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MINUTES-01/17/2006-Regular
January 17, 2006 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, January 17, 2006, 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, Kastein, Manvel, Ohlson, Roy and Weitkunat. Staff Members Present: Atteberry, Krajicek, Roy. Citizen Participation Mayor Hutchinson stated each participant would have five minutes to speak. Brian Sponaugle, 825 West Mountain Avenue, asked the Council to consider a modification to the City ordinance regarding the feeding of wildlife to include a provision to protect neighboring properties when the feeding of wildlife becomes a nuisance. Sandy Robbins, 5801 South Shields Street, expressed concerns about the proposed southwest enclave annexation. Laurel Kubin, 4708 Cambridge Avenue, spoke about the potential renaming of Cambridge Avenue to avoid confusion with another street named Cambridge Drive. She stated residents who would be economically impacted and inconvenienced by the renaming of the street should be allowed to select or have "weighted input' regarding the new name. She asked that the selected name be one as easily understood and spelled as the current name. She stated several names on a "short list' of proposed names that appeared on a City web page would be difficult to understand or not be appropriate for the location. She questioned the need to change the name of the street. Citizen Participation Follow-up Councilmember Ohlson stated the street naming process needed to be refined to address all potential issues. City Manager Atteberry stated the issue would be coming to Council in February. He stated more than four names were being considered for renaming Cambridge Avenue. Councilmember Roy asked the City Attorney about the Loveland ordinance relating to the feeding of wildlife. City Attorney Roy stated the Fort Collins and Loveland provisions were similar in that certain categories of animals could not be fed. He stated the Loveland ordinance prohibited the feeding of other kinds of wild animals not on the list to the point where theybecame a neighborhood nuisance. 211 January 17, 2006 Councilmember Roy asked how the City's ordinance would apply to the case described by Mr. Sponaugle. City Attorney Roy stated the City's ordinance did not speak to circumstances in which damage was caused to neighboring properties due to the feeding of wildlife, and that the Loveland ordinance would. He stated staff could prepare an ordinance that would be similar to the Loveland ordinance at the direction of Council. Councilmember Kastein stated the City was focusing primarily on the Kel-Mar strip portion of the southwest enclave annexation. He stated when redevelopment happened on that strip it would be to urban levels of development. He stated the City was a better entity than the County to deal with that kind of development and redevelopment would happen at the request of property owners. He asked the City Manager to summarize the status of the outreach plan for the annexation. City Manager Atteberry stated conversations were occurring between the City and the enclave property owners. He stated he would provide Council with an update on the process. Agenda Review City Manager Attebery stated the agenda would stand as published. CONSENT CALENDAR 6. Items Relating to the McClelland's Creek PD & PLD Annexation and Zonine. A. Second Reading of Ordinance No. 002, 2006, Annexing Property Known as the McClelland's Creek PD & PLD Annexation. B. Second Reading of Ordinance No. 003, 2006, Amending the Zoning Map ofthe City of Fort Collins and Classifying for Zoning Purposes the Property Included in the McClelland's Creek PD & PLD Annexation. This is a request to annex and zone 11.93 acres located on the east side of Lake Ranch Road, approximately 1/8th mile south of Kechter Road between Ziegler Road to the west and Strauss Cabin Road to the east. McClelland's Creek runs along the east side of the property. The property is undeveloped and is in the FA-1 Farming District in Larimer County. The requested zoning in the City of Fort Collins is LMN - Low Density Mixed -Use Neighborhood. Staff is recommending that this property be included in the Residential Neighborhood Sign District. A map amendment will not be necessary to place this property on the Residential Neighborhood Sign District Map. Ordinance Nos. 002 and 003, 2006, were unanimously adopted on First Reading on January 3, 2006. 212 January 17, 2006 7. Second Reading of Ordinance No. 004,2006, Authorizing the Lease of City Owned Property Consisting of Office Space at 281 North College to ICLEI — Local Governments for Sustainability, USA, Inc., for up to Five Years. This Ordinance, which was unanimously adopted on First Reading on January 3, 2006, authorizes the City of Fort Collins to develop and enter into a lease agreement allowing ICLEI — Local Governments for Sustainability, USA, Inc. (ICLEI) to use 317 square feet of City office space at 281 North College and limited office equipment for their Western Regional Resource Center office. The lease term will be two years, with capacity to be renewed. The City will be able to terminate the lease with 45 days advance notice. ICLEI will not be charged a fee for use of this space and equipment. Through the provision of limited existing resources, Fort Collins gains a critical opportunity to further strengthen its position as a national leader in environmental and sustainability programs, thus strengthening economic development potential. No funds will change hands. In addition to the opportunity for increased national recognition and increased collaboration with and technical assistance from ICLEI, the City will receive free membership in ICLEI and a free copy of their new software HEAT (Harmonized Emissions Analysis Too]), and numerous other networking benefits. 8. Second Reading of Ordinance No. 005, 2006 Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary for the Construction of Public Improvements in Connection with the Dry Creek Drainage Improvements Project - Irrigation Pipeline. This Ordinance, which was unanimously adopted on First Reading, allows staff to use the eminent domain process if good faith negotiations fail to result in an agreement between the City and affected property owners. Staff is hopeful that all acquisitions will be accomplished by agreement. 9. First Reading of Ordinance No 007 2006 Appropriating Unanticipated Revenue in the General Fund for Continuation of the Restorative Justice Program. A grant in the amount of $20,000 has been received from the Bohemian Foundation for salaries associated with the continued operation of the Restorative Justice Program, which includes Restorative Justice Youth Conferencing and RESTORE (for shoplifting offenses). Restorative justice is an alternative method of holding a youth offender accountable for his or her actions by conferencing with the young person, the victim and community members to identify the harm caused by the incident, to find meaningful ways for the young person to repair that harm. By learning about the impacts of their actions, criminal justice officials are optimistic that repeat offenses will be reduced. The grant period is from December 1, 2005 to November 30, 2006. Donations totaling $1,575 benefitting the Restorative Justice Program have been received from the Sertoma Club, EyeOpeners Kiwanis, the InterFaith Council and an anonymous individual contributor 213 January 17, 2006 10. Items Relating to the Dry Creek Drainage Improvements Project A. First Reading of Ordinance No. 008, 2006, Authorizing the Dry Creek Drainage Improvements Project Master Agreement with Windsor Reservoir and Canal Company, Larimer and Weld Irrigation Company, Latimer and Weld Reservoir Company, and Water Supply and Storage Company, and Authorizing Conveyance of Certain Real Property Interests in Connection Therewith. B. First Reading of Ordinance No. 009, 2006, Authorizing Transfer of Existing Appropriations from the Canal Importation Basin Project to the Dry Creek Basin Project Within the Storm Drainage Fund. This transfer would fund the replacement of the existing Dry Creek culvert under the Burlington Northern - Santa Fe Railway with new bridges. 11. Resolution 2006-003 Finding Substantial Compliance and Initiating Annexation Proceedings for the Boma Annexation. The applicant, Crystal Cove Development, LLC (c/o Mike Tilley), on behalf of the property owner, Crystal Cove Development, LLC, has submitted a written petition requesting annexation of 82.05 acres located at the southwest corner of East Douglas Road (County Road 54) and Turnberry Road (County Road 11). The property contains an existing farmstead with agricultural uses and several existing oil wells. It is in the FA1 - Farming District in Larimer County. The requested zoning for this annexation is UE - Urban Estate. The surrounding properties are currently zoned FA - Farming in Larimer County to the west, O - Open in Larimer County to the north, FA1 - Farming in Larimer County to the south, and LMN — Low Density Mixed -Use Neighborhood in the City to the east. The proposed Resolution makes a finding that the petition substantially complies with the Municipal Annexation Act, determines that a hearing should be established regarding the annexation, and directs that notice be given of the hearing. The hearing will be held at the time of First Reading of the annexation and zoning ordinances on February 21, 2006. Not less than thirty days of prior notice is required by State law. The property is located within the Fort Collins Urban Growth Area. According to policies and agreements between the City of Fort Collins and Larimer County contained in the Intergovernmental Agreement for the Fort Collins Urban Growth Area, the City will agree to consider annexation of property in the UGA when the property is eligible for annexation according to State law. This property gains the required 1/6 contiguity to existing City limits from a common boundary with the Country Club North First Annexation (January, 1984) to the east. 214 January 17, 2006 12. Resolution 2006-004 Finding Substantial Compliance and Initiating Annexation Proceedings for the Sunrise Ridge Second Annexation The Sunrise Second Annexation is 5.23 acres in size. The site is 5221 S. Strauss Cabin Road located approximately one-half mile south of East Harmony Road on the west side of Strauss Cabin Road. Contiguity with the existing municipal boundary is gained along the entire north boundary which is shared with Sunrise Ridge First Annexation and the entire west boundary which is shared with the Willow Brook Subdivision (Observatory Village). The proposed Resolution states that it is the City's intent to annex this property and directs that the published notice required by State law be given of the Council's hearing to consider the needed annexation ordinance. The hearing will be held at the time of First Reading of the annexation and zoning ordinances on February 21, 2006. Not less than 30 days prior, published notice is required by State law. 13. Resolution 2006-005 Authorizing the Initiation of Exclusion Proceedings in District Court Regarding the Exclusion of Annexed Properties Within the Territory of the Poudre Valley Fire Protection District.. This resolution authorizes the City Attorney to file a Petition in Larimer County District Court to exclude properties annexed into the City in 2005 from the Poudre Valley Fire Protection District in accordance with state law and to allow for the provision of fire protection services to such properties by the Poudre Fire Authority 14. Resolution 2006-006 Adopting Amendments to the Financial Management Policies The budget process for the City of Fort Collins is driven by many financial management policies. To facilitate the opportunity for comprehensive review of financial management policies, management staff compiles them into a separate document and reviews and updates the policies annually, as needed. Staff then presents any updated and revised policies to Council for adoption by resolution. The policies remain in effect until subsequently amended or repealed by Council. 15. Resolution 2006-007 Making an Appointment to the Legislative Review Committee At its May 3, 2005 meeting, Council adopted Resolution 2005-044 making board and commission liaison assignments and committee appointments. Resolution 2005-044 appointed Councilmember Kurt Kastein as a member of the Legislative Review Committee. Councilmember Kastein has expressed a desire to be replaced as a member of the Legislative Review Committee due to time constraints. Councilmember Ben Manvel has expressed a desire to be appointed to the Legislative Review Committee. This Resolution appoints Councilmember Ben Manvel as a member of the Legislative Review Committee. 215 January 17, 2006 16. Routine Easement. Easement for construction and maintenance of public utilities from Steven Hawes, to underground existing electric system, located at 4519 South Stover. Monetary consideration: $160. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. 6. Items Relating to the McClelland's Creek PD & PLD Annexation and Zoning. A. Second Reading of Ordinance No. 002, 2006, Annexing Property Known as the McClelland's Creek PD & PLD Annexation. B. Second Reading of OrdinanceNo. 003, 2006, Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the McClelland's Creek PD & PLD Annexation. 7. Second Reading ofOrdinanceNo. 004, 2006, Authorizing the Lease of City Owned Property Consisting of Office Space at 291 North College to ICLEI — Local Governments for Sustainability, USA, Inc., for up to Five Years. 8. Second Reading of Ordinance No. 005, 2006, Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary for the Construction of Public Improvements in Connection with the DryCreek Drainage Improvements Project - Irrigation Pipeline. Ordinances on First Reading were read by title by City Clerk Krajicek. 9. First Reading of Ordinance No. 007, 2006, Appropriating Unanticipated Revenue in the General Fund for Continuation of the Restorative Justice Program. 10. Items Relating to the Dry Creek Drainage Improvements Project. A. First Reading of Ordinance No. 008, 2006, Authorizing the Dry Creek Drainage Improvements Project Master Agreement with Windsor Reservoir and Canal Company, Larimer and Weld Irrigation Company, Larimer and Weld Reservoir Company, and Water Supply and Storage Company, and Authorizing Conveyance of Certain Real Property Interests in Connection Therewith. B. First Reading of Ordinance No. 009, 2006, Authorizing Transfer of Existing Appropriations from the Canal Importation Basin Project to the Dry Creek Basin Project Within the Storm Drainage Fund. 216 January 17, 2006 21. First Reading of Ordinance No. 010, 2006, Granting a Non -Exclusive Franchise by the City of Fort collins to Comcast of California Colorado LLC and Its Successors and Assigns for the Right to Make Reasonable Use of, and Erect, Construct, Operate and Maintain through the Public Rights -of -Way, Easements and Other Public Property Any Equipment Necessary and Appurtenant to the Operation and Maintenance of a Cable System and the Provision of Cable Services to Citizens Within the City. 22. First Reading of Ordinance No. 011, 2006, Amending the Harmony Corridor Plan and the Harmony Corridor Standards and Guidelines to Add a "Regional Shopping Center" Designation in the Mixed -Use Activity Center Located at the Northwest Corner of Harmony Road and Ziegler Road as Shown on the Land Use Map and to Revise the Text of the Definition of "Regional Shopping Center." Councilmember Weitkunat made a motion, seconded by Councilmember Ohlson, to adopt and approve all Consent Calendar items. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED Consent Calendar Follow-up Councilmember Kastein stated he had more questions on Item #10, Items Relating to the Dry Creek Drainage Improvements Project. He stated the project had been scaled back from $16 million to $9 million and that the County had withdrawn from the original agreement relating to funding. He stated prior to Second Reading, he would like additional follow-up on questions he had relating to the project. Staff Reports City Manager Atteberry reported that Officer Jon Holsten had written a book titled "The Swimsuit Lesson: A Story for Parents and Children to Enjoy Together" focusing on personal safety for children and that the book had received a lot of national media attention. He stated Officer Holsten appeared on Good Morning America and the book is to be featured on Oprah Winfrey's television show. He also reported the City was testing video streaming the Council meetings on the City's website. He stated the City was also looking at video on demand to make recorded sessions available. 217 January 17, 2006 Appeal of the November 17, 2005, Determination of the Planning and Zoning Board to Approve the Innovation Island ODP and PDP,• Board Decision Upheld The following is staff s memorandum on this item. "BACKGROUND On November 17, 2005, a Planning and Zoning Board public hearing was conducted to receive presentations and testimony on the Innovation Island development proposal, a qualified affordable, mixed -use (residential and commercial) project on 4.4 acres. The Board considered both the Innovation Island, ODP and the Innovation Island, PDP. The property is at the southeast corner of West Harmony Road and South Taft Hill Road and is zoned LAIN - Low Density Mixed -Use Neighborhood. Thelnnovation Island ODPconsists ofParcel A, which contains 27affordable dwelling units on 3.2 acres; and, Parcel B, which contains 20, 000 square feet of non-residential uses in a building (or buildings) on 1.3 acres. At the present time, development is being limited to Parcel A. Parcel B will be developed at some future date. The Innovation Island PDP, an affordable multi family housing project on Parcel A of the ODP, consists of a total of 27 dwelling units in five buildings on 3.2 acres. On November 17, 2005, the Planning and Zoning Board approved the Innovation Island ODP and PDP. Allegations on Appeal On December 20, 2005, a Notice of Appeal was received by the City Clerk's office regarding the decisions of the Planning and Zoning Board. In the Notice of Appeal from the Appellants Cathy Lund (Primary Person of Contact) and 23 other adjacent property owners, it is alleged that: • Relevant laws were not properly interpreted and applied; and • The Planning and Zoning Board failed to hold a fair hearing by: Ignoring its previously established rules of procedure Considering substantially false or grossly misleading evidence Improperly failing to receive all relevant evidence offered Questions City Council Needs to Answer a. Did the Planning and Zoning Board conduct a fair hearing? Did the Planning and Zoning Board show bias? Did the Planning and Zoning Board considerfalse or misleading evidence? 218 January 17, 2006 If NO, remand to the Planning and Zoning Board If YES, consider whether the Planning and Zoning Board followed provisions of the Land Use Code. b. Did the Planning and Zoning Board properly interpret and apply the Land Use Code? StaffAnal sy is of Relevant Issues • Public Notification ("Gathered Signatures') Allegation that, prior to the Planning and Zoning Board public hearing on November 17, 2005, citizens from the Overlook Citizens Action Committee went into the surrounding communities of the Gates and Taft Canyon Subdivisions gathering signatures in opposition to the Innovation Island project because most of those people were never informed of this development proposal. Evidence presented to the Planning and Zoning Board established no controversy or facts to refute that the hearing was properly posted; legal notices were mailed and notice published. • Misleading Evidence: Neighborhood Meeting Information Allegation that, since the applicant's representative helped to record a written summary captured at the neighborhood meeting, such summary was inaccurate. There was no evidence provided at the public hearing substantiating any particularly misleading information found within the neighborhood meeting written summary. • Misleading Evidence: Landscaping All applicable City standards for landscaping have been met, including all tree planting, plant size specifications, and parking lot landscaping requirements. It is acknowledged that the City Planner made an inaccurate statement regarding landscaping standards applicable to the project; however, this inaccuracy had no impact on the Board's decision since the landscape standards have been met through the proposed design. • Failure to Receive Relevant Information Allegation that the Planning and Zoning -Board Chairpersonfailed topermit citizens to rebut or clarify misleading statements. It is at the discretion of the Planning and Zoning Board to exclude testimony or evidence that it finds to be irrelevant, immaterial or unduly repetitious. The Board followed the order ofproceedings at a public hearing as outlined in the Land Use Code. • Traffic Dangers Allegation that future widening of South Taft Hill Road between West Harmony Road and 219 January 17, 2006 West Horsetooth Road will cause further congestion at the South Taft Hill Road/West Harmony Road intersection. As indicated in the Staff Report to the Planning and Zoning Board, the Transportation Impact Analysis, and through testimony provided at the hearing, the applicable development standards,for traffic operations are met. • Safety/Health Risks to Children Allegation that the Applicant's and Developer's proposed location for the playground was not well thought out. Beyond building code standards for play equipment, there are no specific Land Use Code standards applicable to the location and design of the playground area. From the staffs perspective, the playground location and design will not pose a significant risk to health and life safety. • Failure to Properly Apply Modification of Standards Criteria Allegation that the Planning and Zoning Board failed to properly apply the review criteria applicable to the three Modification of Standards requests. More specifically, the three requested modifications related to building setback relative to the S. Taft Hill frontage requirements, the pedestrian walkway connection, and the street facing building facades applicable to two internally -located buildings. The Planning and Zoning Board found that the modification requests were not detrimental to the public good and helped to bring the plan to fruition that would address an important community need, namely the need for affordable housing. • Overabundance of Affordable Housing The appellants allege that there is an overabundance of affordable housing. Visual images provided to the Planning and Zoning Board during the hearing that displayed the distribution of qualified affordable housing within the community. There was no evidence provided within the images which would indicate that there is an overabundance of affordable housing community -wide or within this portion ofthe community. Further, there are no specific standards or criteria within the Land Use Code which limit the total number and/or geographic distribution ofaffordable units. List of Issues Staff Considers to be Irrelevant • Misleading Evidence: Applicant Statements Allegation that the Developer and the Applicant have been telling the Appellants that they want to be good neighbors and have Innovation Island blend with the surrounding neighborhood. The expressed intent to be a "good neighbor" is neither a review criterion nor a specific Land Use Code regulation. 220 January 17, 2006 • Construction Time Allegation that, based on the Developer's information, the Innovation Island project will be under construction for many years, with the greatest impact felt by residents located directly to the south of the project. Not applicable as there are no code provisions dictating the length of construction period. • Market Research Allegation that a neighborhood resident adjacent to Innovation Island has received a per dwelling unit appraisal for Innovation Island from an independent real estate agent. This information was e-mailed to the Mayor, the District City Council member, and the City Planner. In order to qualify as a certified "affordable housing project "the applicant must commit to restrictions on unit sale price; therefore, this information is irrelevant. • Size and Configuration of Property for Affordable Housing Allegation that this site is not a good ' fit ` for lower -income families in that the physical size and configuration of this lot is not "optimal" for this project. There are no size and lot configuration standards within the Land Use Code specific to affordable housing development. List of Relevant Code Provisions • Standards_for Granting Modifications. 2.8(H) - Step 8 (H) Step 8 (Standards): Applicable, and the decision maker may grant a modification of standards only if it finds that the granting of the modification would not be detrimental to the public good, and that: (1) the plan as submitted will promote the general purpose of the standard for which the modification is requested equally well or better than would a plan which complies with the standard for which a modification is requested; or (2) the granting of a modification from the strict application of any standard would, without impairing the intent and purpose of this Land Use Code, substantially alleviate an existing, defined and described problem of city- wide concern or would result in a substantial benefit to the city by reason of the fact that the proposed project would substantially address an important community need specifically and expressly def ned and described in the city's Comprehensive Plan or in an adopted policy, ordinance or resolution ofthe City Council, and the strict application ofsuch a standard would render the project practically infeasible; or 221 January 17, 2006 (3) by reason of exceptional physical conditions or other extraordinary and exceptional situations, unique to such property, including, but not limited to, physical conditions such as exceptional narrowness, shallowness or topography, orphysical conditions which hinder the owner's ability to install a solar energy system, the strict application of the standard sought to be modified would result in unusual and exceptional practical difficulties, or exceptional or undue hardship upon the owner of such property, provided that such difficulties or hardship are not caused by the act or omission ofthe applicant; or (4) the plan as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be modified except in a nominal, inconsequential way when considered from the perspective of the entire development plan, and will continue to advance the purposes oftheLand Use Code as contained in Section 1.2.2. Any.finding made under subparagraph (1), (2), (3) or (4) above shall be supported by specificfindings showing how the plan, as submitted, meets the requirements and criteria ofsaid subparagraph (1), (2), (3) or (4). Landscaping for Affordable Housing (3.2.1 (D)(5)) (5) Reduced Minimum Sizes.for Affordable Housing Projects. In any affordable housing project, the following minimum sizes shall be required: Type Canopy Shade Tree Evergreen Tree Ornamental Tree Shrubs Canopy Shade Tree as a street tree on a Local or Collector Street only Minimum Size 1.0" caliper container or equivalent 4.0' height container or equivalent 1.0" caliper container or equivalent I gallon 1.25" caliper container or equivalent • Landscaping between Incompatible Uses and Activities (3.2.1 (E)(1)(0 and (D)) (E) Landscape Standards. All development applications shall include landscape plans that meet the following minimum standards: (1) Buffering Between -Incompatible Uses andActivities. In situations where theDirector determines that the arrangement of uses or design of buildings does not adequately mitigate conflicts reasonably anticipated to exist between dissimilar uses or building designs, one (1) or more of the following landscape buffering techniques shall be used to mitigate the conflicts. 222 January 17, 2006 (c) Establishing privacy: establishing vertical landscape elements to screen views into or between windows and defined outdoor spaces where privacy is important, such as where larger buildings are proposed next to side or rear yards of smaller buildings; (d) Visual integration offences or walls: providingplant material in conjunction with a screen panel, arbor, garden wall, privacy fence or securityfence to avoid the visual e/fect created by unattractive screening or security fences; • Parking Lot Perimeter Landscaping 3.2.1 (E)(4)(b) (4) Parking Lot Perimeter Landscaping. Parking lot perimeter landscaping (in the minimum setback areas required by Section 3.2.2(J) (Access, Circulation and Parking) shall meet the following minimum standards. (b) Screening. Parking lots with six (6) or more spaces shall be screened from abutting uses and from the street. Screening from residential uses shall consist of a fence or wall six (6) feet in height in combination with plant material and of sufficient opacity to block at least seventy-five (75) percent of light from vehicle headlights. Screening from the street and all nonresidential uses shall consist ofa wall, fence, planter, earthen berm, plant material or a combination of such elements, each of which shall have a minimum height ofthirty (30) inches. Such screening shall extend a minimum of seventy (70) percent of the length of the street frontage of the parking lot and also seventy (70) percent of the length ofany boundary of the parking lot that abuts any nonresidential use. Openings in the required screening shall be permitted.for such ,features as access ways or drainage ways. Where screeningfrom the street is required, plans submitted for reviewshall include a graphic depiction of the parking lot screening as seen from the street. Plant material used for the required screening shall achieve required opacity in its winter seasonal condition within three (3) years of construction of the vehicular use area to be screened. • Residential Building Orientation (3.5.2 (C)(1)(b) and (C)(2)) © Relationship of Dwellings to Streets and Parking. (1) Orientation to a Connecting Walkway. Everyfront facade with a primary entrance to a dwelling unit shall face the adjacent street to the extent reasonablyfeasible. Everyfroni facade with a primary entrance to a dwelling 223 January 17, 2006 unit shall,face a connecting walkway with no primary entrance more than two hundred (200) feet from a street sidewalk. The following exceptions to this standard are permitted: (b) A primary entrance may be up to three hundred fifty (350) feet from a street sidewalk if the primary entrance faces and opens directly onto a connecting walkway that qualifies as a major walkway spine. (2) Street -Facing Facades. Every building containing four (4) or more dwelling units shall have at least one (1) building entry or doorway facing any adjacent street that is smaller than a full arterial or has on -street parking. • Residential Building Setback from an Arterial Street (3.5.2(D)(1)) (D) Residential Building Setbacks, Lot Width and Size. (1) Setback from Arterial Streets. The minimum setback of every residential building and of every detached accessory building that is incidental to the residential building from any arterial street right-of-way shall be thirty (30) feet. Alternative Actions City Council May Take A. If the Council finds that an unfair hearing was conducted, the Council must remand the matter to Planning and Zoning Board for rehearing. B. If the Council finds that the hearing was fair, then Council should: • Uphold; • Overturn; • Modify the Planning and Zoning Board Decision; • Remand the matter to Planning and Zoning Board for rehearing to consider additional information. City Attorney Roy explained the appeal hearing process and the options available to the Council. Steve Olt, City Planner, presented background information regarding the agenda item and the nature of the appeal. He stated the Innovation Island Overall Development Plan (ODP) and Project Development Plan (PDP) were two projects that had been presented to the Planning and Zoning Board for a decision. He presented visual information regarding the site at the southeast corner of West Harmony Road and South Taft Hill Road. He stated the property was surrounded predominantly by single-family residential, a small commercial center to the northwest, and some 224 January 17, 2006 multi -family, including qualified affordable housing. He stated this was a 4.4 acre site and the applicant's request was for two land uses: (1) Phase 1, proposed to be 27 affordable multi -family housing units in five buildings for Habitat for Humanity on the westerly portion of the site that would be accessed from West Harmony Road; and (2) a future development of about 20,000 square feet of nonresidential uses, probably in a single building, on the easterly 1.3 acres. He stated the applicant submitted the ODP concurrently with the Phase 1 plan for the westerly portion of the property. He stated the ODP and PDP went through the City's standard development review process and went before the Planning and Zoning Board on November 17, 2005 for a decision. He stated the Planning and Zoning Board approved the ODP at that time. He stated embedded within the PDP was a request for modification of three standards set forth in the Land Use Code dealing with residential building orientation: relationship with the dwellings, streets and parking, and residential building setback from the street (South Taft Hill Road). He stated the Planning and Zoning Board made independent decisions on each of the modifications, and each of those were granted. He stated ultimately the PDP was approved by the Board. He stated the City received an appeal on the Board's decisions on the ODP and PDP. Mayor Hutchinson asked if this would be the point for Council questions. City Attorney Roy stated that would be fine and, if any Councilmembers had been out to the site, this would be a good time to acknowledge that. He stated if any Councilmembers observed anything "significant" it would be a good idea to place those observations on the record so that parties -in -interest could respond. Mayor Hutchinson asked if any Councilmembers made site visits or had ex parte contacts. Councilmember Kastein stated he drove by the site every day and asked if that was a "site visit." City Attorney Roy stated the issue was that everyone have an opportunity to address any specific observations made by any Councilmember about the site. Councilmember Weitkunat stated for the record that during the past Planning and Zoning Board hearing she did have written conversations with several members opposed to the project, regarding the Planning and Zoning meeting and "behavior" at that meeting. She stated all Councilmembers received copies of that correspondence. City Attorney Roy stated it was his understanding the correspondence had to do with the "conduct of the meeting" rather than the "merits of the proposed development." Councilmember Weitkunat stated that was correct. Mayor Hutchinson stated the parties -in -interest on each side would have 20 minutes for a presentation, and that the appellants would make the first presentation. Howard Spivak, 1914 Lookout Lane, stated the northern boundary of his property abutted property proposed for development by Habitat for Humanity. He stated he and many of his neighbors had formed the Overlook Citizens Action Committee. He stated his group was not opposed to Habitat for Humanity. He stated there were "significant differences" between what Habitat for Humanity was proposing for Innovation Island and previous Habitat for Humanity homes. He stated those differences were of concern. He stated the single-family units constructed by Habitat for Humanity in the past were built to be comparable to the surrounding units in size and appearance and were not likely to diminish the value of adjacent homes. He stated this project would not resemble 225 January 17, 2006 surrounding homes and there would be impacts on resale value for those homes. He stated Habitat for Humanity had initially indicated an average value of $133,000 for each unit. He stated homes in Overlook ranged in resale value from $240,000 to more than $300,000. He stated at the Planning and Zoning Board meeting Habitat for Humanity claimed that the value of the units would be $185,000 because they would now be built with basements and would have an increased amount of square feet. He stated it would be desirable to increase the market value of these units and that there was nothing in the Planning and Zoning Board approval to "lock in" those stated changes in the value of the units. He stated the input of the appellants during the public comment portion of the meeting was "treated with hostility" by the chair. He stated the City Attorney had to "remind the chair" that the usual time limit to speak was three minutes, rather than two minutes, per person. He stated this was not an "open, unbiased" hearing. He stated the project was given "preferential treatment" by the Board, presumably because of its classification as affordable housing, despite the fact that there was already affordable housing within a half -mile of the proposed project (as noted on page 7 of the appeal). He stated some of those units were in the County but could ultimately be annexed to the City. He stated Habitat for Humanity claimed this location was desirable due to the proximity of bus service, shopping and medical care. He stated none of those services existed currently. He stated other concerns were noted in the appeal: safety considerations, landscaping and screening, lengthy construction time, and the impact the project may have on traffic flow in the neighborhood. John Lund, 4023 Lookout Lane, stated the Innovation Island PDP development proposal did not comply with Land Use Code requirements. He stated it did not comply with Section 3.5.2C(1)(b) relating to orientation to connecting walkways. He stated the primary entrances of Buildings B and C were greater than 200 feet but less than 300 feet from the street on West Harmony Road and South Taft Hill Road but the primary entrances did not face and open directly into connecting walkways as required by Section 3.5.2C(1)(b) of the Land Use Code. He stated the standard located in Section 3.5.2C(2) required that every residential building containing four or more dwelling units to have at least one building entry door facing any adjacent street that was smaller than a full arterial street. He stated Buildings B and C were both five-plexes and fell into that category. He stated the applicant's explanation was that changing the plan would prevent the project from meeting the cost goals. He stated there were safety concerns relating to the ability of emergency vehicles to get in and around the buildings. He stated there was about 22 feet between Building B and the fence. He stated Section 3.5.21)(1) required every residential building be set back a minimum of 30 feet from any arterial street right-of-way. He stated Buildings D and E were proposed to be set back 20.3 and 20.5 feet from Taft Hill Road. He stated this would be detrimental to the public good because it would take right-of-way away from any possible future expansion of Taft Hill Road. He stated the applicant indicated that changing the plan would mean that the project would not meet the cost goals. He stated at the Planning and Zoning Board meeting, Steve Olt stated shade trees must be a minimum of two-inch caliper for all projects, including affordable housing projects. He stated the Board based its decision in part on this "misleading information" and that the Board never addressed his neighborhood's concerns about "privacy." He stated the applicant indicated that the greenbelt buffer between his neighborhood and the project may not be planted until all units affecting the planting may be completed. He stated his neighborhood's privacy concerns "may never be addressed" or may be addressed years down the road. He stated the project plans did not meet the intent of Section 3.1.2E(4)(b) of the Land Use Code relating to the screening of parking lots with six 226 January 17, 2006 spaces or more from abutting residential units. He stated Section 2.8.2H Step 8 provided that the decision -maker may grant a modification of standard only if it finds that granting of the modification will not be detrimental to the public good. He asked if the "public good" referred to the 27 possible new home owners or the established 650 residents in the Overlook Gates and Taft Canyon communities. He expressed concerns about the health risks associated with the extended building time; privacy issues related to the closeness of the backs of these buildings to homeowners yards; quality of life issues; and the probability of decreased home values. He stated on June 7, 2005, the City Council formally adopted a 2005-2006 allocation for community development and affordable housing proposals. He stated there were $3.4 million in requests and only $2.3 million in available dollars. He stated Habitat for Humanity received $51,000 for lot acquisition. He stated on September 28, 2005, Vignette and Habitat for Humanity held a community meeting outlining their intentions to purchase and develop the project. He stated on November 17, 2005, the Planning and Zoning Board "resoundingly" relieved the project from meeting three provisions of the Land Use Code and unanimously passed the ODP and the PDP. He stated from the "public's perspective"this project was on a "fast track with a City-wide rubber stamp." He asked Council to look at the project with "an eye to all of the public's interest" and not just the interest of 27 potential new residents. Don Forgerberg, 4221 Lookout Lane, stated the neighborhood was receptive to Habitat for Humanity but that his neighborhood was being "inundated by this project." He stated there were 650 homes in the immediate area of the project and 700 "upscale homes" to the east ranging in value from $250,000 to $900,000. He stated this was quite different from the proposed project, when the applicant initially indicated the units in the project would be valued around $133,000. He stated this project would have an impact on the "well-being and sense of real market value" of the established neighborhoods. He asked that some "common sense be deployed." He stated the City had done a traffic survey for West Harmony Road and Taft Hill Road. He stated traffic was "horrifically abundant" during rush hours. He stated the project would have one entrance/exit for about 50 cars. He stated he understood that the entrance/exit would be several hundred feet from the intersection of Harmony and Taft Hill Roads. He stated there were already issues with traffic that wanted to avoid the busy intersection by coming through his neighborhood. He stated there would be a lengthy — possibly indefinite -- construction time for the project due to the building process used by Habitat for Humanity. He stated that would place the surrounding neighborhoods in an "unfair position." He asked for some kind of construction schedule for the project. He stated the surrounding properties had a market value that was far beyond the value of the proposed units. He stated there was a lot of "emotion" on this project. He asked that consideration be given to the surrounding neighborhoods. Cathy Lund, 4023 Lookout Lane, stated she believed that the neighborhood's concerns were not heard by the Planning and Zoning Board. Mayor Hutchinson stated parties -in -interest opposed to the appeal would have 20 minutes to make a presentation. Jim Martell, attorney representing Habitat for Humanity, stated this was an appeal rather than a "substitution" of the Council's judgment for the Planning and Zoning Board's judgement. He stated this was a review to determine whether a fair hearing was conducted and whether the Board properly 227 January 17, 2006 applied the criteria of the Land Use Code. He stated the appeal made reference to the manner in which the chairman conducted the Board hearing. He stated the chair allowed everyone three minutes to speak after the City Attorney reminder her this was customary. He stated everyone who wanted to speak was allowed to do so and the chair asked twice if there was anyone else who wanted to speak. He stated at that point, five more people came forward. He stated every opportunity was given for those opposed to the project to present all evidence at the hearing. He disagreed that the outcome of the Board hearing was predetermined. He stated even if the neighborhood felt the chair's "attitude or manner of asking questions" showed some "bias", she had only one vote. He stated there was a fair hearing conducted. He stated the other issues raised in the appeal were partly addressed in the staffs presentation about this agenda item. He stated staff indicated all of the City's requirements were met with respect to notice and posting of the property. He stated there was some concern about information presented at the neighborhood meeting, and that meeting was not what was being considered by the Board. He stated the Board based its decision on the information presented to the Board at its hearing. He stated there was discussion about landscaping, and the staff comments indicated this project met the City's landscaping requirements, regardless of Mr. Olt's comments at the Planning and Zoning Board meeting. He stated a landscape plan would be submitted as part of the final plan. He stated the project also met all traffic requirements and that the traffic engineer was present to explain the traffic report. He stated Habitat for Humanity's planner could show Council the traffic pattern through the neighborhood, which would not be the preferred route to exit this development. He stated the opposition raised concerns about other issues that were specific to this project, such as the location of the playground. He stated that was not an issue the Board considered. He stated the appellants also raised concerns about the amount of affordable housing in the area. He stated it was important for projects to proceed as affordable housing. He stated the Planning and Zoning Board heard testimony at its hearing that there were 8,000 people who qualify for this particular housing market (30-50% of the median income). He stated concern was expressed about the impact of the project on the value of surrounding homes. He stated the "confusion" about the average value of the homes in the project and that "confusion was cleared up" at the Board meeting. He stated the estimated cost of constructing a home in the project was $133,000 and that $185,000 was the estimated value of the units when completed. He stated this evidence was clearly presented to the Board. He stated an issue was raised regarding construction time. He stated the City had certain requirements for the time period in which construction must be commenced on the improvements, but that there was no such requirement for the buildings themselves. He stated this was not a City "criteria" imposed for any development. He stated this was "not a relevant criteria" for this appeal and project. He stated it was relevant whether the Planning and Zoning Board properly applied the standards to the request for the modification. He stated it was true that this proposal did not meet three of the required criteria and the applicant requested a modification. He stated the Board had the authority to grant the modification under certain circumstances, including that it would not be detrimental to the public good. He stated all of the requests for modification applied "internally" to this development. He stated the Planning and Zoning Board based its decision regarding sidewalk connectivity on the information presented. He stated the proposal was "as good or better than" what would have been required, because the sidewalk in this development would have landscaping separation from the private street passing through the development. He stated the staff also found that waiving the requirement would mean substantial benefit to the City. He stated the staff found, with regard to the criteria regarding facing the street, the internal private street was comparable to a public street, and there would be no benefit Im January 17, 2006 to the public in requiring the streets within this development be made public and maintained by the City. He stated an alternative design presented at the Board hearing was for public streets and cul- de-sacs and there was no benefit in requiring that just to have the buildings face a public street. He stated the setback was unique in this case because there was a significant right-of-way already in existence. He stated the Code's criteria was "from the right-of-way" rather than from the pavement. He stated if Taft Hill Road was built -out to its maximum width, from the pavement there would be 10 feet of landscaping, then six feet of sidewalk, and then the additional setback. He stated these buildings would in fact be 50 feet from the roadway itself, which was four feet more than the Code required. He stated the Board was within its authority to find that this criteria was "equal to or better than" what would have been required. He stated there was a fair hearing, regardless of how the hearing may have been conducted. He stated the Planning and Zoning Board did properly apply the criteria and grant the modifications. Don Tiller, Vignette Studios, Habitat for Humanity project planner, showed visual information addressing the traffic concerns expressed by the neighbors. He stated the route neighbors feared would become a "cut -through" route, did not appear to be a "high probability" because it was "fairly circuitous." He noted the appeal stated there would be less than 300 feet between the private drive exiting Innovation Island and the intersection at Taft Hill and Harmony Roads. He presented visual information showing the distances involved. He stated he measured approximately 510 feet from the center of the lane exiting the site to the start of the crosswalk. He stated another concern was the closeness of the entrance to the median, and that distance was about 60 feet. He stated the traffic engineer indicated that would be sufficient space for space operation of the intersection. Mayor Hutchinson stated the appellants and parties -in -interest would have 10 minutes for rebuttal. Howard Spivak, 1914 Lookout Lane, expressed a concern that there was only one entrance and exit for the project. He stated traffic going north on Taft Hill Road would have to cross Harmony Road. He stated if that traffic had difficulty in making the turn that they would go right to Green Gate and cut through his neighborhood. He stated the emergency entrance from Taft Hill Road would not be available for residents entering or exiting Innovation Island. He stated the chair of the Planning and Zoning Board was "obviously" trying to limit the input of the neighborhood and this indicated a "predisposition" regarding the neighborhood's input. He stated the neighborhood was concerned about the length of construction because the builder would be allowed three years to do the infrastructure and would then have no time limit for continuing to build. He stated the building could proceed "serially" rather than "parallel" and the neighborhood could be faced with "dust and noise for what could easily be 10 years." He stated the fencing on the back of the properties on Overlook was privately owned and there was no requirement to have the fencing. He stated there appeared to be no concern on the part of Habitat for Humanity to "bolster' that six-foot fence and this fence would not provide much screening from car lights in the project's parking lot for the first floor of the elevated properties in Overlook. He stated the only requirement for the builder was to put up "screening" and it would take trees a long time to grow. John Lund, 4023 Lookout Lane, stated there was a Land Use Code requirement that the landscaping of the parking lot must reach 70% opacity within three years of the installation of the parking lot. 229 January 17, 2006 Darrell Gallear, 4139 Center Gate Court, stated there should be an outlet from the project onto Taft Hill Road. He stated residents of the project should be able to live near their places of employment since there was no bus service whatsoever near this site. He stated the data given at the neighborhood meeting in November should have been the same data given to the Planning and Zoning Board. He stated otherwise it was a "dishonest presentation." Mayor Hutchinson stated parties -in -interest opposed to the appeal would have 10 minutes for rebuttal. Jim Martell, attorney representing Habitat for Humanity, stated this project would have to meet the landscaping requirements of the Land Use Code and the landscaping plan would have to be submitted as part of the final plat submittal. He stated, once Taft Hill Road was rebuilt, the City would have an opportunity to consider opening up the second access onto Taft Hill Road. He stated at the Planning and Zoning Board hearing the City Traffic Engineer indicated there would have to be an island put in to make that access point "right in, right out only" and the City would consider the second access at that time. Matt Delich, 2272 Glenhaven Drive, Loveland, traffic engineer for the development, stated it would be unlikely for traffic to take a "circuitous route" through the neighborhood to go north on Taft Hill Road. He stated the preferred way to get to Taft Hill Road would be to make a left turn crossing two lanes of eastbound traffic on Harmony Road and then enter the existing median to enter the traffic stream on westbound Harmony Road. He stated the left turn at that location was at level of service B and that the expected average delay was 14-15 seconds in the peak hour. He stated this was determined using the City criteria for measuring traffic. Councilmember Ohlson asked if the Code had any kind of provision relating to the length of the construction period for residential projects. Olt stated the Land Use Code provided for a period of "vested right." He stated, after final approval of a project, the developer must complete the infrastructure that would provide services to the development to a point of"substantial completion." He stated once that was done, the project had a vested right. He stated the actual construction of any building or pad site in the development would then take place over time. He stated if this project received final approval, within three years of the date of final approval the developer must complete the infrastructure to the point of"substantial completion" to be termed "vested." He stated the right to build the project would be lost if the developer did not reach the point of"substantial completion - of the infrastructure within three years. Cameron Gloss, Current Planning Director, stated the market demand would dictate the speed at which the project was built. Councilmember Ohlson stated on page 7 of the agenda item summary it said, "in order to qualify as a certified affordable housing project the applicant must commit to restrictions on the units sale price". He noted there had been problems with that on other projects and affordable housing projects went through quicker and with "less scrutiny" that other projects. He asked what the City would do to ensure in an "airtight way" that the units actually sold at the prices that were indicated. Paul Eckman, Deputy City Attorney, stated the City imposed covenants and deed restrictions for affordable housing projects to ensure that they were marketed or rented in accordance with the 230 January 17, 2006 Planning Department's affordable housing requirements. He stated if the prices were not in accordance to those requirements, the modification would not be valid. Councilmember Ohlson stated the issue was more than the modification and related to "reputation and integrity." He asked if the City followed up to make sure the prices were in accordance with the commitments that had been made. He stated affordable housing projects received waivers and modifications they would probably not receive if they were not affordable housing projects and they went through the development review process faster. He asked if they would continue to be "affordable housing" to the extent of the commitments made at the time of development review. Gloss stated the City did monitor affordable housing prices as the projects were marketed. Greg Byrne, CPES Director, stated projects were qualified by the Affordable Housing Planner in Advance Planning, in consultation with the applicant and City Attorney's Office, before they entered the development review process. He stated, to qualify, the housing needed to be "affordable" for a period of 20 years as set forth in a deed restriction. He stated there was a problem with one project not meeting the requirements and that the problem was corrected through the intervention of the City Attorney's Office and the Affordable Housing Planner. He stated this kind of problem was not anticipated with Habitat for Humanity because its "core competency' was affordable housing. Councilmember Ohlson asked about the area to which notices were mailed. He stated the appellants mentioned 650 homes were directly affected and asked how many of those homes actually received the notification on this particular project. Olt stated the Land Use Code provided that the notification area for this type of project (between 25 and 50 multi -family units) was all affected property owners within 750 feet of the property in all directions. He stated notice was mailed in accordance with that requirement on several occasions for this development proposal. He stated there were several hundred mailings within that 750 feet. Councilmember Brown asked about the method of mailing notifications. Olt stated an individual letter was mailed by the Planning Department to a certified list of names prepared on labels by the applicant. He stated the notices were sent two weeks prior to the Planning and Zoning Board hearing. Councilmember Brown asked about the "proof' of mailing. Olt stated the mailing was done by the Current Planning Office. Councilmember Roy asked the Deputy City Attorney if he had any concerns that a "fair and unbiased hearing' was held by the Planning and Zoning Board. Deputy City Attorney Eckman stated the meeting "might have gone more smoothly" but that he believed that it was a "fair hearing." He stated everyone had a chance to speak to the Board and, in his judgment there, was "ample opportunity for input on both sides of the issue." Councilmember Kastein asked about the three modifications of standards that were "scattered" through the several hundred pages provided to the Council. He asked about the connecting walkway standard and the requirement that all units must have a walkway spine coming from the house if they did not open directly to a street. He noted that two of the units did not meet that requirement and asked how they did not meet the requirement and why that would be acceptable. Olt stated the 231 January 17, 2006 relevant provision was Section 3.5.2C(1)(b) Orientation to Connecting Walkway, and read the language of that provision. He stated the two buildings in question were in the lower right hand corner of the site plan that was before the Council. He stated they were oriented north to south and were the furthest buildings from Taft Hill and Harmony Roads. He stated in this particular case they should front a public street (either Taft Hill Road or Harmony Road) and the primary entrances should be within 200 feet of either one of the streets unless they provided a major walkway spine from those primary entrances to the public sidewalks (up to 350 feet). He stated in both cases the buildings were between 200 and 350 feet from the public sidewalks on either street but did not meet the requirement of direct access to the public sidewalk because of the need to cross driveways, parking lots or streets to reach the public sidewalks. He stated the major walkway spine requirement was not met because it should be, on average, 35 feet wide with a sidewalk in the middle of the spine, with landscaping on either side the sidewalk, and with pedestrians being able to reach the public sidewalks without having to cross driveways or parking lots. He stated there was a crosswalk in either direction from those buildings. He stated staff determined there was a detached sidewalk from either the parking lot or the driveway, there was a reasonable width of landscaped area next to the sidewalk, and there were enhanced crosswalks designed to accommodate vehicle -pedestrian separation. He stated staff weighed the matter in terms of meeting a "substantial City-wide need" for affordable housing and the "equal to or better than" provision. He stated staff determined that the plan would be sufficient, safe and adequate. He stated staff therefore recommended Board approval of the modification of standard. Councilmember Kastein asked about the second modification of standards relating to street facing facade and noted the issue was meeting the goals of "substantial City benefit (affordable housing)" and "sacrificing" other things required by the Code. He asked about the main purpose of the Code provision i.e. aesthetics, safety, future development potential, etc. Olt stated every building containing four or more dwelling units must have at least one building entry or doorway facing any adjacent street that was smaller than a full arterial or had on -street parking. He stated there were arterial streets north and west of this development. He stated, in this particular case, both buildings were five-plexes. He stated the westernmost building would have doorways facing Taft Hill Road (which was not smaller than an arterial street) and there would be no possibility of an intervening local or collector street in this development. He stated it would not be feasible to introduce public streets into a development of this nature and there would be private driveways. He stated because of the configuration of the property it was not "reasonably feasible' to have public streets in the development. He stated the buildings were, in essence, "facing a street' and would provide "good, convenient and safe pedestrian access" to either Harmony Road or Taft Hill Road. Councilmember Kastein asked about the reason for the requirement to face a street that was smaller than a full arterial or had on -street parking. Olt stated the issues were convenience and safety. Gloss stated another reason was aesthetics. He stated the Poudre Fire Authority reviewed the development plans and found that conditions would be safe. Councilmember Kastein asked about the actual setback and setback requirements. Olt stated Land Use Code Section 3.5.2 required that all residential buildings be set back at least 30 feet from the right-of-way for an arterial street. He stated in this case the ends of two buildings faced Taft Hill Road, which was an arterial street. He stated technically any portion of those buildings should be 232 January 17, 2006 set back 30 feet from the right-of-way line. He stated the purpose of the Code section was to get residential buildings far enough away from an arterial street for safety reasons and a significant distance buffer. He stated there would be a setback of 30 feet from the right-of-way of the arterial street, a six-foot wide sidewalk, and a ten -foot wide parkway strip for landscaping. He stated this would provide a separation of 46 feet between the residential building and the actual street. He stated staff evaluated this case based on both existing conditions and future road expansion conditions. He stated the buildings would be set back 77 feet from the existing east edge of Taft Hill Road. He stated there was "excessive" street right-of-way, which would not change. He stated upon build -out of improvements to South Taft Hill Road, the ultimate edge of the pavement would be 50 feet from the end of the project's buildings. He stated staff determined this would be "better than the required condition." Councilmember Kastein asked for confirmation that the Code required a setback of 46 feet and that upon build -out of the street improvements, the actual setback would be 50 feet. Olt stated this was correct. Councilmember Ohlson asked if each side had exactly the same amount of time to speak at Planning and Zoning Board hearings. Gloss replied in the affirmative. Councilmember Ohlson asked if the written summary of the neighborhood meeting was always done by the applicant. He stated there could be problems with having one side write the summary of a neighborhood meeting. Gloss stated a staff planner or other City representative typically transcribed the discussion during the meeting. He stated, in this particular case, there was a shortage of assistance and a representative of the applicant helped transcribe the meeting notes. He stated this was somewhat atypical. Olt stated there was a staff shortage at this meeting and someone from the applicant's side offered to transcribe the notes. He stated the meeting notes were forwarded to him by e-mail, edited by staff and then sent out from the Planning Department. He stated he believed that the notes were "sufficient, adequate and correct." Councilmember Ohlson asked about the landscape buffering schedule and the concern of some of the appellants that the buffering could be "years in the making." He asked if the landscaping buffer might not be installed until the last of the project units were completed. Olt stated this would occur based on the phasing of the project. He stated the appellants were concerned about the buffering along the parking areas to the south. He stated the landscaping for a particular portion of the development would have to be done before a C.O. would be issued on a particular phase. He stated the parking lot perimeter landscaping would need to be a combination of landscaping and fencing to meet the 75% opacity requirement. He stated there were six-foot solid cedar fences along the rear of the adjacent properties and staff did not believe there would be any benefit to having the property line double -fenced. He stated the combination of landscaping and fencing would be sufficient to meet the Code requirements. He stated landscaping must be installed within a reasonable period of time, at an appropriate time of year. Councilmember Ohlson asked why only half the caliper was required for trees for affordable housing. Gloss stated staff was asked several years ago to look at ways to provide more affordable housing and reviewed City regulations. He stated landscaping was one area in which costs could be 233 January 17, 2006 cut and the same level of design quality could eventually be reached. He stated this was a conscious effort made to assist affordable housing. Councilmember Roy asked about the on -site parking. Olt stated there would be 61 parking spaces on -site for the 27 units. He stated there was a misunderstanding at the Planning and Zoning Board hearing about the parking. He stated each unit would have a one -car attached garage and that there would be 2.2 parking spaces per dwelling unit. Councilmember Roy asked if Habitat for Humanity's standard for the average number of cars per unit was one. Olt stated he did not have that information. Councilmember Roy stated he had a concern with regard to the overall cost to the residents due to the cost of the four private roads. He asked for an estimate of those costs for the Homeowners' Association to maintain those streets. Olt stated that would be a question for the developer. Don Tiller, Vignette Studios, Habitat for Humanity project planner, stated the streets would be concrete rather than asphalt in an attempt to reduce the long term maintenance costs. Councilmember Roy stated he would like information on whether there was any limit to the size of a development that could do only private drives and at what point public streets were required. He asked about the number of people that would be eligible for affordable housing i.e., whether it was 8,000 people or 8,000 families. He stated he would like, at some point, to know the cost of putting in a concrete street versus the cost otherwise. He stated he would like this information at some future time. ("Secretary's Note: the Council took a recess at this point.) Councilmember Kastein requested additional information regarding the second modification. He noted two of the buildings did not meet the requirement that every building containing four or more dwelling units (i.e., all of the buildings in this project) was to have at least one building entry or doorway facing any adjacent street that was smaller than a full arterial or had on -street parking. He stated staff had noted that Buildings B and C did not meet the requirement and he did not understand how any of the buildings actually met the requirement. Olt stated each of the dwelling units in the north building facing West Harmony Road had a primary entrance facing north to the sidewalks and ultimately to the sidewalk along West Harmony Road. He stated the two buildings to the west with the ends facing Taft Hill Road had building entries facing Taft Hill Road and a sidewalk from that doorway to the sidewalk connector to Taft Hill Road. Councilmember Kastein asked which adjacent street that entry faced. Olt replied it faced Taft Hill Road. He stated there were no intervening streets other than South Taft Hill Road and West Harmony Road because this was a small project bounded by the two arterial streets. He stated it was not possible to put local streets between the buildings and the arterial streets. Councilmember Kastein asked if staff was therefore saying there were more units that did not meet the requirement. Gloss stated all of the perimeter units were compliant because Taft Hill Road was 234 January 17, 2006 a full arterial and the buildings did not "technically" need to meet the standard. He stated there were entryways facing Taft Hill Road. He stated the standard did not need to be met in this case because Taft Hill Road was a full arterial. Councilmember Manvel stated there appeared to be a problem with all five buildings meeting the standard. He stated the grammar of the requirement was confusing. He asked if the rule was that "if there was a nice street nearby" the building had to have an entrance facing it. He asked if, since there were no "nice streets nearby" and the site faced arterial streets, the rule did not apply. He stated the westernmost buildings did have doors on their west sides and actually did not have to satisfy the rule. He stated the language of the Code was "clearly misleading." Gloss stated Councilmember Manvel's understanding was correct on all counts. Councilmember Kastein asked if any multi -family development with internal private drives that did not face an adjacent street (because there were none) would face the same situation as this development. He asked if there was an adjacent street that met the criteria there would have to be a doorway facing it. Gloss replied in the affirmative and stated this project did not have to be compliant with the standard. Councilmember W eitkunat made a motion, seconded by Councilmember Roy, to uphold the decision ofthe Planning and Zoning Board approving the Innovation Island Overall Development Plan #4005 and the Innovation Island Project Development Plan #4005A for the following reasons: (1) the Planning and Zoning Board held a fair hearing following its previously established rules ofprocedure and did not consider substantially false or grossly misleading evidence relevant to the findings and did not fail to receive all relevant evidence that was offered; and (2) the Planning and Zoning Board did not fail to properly interpret and apply the provisions of the Land Use Code in approving the ODP and the PDP. Councilmember Weitkunat stated she did have e-mail conversations with some of the residents from the area who attended the hearing and that Council also saw the video of the proceedings. She stated the "brusk and abrupt manner or demeanor of the Chair" may have been misinterpreted as being "unfair." She stated, in reality, she did not believe there was any bias or prejudice to the proposal that was before the Board. She stated she believed it was a fair hearing. She stated she apologized for the manner of the Chair. She stated there was often difficulty with modification of standards and this was often "misinterpreted." She stated determinations had to be made with regard to whether the modification would be "equal to or better than," whether or not it would be detrimental to the public good, if it addressed public purposes equally or better than the adopted standard, and whether or not it would impair the intent of the Land Use Code. She stated the Planning and Zoning Board weighed all of this in addressing the modifications. She stated she supported upholding the Board's decision. Councilmember Manvel stated he watched the video recording of the Planning and Zoning Board meeting and was not very impressed with the conduct of the meeting. He stated the comments from both sides were very cogent and well -reasoned. He stated the facts were put on the table at the Board's hearing and both sides were heard thoroughly. He stated he agreed that it was a fair hearing. He stated one piece of information relating to the landscaping standards was done incorrectly by City 235 January 17, 2006 staff at the Board meeting and was not corrected at the meeting. He stated that was unfortunate, but the correct information relating to tree caliper would probably not have changed the outcome of the hearing. He stated the traffic was bad at the intersection of Harmony and Taft Hill Roads and even worse at the intersection of Shields Street and Harmony Road, which would be impacted by this decision. He stated it was pointed out at the hearing that the City had plans underway to improve both intersections in the near future. He stated he hoped this would mitigate traffic problems, which were a concern of the neighborhood. He stated he would vote in favor of the motion and that the exceptions were fairly minor and had been addressed properly. Councilmember Roy stated he would support the motion. He stated affordable housing was important for Fort Collins. He stated Habitat for Humanity had a tremendous track record in Fort Collins and nationally and this was the sort of project that should be encouraged. He stated this project would provide a clear way to provide that higher community good that was the key to making modifications and changes to the Code. He stated this project would provide opportunities for home ownership. Councilmember Ohlson stated he would not support the motion. He stated it was a modification of standards to meet a higher need (affordable housing) and the higher need should not be met at the expense of 600 other homes. He stated the surrounding area had legitimate concerns. He stated he did not believe there was a fair hearing because the tone of the Chair was in favor of the proposal. He stated there was not a fair climate for a hearing. He stated all sides should be treated the same and that was not done at the Planning and Zoning Board hearing. Councilmember Kastein stated the Council's job was easier when development standards set out in the Code were met. He stated the appellants questioned whether the project met the Code in a number of areas. He stated it was demonstrated that the project did in fact meet the Code requirements. He stated a decision on the modifications of standards was more difficult. He stated the test was that the modification was not detrimental to the public good. He stated modifications also had to be "equal to or better than" a plan which would otherwise comply. He stated the other issue was whether the project would address an important community need. He stated affordable housing was an important community need and the community need should be met without impairing the intent and purpose of the Land Use Code. He stated, in his opinion, the three modifications did not impair the intent and purpose of the Land Use Code. He stated the modifications were appropriate, met safety concerns, and met aesthetic concerns. He stated he would therefore support the motion. Councilmember Brown stated he believed that the mission of the Council was to decide if the Planning and Zoning Board meeting was fair. He stated he had a concern about the public notification, which was an issue brought up at the Board meeting. He stated the Council got an answer about notification requirements earlier in the meeting. He stated he was concerned there were no specific standards or criteria in the Land Use Code limiting the total number of geographic distribution of affordable housing units. He stated this could be a topic for future discussion. He stated relevant issues had been addressed and he would be supporting the motion. 236 January 17, 2006 Mayor Hutchinson stated the Council must focus on the facts of the appeal. He stated he would support the motion. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Roy and Weitkunat. Nays: Councilmember Ohlson. THE MOTION CARRIED Ordinance No. 010, 2006, Granting a Non-exclusive Franchise by the City of Fort Collins to Comcast of California/Colorado LLC and its Successors and Assigns for the Right to Make Reasonable Use Of, and Erect, Construct, Operate and Maintain Through, the Public Rights -of -way, Easements and Other Public Property Any Equipment Necessary and Appurtenant to the Operation and Maintenance of a Cable System and the Provision of Cable Services to Citizens Within the City, Adopted on First Reading The following is staff's memorandum on this item. "FINANCIAL IMPACT The proposed franchise continues to collect S% ofgross revenues, as allowed by the Federal Cable Act. Franchise fees are paid to compensate the City for Comcast's use of the public rights -of -way and generate approximately one million dollars annually. A new fee is included in the proposed franchise agreement, the purpose of which is to fund capital and facility needs for Public, Educational and Governmental ("PEG') cable television programming. The amount of the fee is SO cents per month per residential subscriber and will be distributed among the PEG entities as determined by City Council. The estimated annual revenue is $164,000. EXECUTIVE SUMMARY The proposed Cable Franchise Agreement between the City of Fort Collins and Comcast of California/Colorado LLC ("Comcast'), which was provided to the Council under separate cover on January S, 2006 and which is on file in the office of the City Clerk, is a non exclusivefranchise. The main elements of the agreement are: Term. The length of the franchise is nine years Customer Service Standards. The standards will be adopted in February, but are referenced in this agreement. The proposed franchise agreement would establish penalties for non- compliance with these standards. 237 January 17, 2006 3. Franchise Fee. Five percent (5%) ofgross revenues will be paid to the Cityfor use of rights of way. Federal law allows cable companies to pass this cost through to subscribers. 4. Public Educational and Governmental Programming. APEGfeeof50centspersubscriber per month will be dedicated to equipment and facility costs associated with providing PEG programming. Comcast has chosen to pass this fee through to subscribers. BACKGROUND The Federal Cable Acts allow cities and cable companies to begin informal negotiations within 36 months of the expiration of the existing franchise. The City began the renewal process in the fall of 2003 with a needs assessment as to the legal, financial and technical capabilities of Comcast to continue to provide cable television services to Fort Collins. Needs Assessment Staff used several sources to collect information about the needs of the community, including: • A statistically valid subscriber/non-subscriber survey, An on-line survey, • A survey of neighborhood groups. • A telephone call in line for comments, • A community meeting (publicized with a news release, paid advertising and newspaper articles) which was rerun on Channel 27 during a 4 week period, • Surveys of City Departments, Front Range Community College, Colorado State University, and Poudre School District, followed by workshops, including a technical briefing, • Phone calls and/or letters to the City's Franchise Administrator, Input from the Telecommunications Board identifying priorities for the community. In addition, consulting firms were hired to evaluate both the financial and technical capabilities of Comcast's Cable system in the City. Needs Assessment Results Based on the results of the needs assessment process, a number of topics were discussed with Comcast during franchise renewal negotiations. The needs assessment indicated that: There is a need for a basic package of cable service (with fewer cable channels at a reduced price). The current cable system should be sufficientfor the community needs for the next 5-6 years. A mid-term technology review of the cable system should occur, with subsequent modifications made as needed to meet the cable -related needs and interests of the community. 238 January 17, 2006 • If the cable system is updated, then all connections for City and educational facilities should be concurrently modified as needed at Comcast's expense. Access equipment/facilities upgrades by the City, public schools (K-12), and CSUresulting, from changes in Comcast's system should be at the cable company's expense. Free cable drops and Basic and Expanded Basic Service.for City buildings, libraries and educational facilities (for example, public schools [K-12]) should be provided. Additionally, Comcast should be encouraged to provide free service to the digital line-up for all key City, School District and school buildings. The City should also encourage Comcast to provide free Cable Internet Service, on a voluntary initiative basis, to key City buildings, public schools (K- 12) and libraries. The City's Governmental Access Channel, the Public Access Channel, and the Educational Access Channels should be preserved, with additional Access channels being made available based upon trigger mechanisms in the new franchise. Over the life of the new franchise, there is a need and interest in having enhanced studio and production facilities to enable the PEG Access Channels to provide for the community's evolving programming needs There may be a need in assigning a small portion of the subscribers' cable bills to support PEG Access facilities and equipment. An Access and I -Net capital grant fund could be established based upon a monthlypersubscriber charge to be negotiated with Comcast. In addition, the City could negotiate with the cable company for an initial capital grant for Access and/or I -Net purposes. The up front capital grant should be sufficient to upgrade or replace aging Access equipment and further enhance digital capabilities for Channel 14. The AccesslI-Net payments and provision offacilities and equipment need to be in addition to the franchise fee payments. • Comcast should construct fiber optic links to all remaining key un-served government sites with reliable and secure capacity for two-way video, voice and high speed data services. • As the City orpublic schools establish new or relocatedfacilities, Conicast, at its expense, should provide network connections to such facilities when requested by the City or other entity. • There is a need and interest in having comprehensive customer service standards that, among other things, ensure that deficiencies in operator performance that may have occurred in the past do not recur. • A regional interconnection between the Comcast cable system in the City and other neighboring Comcast cable systems should be e, ff ectuated for the purposes of sharing Access programming, furtheringE-Government applications, promoting information sharing and enhancing homeland security. • Comcast's financial position was healthy and stable. 239 January 17, 2006 Negotiations The results ofthe needs assessment were presented to City Council in February 2004. Council identified the following three top priorities: a low cost basic tier of service similar to those in surrounding communities, a system that kept pace technically with the industry and was `state ofthe art "; and support for PEG access. The proposed franchise addresses these priorities as follows: Basic Tier: Although not apart of the franchise agreement, Comcast recently announced the creation ofa basic tierofservice that will contain 22 channels at a cost of $13.99 excludingfees and taxes. The basic tier will consist of Denver broadcast channels, Public Broadcast channels (PBS), local PEG channels, and additional channels that will make Fort Collins' basic tier similar in program line up and cost of service in the communities of Greeley, Loveland and Windsor. State of the Art Technology: The parties were unable to agree to any language in the proposed franchise agreement that would requires Comcast to maintain a "state of the art "system. Because ofthis, and because the technical consultingfirm believes that the current system will meet the needs of the community for 5-6 years, the term of the franchise was reduced from the initially proposed 15 years to a 9 year franchise. Public. Educational and Governmental Access: The availability of bandwidth for PEG programming is mandated by the Federal Cable Act, but cities cannot require cable companies to provide a studio or equipment for public use. Therefore, the City took the path of obtaining a PEG fee to fund local access channel needs, a mechanism that most cities across the nation use. The provisions in the proposed franchise agreement include a fee of 50 cents per residential subscriber per month to be dedicated to capital expenses (facilities and equipment) for PEG entities. Federal law allows cable companies to pass through these costs to subscribers and Comcast has indicated it will do this. Council will decide how to allocate the PEG revenue, limited only by the requirement that the funds be spent on capital (equipment and facility) expenses. The City is also working collaboratively with Aims Community College Fort Collins Campus and a group of local citizens to facilitate the production of local programming. " City Manager Atteberry introduced the agenda item. ("Secretary's Note: The Council took a brief recess at this point.) Tom Vosburg, Assistant City Manager, stated the appropriate publications had been made regarding this hearing. He noted that a representative from Comcast was presenting the appropriate affidavits of publication to the City Clerk to be entered into the record. He stated he would be presenting background information regarding the cable franchise and the negotiations for a new franchise agreement, summarizing relevant federal law governing the franchise renewal process and outlining the elements and results of the public and stakeholder outreach efforts. He stated he would also summarize the key points of the franchise agreement, which was negotiated as part of an "informal MOO January 17, 2006 process." He stated there was strong community support for a lower cost limited basic service cable package option and that Comcast had recently announced that it would provide such an option beginning January 26. He stated other issues raised during the outreach included customer service standards, public education and governmental access, and locally oriented programming. He stated other issues were appropriate cable drops for services in City facilities, public schools, and libraries and adequate capital funding for public access, governmental and educational access channels. He stated the proposed franchise would have a term of nine years; continue the 5% franchise fee; require that dedicated channels beprovided forpublic, educational and governmental access; provide monies for capital funding to replace the equipment used to support public, educational and governmental access programming; set a $0.50 per subscriber per month public access fee to be collected by Comcast and passed on to the City to support those capital expenditures; and cite a separate document containing customer service standards to be set by the Council by ordinance. He stated the ordinance approving customer service standards would be brought to the Council in February. He stated this was a reasonable franchise proposal that met the needs of the community. Mayor Hutchinson stated each audience participant would have four minutes to speak. Bob Carnahan, 4325 Westbrooke Court, spoke regarding the public access fee. He stated federal regulations provided that any such fee imposed by a franchising authority could be passed through by the cable operator to the customers. He stated this would raise cable rates. He stated managing a public access studio was a big project and a labor intensive endeavor. He stated interest in public access often "waned" and equipment and studios were often underused. He encouraged the Council to provide for a periodic review of the $0.50 fee to make sure the money was being used wisely and to the benefit of the community. Geri Becker, Fort Collins Public Access Network, expressed concerns about language in Section 9(1)(b) of the franchise agreement relating to access that indicated that: "The grantee shall provide to the City up to $0.50 per month per residential subscriber for access." She also expressed concern that Section 9(e) would give Comcast authorization to put commercial programming on the public access channels in those time slots that were not being used by local programming. She stated Section (d) provided that downstream access channels would not exceed six channels at anytime and asked if there would therefore be only one additional channel beyond the five that were already available. Pam Stevens, Fort Collins Public Access Network, expressed appreciation for the new basic rate. She expressed concern that Comcast would have oversight of what would go on the public access network. She stated this oversight responsibility should be the City's instead of Comcast's. Warren Berman, Video Education Specialist for Poudre School District Channel 10, supported the proposed franchise and the public, educational and governmental (PEG) access fee. He spoke regarding the 24-hour per day School District programming and partnerships with other community organizations. He stated the ongoing revenue stream provided by the franchise agreement would allow the replacement and upgrading of access equipment and facilities. 241 January 17, 2006 Sally Miles urged the Council to delay voting on the agreement and look at the "details." She expressed concern about Section 9(d) and (e) relating to Comcast's oversight and meddling in public access operations. She stated such oversight should be the role of City Council. She suggested inserting the words "nonprofit" and "noncommercial" in paragraph (e) and also suggested that the public access channel be allowed to run itself. Councilmember Ohlson stated he had questions about Section 9 of the franchise. He noted some people in the community thought that if public access did not fill the schedule for the channel then commercial programming could be placed on those channels. He stated this would work against a branding of the channel as one for public access. He asked for clarification that the contract said that it would be up to the City to grant commercial or other programming to the cable company. Ken Feldman, special counsel, stated there was wide discretion given to the City Council. He stated if Comcast wanted to put any kind of commercial programming on any of the access channels, they must obtain permission from the City. He stated the City could, in its reasonable discretion, deny permission. He stated it was his opinion that the court would use a standard as to whether there was any credible evidence that was the basis of the Council's decision. He stated the public, educational and governmental entities involved in the access channels had almost complete control over creating a situation where the cable company would never be able to make a case to the City Council for commercial programming to fill up large blocks of vacant time. He stated the Council and the access programmers had control to make sure that would never happen. Councilmember Ohlson noted community concerns were being expressed late in the process. He asked what kind of process was held to obtain community input on the details of the franchise. He asked when the details were presented to the public for review. Liz Stroh, Information Technology Media/Policy Manager, stated the initial process was public outreach and there was no public negotiation. She stated the terms of the franchise were kept confidential during the negotiations because there were changes on important issues. She stated there were two or three meetings with the Public Access Network group to find ways to meet its express needs. Councilmember Ohlson stated new concerns had been raised by the public. He asked if it was accurate that Comcast would be overseeing the public access channel. Stroh stated the City would negotiate and enter into an agreement with a designated access provider, such as the Fort Collins Public Access Network, to oversee the public access channel. Mr. Feldman stated there had been references to Section 9.3 (d) and (e) and comments that Comcast would have the ability to control public access programming. He stated (d) did not relate to public access and specifically referred only to government and educational access. He stated Comcast would not have control over the content of what was on any of the access channels. He stated the language that 50% had to be locally produced, was the criteria for requesting another governmental or educational channel. He stated Comcast would have little to no control over the programming content, types of program or hours. Councilmember Kastein asked if the Comcast representative could answer that same question. Stan Reese, General Manager for Comcast Communications, stated Comcast did not want to be involved in the public access channel, except to provide the channel and support it through PEG programming. He stated Comcast wanted to make sure the channel was utilized. He stated there 242 January 17, 2006 were other opportunities for programming if the channel was not utilized. He stated public access brought a competitive advantage to Comcast in the market. He stated Comcast had no intent to influence the content piece of public access. He stated Comcast wanted to make sure that there was a mechanism, if the channel was underutilized, for Comcast to work with the City to provide other services to the residents of the City. Councilmember Kastein asked if Comcast therefore agreed the City had oversight of the public access channel. Mr. Reese replied in the affirmative and stated the City would have the final say in whether Comcast could place other programming on an underutilized public access channel. Councilmember Kastein asked how this franchise would affect the provision of cable services from anyone else. Mr. Feldman stated the federal law prohibited exclusive franchises. He stated there was a de facto monopoly because of the high front end cost to build a cable system. He stated in some parts of the country, there were market changes because the incumbent telephone companies were upgrading their telephone systems to provide video service under a franchise. He stated Qwest had talked about doing that and was negotiating with some of the Denver metro cities for a cable franchise. He stated Comcast would not have an exclusive franchise. Councilmember Manvel stated his understanding was that the Council was not allowed to negotiate rates due to federal law. Mr. Feldman stated the City could discuss the rates but had no legal authority to regulate the rates. Councilmember Ohlson asked why the customer service standards would be considered separately rather than made part of the franchise. He noted service was very important. Mr. Feldman stated he always advised against adopting customer service standards as part of the franchise. He stated the federal law gave cities limited areas in which their local regulations could be more restrictive than the regulations of federal law. He stated customer service standards were one of those areas. He stated customer service standards could be adopted and amended unilaterally by the Council. He stated as a courtesy, the City had provided Comcast with a draft of the planned customer service standards. He stated, unlike the franchise negotiations, the City could adopt customer service standards with or without Comcast's support. Stroh stated this would give the City more flexibility, since it would be difficult to change the franchise itself in the middle of the term of the franchise agreement. She stated the customer service standards could be changed at any time by Resolution Councilmember Ohlson noted the franchise agreement would be for nine years and that the state-of- the-art technology would take about five to six years. He stated he needed more information on this issue. Mr. Feldman stated initially, a fifteen -year franchise term was discussed and a mid term review of the technology was also discussed. He stated staff felt strongly that with a longer franchise term, there needed to be a mechanism to ensure that the City did not fall behind in technology. He stated in lieu of that there were discussions about a shorter term franchise. He stated federal law would allow the City to require a technology upgrade within a reasonable period of time if it was reasonable in light of the costs to subscribers. He stated it was hard to predict today what an upgrade 243 January 17, 2006 might involve six or seven years from now. He stated it was not uncommon to give the cable company about two years to get an upgrade done. He stated realistically it would be year nine before an upgrade would happen. He stated under federal law the window to start renegotiating a franchise would begin three years before the end of the term. He stated it was staff s opinion that if there was a nine-year franchise, the renewal process would start again somewhere between the end of year six and half -way through year seven. He stated the cable company could initiate the upgrade of its own volition because it wanted to stay current with the market. He stated a shorter term franchise would allow the City to start looking at the issue in negotiations after year six and that this would be roughly equivalent to a mid-term technology review. Councilmember Ohlson made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 010, 2006 on First Reading. Councilmember Weitkunat commented that this had been a 2% year process and it had focused on the best interests of the community. She stated she would support the motion. Councilmember Kastein stated there had been significant public participation. He stated Comcast agreed to provide the basic service package even though the City had no ability to address that in the franchise agreement. He stated the franchise focused on some of the community issues that were highlighted by the data collected. He stated the franchise was a good solution. He noted Comcast had been making improvements along the way and he was confident the market would push Comcast to continue to provide new services. He stated he would support the motion. Councilmember Roy thanked those who worked on the franchise. He stated there were opportunities to grow public access. Councilmember Ohlson stated he was pleased that Comcast would offer a basic tier package. He stated this was a good news item that happened through a lot of public and private work. Councilmember Brown thanked everyone who worked on the franchise and stated it was a great contribution to the City. Councilmember Manvel stated there were many federal laws restricting what could be done in a franchise agreement. He stated given those restrictions, the process had gone extremely well. Mayor Hutchinson stated much work went into the franchise. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED 244 January 17, 2006 Ordinance No. 011, 2006, Amending the Harmony Corridor Plan and Harmony Corridor Standards and Guidelines Documents, Both Elements of City Plan, to Add a "Regional Shopping Center" Designation in the Mixed -use Activity Center Located on the Land Use Map and Revised Text to the Definition, Adopted on First Reading. The following is staffs memorandum on this item. "EXECUTIVE SUMMARY The new plan amendments include the following: Harmony Corridor Plan a. Land Use Map - Add "Regional Shopping Center" designation. 2. Harmony Corridor Standards and Guidelines a. Land Use Map -Add "Regional Shopping Center" designation. b. Definition - Increase the size of a Regional Shopping Center from (30 - 70 acres) to (30 - 100) acres. The developer, Bayer Properties, has initiated an amendment to the Harmony Corridor Plan and the Harmony Corridor Standards and Guidelines, to add a Regional Shopping Center, within the Mixed -Use Activity Center, in addition to Basic Industrial and Non -Retail Employment as defined and shown on the Land Use Map, at the northwest corner of Harmony Road and Ziegler Road, behind and west of the existing LSI Logic building. The property is currently designated in the Harmony Corridor Plan and Harmony Corridor Standards and Guidelines for a Lifestyle Shopping Center and/or for Basic Industrial and Non -Retail Employment uses. The Harmony Corridor Plan and Harmony Corridor Standards and Guidelines are elements of the City's comprehensive plan, known as City Plan. Any proposed changes to these documents require a Minor Amendment process as described in Appendix C of City Plan, meeting specified criteria to support the change. Presently, two existing regional shopping centers are located within Harmony Corridor, one on the south side of Harmony Road between Boardwalk Drive and Lemay Avenue, and the second on the northeast corner of College Avenue and Harmony Road. Theproposed amendment would allowfor a third regional shopping center. BACKGROUND Previous Adopted Plans and Analysis Over the past several years, staff and the public have discussed the need for an additional, new regional shopping center locating somewhere in Fort Collins. Information obtained through the 245 January 17, 2006 City Plan update Market Analysis Report in 2003 shows that there is a deficiency in the supply of parcels of sufficient size to support a future regional shopping center in the community. Over the past few years, at least three regional shopping center developers have approached City staffabout locating in Fort Collins. Staff evaluated available large vacant parcels within the Fort Collins growth management area and concluded that while there are large parcels near1--25 and Prospect Road and Mulberry StreetII-25 interchanges, these locations have significant and costly infrastructure improvement needs that prevent development of these parcels from moving forward in the near future. As a result, the property at the northwest corner of Harmony Road and Ziegler Road emerged as the best available site because it has sufficient street capacity, near an improved interchange and available utilities. Staff is aware ofother development ready sites outside the City's GMA boundary, including the northeast and southeast corners of I-25 and Harmony Road in Timnath. In 2003, the developer, Bayer Properties, proposed a "lifestyle center" on the northwest corner of Harmony and Zeigler Roads on approximately 80 acres, requiring an amendment to the Harmony Corridor Plan to allow this type of retail center. In July 2003, Council adopted amendments to the Plan. Since that time, market conditions have changed, including the development ofthe Promenade Shops at Centerra Lifestyle Center and the GGP purchase of Foothills Mall, necessitating Bayer Properties to reconsider the use of their property. The developers are now proposing a different type of commercial retail shopping center incorporating a tenant mix including large format retail establishments, fidl-line department stores, discount department stores, and mid -size and smaller retailers and sit-down restaurants. The difference between a Lifestyle Center and Regional Shopping Center are described in detail in the Harmonv Corridor Design Standards and Guidelines. Both centers can be basically the same size, with a similar mix of tenants. A Lifestyle Shopping Center is provided a lengthier and detailed description of extra high levels of finish and types of stores to set it apart from other types of shopping centers. In addition, a Lifestyle Center typically includes a predominance of specialty retail, entertainment and enhanced site features along the storefronts. Also, it has a limit on the size of anchors - 110, 000 square feet ofground floor.footprint. A Regional Shopping Center has a briefer, more general description with no limits on footprint size, and typically includes "superstores " of 140, 000 — 200, 000 sq, ft. Both centers include smaller anchor stores of 25, 000 sq fit or less. The zoning and land uses surrounding the area in question are as follows: N: HCILMN— Harmony Corridor and Low Density Mixed -use Neighborhood; existing vacant property and English Ranch neighborhood further to the north S: HC — Harmony Corridor; existing commercial/business park E: HC - Harmony Corridor; existing Hewlett-Packard business W: LMN — Low Density Mixed -use Neighborhood; existing Harmony Mobile Home Park The existing City Structure Plan Map shows Commercial land use designation on the northwest corner of Harmony Road and Ziegler Road. An amendment to the City Structure Plan Map would not be needed to accompany the requested changes to the Harmony Corridor Plan and the Harmony Corridor Standards and Guidelines as a regional shopping center is consistent with the existing land use designation. Similarly, the existing Zoning Map shows this location as Harmony Corridor 246 January 17, 2006 District zoning classification. A regional shopping center is consistent with this zoning and will not require an amendment to the Zoning Map. Assessment oflmpacts on Employment Land Use Inventory: In 2003, Economic & Planning Systems (EPS) prepared a report, "Lifestyle Center Economic Impact Analysis ", which examined the supply of employment land in response to Bayer's proposed lifestyle center at Harmony and Ziegler. The report concluded that there was "an adequate supply ofprimary employment lands available in the Cityfor economic developmentpurposes. " Based on the City's Buildable Lands Inventory, it identified 2,500 acres ofundeveloped land in the HC, E and 1 Zone Districts. It also identified 30 undeveloped sites over 30 acres in size for future large employers to consider. Finally, the report suggested that the City continue to monitor this land supply to determine if additional primary employment land is necessary. In November 2005, staff re-evaluated the Buildable Lands Inventory to update information relating to available employment lands. Theprevious conclusion that there is an adequate supply ofprimary employment lands is still valid today. Relatively little land has been converted to non -employment uses and the vacant land supply remains robust. Since 2003, approximately 106 acres converted from employment to other uses. There are over 2,300 acres of vacant land in the zone districts that would accommodate the bulk of primary jobs, representing over 25,000 potential new jobs. However, there are still many sites that could accept large and small primary employers. Vacant employment land has attracted many requestsfor conversion to non -employment uses. If the City is to retain an adequate supply and attract primary employers, it needs to carefully assess the benefits and drawbacks of those requests. Staff concludes that the proposed Plan amendment request by Bayer would result in a minimal loss in employment land supply. Sales Tax Analysis: In response to the proposed Front Range Village shopping center by Bayer Properties, the City retained Economic & Planning Systems (EPS) to conduct a study of the sales tax impact. The analysis focused on potential sales tax impacts including trade area profile, market implications, and land use considerations. If the proposed 900,000 square foot Front Range Village was completed, EPS estimates that a project such as Bayer's would generate $264 million in annual retail sales and $63.3 million in net new sales to the City. These net new sales would generate an estimated $1.9 million in net new sales tax revenues per year at buildout. EPS has estimated a more likely realistic development on this site would be 550, 000 square feet of proposed space. With this size development is estimated to generate $171.9 million in annual retail sales and $44.3 million in net new sales to the City or 25.8 percent of the total. These net new sales would generate an estimated $1.3 million in net new sales tax revenues per year at buildout (between 5 — 7 years). 247 January 17, 2006 By comparison, the previously evaluated 500, 000squarefoot lifestyle centerproposal was estimated to generate $100 to $190 million in annual sales with a total of $42.5 to $80.8 net new sales, and $1.3 to $2.4 million in net new sales tax revenues. While the estimated size ofthe proposed two types ofshopping centers is close to the same, the net new sales tax revenue would be higherfor a lifestyle center, and due largely to the predominance of high -end retail associated with this type ofshopping center and projected sales. Market competition factors for this project are more immediate than estimated sales tax revenues. The Fort Collins trade area will be reduced by the Centerra project and otherfuture regional retail centers outside the City's border. IfFort Collins is to compete with new regional retail locations outside of the City, it will need to develop new regional retail locations within its borders. If Timnath develops a retail project east ofI-25 in place of a regional shopping center in Fort Collins, the loss of estimated retail sales, approximately $32.8 million, will result in a loss of $935, 000 in retail sales tax revenue to the City. Risk Analysis: City staff has prepared additional information in the form of a risk analysis to assess tradeoffs of potential outcomes ifa project such as the Bayer project is approved. Several risks were identified depending on the percentage of development completed on the site in the future. The focus is more on how such a project may impact the immediate property and surrounding existing and future commercial center locations within the Growth Management Area. Staff has assessed this site on Harmony as the most development ready location to accommodate a regional shopping center. Regional competition outside the GMA in the near future could lead to retail tenants selecting other preferred locations resulting in the City losing a share of new retail trade. Taken as a whole with the other analysis, the risks identified in approving a regional shopping center for this location and potential development project, are not significant enough to change staffs recommendation to support the Plan amendment. Public Process: The process to amend the Harmony Corridor Plan has included opportunity for citizen review and comment including a City -hosted neighborhood meeting and public open house held on November 30, 2005. A second neighborhood meeting is scheduled for January 14, 2006 with English Ranch residents. In addition, information about the proposed amendment has been published on the City's Web site and covered in the local news media. Plan Amendment Review Criteria: City Plan allows for amendments through a Minor Amendment process as outlined in Appendix C, outlining two review criteria. A. The City Plan and/or any related element thereof are in need of the proposed amendment. NM January 17, 2006 The following findings justify the need for an amendment: Market information indicates the demand for a new regional shopping center somewhere in Fort Collins, and preferably near the I-25 Corridor. This site best meets this need. Accommodating stores greater than 110,000 square feet would necessitate a change in the current shopping center designation. B. The proposed plan amendment will promote the public welfare and will be consistent with the vision, goals, principles and policies of City Plan and the elements thereof. The following findings support these criteria: This subject parcel is "development ready "to accommodate a large regional shopping center with existing utilities and other available street infrastructure and an improved interchange sized to handle additional traff c impacts. From an economic health perspective (fobs, sales and property taxes, etc), the amendment to allow a regional shopping center is in the City's best interest. The recently adopted Council Policy Agenda states the need to "Aggressively pursue activities to enhance the health of our local retail economy, including business retention and new retail development" (highlight added). Council has identified this goal as among the "most urgent". The parcel is an infill location within easy access to existing and future homes and businesses. Other potential locations, including but not limited to the Timnath site, are not as well located and would force residents of our community to travel longer distances to shop and do business. The Minor Amendment is consistent with City Plan Goals for land use to assist in maintaining a compact pattern, encouraging development inside municipal boundaries and utilizing existing infrastructure. Findings of Fact/Conclusion: In evaluating the request to amend the Harmony Corridor Plan and Harmony Corridor Standards and Guidelines, staff makes the following findings offact: A. The requestfor the Plan Amendment meets the criteria of Minor Amendment Procedures as outlined in Appendix C of City Plan. The request for the Plan Amendment promotes the public welfare, and is consistent with City Plan vision, goals and policies. B. The request for the Plan Amendment is consistent with the City Structure Plan Map with a commercial designation. 249 January 17, 2006 RECOMMENDATION: The Planning and Zoning Board on December 8, 2005 voted (3-1) to recommend to City Council approval ofthe Minor Plan Amendment to amend the Harmony Corridor Plan and Harmony Corridor Standards and Guidelines Land Use Map, along with the following additional amendments: Standards and Guidelines Definition of Regional Shopping Center: A. Increase the size of a Regional Shopping Center from (30 — 70 acres) to (30 — 100 acres). This change will allow a larger shopping center such as the one proposed by Bayer. B. Permitted uses: Change residential use to (Mixed -Use Dwellings). Mixed -use dwellings are included in the definition for a Lifestyle Center. The Board concluded that within a shopping center, the intent is to not have stand alone multi family residential. Rather, the inclusion ofan option for residential in mixed -use buildings, either horizontally or vertical with ground poor retail or office and living units to the side or above. C. General Definition: Change - ' definition states "generally 1 adding a standard to provide exceed three stores. ,no more than 3 Big Box stores ". The current -2 anchor stores". The Board concluded a clear range of large super stores to not 2. Staff recommends Council adopt the Plan Amendments to the following two documents: 1. Harmony Corridor Plan a. Land Use Map - Add "Regional Shopping Center" designation. 2. Harmony Corridor Standards and Guidelines a. Land Use Map - Add "Regional Shopping Center" designation. b. Definition - Increase the size of a Regional Shopping Center from (30 - 70 acres) to (30 -100) acres. 3. In response to the other recommended amendments by the Planning and Zoning Board, staff agrees with the Board. However, these amendments will potentially impact other property owners along Harmony Corridor and staff will need additional time to notify them as part of this process. During the Council work session on January 10, 2006, staff received direction to bring the following amendments back to be considered in the near future: A. Harmony Corridor Standards and Guidelines: Standard: add — "No more than 3 Big Box Stores in Center 250 January 17, 2006 B. Harmony Corridor Standards and Guidelines: Standard: add "Mixed -Use Dwellings" to allowed use in center. " Councilmember Kastein recused himself from discussion on this agenda item because he was an employee of LSI Logic. ("Secretary's Note: Councilmember Kastein left the room at this point.) City Manager Atteberry introduced the agenda item and stated this was an important Ordinance that was the culmination of many months of public dialogue and work on the part of City staff. He stated staff was strongly recommending that the Council support the Ordinance on First Reading. Pete Wray, Senior City Planner, presented background information relating to the agenda item. He stated in 2003, the Harmony Corridor Plan was amended to allow for a Lifestyle Shopping Center at the northwest corner of Harmony Road and Ziegler Road. He stated a mixed use activity center designation was added to allow that type of shopping center. He stated the underlying basic industrial, non -retail activity center designation underneath that mixed use activity center designation was still in place. He stated the proposal was for a change in the type of shopping center for the same location. He stated the Lifestyle Shopping Center would have been on about 90 acres. He stated this proposal was for the same location on about 94 acres, with a potential 900,000 square foot regional shopping center. He stated the property to the north between the proposed shopping center and the existing English Ranch was about 40 acres and the existing LSI building on the comer was not part of the proposed land use change. He presented visual information showing the general location for the previously approved mixed -use activity center designation on the Harmony Corridor Plan, the breakdown of ownership in acreage for the northwest corner of Harmony and Ziegler Roads, and the 40 vacant acres north of the proposed regional shopping center. He stated those 40 acres were not part of any proposed development. He stated the distance between the proposed regional shopping center and the southern edge of English Ranch was about 1,000 feet (approximately 2 1/2 blocks). He stated the land use map in the Harmony Corridor Plan was amended in 2003 to allow a mixed -use activity center at this location with the Lifestyle Center designation. He stated as part of the proposed change, a regional shopping center designation would be added for this location. He stated the Council packets included background information relating to the Amendment to the Harmony Corridor Plan and Harmony Corridor Standards and Guidelines (an element of City Plan). He stated the Minor Plan Amendment criteria in City Plan included specific criteria for looking at the need for the proposed amendment. He stated the Council packets included a map showing the site, two existing regional shopping centers to the west near College Avenue, and other locations within the Growth Management Area for potential future regional shopping centers. He stated the criteria in the City Plan included promotion of the public welfare and consistency with the goals, visions and policies of the City Plan. He stated the existing Structure Plan Map showed the Harmony Corridor Employment designations and that there would be no need to change that plan. He stated the existing Zoning Map showed the Harmony Corridor zoning and there would be no need to change that map. He stated staff was asked to further clarify the difference between a Lifestyle Shopping Center and a regional shopping center. He stated one of the key differences was that the Lifestyle Center had a primary mix of specialty retail stores and no department stores larger than 100,000 square feet. He stated the Lifestyle Center would have been 251 January 17, 2006 situated on approximately 40 to 85 acres on which between 200,000 and 800,000 could be built. He stated the regional shopping center would have no cap on the overall square footage and only 15 (instead of 25) smaller independent stores would be required located on between 30 and 70 acres. He stated the update of the Buildable Lands Inventory showed there would be a minor impact on the supply of vacant Employment lands. He stated staff felt that there would still be ample quality vacant sites in a variety of sizes to meet the demand for small and large future Employment within the Growth Management Area. He stated the supply of Employment land would be only slightly less in 2005 than in 2003. He stated there were still 70 sites in the inventory that were over five acres in size. He presented visual information showing the totals for estimated vacant lands. He stated there were about 18 parcels within the Harmony Corridor that were five acres or larger with the Employment designation. He spoke regarding potential Employment sites in other areas of the City. He stated a sales tax analysis provided by the City's consultant indicated that, based on an estimated 900,000 square foot regional shopping center, the City would receive annually approximately $1.9 million in net new sales tax revenue. He stated if there was a 550,000 square foot build -out (which was closer to size of the Lifestyle Center) the net new sales tax revenue to the City would be about $1.3 million. He stated staff looked at regional competition impacts. He stated the Centerra development reduced the Fort Collins retail trade area and that competition was expected from other future retail centers in the area. He stated staff also looked at a comparison of retail and primary (high tech) jobs and wages based on a 90-acre site. He stated staff also looked at the impacts on affordable housing. He stated the primary impact would be based on the types of jobs created. He stated, based on the estimated 500,000 square feet, a regional shopping center would generate approximately 146 more low income households than Employment uses. He stated this would represent about 3% of the impact on affordable housing over 10 years. He spoke regarding the joint public meeting held on November 30, 2005. He stated there was broad support for the proposed plan amendment. He stated there were some specific comments regarding support for this type of amendment, incorporating a branch library, promoting local businesses within the shopping center, impacts on nearby neighborhoods, and loss of Employment lands. He stated there was a request to have an additional neighborhood meeting, which was held last Saturday and was attended by about 150 people. He stated the Planning and Zoning Board recommended on December 8, 2005, the City Council adopt the proposed plan amendments and requested the Council consider three additional standards: increasing the size of the regional shopping center, limiting the number of big box stores, and adding mixed use dwellings to the regional shopping center definition in place of the general residential description. He stated staffs recommendation was consistent with the Planning and Zoning Board's recommendation to amend the Harmony Corridor Plan land use map designations, to amend the Harmony Corridor standards and guidelines, to add the increased size to the definition, and to look at adding to the existing standards and "raising the bar' for design quality. He stated staff was recommending the application of the design standards and guidelines for the Lifestyle Shopping Center to the new regional shopping center. He stated another follow-up item was to strengthen the existing Land Use Code standards in Article 3 to require that large retail establishments have entrances or linear shops on more than one side of a big box retail building. Mayor Hutchinson stated this was an important issue for Fort Collins and that it should be considered in a rational and sober way. He asked that there be no display of approval or disapproval during public comments. He stated each audience participant would have three minutes to speak. 252 January 17, 2006 Ralph Waldo, 2803 East Harmony Road, expressed concern about the loss of Employment land. Iris Wagner, English Ranch resident, opposed the proposed big box retail center because of the impacts on the surrounding neighborhood. Larry Clark, 3701 Kentford Road, stated there was more opposition to the big box retail center than to the Lifestyle Center. He stated one reason for opposition was the planned pass -through traffic pattern. Joey Porter, 2803 East Harmony Road, asked that Council deny the request for a minor amendment. She stated the big box retail was not compatible with the surrounding office buildings and residential homes. Kathleen Hess, English Ranch, expressed concerns for bicycle traffic if the traffic flow on Ziegler Road was increased. She supported including a library in the development. Dan Bartran, English Ranch South, spoke against the proposed amendment. He stated the Lifestyle Center had been an opportunity for something sustainable and the regional mall would have a different character. He asked that the neighborhood be given an opportunity to review traffic studies and assurances be made to the neighborhood that any road connected to this project would not tie into English Ranch. Randy Salter, 2925 Stonehaven Drive, opposed the proposed change. He stated the neighborhood accepted the Lifestyle Center as a "reasonable compromise" for the property. He expressed concerns regarding traffic impacts and noise and air pollution. He asked that further study be done before this amendment was accepted. Ray Forrister, 2836 Antelope Road, opposed the proposal and expressed concerns regarding the neighborhood impacts of a big box center and the loss of Employment land. Paige Thalen, Fort Collins resident, expressed concern about the loss of high tech jobs and a resulting loss of revenue that would be spent in Fort Collins. Ken Pierce, 3701 Stratford Circle, questioned the justification for this change and a mammoth project in place of the Lifestyle Center. He asked that Council reject the change. Jim Deluhery, 2649 Newgate Court, asked Council not to pass this amendment to make the shopping center bigger. He stated it would be the equivalent of four Super Wal-Marts. Theresa Ramos -Garcia, 451 East Boardwalk Drive, expressed concerns about Employment land for companies that want to locate here in the future. Robert Schutzius, 3208 Mesa Verde Street, expressed support for the proposed development and the minor variance requested by Bayer Properties. He stated the development would be roughly the 253 January 17, 2006 same size as Hewlett-Packard. He stated this would be an appropriate development for the location. He urged the City to not have a connecting street from the development into English Ranch. Herb Irvin, 3920 Carrick Road, opposed the amendment. He noted Hewlett-Packard was a source of primary rather than retail employment. He stated this was not the right place for a big box development and there was a renewed need for Employment land. Cynthia Smeraski, 3701 Kentford Road, questioned the need for the proposed amendment since a change was already made for the Lifestyle Center. She stated a big box retail center would impact surrounding neighborhoods. Doug Stewart, English Ranch South, expressed concerns that there was no traffic study for the new plan and the plan called for a connecting street into English Ranch. Mary Leonard, 3927 Sunstone Way, stated there was not broad support from the community for this project. She urged the Council to find ways to keep primary jobs in Fort Collins. She asked the Council to vote against the amendment. Deb Maltby, 3179 Worthington Avenue, asked the Council to stick with a strong City Plan and expressed concerns about future empty strip malls in the City. Cheryl Peeper, English Ranch South, stated the City did not need any more discount department stores. She stated she would not like to see a development like Centerra at this location. Jane Peters, new resident of the English Ranch subdivision, stated the short term answer was not always the best solution for the future. She stated she did not want her neighborhood to be disrupted by big box stores. Roger Bartlett, 2615 Paddington Road, stated big box stores would have negative traffic impacts and would erode property values in the English Ranch area. He questioned whether the project would mean a significant increase in sales taxes. He expressed concerns regarding water run-off from the project. Thomas L. Welch, Fort Collins resident, stated Fort Collins prided itself on having culture, character and class. He stated residents cared about quality of life, open space, how the City grows, quality employment and the future. He stated this proposed regional center would not bring anything to Fort Collins that did not already exist. He stated it would be detrimental to existing retailers. He asked that the vision for the Harmony Corridor be followed to bring quality employment opportunities to Fort Collins. He stated the amendment would make Fort Collins less livable. He asked the Council to deny the request for modification. David Silverstein, Bayer Properties, stated he was disappointed in the misinformation that had been circulated and expressed to some of the residents since the neighborhood meeting and open house. He stated it was misguided to say the Bayer Properties project would detract from the quality of life of the City. He stated there was a detailed process at the open house. He stated if the zoning was 254 January 17, 2006 amended, it would give the developer the flexibility to bring in retailers that were not otherwise here. He stated the project would adhere to the same form of standards and architectural design and care that the Lifestyle Center would have had. He confirmed his commitments that a speculative project would not be built and that the project would be well leased and well designed and would have a quality mix of retail. He stated a group of residents had begun expressing their concerns about big box. He stated, in today's world, the Targets and Williams Sonomas of the world "coexist." He stated he respected the quality of life in Fort Collins, he had worked with City staff, and he had stood before two Mayors and City Managers. He stated he was available to answer questions. Bruce Hendee, BHA Design, representing Bayer Properties, stated the site had the infrastructure and location for a project to move forward. He stated if the retail development did not develop it would ,'most certainly" happen on the other side of 1-25. He stated would contribute to sprawl and traffic congestion on Harmony Road. He stated Bayer Properties had quality projects in other cities. He stated 2,475 notices were mailed to neighbors for a neighborhood meeting and open house. He stated there was a good response to the project at that meeting. He stated there were concerns from English Ranch that were "justifiable." He stated the connecting street was on the City's transportation master plan and that this was not Bayer Properties' proposal. He stated Bayer Properties was willing to provide a library on the site. He stated the site would develop and that commercial office development would create more peak impacts. ("Secretary's Note: The Council took a recess at this point.) Mayor Hutchinson asked for a clarification regarding what Council was to consider. He noted that much of the public input expressed concerns about issues that he believed would be considered in the development review process. Greg Byrne, CPES Director, stated this was a land use decision and that a specific development proposal was not being considered at this time. He stated much of the public testimony would be addressed at the time of a specific development proposal. He stated the agenda item was an amendment to the Harmony Corridor Plan that would permit a change in the character of a retail development. He stated the underlying Harmony Corridor zoning would not change and the land would be available for all of the uses that were permitted in the Harmony Corridor zone. He stated, in addition, there would be a retail component, and that decision was made two years ago at the time a decision was made to permit the Lifestyle Center. He stated the proposed amendment would permit a different character of retail. He stated the Council was also being asked to amend the definitions in the Harmony Corridor Plan to apply to a regional retail center (on this site or any other site in the Harmony Corridor) exactly the same design guidelines and quality standards that were adopted by the Council two years ago for a Lifestyle Center. Councilmember Roy asked about traffic impacts of this change and any traffic impact studies that could be made available to the public. Eric Bracke, Traffic Engineer, stated a traffic impact study was done for the Lifestyle Center. He stated a number of off -site improvements were required as part of that project. He stated there was not a specific development plan at this time and that a traffic study had not been done. He stated staff had done some preliminary work that indicated that there would be an increase in traffic over that generated by the Lifestyle Center. He stated a new study would be needed for a new project. 255 January 17, 2006 Mayor Hutchinson asked for confirmation that this would be part of the development review process for a specific development proposal. Bracke stated traffic impact studies were not required for zoning requests. Councilmember Brown asked about the process for changing the transportation master plan relating to the connection through to English Ranch. Bracke stated the Master Street Plan was a long range planning document that looked at infrastructure. He stated any change would require a staff process, boards and commissions recommendations and Council approval. He stated the Plan had been amended numerous times over the years. Mark Jackson, Transportation Planning Manager, outlined the staff review and board and commission review process. He stated this process would take about a month to 6 weeks. Councilmember Ohlson asked when the neighborhood became aware this could be three big boxes on considerably more acres than originally discussed. Byrne stated there was no change in the acreage from what was proposed for the Lifestyle Center. He stated there was a proposed change in the definition of the size of a regional center in the Harmony Corridor Plan. He stated this was first presented at the neighborhood meeting in November, conceptual site plans were shown and there was discussion about large format stores for purposes of clarification. He stated the City Code referred to a "big box" as anything more than 25,000 square feet and applied the big box design standards to those buildings. He stated there was discussion about larger stores in the Harmony Corridor greater than 110,000 square feet (the cut-off point between the Lifestyle Center and the regional center). He stated the City was aware from the beginning of the process about the conceptual proposal for stores potentially larger than L10,000 square (with no limitation on the number of those stores in a regional center) and made that information available. He stated the limitation idea was introduced by the Planning and Zoning Board in its recommendations to the Council that there needed to be a limitation on the number of large format stores in a regional center to maintain a balance between larger and smaller stores. He stated staff had carried that recommendation forward to the Council. Councilmember Manvel stated the actions appeared to be concentrated in Section 2 of Ordinance No. 011, 2006 relating to "scale." He asked for an explanation of the changes that would be authorized by the Ordinance. Wray stated the language that did not show any strike -through was existing language showing the context of the change. Councilmember Manvel noted the other part of the Ordinance was to redraw the map to change the site to allow a Lifestyle Center or a regional shopping center. Wray stated both documents added the words "regional shopping center' for that specific mixed use activity center at the northwest corner of Harmony and Ziegler Roads. Councilmember Manvel asked if the recommendation for a change to use the same design standards for the regional shopping center as those in place for a Lifestyle Center would be a decision for the future. Wray stated that could be finalized and incorporated into the Second Reading of the Ordinance. 256 January 17, 2006 Councilmember Manvel asked if the change in the maps to add "regional shopping centers" was a substantial change because the current standards were different forthe two types of shopping centers. Wray stated there was confusion in the community as this was called a "minor amendment' and the City Plan specified this would be a minor amendment process. He stated a major amendment was a five-year update to City Plan. Mayor Hutchinson stated there were several comments that the City should insist the Lifestyle Center be reinstated and there was no market because all the retail stores were closing. He stated this would be a land use policy change that should be done for the good of the community and to meet a need. He asked if there was a need for retail space. City Manager Atteberry stated the Lifestyle Center as previously proposed would not happen and this was a disappointment to everyone. He stated dollars would move to Timnath or other areas along 1-25 where there was adequate infrastructure. He stated there was potential revenue between $1.3 and $1.9 million with the development and an additional $900,000 could potentially be lost to the Timnath area. He stated many of the comments at this meeting related to specific development review issues. He stated this was a broader land use decision. He stated the staff team believed that this kind of development and land use pattern was appropriate for this site. He asked that the Council allow some of the other issues to be debated during the development review process related to a specific development proposal. He stated there was a potential economic loss to this community and the staffs recommendation was informed. Byrne stated staff advised Council, when the Lifestyle Center was under consideration, that three different locations in the region where lifestyle centers were being proposed (Fort Collins, Windsor and Loveland). He stated staff s advice at that time was that only one would be built and that had proved to be true. He stated the market would not support a lifestyle center on Harmony Road. He stated the existing lifestyle designation on the site was not useful in the short term or mid- term. He stated there were retailers looking for retail locations in the region. Councilmember Brown asked about the zoning for the 40 acres just north of this site. Byrne stated it was zoned Harmony Corridor. Councilmember Brown asked if residential was a possibility. Byrne stated there was a broad range of uses available in the Harmony Corridor zone. He stated it was primarily for Employment uses and secondary uses that were intended to support the primary Employment corridor (banks, hotels, business services or a limited amount of residential) were also permitted. He stated the Harmony Corridor zone limited those secondary uses to 25% of the land area. He stated the HC zone north of the site would permit that array of uses. Councilmember Brown asked who owned the acreage on the east side. Byrne stated LSI owned that property and it was not under contract to the applicant. Councilmember W eitkunat made a motion, seconded by Councilmember Brown, to adopt Ordinance No. 011, 2006 on First Reading. Councilmember Manvel asked if staff believed it had sufficient direction to come back with more details on Second Reading relating to increased standards. Byrne stated staff received that direction at the Work Session and chose the option of bringing something back to Council immediately. He 257 January 17, 2006 stated staff believed the best way to do that was to take the work that had been done to define those standards and guidelines and place those before the Council. City Attorney Roy stated if Council's intent was to adopt this Ordinance on First Reading with the understanding that on Second Reading it would contain those design criteria that had previously accompanied just the Lifestyle Center, then this should be made part of the motion. Mayor Hutchinson asked if it was appropriate to add that direction to the motion when this was a land use decision. City Attorney Roy stated this direction would require a change in the Ordinance on Second Reading and that he would suggest incorporating that into the motion to adopt on First Reading. Councilmember Ohlson offered a friendly amendment to include the language suggested by the City Attorney in the motion. The friendly amendment was accepted by Councilmembers Weitkunat and Brown and the direction suggested by the City Attorney was incorporated into the motion. Councilmember Roy stated there were several issues discussed, including what to do about primary employment. He stated this site was not zoned at this time for primary employment and this was not an issue. He stated another issue was the tax dollars that would be generated. He stated there was also the issue of quality of life. He stated this was a complicated issue and that he believed that the change would provide opportunities for the future. He stated he would support the motion. Councilmember Ohlson stated he would support the change. He stated there was plenty of available land for primary employment. He stated the quality of life that was so attractive to people costs money and it was important to keep sales tax dollars in Fort Collins. He stated he was sensitive to existing neighborhoods and when you moved to a location near a vacant lot you needed to recognize that it could develop into something. He stated he believed the Council was unanimous in supporting standards for quality development. Councilmember Weitkunat stated this had been a "continuing story." She stated the discussion dealt with land use, neighborhoods and the economy. She stated there was a concern about diminishing land in a restricted Growth Management Area. She stated regional shopping centers needed to be located in positions where they could gain the greatest revenue i.e., near the outskirts of the community approaching major thoroughfares. She stated it was a reality that Fort Collins needed to be concerned about tax revenues. She stated Fort Collins had always set the standard for quality big box development design guidelines. She stated this was well thought out and necessary in a changing world. She stated she would support the motion. Councilmember Manvel stated Council was counting on something happening on this retail site. He stated he believed a quality development would be built and the area would respond to that quality. He stated he hoped this development would be better than Centerra. Councilmember Brown stated this was a tough vote for him. He stated he would vote in favor of the motion because of the implications of the loss of tax dollars to the City. He stated the Council would 258 January 17, 2006 be voting for the good of the City and understood the concerns of the neighborhood. He stated those concerns would be addressed during the development review process. He stated he heard many comments from people at the neighborhood meeting in support of the proposal. He stated he hoped the neighborhood would come to support the proposal. Mayor Hutchinson stated the concerns that had been expressed were "real" and that those concerns would be addressed at the right point in the process. He stated the Council had adopted an economic vision for the City i.e., a healthy economy that reflects the values of our unique community in a changing world. He stated this applied in this case. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Manvel, Ohlson, Roy and Weitkunat. Nays: None. (Councilmember Kastein out of room) THE MOTION CARRIED ("Secretary's Note: Councilmember Kastein returned to the meeting at this point.) Urban Renewal Authority Meeting Rescheduled City Manager Atteberry suggested the Urban Renewal Authority meeting be scheduled at 6:00 p.m. next Tuesday prior to the Work Session. City Attorney Roy stated an announcement could be made that the meeting would be continued to next week and a notice could be posted. He stated no motion was necessary to take that action. Other Business Councilmember Weitkunat asked if there was Council support to give direction to the City Clerk to amend the Boards and Commissions work plans as suggested by Council liaisons to several boards. After polling the Council, Mayor Hutchinson stated there were at least three Councilmembers who supported giving that direction. The amended work plans will be placed on the February 7, 2006 Council agenda for Council consideration. Executive Session Authorized Councilmember Weitkunat made a motion, seconded by Councilmember Manvel, to adjourn into Executive Session under Section 2-31(a)(3) of the City Code for the purpose of considering real property acquisitions by the City and to extend the meeting past the midnight deadline should that be necessary. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED 259 January 17, 2006 ("Secretary's Note: The Council adjourned into Executive Session at 11:30 p.m. and reconvened following the Executive Session at 12:00 midnight.) Adjournment The meeting adjourned at 12:00 midnight. Mayor ATTEST: ml�mmwbllCity Clerk 260