No new evidence was admissible except in response
to Councilmembers. The Mayor will establish time frames for presentations by each party, both in
terms of their initial presentations and arguments and also rebuttal time. Council will then take the
matter under consideration and will base its decision on the grounds stated in the Notice of Appeal
and the information contained in the record of proceedings before the Board as well as the applicable
provisions in the City Code or Charter that might apply. The options available to Council included
upholding, overturning, or modifying the Board's decision or remanding the matter to the Board.
N3
May 15, 2007
Felix Lee, Director of Neighborhood and Building Services, stated it was his determinations as the
Fort Collins Building Official and staff decision maker that precipitated the initial appeal to the
Building Review Board, related to the dwelling and subject property at 505 Locust Street. Peter
Schultz, an adjacent neighbor of the property had filed the appeal to overturn the following findings
and conclusions of the Building Review Board from the hearing on February 22, 2007:
1. The Board's determination not to require the principal party -in -interest and owner of the
subject premises, Jeanne Bolton, to obtain a permit to convert the property from a single-
family dwelling to a two-family dwelling (a duplex).
2. The Board's determination not to require Ms. Bolton to obtain a permit for alterations and
improvements on the property, such as the installation of stair railings, wiring for smoke
alarms and enlargement of basement windows.
3. The Board's determination not to require fire -rated barriers within the dwelling and any
related permits, therefor. Lee added that, in testimony before the Building Review Board,
the appellant conceded this was not an issue at that time.
4. The Board's determination not to require the payment of unspecified fees for conversion and
related alterations to the building from a single-family dwelling to a two-family dwelling as
well as the determination that the Building Review Board does not have jurisdiction to
consider this point.
In late July 2006, the appellant emailed the Mayor expressing concerns about the condition of the
property and the excessive number of tenants living in Ms. Bolton's rental were in violation of the
City Code relating to dwellings used as a duplex. Mike Gebo, Building Code/Inspection Services
Manager, then followed up with a written notice informing Ms. Bolton of the complaint and the need
to resolve the allegations. Over the course of several weeks, staff was in contact with Ms. Bolton,
Mr. Schultz and his legal counsel. From these numerous interchanges and additional site
inspections, staff determined one of Mr. Schultz's concerns related to the bedroom escape windows
as required by the City's Rental Housing Standards, was merited. In answer to the appellant's
question of the use of the dwelling as a two-family dwelling, Ms. Bolton indicated the property had
been used as a duplex for many years prior to her ownership in 1984. Larimer County records
indicate the dwelling was built in 1930 and still lists the property as a single-family dwelling. Staff
was unable to locate any official record identifying the conversion of the dwelling to a duplex or that
showed the building was ever even built. Some City permit and inspection records, especially early
manual files, which began in 1924, were nonretrievable having been relocated several times over
the years. Until 1989, prior to implementation of a computer tracking system, all department records
were paper and were vulnerable to being incomplete, misfiled or missing, especially those created
prior to the 1960s. Moreover, the earlier permit records were cryptic and contained little detail.
Lee stated he had evidence not previously submitted, of photographs of the property and replicas of
the documents he had found in doing research, and asked if there were any objections from the
parties -in -interest to that evidence being shown.
Mike Zier, attorney for Peter Schultz, objected to the new evidence being shown. City Attorney Roy
stated any new evidence should only be submitted in response to Council questions, if at all.
39
May 15, 2007
Lee stated a research report provided by the Historic Preservation staff, using old city directories
aided him in making his decision. The report contained occupant records covering several decades
back to the late 1960s. He believed those records suggested the dwelling was converted to a two-
family dwelling by the 1960s as noted by occupancy by two CSU students and two separate phone
lines at that time. The inspection done several months ago revealed the dwelling had two separate
up and down dwelling units, each with two bedrooms and the interior of the lower dwelling appears
consistent with material from the 1960s or even earlier. His analysis of the occupancy search,
coupled with those inspections led him to conclude that at sometime in the past, the property had
likely been used as a duplex. With respect to the concern of the appellant regarding the Building
Code provisions and related permits, Ms. Bolton satisfied these concerns by bringing the property
up to current rental code standards with the new egress windows, hand rails, and the installation of
smoke detectors. A permit was issued for these improvements, a fee was paid and inspections
passed. The installation of the smoke detectors and associated wiring were exempt from the permit,
given the minor nature of the work. It did not require any new circuitry, only basic wiring, done by
a licensed electrician. The need for a fire -related barrier was not applicable to existing buildings.
That provision became part of the City Building Code for new buildings and additions, thereto, in
the 1990s. Based on these preceding factors, he determined the property to be in compliance with
no further action required.
On November 9, 2006, Mr. Schultz appealed Mr. Lee's decision to the Building Review Board. On
February 22, 2007, the Board heard the appeal and unanimously upheld the interpretations of the
application of City Rental Standards to the dwelling at 505 Locust Street. At that hearing, the Board
also considered whether or not a building permit was needed for the conversion of the property. It
determined it was not within the jurisdiction of the Board to decide that matter based on the City
Code and the Building Code. The Board formally issued its decision in a Resolution dated March
29, 2007. Mr. Schultz was asking Council to overturn the determinations of the Building Review
Board that upheld the decisions of the Building Official related to the use and occupancy of the
dwelling at 505 Locust Street.
Mayor Hutchinson stated the appellant and the opponent had 15 minutes for each presentation and
10 minutes each for rebuttal. He asked if the appellant believed the fire barriers and the alteration
of the stair railing and egress windows are not issues.
Rick Zier, attorney for appellant Peter Schultz, agreed the fire barriers were not part of the appeal
but the stair railings and egress windows were properly listed in the complaint and staff sustained
the complaint and required a building permit for those improvements. The wiring and electrical
work was not required to have a permit and the appellant believed a permit should have been
required. It should be considered as part of the appeal. He stated the two main issues of this appeal
were the jurisdictional issue and the main issue of the conversion permit not being required. The
appeal did raise the issues of the property not meeting rental housing standards and specific building
code issues of stair railings, egress windows and smoke detectors. Most of those complaints were
sustained and action was taken to comply with the Code. The larger question raised in the complaint
was whether the property was a legally converted duplex under the rental housing standards and the
Building Code. The Building Review Board's decision was that it could not consider or decide,
under the UBC or any other City Code, including the rental housing standards, any issue pertaining
to whether the landowner would now be required to obtain a building permit for the conversion of
U11
May IS, 2007
the premises from single-family residence to a duplex. The appellant believed this decision was
incorrect. There were several sections under the rental housing standards under which Mr. Schultz
filed his complaint that should be considered, including Section 5-239 of the Rental Housing
Standards which states "it is unlawful for any person to alter, improve or convert any structure in
violation of Article VI, Chapter 5." Section 5-260 of the Rental Housing Standards states "it is
unlawful for a person to alter improve or convert any structure regulated by the Rental Housing
Standards without first obtaining a separate permit for each structure in accordance with the Uniform
Building Code," now the International Building Code. This tied the Rental Housing Standards
clearly and expressly to the Building Code. The Building Code had required a conversion permit
since 1958. Section 5-261 of the Rental Housing Standards states "whenever a building permit is
required by the Building Code, the appropriate fees must be paid." Section 5-256 directed the
Building Official to enforce all the provisions of the Rental Housing Standards, including those that
connect to the Building Code. Section 5-238 states "the provisions of this Article (the Rental
Housing Standards) shall apply to all rental housing." Section 5-259 states "in order to provide for
final interpretation of this Article (the Rental Housing Standards) under which the complaint is filed,
and to hear appeals provided for hereunder, under the Rental Housing Standards, the Building
Review Board shall serve in such capacity." The provisions in the general Building Code quoted
by the Building Review Board and the City Attorney are "trumped" by the more specific Rental
Housing Standards provisions which deal specifically with rental housing and specifically require
compliance with the Building Code as a part of the Rental Housing Standards themselves, including
specifically, conversion of any structure and specifically authorizes the Building Review Board to
hear appeals and provide final interpretation. The Building Review Board and City Attorney's
position was an overly technical and incorrect interpretation and was punitive to a complainant. The
appellant's complaint alleged specific building issues and the larger conversion issue. Ifthe Building
Review Board did not have jurisdiction to hear the larger issue, then either there is no appeal and the
Building Official's decision stands or there is a twin track, dual appeal procedure which is not widely
understood by the general public or even Council. The Rental Housing Standards were intended to
cover all these items and they do. It is supposed to be one -stop shopping for rental housing issues,
including, expressly, building permits for conversions of rental housing. Anything that converts
rental housing requires a permit under the Rental Housing Standards.
The main issue was the larger question of whether the property was a legally converted duplex under
the Rental Housing Standards and the City Code. To determine whether or not a conversion is legal,
zoning and compliance with the Rental Housing Standards and the Building Code must be
considered. Zoning was not a problem as it was a permitted use in this zone. In 1958, the City
passed an ordinance requiring building permits for work that acts to convert a single-family dwelling
to a duplex. Section 5-238 of the Rental Housing Standards states "all rental housing shall also
conform to the applicable City Land Use Code and City Building Codes currently in effect, except
as follows:
1. Legal uses that were permitted at the time of their creation or that became legal
nonconforming uses as the result of subsequent changes to the Land Use Code.
2. Rental housing that was legally constructed under the Building Construction Codes enacted
by the City at the time of their construction and which rental housing conforms to the
provisions set forth in this Article."
41
May 15, 2007
The issue now was what evidence was before the Building Review Board that showed the premises
were legally converted, either with a permit after 1958, or prior to 1958 when no permit would have
been needed. The appellant's evidence consisted of presenting to staff that there was no City record
on file of any conversion permit having been issued, which was confirmed by Mr. Lee.
Nevertheless, Mr. Lee made the determination that it was a legally converted duplex, based on the
landowner's statement that the property had been used as a duplex long before she bought it. Mr.
Zier did not believe that statement was true and her statement was "since she bought it in 1984." Mr.
Schultz researched Countyrecords which showed it now, and always had shown it, as a single-family
residence. That evidence was presented to City staff who still said it was a legal conversion. Then
Mr. Schultz canvassed his neighborhood and found an older lady who had lived there from 1970 to
2004 who knew Ms. Evans, who had resided at 505 Locust prior to selling the property to Ms.
Bolton. Her statement said the property had not been used as a duplex prior to 1984. The evidence
in front of the Building Review Board on the other side, regarding anything to do with pre-1958 was
a statement from Ms. Bolton in which she said "Well, there were a number of homes that were
converted to duplexes in Fort Collins after World War Il and this was probably one of them." There
was no basis given, just a conjecture. The historic evidence referred to by Mr. Lee stated there were
two phone lines in the house in 1967, which may or may not have been for a duplex and does not
prove anything pre-1958 nor does it prove the dwelling was legally used as a duplex in 1967. Mr.
Gebo stated his finding was based on everything he looked at but did not give specifics. He stated
it was more likely than not that it was used as a duplex "on or before the late 1960s". The "on or
before" portion of the statement is meaningless and could refer to any previous date. "The late
1960s" is post-1958 and does not supply any evidence to sustain the Building Review Board's
decision. Mr. Gebo stated his experience led him to believe the interior conformed with materials
used many decades ago. This again was not evidence the dwelling was legally converted to a duplex
or converted at all prior to 1958. The Building Official's authority to interpret the Code and its
intent does not allow for unsubstantiated inferences about things where there is no evidence.
Use of the dwelling as a duplex after 1958 was not evidence that it was a legal duplex. Nonspecific
testimony such as the statements from Mr. Gebo about older -appearing flooring was not evidence
the flooring was installed as part of a duplex conversion at any particular point in time. It might have
simply been used to finish the basement. There was much credible, essential information lacking
in this matter. He asked Council to overturn the BRB's decision and decide it did have jurisdiction
regarding the rental housing standards but there was not competent evidence that this property was
a legal duplex. The BRB heard all the information on the issue so this does not need to be remanded
to the BRB. He asked that Council sustain the appeal and require a conversion permit and payment
of the appropriate fees as required by the Rental Housing Standards.
Mr. Schultz, 501 Locust Street, appellant, stated there is no proof in City records or outside records
the property was ever used as a duplex or converted to a duplex prior to 1958. Additionally, an
MLRS listing from 1984 clearly states "excellent potential for rental up and down duplex", which
again confirmed 505 Locust Street was never legally converted from a single-family residence to a
legal duplex. Prior to purchasing his home in 2001, Mr. Schultz contacted the City and the County
and was reassured by both that the house next door was a single-family dwelling. He did not believe
Council intended to have six people living in a four -bedroom home under the recently enacted 3-
unrelated Ordinance. He contended the City Building Department was not enforcing the Code and
42
May 15, 2007
was ignoring the letter and spirit of the law. He asked Council to enforce the Code that had been
adopted in regards to rentals and over -occupancy. He was perplexed that the burden of proof fell
on him and not the absentee landlord. This set a dangerous precedent because anyone who owned
a rental could claim it was a duplex and the burden would then be placed on the neighbors instead
of the property owner. He stated there were twelve illegal duplexes or instances of over -occupancy
within a one block radius of his home and thirty-two within two blocks. If this precedent was set,
the number of occupants in his neighborhood would double and change the character and integrity
of his neighborhood. This was a city-wide issue. He asked Council to enforce City Code and place
an impediment in the form of a fee so that conversions from single-family dwellings to duplexes
were minimized and documented to protect the safety and welfare of neighborhoods.
Elizabeth Lamb Kearney, attorney representing Jeanne Bolton, property owner, stated there were two
overriding issues in this matter. One was, do the City's building officials know their job and have
they competently performed their function. The other was the matter of whether this dwelling was
a legally converted dwelling. The burden of proof was on Mr. Schultz. If the burden of proof was
on Ms. Bolton, as property owner, then every property owner in Fort Collins would be required to
provide a building permit, regardless of the time when the building was constructed, to prove the
building was in existence. Mr. Schultz's argument was that, because Ms. Bolton could not produce
a duplex conversion permit for a conversion that occurred, according to City building officials'
investigation and decision making, over forty years ago, then Ms. Bolton was in violation. However,
Mr. Lee pointed out that there was no permit in the City records for the construction of the residence.
Was the conclusion then to be that the dwelling was illegally constructed and, unless the owner
wanted to pay the building fees for what the construction would cost today, then the owner was in
violation of the City Code. That made no sense. Ms. Bolton was extremely frustrated with this
matter as it had never been dealt with as a neighbor dispute, never been dealt with on a rational basis
with any contact made with Ms. Bolton regarding problems Mr. Schultz might have with the tenants,
issues she could effectively deal with and had dealt with since she had owned the property. Instead,
this issue had been pursued on an "overly technical" basis. The building officials contacted Ms.
Bolton and stated there had been a complaint with concerns about the quality of units in her building.
The building inspectors examined the dwelling and informed Ms. Bolton that, while it was an old
structure and had been that way a long time, there were some health and safety issues. Health and
safety issues meant the people in the building needed to be safe and municipalities had the right to
require changes to ensure people live in safe housing, regardless of when the law was passed or the
structure was built. Ms. Bolton agreed to make changes to comply. She converted the windows in
the basement, installed a hand rail, and did the wiring to comply with the Code. The building was
now up to current rental housing standards. Mr. Schultz was not satisfied with that compliance and
now wanted Council to force Ms. Bolton to pay a duplex conversion permit fee on a conversion that
occurred some time twenty years before Ms. Bolton bought the property because she did not have
a duplex conversion permit. If the Council did agree with Mr. Schultz, then Mr. Schultz would
"have a heyday" and be able to go to any structure in the City that has had a duplex in it for any
number of years and, if they cannot produce a conversion permit, they would be required to pay the
fee under today's cost structure for that conversion permit. That did not make sense.
The law that allows overturning an administrative decision states there is a finding that there is
nothing in the record to support the decision. In this case, City staff had inspected the structure,
43
May 15, 2007
required modifications, researched historical records and determined, according to their expertise,
it had been a duplex for long enough that it met Fort Collins standards and they would not make Ms.
Bolton produce a permit the City admits does not exist. There was evidence in the records to support
the Board's decision. More importantly, the precedent that would be set by granting the appeal and
allowing this requirement to placed on any property owner in the City would be overbearing and
would have overtones of constitutional violation, based on the prohibition of retroactive application
of ordinances. Retroactive application meant an ordinance cannot be created today and applied to
all the activity the ordinance regulates that were already inexistence. Retroactive application is what
the appellant is asking and this is not constitutionally supported. The decision of the building
officials is well supported and well researched and Council can uphold their decisions.
Mr. Zier stated there was no evidence this property was ever legally converted to a duplex. He did
not believe the property owner intentionally evaded the regulations as there is no evidence to that.
Nevertheless, even if the intent was unintentional, the evidence was that the regulations had been
evaded. They were evaded with regard to railings, escape windows and lighting. The land owner
admitted the property had been rented as a duplex by her since 1984 and that supplemental income
had been a windfall for her. She had not informed the County Assessor of the property's use as a
duplex or had it assessed as a multi -unit building. This was not a legally converted duplex, but the
owner was getting all the benefits of that. Her written materials improperly introduced new
evidence, a Sanborn Fire Insurance Map, to Council that was not part of the BRB hearing. It is also
inaccurately stated in the written material provided by Ms. Bolton's attorney, that the staff
determined the premises had been in use as a legal duplex since at least 1967. That is not what staff
determined in the hearing and was nine years too late to be relevant or probative in this matter. Mr.
Gebo made an unsubstantiated decision rather than looking at the evidence objectively. Mr. Gebo
and Mr. Lee staked out a position based on 1984 evidence which was found nowhere in policy or
practice in the rental housing standards and then they searched for evidence to substantiate their
decision. The evidence was in writing in that there was no permit, no indication in the County
records of conversion to a duplex. The only other way this could be shown was if the applicant or
the City had records showing the property had been converted prior to 1958, which would then not
require a permit. The standard to overtum the lower hearing decision was incorrectly stated. It is
not that there be "no evidence" but that there is no "competent evidence." Conjecture and
speculation was not competent evidence. Speculation is something that is properly objectionable
and excluded in a court and should be here. Speculation was the only evidence of pre-1958
conversion or use as a duplex. There was no other evidence of it. This had been a punitive process
on the applicant but it was properly before the Council and was properly before the BRB because
the Rental Housing Standards say so and the decision should be overturned.
Mr. Schultz stated a young man and his wife lived in the property at the time Mr. Schultz moved
next door to the property. No one lived in the lower level. After a few years, Ms. Bolton began to
rent the basement. He sent Ms. Bolton a letter stating there was a parking issue with the property
and offered to work with her to come to a resolution on the issue. He never heard from Ms. Bolton.
The City and the County do not agree on this issue. According to the County Assessor's office, a
permit and fee is required when conversion from a single-family dwelling to a duplex takes place.
This conflicted directly with statements from Mr. Lee and Mr. Gebo. The fact that there was more
than one phone line to the property did not make a property a duplex. He had four phones coming
M1
May 15, 2007
into his house when he purchased it. He also believed the wiring done to the dwelling should have
required a permit according to the Building Code as permits are required for anything that alters or
improves or converts a property that is subject to the Rental Housing Code. The building officials
required a permit, after the fact, for the windows and the hand rails, but there was still no building
permit for the hard wired smoke alarms. Past illegal use did not equal compliance nor should long-
term illegal use "ripen" into legal use after a number of years.
Ms. Kearney stated she had spoken with the County Tax Assessor's Office and asked if the tax
assessment process made any distinction between a residential unit that has one unit or two, i.e., was
a duplex in a residential neighborhood. The Assessor Office informed her that no distinction was
made and the property would be assessed the same, whether it had one unit in the basement and one
unit on the second floor or if it was all one living space. To claim there has been some illegal use
of the structure and that there has been a windfall by Ms. Bolton who has been renting the two units
to college students since 1984 was a stretch. The reason the burden of proof was on the appellant
was that he had to prove to Council that the building officials' decisions were wrong. Ms. Bolton
had no duty to prove anything to Council. She was a participant in this procedure because she was
next door to Mr. Schultz. She understood that the appeal process for building codes allowed the
person who was affected by the decision, i.e., Ms. Bolton or any other person who was required to
make changes or purchase a permit, to appeal. The City must then provide its evidence to show that
modification or permit requirement was supported. In this case, Mr. Schultz was not a party -in -
interest as far as ownership or maintenance of the structure is concerned, but he was claiming he had
standing to raise an appeal because the building officials did not enforce a code to Mr. Schultz's
standard. This was an unusual procedure in that other building code appeals resulted from a property
owner appealing a decision they found untenable. The people most qualified to make this decision
were the building officials, Mr. Lee and Mr. Gebo, who knew the Code inside and out, looked at
properties and made decisions based on their knowledge. Ms. Bolton requested this appeal be denied
because the appellant had not met his burden of proof. He had not demonstrated that the underlying
decision made by the building officials was flawed or failed to rely on credible evidence.
Mayor Hutchinson stated he had outlined a "three -pronged" approach to the key issues in this matter
and asked if it was appropriate to state those. City Attorney Roy stated now was a proper time if it
would help Council focus on particular matters in a particular order and expedite the discussion and
resolution of the matter.
Mayor Hutchinson stated the first item, not mentioned but was a part of the package in terms of
housekeeping, was the reference change where the Uniform Building Code was the wrong reference
in the Resolution passed by the Building Review Board and needed to be changed to International
Residential Code. The second item was the jurisdiction issue concerning whether the Board's
decision that it did not have jurisdiction to consider the issue raised by the Notice of Appeal i.e., does
the Board have jurisdiction. If the Board had jurisdiction, counter to its decision, then Council
would go to the third item concerning the building permit and whether, under the International
Residential Code, the conversion needed to be made into a duplex and required the fee to be paid.
Councilmember Ohlson asked if there was no proof this property was ever allowed to be a duplex,
post 1958, then why was it not clear this was not a legal duplex. He also asked what the fee would
M
May 15, 2007
be to convert to a legal duplex and why the addition of smoke alarms and the associated wiring did
not require a building permit under the rental code. He also questioned why the City had a Building
Review Board if this matter did not fall under its jurisdiction. Lee stated when he became involved
in this case he simply looked at what was "reasonable" for the issue of when the building was
converted. He looked at occupancy directories that indicated CSU students lived there with a
widow. It did not make sense that they would be living in the same unit, so it was more likely they
lived in the finished basement. The presumption then was that the building was probably a duplex
and the additional phone lines were coincidental. He looked at it as an existing duplex that did not
meet the rental housing standards. Smoke alarms are not required by the Rental Housing Standards
so that was an improvement requested of the owner by the building officials because it was simple
and effective. In retrospect, perhaps staff should have required a building permit, at a modest cost
of $25. He viewed the building as an existing duplex and the important thing was to get it to current
rental housing standards, but the impact fees were not required. He had authority to administer the
codes in a reasonable way and his decision was that the unit was a duplex and had been for some
time. With that conclusion, based on the rental standards, which were adopted in 1982, then there
were no impact fees to be charged. The improvement impact fees were designed to accommodate
expansion for city services and the impact existed prior to the time impact fees were passed. He
believed all fees had been collected and he never considered the unit to be a conversion. He looked
at it as an existing, Land Use Code complying, duplex.
Councilmember Ohlson asked why it was not the job of the Building Review Board to look at this
matter. He also asked if it was acceptable if someone converted a house two years ago into a duplex
but did not pay the fees. Lee stated that was absolutely not true. This was a specific case. If a
different matter arose and there was a contemporary record that indicated construction was done
recently, then the decision would have been different. Today a conversion from one use to another
permitted use would not require a building permit but a basic development review process. In 1984,
there was no such process. If the conversion had occurred two weeks ago or ten years ago, it would
have been looked at much differently.
Councilmember Ohlson asked if the Building Review Board should have ruled but did not. Lee
stated the Building Review Board's duties are spelled out in the Uniform Building Code and the
International Residential Code and are limited to an appeal from a person holding a permit or an
applicant for a permit concerning a decision of the building official. That was its purview and it did
not make decisions regarding land use issues, but was specifically limited in the Code. An appeal
needed to be related to a permit or permit application and the only appellant with standing is an
applicant or permit holder.
Councilmember Ohlson did not think the appellant was asking for impact fees, but was asking for
a building fee or a general fee. Since the impact fees did not exist in the early to mid- 1980s that was
not relevant. He asked if the appellant was asking for some other fee or if he was requesting impact
fees. Lee believed the appellant was talking about capital expansion improvement fees.
City Attorney Roy stated the question of jurisdiction, in addition to the provision in the IRC, which
says that the holder of a permit or an applicant can appeal, Mr. Zier was arguing that Section 5-238
of the City Code contains a provision that states unless one is exempt, the Building Codes apply as
01
May 15, 2007
well as the Rental Housing Standards. In the Rental Housing Standards provision of the Code was
a provision that states the BRB also interprets those standards. That was a different way to find that
the BRB had the authority to apply the Building Code. It was a separate question, once a decision
was made that the BRB did have the authority, as to whether those Codes, in this situation, required
a building permit. There were two ways to answer the question of jurisdiction: the duties assigned
to the BRB under the International Residential Code and the duties assigned to the BRB under the
rental housing standards. The BRB found it did not have jurisdiction under the International
Residential Code because the person who had appealed (Mr. Schultz) was not one who had standing
under that Code. He did not hold a permit and was not seeking a permit. The separate question was
whether the BRB had the authority to look at the appeal under the Rental Housing Standards.
Mayor Hutchinson asked how Council can know the validity of the Rental Housing Code approach
as the other approach seemed straightforward. According to the Building Review Board decision,
under the City Code and the International Residential Code "appeals to the Building Review Board
may only be made by persons who are either applicants for or holders of a building permit. Since
the appellant is neither a permit applicant nor a holder of a building permit of 505 Locust Street, then
the Building Review Board has no jurisdiction to hear his appeal." City Attorney Roy stated Section
5-259 states "in order to provide for final interpretation of the provisions of the Rental Housing
Standards and to hear appeals provided for hereunder, the Building Review Board shall serve in such
capacity." Paul Eckman, Deputy City Attorney, stated the Building Review Board decided the issue
on the basis of the IRC which states the Board can only hear appeals from building permit holders
or applicants. It was also true that Section 5-259 of the Rental Housing Standards states the Building
Review Board is the Board to appeal to regarding any provision of the rental housing standards.
Section 5 -23 8 required compliance with the Land Use Code or the City's Building Codes currently
in effect, unless the exemption was met. The Building Review Board did not decide it had
jurisdiction under that Section, but decided it did not have jurisdiction under the IRC. If Council
chose to look at the issue differently, then Section 5-259 would give the Building Review Board the
authority to hear the appeal under the rental housing standards and then use Section 5-238 to decide
if the exemption applied or not. If there was jurisdiction under Section 5-238, then the IRC would
be used to see what the scope of that Code was and when it required a building permit.
Councilmember Ohlson asked if someone converted a building even ten years ago to a duplex, would
there be records available to prove whether it was done legally. Lee stated if a conversion was
legally done in recent years then there would be documentation of the process being followed. If the
documentation could not be produced, then the owner would have to comply with current
regulations.
Councilmember Ohlson asked for clarification as to what outcome the appellant was requesting. Mr.
Zier stated the appeals process in the Code allowed the Council to affirm the decision of the Building
Review Board, overturn the decision or Council can remand for two reasons: (1) if for some reason
there has not been a fair hearing (not the case in his opinion) or (2) in order for the Board to receive
additional information because presumably it did not receive enough information to decide the issue.
He did not think that was applicable in this case because the Board made its decision regarding
jurisdiction after hearing all the information. The appellant was asking Council to overturn the
decision and find that the Building Review Board, under the Rental Housing Standards, had authority
47
May 15, 2007
or jurisdiction to consider the issue of whether or not a permit to convert was required by the Rental
Housing Standards and that a building permit be required. He did not know what fees were
associated with a conversion permit today, but if the building was not legally converted as of this
time, it can be legally converted because it is legal in the zoning. The owner would need to get a
permit to convert, pay the required fees and then it would be legal and there would be no complaint.
Councilmember Ohlson asked if this decision was reached would the appellant then be happy. Mr.
Zier answered in the affirmative and stated a permit should also be required for any alterations to
improve rental premises which would include the smoke alarms.
Councilmember Ohlson asked staff for a ballpark figure of the cost of those fees. Mr. Lee stated a:
a matter of policy, minor electrical work, done by a licensed electrician does not require a permit.
Councilmember Ohlson clarified that he was asking what the cost would be for the fees to convert
the building from single-family to a duplex. Lee felt the owner had already paid the fees with the
payment of $700 for the permit for the work already done to the building.
Mayor Hutchinson asked if that was the fee to convert the dwelling from a single-family dwelling
to a duplex. Lee stated there was no specific fee to convert a building; fees are based on the
construction done to do a conversion.
Mayor Hutchinson asked if fees were based on the alterations done. Lee answered in the affirmative.
Councilmember Ohlson asked if the Council decided that, under the rental housing standards the
Building Review Board had jurisdiction and Council remanded the appeal back to the Board, what
harm would be done. City Attorney Roy stated if Council believed the Board had jurisdiction and
should have decided the merits of the question of whether or not a permit should have been required,
then there did not appear to be any legal harm. If Council thought the Board was better equipped
to decide whether or not a permit was required then Council could reverse the Board's decision and
have it make that decision. Whether Council made the decision as to whether a permit was required
to convert from a single-family dwelling to a two-family dwelling or sent the decision back to the
Board, consideration must be given to the section in the IRC that explains when a permit is required.
"Any owner or authorized agent who intends to construct, enlarge, alter, repair, remove, demolish
or change the occupancy of a building or structure or to erect, install, enlarge, alter, repair, remove,
convert or replace any electrical ... or to cause any such work to be done shall first make application
and obtain the required permit." The question to be addressed was does the owner intend to do any
of those things. Assuming the IRC applied to this situation, because the owner cannot establish any
exemption, then did she need to obtain a permit and for what purpose. She had already received a
permit for the alterations and the question was if she needed to obtain a permit to convert.
Mayor Hutchinson asked the appellant to clarify his statement that if he prevailed then the decision
will help prevent the proliferation of duplexes in his area. Mr. Schultz (appellant) stated there were
12 instances of over -occupancy within a one -block radius of his home. This decision would set a
precedent of not allowing a landlord to just convert buildings to a duplex without getting permits.
m
May 15, 2007
Mayor Hutchinson stated if the procedure to become a duplex is only to install a smoke alarm and
pay a $700 fee, then this decision would not be a deterrent. Mr. Schultz stated when he spoke with
Mr. Eckman and Mr. Gebo in September 2006 he asked what would be the cost of converting the
building from a single-family residence to a duplex. The answer he received was that 22 years ago,
the development fee was $1500 and the fee today is $15,000.
Mayor Hutchinson asked what was the cost of fees - $700 or $15,000. Lee stated, in this specific
case he verified with Zoning that when Ms. Bolton obtained the property in 1984, the zoning was
RM-residential, multi -family and there was no development use process; it was a use by right. There
were no fees at that time because there was no development process to convert from a single family
dwelling to a duplex.
Mayor Hutchinson stated if the cost of converting was $15,000, then that cost would be a deterrent
but if the cost was $700 and adding a smoke detector, then that might not be a deterrent.
Councilmember Ohlson did not believe it was the intent of Council to go back and add on fees. He
asked if the fee to make the property code compliant had already been paid and if there was no
construction fee to be charged. Lee answered in the affirmative.
Councilmember Ohlson asked if there were protections for other duplexes not to proliferate illegally
and thus avoid complying with the 3-unrelated rule.
Mr. Zier stated if there is no evidence the property was ever a legally converted duplex, then it was
an illegally converted duplex. This property was a single family home that had been illegally
converted to a duplex. If the conversion was done illegally, then the situation was as if it had not
been done. The analysis from the City should be that the situation was as if someone were coming
today to convert the home and what would that normally take.
Mayor Hutchinson asked if a vote should be taken to continue past the current time of 11:00 p.m.
City Attorney Roy stated any item that is already in progress can continue without a vote as long as
it was started before 10:30 p.m.
Councilmember Brown asked if the property was a duplex in 1984 then would that not be considered
its use. Councilmember Ohlson stated when Mr. Schultz bought his property he did his due
diligence and it was not listed anywhere as a duplex nor was anyone living in the second unit. Mr.
Schultz stated when he moved into his property, the subject property was occupied by a pastor and
his wife and the second unit was completely vacant. He was led to believe that property was a single
family residence by the County Assessor and the City and when he moved in, it appeared to be a
single family residence. A couple of years later, there were four to six people living in the building,
Attorney Kearney stated in 1984, the property was listed in the Multi -List as an "income property"
and the testimony of the person who has owned it since 1984, stated that since then, she had rented
the property as a duplex. In 1984, it was a "use by right' which meant no permit was necessary to
use the property in that fashion under the zoning in place at that time. Permits would be needed in
a current situation when someone would now be converting a single-family residence that had never
10
May 15, 2007
been used as a duplex into a duplex. That was the situation where impact fees and conversion issues
would be an issue. None of those fees were in place in 1984. The Assessor's office did not
distinguish between single-family residences and this type of duplex that has a basement unit and
a ground level unit. The Assessor looked at the square footage and the residential nature of the
property and that was the basis of the assessment. The fact that the property was not assessed as a
multi -family building in the assessor's records was not indicative of whether or not it has been used
as a duplex since 1984. There was no evidence in front of Council to indicate the property had not
been used as a duplex. Ms. Bolton had stated she purchased the property as a duplex in 1984 and
it had been in continuous use as a duplex since then.
Councilmember Poppaw asked if the question was retroactively applying fees to this property.
Kearney answered in the affirmative.
Councilmember Poppaw asked if Ms. Bolton purchased the property in good faith in 1984 as a
duplex and it has been used as such since then, was there only one portion of the duplex in use at the
time Mr. Schultz moved into his property. Kearney stated Mr. Schultz was incorrect and the
property had continuously been rented as a duplex since 1984.
Councilmember Ohlson stated he did not want to set a precedent and allow residences to avoid
complying with the 3-unrelated rule. He asked if other residences in the area were converted to
duplexes, regardless of the date they were converted, would they be allowed to do so without
complying with the process to become a duplex in order to avoid the 3-unrelated rule. Lee stated
emphatically if a complaint is made on other properties, it would be investigated and if the property
is occupied illegally, staff would do its best to make a case.
Councilmember Ohlson asked if simply putting in a window or smoke alarm would then make such
a property "legal". Lee stated that typically would not happen. The decision being appealed was
based on a particular case, but it was not general policy.
Mayor Hutchinson stated Lee made his decision, Mr. Schultz filed his appeal and the BRB decided,
based on the International Residential Code Mr. Schultz had no standing for the BRB to make a
decision regarding permits. Lee stated that was a summary of the situation and the IRC did not allow
the BRB to consider other codes, such as the Land Use Code. The intent of the Rental Housing
Standards, as non -administrative standards, was to allow the BRB to rule on such requirements as
windows and compliance with the physical standards.
In response to Councilmember Ohlson's question regarding non-compliance with the 3-unrelated
rule, Deputy City Attorney Eckman stated the Land Use Code had been in effect for over ten years
and it defined development as "any change in the intensity of use of land such as an increase in the
number of dwelling units in a structure or tract of land." Today, changing a single-family dwelling
to a duplex would constitute an increase in the number of dwelling units in a structure and would
require the owner to go through the process under the Land Use Code which would bring about
development fees and impact fees. It would require an outside entrance which would require a
building permit, and parking would be addressed, as well.
Councilmember Ohlson asked if a property owner had done a conversion in the past five or six years,
50
May 15, 2007
but claimed it was done in 1994 would that be considered a "legal" conversion. Lee stated that
would not be the case and the owner would need to prove exactly when the premise was converted.
If proof was not provided, then the duplex would not be allowed.
Mayor Hutchinson asked if this particular case under appeal did not fit that scenario as the City did
not have any records. Lee answered in the affirmative.
Mayor Hutchinson asked if it was correct to now address the reference issue, then the jurisdiction
issue, then focus on the building permit. City Attorney Roy stated that was a good order to proceed
and he recommended once the topic of the building permit application was reached, then discussion
was in order as to what was the intent of the IRC, assuming it applied to this situation. The
discussion should focus on the question of a obtaining a permit to convert or just to do the alterations
that are necessary to bring the property up to the rental housing standards.
Mayor Hutchinson stated the first step was to decide the reference issue, which was basically a
housekeeping issue. The decision of the Board that was being appealed was based on the Uniform
Building Code instead of the hitemational Residential Code, but there was no substantial difference
between the two Codes in this case, but the correct Code needs to be referenced.
Councilmember Troxell made a motion, seconded by Councilmember Poppaw to correct the
references to change from the Uniform Building Code to the International Residential Code which
would give the technically legally correct reference. Yeas: Councilmembers Brown, Hutchinson,
Ohlson, Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Mayor Hutchinson stated the second issue was one of jurisdiction. Council needed to decide if the
Building Review Board's decision that it did not have the ability to hear the appeal was a correct
decision. If the Board did actually have jurisdiction and it was incorrect in its decision then the
question of whether a permit would be required would be addressed. City Attorney Roy
recommended dividing the second issue into two parts, whether the Board had jurisdiction under the
IRC directly, which is limited clearly to holders of permits or an applicant for a permit and then
resolve the question of a permit afterwards.
Mayor Hutchinson stated the Council needed to decide the question of whether the BRB had
jurisdiction and was its decision that, based on the IRC, it did not have jurisdiction to hear the appeal
a correct decision or does Council overturn that decision. City Attorney Roy clarified this is one of
the two ways the BRB would have jurisdiction, i.e., directly under the IRC provision.
Mayor Hutchinson asked how much weight should be given to the decision already made by the
BRB, that it did not have jurisdiction under the IRC which states that code appeals to the BRB can
only be made by persons who are either applicants for or holders of a building permit. Since the
appellant was neither, the BRB had decided it had no jurisdiction. Eckman agreed with the BRB's
decision that, since the appellant did not hold a permit for 505 Locust Street, then under the IRC, the
BRB decided correctly.
51
May 15, 2007
Councilmember Brown made a motion, seconded by Councilmember Troxell, stating the Council
agreed the Building Review Board made the correct decision that it did not have jurisdiction under
the IRC. Yeas: Councilmembers Brown, Hutchinson, Ohlson, Poppaw, Roy and Troxell. Nays:
None.
THE MOTION CARRIED.
City Attorney Roy stated the next question would be to determine if the BRB had jurisdiction under
Section 5-259 of the City Code, which states the BRB can make final interpretations of the rental
housing standards. It does not specify who can file an appeal.
Mayor Hutchinson stated Section 5-259 was about appeals and asked if that section of the Code did
state the Building Review Board could hear appeals. Attorney Zier stated Section 5-260 also
applied. City Attorney Roy stated his interpretation was that Section 5-259 was concerning
jurisdiction and Section 5-260 which contains the phrase "it shall be unlawful for..." which is found
throughout the Code and means that staff has to prove beyond a reasonable doubt, in a criminal
proceeding, that somebody did act unlawfully and then they can be prosecuted for having done an
unlawful act. That was not a grant of jurisdiction. That was a separate kind of violation and if there
was proof beyond a reasonable doubt that Ms. Bolton failed to get a permit when she should have,
then Section 5-260 would apply. That is not the issue now. Section 5-259 might apply.
Councilmember Ohlson asked if a reasonable person could conclude the BRB did have jurisdiction
under that Section of the Code. City Attorney Roy answered in the affirmative. If jurisdiction was
established through this provision, then Council could get to the real issue of this appeal and give
some guidance to staff as to how the Code should read when it come to the ultimate question of
whether a person in this circumstance should get a building permit to convert from a single-family
dwelling to a duplex when there is much ambiguity as to whether that was done properly in the
beginning.
Mayor Hutchinson asked for clarification between the provision in the IRC and the provision in the
City Code. City Attorney Roy stated there were two separate provisions of the Code that give the
BRB authority to do certain things. The provision under the IRC does not give the BRB authority
because the appellant does not qualify. Council needed to decide if the BRB should have taken a
separate look at Section 5-259.
Councilmember Ohlson asked where Council might proceed from here. Eckman stated that
currently, Council was considering Section 5-259 and asking the question of whether that Section
gives the BRB and now the Council, jurisdiction to interpret Section 5-238 and decide what it meant.
It did not take Council to the final step of deciding whether the IRC would or would not require a
building permit. Section 5-238 only referred to all rental housing being required to conform to the
Land Use Code and the Building Code, in a general sense. In the residential case, that would be the
IRC. If Council did decide there was jurisdiction under Section 5-259, then it should move to the
next question of what the IRC says about 505 Locust Street.
Councilmember Ohlson asked if the BRB would then make the decision regarding the permit. City
Attorney Roy stated that would occur only if Council remanded the appeal to the BRB.
52
May 15, 2007
Councilmember Ohlson asked what harm would occur if the appeal was remanded. City Attorney
Roy stated Council should get to the merits of whether a permit was required, whether through the
BRB or a decision made at this time. Section 5-259 gave Council the jurisdiction to do so.
Councilmember Ohlson made a motion, seconded by Councilmember Poppaw, to determine that
Section 5-259 Appeals, allowed the BRB to have jurisdiction to rule on the appeal.
Councilmember Troxell asked if this determination set a precedent or was this only for this one case.
Mayor Hutchinson stated this motion allowed Council to get to the real issue of whether, under the
IRC, the property owner must get a building permit. City Attorney Roy stated this did set a
precedent in that it gave the BRB authority to issue interpretations and hear appeals relating to the
Rental Housing Standards brought by those who live next door to the person who owned the property
in question.
Councilmember Ohlson stated that was existing law and Council was clarifying that it exists. City
Attorney Roy stated if Council did not like the outcome, then it could amend the Code later to limit
the parties who can file such appeals.
The vote on the motion was as follows: Yeas
Poppaw, Roy and Troxell. Nays: None.
THE MOTION CARRIED.
Councilmembers Brown, Hutchinson, Ohlson,
Mayor Hutchinson stated since Council had found the BRB had jurisdiction to hear the appeal, the
next step was for Council to decide whether to remand the appeal to the BRB for a decision on
whether a building permit is required under the IRC or make that decision itself.
Councilmember Roy asked if, in terms of the existing use of the property in 1984, emergency
services were notified that this property was a duplex and not a single-family dwelling, and should
the County Assessor have been notified this was a rental duplex and not a single-family dwelling.
Lee stated there was requirement regarding notification to emergency services. He could not speak
to the issue with the County Assessor.
Mayor Hutchinson suggested that question be answered separately and asked for a motion for
Council to remand to the BRB the issue of requiring the owner of 505 Locust Street, under the IRC,
to get a building permit to convert to a duplex. Eckman asked to inquire of the parties -in -interest
as to their views on whether a remand would be desirable to them or whether the most efficient move
was for Council to make the decision regarding the building permit at this time.
Attorney Kearney stated she would like the Council to make a determination at this time. If the BRB
made a determination that wass not agreed with, then another appeal will come. If the decision was
made based on a policy and the standards Council believes are in place then guidance would be given
to the BRB for future decisions. The question must be framed very narrowly as Ms. Bolton was not
the appellant in this matter. The burden should not be placed on Ms. Bolton because the burden rests
53
May 15, 2007
with the appellant. A decision now would be very helpful.
Mayor Hutchinson stated it was difficult to decide what would be the impact of this matter as
Council did not have any perspective on what this decision would mean. He asked the amount of
the cost of the permit. Lee stated the issue is in this case, the cost is minimal. The minimum permit
fee is $15.
Mayor Hutchinson stated the confusion comes from Mr. Schultz's statement that this decision was
the key to preventing people from converting homes to duplexes. A $15 fee will not prevent that.
Eckman stated it was a question of the development review fees under the Land Use Code.
Mayor Hutchinson stated Council did not feel it had the facts at its disposal to make a considered
decision. Eckman stated this matter would most likely comeback to the Council under anew appeal
at a later time.
Councilmember Ohlson stated if both parties wanted Council to make a decision now, then he was
prepared to do so.
Mr. Schultz stated every detail needed to be fully understood and a decision made now would not
allow understanding of all the details. He felt it required more discovery. He wanted to answer
Councilmember Poppaw's previous question regarding occupancy at the time he moved into his
property. At that time he went next door and met the neighbors and asked if there was anyone living
in the basement. The house was not being utilized as a duplex that particular summer.
Mayor Hutchinson asked for a motion to remand the issue to the BRB. He also asked if Council was
asking the BRB to return to Council with its recommendation or would it make the ruling. City
Attorney Roy stated if the issue was remanded to the BRB it should be remanded with direction as
to what Council expected the BRB to decide. If the BRB decided and one of the parties was
dissatisfied, it would be back as another appeal.
Councilmember Troxell stated the previous votes were to set up how the process would proceed
from hereon, but with this particular case, he wanted to make the decision at this time.
Mayor Hutchinson stated he did not know how the decision could be made now when Council did
not know if it was a $25 fee or a $15,000 fee which would be an enormous impact on homeowners
in Fort Collins.
Councilmember Troxell made a motion, seconded by Councilmember Brown, that Council
determine that the property has been used as a legal duplex since 1984 and the improvements had
been made such that there was no safety issue so there are no fees to be assessed and no building
permit was required.
Councilmember Ohlson moved for a friendly amendment that requested staff to review the Code
provisions that gave rise to the appeal and determine if changes were warranted to address some of
the issues raised during this appeal and bring appropriate options to Council.
54
May 15, 2007
Councilmember Troxell accepted the friendly amendment.
City Attorney Roy suggested the two motions be separated as Council must pass a resolution that
speaks just to the merits of the appeal for the purposes of any possible court appeal. The motion for
staff review of possible Code changes should be separate from a decision on the appeal.
Councilmember Ohlson withdrew the friendly amendment.
Councilmember Roy stated there was not enough information for Council to make this decision and
he supported remanding the appeal to the BRB and for Council not to make at decision at this point.
Councilmember Ohlson stated he had great sympathy for the appellant but at this point the fees
would not go back and be $15,000 worth of impact fees because those did not exist in 1984. The
situation next door to the appellant would not be changed regardless of any decision by the BRB or
Council. He would like to decide this issue at this time but was more concerned about making a
systemic change, if necessary, to ensure properties comply with the Code.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Ohlson,
Poppaw, and Troxell. Nays: Roy.
THE MOTION CARRIED.
Councilmember Ohlson made a motion, seconded by Councilmember Troxell, that City staff review
appropriate Code provisions that gave rise to the appeal, and see whether changes might be
warranted to address the various issues that arose from the appeal and what options might exist for
addressing those concerns. Yeas: Councilmembers Brown, Hutchinson, Ohlson, Poppaw, Roy, and
Troxell. Nays: none.
THE MOTION CARRIED.
Adjournment
The meeting adjourned at 11:45 p.m.
Mayo
ATTEST:
VUL�k-'�
City Clerk
55