HomeMy WebLinkAboutMINUTES-02/07/2006-RegularFebruary 7, 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, February 7, 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 audience participant would have five minutes to speak.
Michael Foxman, President of the Jewish Student Alliance and member of the Student Review
Board, stated efforts were being made to bring former Israeli Prime Minister Benjamin Netanyahu
to Fort Collins. He stated he was at this meeting to speak about the unlawful misconduct of Fort
Collins police officers during incidents in September and February.
Andrew Bonn, CSU student, asked for Council's opinion on the Fort Collins noise ordinance and
questioned the broad definition of unreasonable noise.
Citizen Participation Follow-up
Mayor Hutchinson thanked those who spoke during Citizen Participation.
Councilmember Kastein asked if the City Manager had followed up with Mr. Foxman. City
Manager Atteberry stated he had spoken with Mr. Foxman and had not yet spoken with him about
the February incident.
Councilmember Kastein requested a one -page memo on the alleged police incidents and a two -page
memo on the noise ordinance. City Attorney Roy stated there were two kinds of noise violations:
(1) unreasonable noise as determined by the officer based on several factors, and (2) noise at certain
decibel levels in various zones as measured at the property boundary.
Councilmember Roy stated in response to the second speaker's question, the noise ordinance now
had some "teeth" and there was a potential for higher fines. He stated he had recently spoken with
a citizen who expressed appreciation for the improvement in noise levels in her neighborhood. He
stated many neighborhoods were more livable because of the noise ordinance.
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Agenda Review
City Manager Atteberry stated item #28, Resolution 2006-013 Authorizing an Intergovernmental
Agreement with the Grove Metropolitan Districts Numbers 1 through 3 for the Provision of
Wastewater Treatment Services by the City's Wastewater Utility would be withdrawn from the
Consent Calendar and set over to the end of the meeting to allow time to answer questions asked by
Councilmember Roy.
An unidentified member of the audience withdrew item #26 Resolution 2006-011 Finding
Substantial Compliance and Initiating Annexation Proceedings for theAirpark Village Annexation
from the Consent Calendar.
Mayor Hutchinson stated the pulled Consent Calendar items would be heard after the discussion
agenda items.
CONSENT CALENDAR
6. Consideration and Approval of the Minutes of the November 29, 2005 Adjourned Meeting,
the December 13, 2005 Adjourned Meeting, and the December 20, 2005 and January 3, 2006
Regular Meetings.
7. Second Reading of Ordinance No. 007, 2006, Appropriating Unanticipated Revenue in the
General Fund for Continuation of the Restorative Justice Pro rg am.
This Ordinance, which was unanimously adopted on First Reading on January 17, 2006,
authorizes appropriation of unanticipated revenue in the General Fund to continue the
Restorative Justice Program. A grant in the amount of $20,000 has been received from the
Bohemian Foundation to continue this program. Donations totaling $1,575 benefitting the
Restorative Justice Program have also been received from the Seratoma Club, EyeOpeners
Kiwanis, the InterFaith Council and an anonymous individual contributor.
Items Relating to the Dry Creek Drainage Improvements Project.
A. Second 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. Second 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
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Burlington Northern - Santa Fe Railway with new bridges.
Ordinances Nos. 008 and 009, 2006, were adopted unanimously on First Reading on January
17, 2006.
9. Postponement of Second 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 to February
21, 2006.
The existing Cable Television Franchise calls for the cable operator (Comcast) to
underground its cable lines within a certain time frame after the City places electric lines
underground. A question has recently been raised about the time frame allowed for
undergrounding in the existing franchise, and whether or not Comcast is allowed additional
time to underground its cable lines under the existing franchise. Comcast is requesting a
postponement to allow more time to meet with City staff to clarify and resolve the matter
before Second Reading of the new franchise occurs..
10. First Reading of Ordinance No. 012, 2006, Appropriating Unanticipated Grant Revenue in
the General Fund for the Landmark Preservation Commission and Staff Education and
Training.
The Advance Planning Department has been awarded a $1,494 grant from the Colorado
Historical Society with no cash match for the purpose of education and training of Landmark
Preservation Commission members and staff. The grant funds will be used to send
Commission members and staff to Colorado Preservation Inc.'s statewide conference
"SAVING PLACES 2006: Building on the Past" in Denver.
Accepting this grant will enable the Fort Collins Advance Planning Department to provide
training for three new Landmark Preservation Commission members and also three staff
persons. Ongoing training is an activity that is a requirement of maintaining the City of Fort
Collins' Certified Local Government status.
IL Items Relating to the Construction of a Water Slide Project at City Park Pool.
A. Resolution 2006-008 Authorizing the City Manager to Enter Into a Grant Agreement
With the State Board of the Great Outdoors Colorado Trust Fund for the Receipt of
Funds for the Water Slide Project at City Park Pool.
B. First Reading of Ordinance No. 013, 2006 Appropriating Unanticipated Revenue in
the Recreation Fund and Authorizing the Transfer of Existing Appropriations in the
Recreation Fund for Construction of a Water Slide Project at City Park Pool.
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The Recreation Division has identified funding for a double -flume water slide for City Park
Pool. The water slide addition will complete the main pool's master plan. The slides will
be the very first of their kind in Fort Collins. Because of the total expense of this capital
improvement, acceptance of the GOCO grant and subsequently the Don and May Wilkins
Family Charitable Trust grant makes it possible for the City to afford this pool addition. The
slides are also a key element of implementation of a marketing strategy to result in a break-
even/profit center for this operation by 2007.
12. First Reading of Ordinance No. 014, 2006, Appropriating Unanticipated Revenue in the
General Fund for the Fort Collins Police Services Drunk Driving Enforcement Program.
On December 20, 2005, City Council approved a Resolution authorizing the Mayor to enter
into a contract with the Colorado Department of Transportation for Fort Collins Police
Services ("Police Services") to apply for a 2006 Law Enforcement Assistance Fund grant in
the amount of $11,750 to help reduce the number of drunk drivers in Fort Collins. This
Ordinance appropriates the grant funds.
13. First Reading of Ordinance No. 015. 2006. ADnronriating Unanticipated Revenue in the
Capital Projects Fund - South Taft Hill Road, Horsetooth Road to Harmony Road Project,
to Be Used for the Construction of Improvements to a Section of South Taft Hill Road from
Horsetooth Road South to Harmony Road and Authorizing an Intergovemmental Agreement
for the Project.
The City of Fort Collins Engineering Department has received $1,736,400 from Larimer
County's Regional Road Capital Expansion Fee Program (the "Program"). Under this
Program, the County collects a fee from building permits issued within unincorporated
Larimer County and the City of Fort Collins. This Program was initiated by Larimer County
in 1999 and adopted by the City of Fort Collins in February of 2000. South Taft Hill Road
(County Road 19) between Fort Collins and Loveland is identified as one of five regional
roads in the Larimer County Transportation Plan dated 1998. Larimer County has selected
South Taft Hill Road from Horsetooth Road to Harmony Road for funding of interim
improvements. The Ordinance also authorizes an intergovernmental agreement documenting
the City's and County's respective rights and responsibilities in connection with the
construction project.
14. Items Relating to Oak Street Plaza Park.
A. Resolution 2006- 009 Adding Oak Street Plaza Park to the Inventory of City Parks
in the 1996 Parks and Recreation Policy Plan.
B. First Reading of Ordinance No. 001, 2006 Appropriating Unanticipated Revenue in
the Neighborhood Parkland Fund - Oak Street Plaza Park Capital Project to be Used
to Construct Improvements to the Oak Street Plaza Park.
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Council adopted the Parks and Recreation Policy Plan in 1996 (the "Policy Plan"). The
Policy Plan includes an inventory of existing parks and identifies general locations for future
parks. Oak Street Plaza is not included in the 1996 Park Inventory. Recently the downtown
area has seen residential development that has generated parkland fees and the need for
improved urban parks. The Oak Street Improvement Project planned for 2006 will greatly
improve Oak Street Plaza Park, creating a very attractive urban park setting. Improvements
planned for the park include an interactive water feature, new, colorful paving, turf grass, a
stage and better landscaping. The park is about one-half acre in size. It was last improved
in the early 1980's and is showing its age. The existing concrete plaza, flower beds and
fountain require increased maintenance. The plaza is dated and is not the vibrant community
gathering place it will be after it is renovated.
Adding Oak Street Plaza Park to the inventory of parks in the Policy Plan will clarify its
status as a City park and allow the use of neighborhood parkland fees from nearby residential
development to be used for the Improvement Project. It will also allow staff to manage the
site using park regulations.
15. First Reading of Ordinance No. 016, 2006, Amending Chapter 8 of the City Code Relating
to the Creation of the Storm Drainage Fund.
This Ordinance revises the City Code description of the Storm Drainage Fund to be
consistent with City Council's adopted policy of citywide stormwater plant investment fees
and the citywide pay-as-you-go financing policy for the stormwater master plan. Thechange
allows plant investment fees to be used for city wide capital improvements and no longer
restricts funding capital projects in thebasin in which the plant investment fees are collected.
16. First Reading of Ordinance No. 017, 2006, Amending Section 2-566 of the City Code
Concerning the Adoption of the Classified Employee Pay Plan.
Section 2-566 of the City Code currently provides that City Council shall fix the salaries of
all classified employees by ordinance. This Code change will clarify that the City Council
adopts a pay plan by ordinance. The City Manager will then administer the pay plan by
determining the salary of individual classified employees within the pay ranges/skill levels
within the pay plan.
17. First Reading of Ordinance No. 018, 2006, Amending Chapter 17, Article IV (Offenses
Against Public Authority) and Chapter 23, Article IX (Natural Areas) of the City Code to
Clarify and Update Certain Enforcement Authority and Natural Areas Restrictions.
The Natural Resources Department is proposing revisions and amendments to portions of
Article IV of Chapter 17 of the City Code (Offenses Against Public Authority) and Article
IX of Chapter 23 (Natural Areas) of the City Code.
The proposed modifications to Chapter 17 of the Code will ensure that Natural Areas
Rangers, as "specially commissioned officer[s] of the city,-' will have the necessary authority
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and protection under the Code, by clarifying that the Rangers are legally entitled to require
the cooperation of members of the general public.
Proposed amendments and revisions to Chapter 23 ofthe Code reflect specific code changes
necessary to implement new Natural Areas General Management Guidelines that have
previously been presented to the Council in 2005, and to clarify and improve other existing
Natural Areas provisions.
18. First Reading of Ordinance No. 019, 2006, Designating the J.M. Morrison House and
Carriage House, 718 West Mountain Avenue, as a Fort Collins Landmark Pursuant to
Chapter 14 of the City Code.
The owner of the property, John P. Gascoyne, is initiating this request for Fort Collins
Landmark designation for the J.M. Morrison House and Carriage House. The home is a nice
example of Edwardian residential architectural, with many stylistic details.
19. First Reading of Ordinance No. 020, 2006, Desi ng ating the Lee House Property, 1530
Remington Street, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code.
The owner of the property, 1530 Remington Limited Partnership, is initiating this request for
Fort Collins Landmark designation for the Lee House Property. The house is a distinctive
and attractive example of Modeme-influenced Ranch style domestic architecture, with
excellent integrity.
20. First Reading_ of OrdinanceNo. 021, 2006, Desi ng ating the Kirby/Wade House and Historic
Garage, 816 Laporte Avenue, as a Fort Collins Landmark Pursuant to Chapter 14 of the City
Code.
The owner of the property, Thomas Trumbower, is initiating this request for Fort Collins
Landmark designation for the Kirby/Wade House and Historic Garage. Built in 1905 for the
John E. Kirby family, this historic five -room frame cottage at 816 LaPorte Avenue is over
100 years old.
21. First Reading of Ordinance No. 022,2006,Desirg atingtheJamesHouseProperty,210North
Loomis Avenue, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code.
The owner of the property, John F. Leach, is initiating this request for Fort Collins Landmark
designation for the James House Property. The quaint Classic Cottage on the corner of
Loomis and Laporte Avenues has continuously added to the historic nature of the West Side
Neighborhood for over 98 years.
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22. First Reading of Ordinance No. 023, 2006, Designating the 1953 GMC 500 GPM Front
Mount Pumper, Owned by the Poudre Fire Authority, as a Fort Collins Landmark Pursuant
to Chapter 14 of the City Code.
The owner of the property, Poudre Fire Authority, is initiating this request for Fort Collins
Landmark designation for the 1953 GMC 500 GPM Front Mount Pumper. The fire engine
is eligible for individual Fort Collins Landmark Designation under both Landmark Standards
(1) and (3). For fifty years, for three districts, this fire engine has played an important role
in fire protection and holds a unique place in the history of fire service in the area. The
engine is being restored to become a part of the Poudre Fire Authority's safety program.
23. First Reading of Ordinance No. 024, 2006, Authorizing the Conveyance of a Portion of the
Timberline Substation Site Property to the Public Service Company.
The Timberline Road Street Oversizing Project requires the acquisition of 6,237 square feet
of the Public Service Company ("Public Service") meter site located on Timberline Road
which is surrounded by the substation site parcel that is part of the City utility system. This
conveyance grants the City the necessary property interests for the ultimate design of
Timberline Road. Instead of purchasing the needed property along with the improvements
on site, Matt Baker, the project manager, has proposed a reconfiguration of the land owned
by Public Service. The improvements will be able to stay where currently located and some
fixtures will be relocated to the north of the building.
Staff is proposing a land exchangebetween the Utilities Department and Public Service, with
each conveying the other 6,237 square feet of land. Conveying this land to Public Service
will provide them the land necessary to continue the operation of the site without relocating.
If Public Service bad relocated, the City would need to purchase their building and
improvements. The exchange is a more cost effective approach because Street Oversizing
will compensate Utilities for the value of vacant land only. The compensation, as set by the
appraiser for this project, is $25,500, or $4 per square foot.
Staff from Real Estate Services and Street Oversizing has met with all affected parties. The
Utilities Department and Public Service have agreed to this exchange.
24. First Readine of Ordinance No. 025.2006. Authorizine the Convevance of a Renlacement
Sewer Line Easement to Anheuser-Busch. the Transfer of Additional Prospect Road Rights -
of -Way from the Natural Areas Program, and the Approval of Certain Drainage and
Temporary Construction Alignments for the East Prospect Road and Related Improvements
Adjacent to the Running Deer, Riverbend Ponds and Cottonwood Hollow Natural Areas.
Transportation Services is proposing to improve a portion of East Prospect Road between
the Poudre River on the west and Summit View Drive on the east. The road improvements
involve widening the existing narrow two-lane road to provide bike lanes, a median, and a
sidewalk/trail along the road. The road improvements should provide enhanced safety and
comfort for pedestrians, bicyclists and motorists, and enhanced access to the three natural
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areas.
To construct the new "Poudre River— Overflow Bridge", Transportation will need to relocate
a small stretch ofAnheuser Busch's sewer line from its current location on Riverbend Ponds
and Cottonwood Hollow Natural Areas to a new location on the same properties. The
Natural Areas Program will not be compensated for the relocation of easement, since the old
easement alignment will be vacated resulting in no net increase in the easement area.
25. Resolution 2006-010 Making Findings of Fact Re ag rdin the of the Planning and
Zoning Board Approvals of the Innovation Island, Overall Development Plan and Project
Development Plan and Upholding_ the Decisions of the Board.
On December 20, 2005, an appeal of the November 17, 2005 decisions of the Planning and
Zoning Board to approve the Innovation Island, Overall Development Plan and Project
Development Plan was filed by the Appellants Cathy Lund (Primary Person of Contact) and
23 other adjacent property owners.
On January 17, 2006, City Council voted to uphold the decisions of the Planning and Zoning
Board. In order to complete the record regarding this appeal, the Council should adopt a
Resolution making findings of fact and finalizing its decision on the appeal.
26. Resolution 2006-011 Finding Substantial Compliance and Initiating Annexation Proceedings
for the Airpark Village Annexation.
The Airpark Village is 148.55 acres in size. The site is an existing privately owned airport,
and three abutting properties, all generally located north of East Lincoln Avenue, south of
East Vine Drive and west of Timberline Road. Contiguity with the existing municipal
boundary is gained along portions of the west and east property lines. The east property line
abuts the Dry Creek Subdivision.
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.
27. Resolution 2006-012 Authorizing the Amendment of the Intergovernmental Agreement
Between the City of Fort Collins and Larimer County Regarding the Management of Fossil
Creek Regional Open Space
Staff is proposing to amend the Intergovernmental Agreement (IGA) between Fort Collins
and Larimer County regarding the management of Fossil Creek Regional Open Space
(FCROS). The current IGA calls for management of FCROS to shift from the County to the
City immediately upon annexation of the area by the City. The amended IGA delays the shift
to the City until 2010.
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28. Resolution 2006-013 Authorizing an Intergovernmental Agreement with the Grove
Metropolitan Districts Numbers 1 through 3 for the Provision of Wastewater Treatment
Services by the City's Wastewater Utility.
Resolution 2005-018 authorized the City Manager to negotiate an agreement with new
development near the town of Laporte for the provision of wastewater treatment services by
the City's Wastewater Utility. As directed by City Council, the City Manager has negotiated
an agreement, and has approved a schedule of surcharges for projected usage of City streets,
community parks and libraries by the new development and has included such surcharges in
the proposed agreement with the Grove Metropolitan Districts Numbers 1 through 3.
29. Resolution 2006-014 Amending Various Boards and Commissions 2006 Work Plans.
Council liaisons have reviewed 2006 Work Plans submitted by boards and commissions. On
January 17, 2006, Council gave direction (under other business) to amend the following 2006
Work Plans:
• Affordable Housing Board
• Art in Public Places Board
• Community Development Block Grant Commission
• Electric Board
• Library Board
• Retirement Committee
• Transportation Board
• Youth Advisory Board
30. Routine Easement.
Easement for construction and maintenance of public utilities from Harry J. And Mary Lou
Elder, to underground existing electric system, located at 920 North College Avenue.
Monetary consideration: $1800.
***END CONSENT***
Ordinances on Second Reading were read by title by City Clerk Krajicek.
7. Second Reading of Ordinance No. 007, 2006, Appropriating Unanticipated Revenue in the
General Fund for Continuation of the Restorative Justice Program.
8. Items Relating to the Dry Creek Drainage Improvements Project.
A. Second 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
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February 7, 2006
of Certain Real Property Interests in Connection Therewith.
B. Second 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.
Ordinances on First Reading were read by title by City Clerk Krajicek.
10. First Reading of Ordinance No. 012, 2006, Appropriating Unanticipated Grant Revenue in
the General Fund for the Landmark Preservation Commission and Staff Education and
Training.
11. First Reading of Ordinance No. 013, 2006 Appropriating Unanticipated Revenue in the
Recreation Fund and Authorizing the Transfer of Existing Appropriations in the Recreation
Fund for Construction of a Water Slide Project at City Park Pool.
12. First Reading of Ordinance No. 014, 2006, Appropriating Unanticipated Revenue in the
General Fund for the Fort Collins Police Services Drunk Driving Enforcement Program.
13. First Reading of Ordinance No. 015, 2006, Appropriating Unanticipated Revenue in the
Capital Projects Fund - South Taft Hill Road, Horsetooth Road to Harmony Road Project,
to Be Used for the Construction of Improvements to a Section of South Taft Hill Road from
Horsetooth Road South to Harmony Road and Authorizing an Intergovernmental Agreement
for the Project.
14. First Reading of Ordinance No. 001, 2006 Appropriating Unanticipated Revenue in the
Neighborhood Parkland Fund - Oak Street Plaza Park Capital Project to be Used to Construct
Improvements to the Oak Street Plaza Park.
15. First Reading of Ordinance No. 016, 2006, Amending Chapter 8 of the City Code Relating
to the Creation of the Storm Drainage Fund.
16. First Reading of Ordinance No. 017, 2006, Amending Section 2-566 of the City Code
Concerning the Adoption of the Classified Employee Pay Plan.
17. First Reading of Ordinance No. 018, 2006, Amending Chapter 17, Article IV (Offenses
Against Public Authority) and Chapter 23, Article IX (Natural Areas) of the City Code to
Clarify and Update Certain Enforcement Authority and Natural Areas Restrictions.
18. First Reading of Ordinance No. 019, 2006, Designating the J.M. Morrison House and
Carriage House, 718 West Mountain Avenue, as a Fort Collins Landmark Pursuant to
Chapter 14 of the City Code.
19. First Reading of Ordinance No. 020, 2006, Designating the Lee House Property, 1530
Remington Street, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code.
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20. First Reading of Ordinance No. 021, 2006, Designating the Kirby/Wade House and Historic
Garage, 816 Laporte Avenue, as a Fort Collins Landmark Pursuant to Chapter 14 of the City
Code.
21. First Reading of Ordinance No. 022,2006, Designating the James House Property, 210 North
Loomis Avenue, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code.
22. First Reading of Ordinance No. 023, 2006, Designating the 1953 GMC 500 GPM Front
Mount Pumper, Owned by the Poudre Fire Authority, as a Fort Collins Landmark Pursuant
to Chapter 14 of the City Code.
23. First Reading of Ordinance No. 024, 2006, Authorizing the Conveyance of a Portion of the
Timberline Substation Site Property to the Public Service Company.
24. First Reading of Ordinance No. 025, 2006, Authorizing the Conveyance of a Replacement
Sewer Line Easement to Anheuser-Busch, the Transfer of Additional Prospect Road Rights -
of -Way from the Natural Areas Program, and the Approval of Certain Drainage and
Temporary Construction Alignments for the East Prospect Road and Related Improvements
Adjacent to the Running Deer, Riverbend Ponds and Cottonwood Hollow Natural Areas.
Councilmember Manvel made a motion, seconded by Councilmember Weitkunat, to adopt and
approve all items not withdrawn from the Consent Calendar. The vote on the motion was as follows:
Yeas Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays:
None.
THE MOTION CARRIED
Consent Calendar Follow-uo
Councilmember Weitkunat spoke regarding item #17 First Reading of Ordinance No. 018, 2006,
Amending Chapter 17, Article IV (Offenses Against Public Authority) and Chapter 23, Article IX
(Natural Areas) of the City Code to Clarify and Update Certain Enforcement Authority and Natural
Areas Restrictions. She stated she had a citizen inquiry about the qualifications and authority of
rangers. John Stokes, Natural Resources Director, stated Section 2-504(b)(2) of the City Code
authorized the Police Chief to make special appointments of officers to enforce provisions of the
City Code. He stated rangers were commissioned to issue citations for misdemeanor violations
occurring in the City's natural areas, parks and recreation areas, or on the City's trail system and
immediately adjacent areas. He stated they were law enforcement officers with a high level of
training.
Councilmember Ohlson spoke regarding item #14 Items Relating to Oak Street Plaza Park and
stated this was an example of a City development design issue in which the Council should be more
involved at appropriate times. He stated the new police building was the same kind of design issue
and that Council had not had any "touch points" at all on the design of that building. He also spoke
regarding item #15 First Reading ofOrdinance No. 016, 2006, Amending Chapter 8 ofthe City Code
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Relating to the Creation of the Storm Drainage Fund and requested that this item be put on the
discussion agenda for Second Reading so that he could vote against it at that time.
Councilmember Reports
Councilmember Brown reported on discussions with the City of Loveland relating to the Airport
Master Plan. He stated the current estimated annual economic impact of the airport for Fort Collins
and Loveland was $33 million. He stated the biggest problem and highest priority for the Airport
was maintenance. He also reported on discussions of the 1-25 Environmental Impact Study Group
relating to transportation issues. He stated the two options being considered for transportation from
Wellington to Denver were: (a) commuter light rail to Longmont and connections with Fast Tracks
into Denver, six lanes of traffic on 1-25 and commuter bus between Greeley and Denver; and (b) high
occupancy tollways and a bus and rapid transit system on 1-25. He stated either solution would
involve increasing the width of 1-25. He stated a series of meetings were being held in Northern
Colorado on the issues.
Councilmember Manvel reported that he spent a day in Denver with library boards and library
officials studying the possibilities for developing a library district. He noted that the Council Work
Session on February 14th would focus on financing alternatives for the library over the next year.
Councilmember Kastein reported on the North Front Range Transportation and Air Quality Planning
Council discussions relating to funding that would be available as a direct result of Referendum C
via SB 1, relating to transportation improvements in the State. He stated $100 million of the $208
million available would come to this region for six lanes on 1-25 to Longmont.
Mayor Hutchinson reported on the content and status of State legislation of interest to the City.
Ordinance No. O11, 2006,
Amending the Harmony Corridor Plan and
Harmony Corridor Standards and Guidelines as
They Pertain to Regional Shopping Centers Adopted as Amended on Second Reading
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY
On January 17, 2006 Council approved on First Reading Ordinance No. 011, 2006, with direction
to include on second reading certain amendments to the Harmony Corridor Standards and
Guidelines that would apply the design standards for both Lifestyle and Regional Shopping Centers.
Exhibit B reflects those amendments.
Bayer Properties has initiated an amendment to the Harmony Corridor Plan and the Harmony
Corridor Standards and Guidelines, which would add a Regional Shopping Center to the Mixed -Use
Activity Center in addition to Basic Industrial and Non -Retail Employment, as defined and shown
on the Land Use Map. The property in question is located at the northwest corner ofHarmony Road
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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 ofthe 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. "
("Secretary's Note: Councilmember Kastein withdrew from participation on this agenda due to a
perceived conflict of interest and left the room at this point.)
City Manager Atteberry introduced the agenda item.
Pete Wray, Senior City Planner, presented background information on the agenda item and
highlighted the changes that had been made to the Ordinance since First Reading at the request of
the City Council.
Councilmember Ohlson asked if any other items relating to "big box issues" would be comingbefore
the Council. Wray stated there would be three follow-up items to this action.
Councilmember Ohlson asked when the follow-up items would be brought to Council. Wray stated
they would come forward within the next two to three months.
Councilmember Ohlson asked if the City would then be at a state-of-the-art level with regard to
dealing with big box development. Wray stated the existing large retail standards were good and
staff would continue to look at future options for improvements. City Manager Atteberry stated staff
would continue to welcome suggestions on the standards and noted the City had compared its
standards with other communities to determine how the City s standards measured up. He stated the
City would continue to work on continuous improvement of its "state-of-the-art" standards to deal
with big box development.
Councilmember Ohlson stated he hoped to see continued work to ensure the highest level of
standards. City Manager Atteberry stated he was confident that efforts to continuously improve City
standards were happening within the CPES Department.
Mayor Hutchinson stated he understood that staff was taking a "fine-grained" look at the primary
employment land inventory to reach an understanding about usability, clustering and other related
issues. Wray indicated that this was correct.
Councilmember Weitkunat made a motion, seconded by Councilmember Manvel, to adopt
Ordinance No. 011, 2006 on Second Reading as amended. Yeas: Councilmembers Brown,
Hutchinson, Manvel, Ohlson, Roy and Weitkunat. Nays: None. (Councilmember Kastein
withdrawn)
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February 7, 2006
THE MOTION CARRIED
("Secretary's Note: Councilmember Kastein returned to the meeting at this point.)
Consideration of the Appeal of
the December 8, 2005, Determination of the Planning
and Zoning Board to Deny the Shields Street Lofts (515 South Shields Street) Project
Development Plan (PDP): Overturned and Remanded to Planning and Zoning Board
The following is staff s memorandum on this item.
"BACKGROUND
On October 20, 2005, a Planning and Zoning Board public hearing was conducted to receive
presentations and testimony on the Shields Street Lofts PDPproposal, a mixed -use (residential and
commercial) project on 0.22 acre located at 515 South Shields Street. The proposed project consists
of the following:
demolition of an existing single-family house
construction ofa new 3-story mixed -use building containing 5 two -bedroom dwelling
units (each 1,100 square feet in size) and 1,440 square feet of commercial uses
(professional offices, personal and business service shops)
9 vehicle parking spaces on -site
There is an existing alley along the north side of the property, which is south of the existing 7-Eleven
Convenience Store at 505 South Shields Street. The property is in the NCB — Neighborhood
Conservation, Buffer Zoning District. At this public hearing the Board continued the item to the
regularly scheduled December 8, 2005 public hearing with direction to the applicant/developer to
consider revisions to the plan based on concerns regarding adequate parking on -site and a privacy
issue (from a large, second level outdoor deck on the building to properties to the west).
On December 8, 2005, the Planning and Zoning Board continued the Shields Street Lofts PDP
public hearing and received staff and applicant presentations and public testimony. The applicant
submitted a revised plan that contained a range of square footages for the 5 dwelling units
(decreasing the minimum unit size by 393 square feet and increasing the maximum unit size by 178
square, feet), increased the amount of commercial area by 6 square feet, decreased the size of the
outdoor deck from 1,985 square feet to 280 square feet (now in the form of a 5' wide walkway as
access to the 4 dwelling units on the secondfloor), and decreased the overall squarefootage ofthe
building by 263 square feet. There remained a total of parking spaces on -site.
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February 7, 2006
Planning and Zoning Decision
After discussion and deliberation, the Planning and Zoning Board denied the Shields Street Lofts
PDP based on the development proposal not being compliant with Section 3.5.1 Building and
Project Compatibility of the Land Use Code. Specifically, the Board found that:
The proposed building is too high relative to mostly one-story buildings in the
surrounding area.
The bulk and mass of the building is too large compared to surrounding buildings.
The overall size of the building is not compatible with the predominance of single
story buildings that define the general character of the neighborhood.
In addition to the compatibility issue, the Planning and Zoning Board also spent considerable time
deliberating about the project's compliance with the parking standards set forth in the Land Use
Code. Non-residential uses are exemptfrom the City's minimum parking requirements, however,
they are regulated with regard to the maximum number of allowed parking spaces, based on the
proposed land use. Although not part of the Board's formal action, the majority of the members
expressed concern that the lack ofparkingfor the commercialspace in the project may be in conflict
with the purpose of the City's access, circulation and parking standards.
Allegations on Appeal
On December 14, 2005, a Notice ofAppeal was received by the City Clerk's office regarding the
decisions of the Planning and Zoning Board. In the Notice ofAppeal from the Appellants Mikal S.
Torgerson and Troy W. Jones, both ofM. Torgerson Architects, it is alleged that:
• Relevant laws of the Land Use Code were not properly interpreted and applied.
Questions City Council Needs to Answer
• Which Land Use Code Standards govern the size, height, mass and scale of the
proposed building? (If there is a conflict between the Article 3 and Article 4
standards, then Article 4 Standards supercede the general Article 3 Standards.)
• Does the building meet the applicable standards?
StaTfAnal sv is of Relevant Issues
• Numeric Article 4 Standards Versus General Article 3 Compatibility Standards
The Land Use Code is broken down into Article 4 "Districts ", which provides development
standards specific to each zone district, and Article 3 "General Development Standards"
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February 7, 2006
that pertain to properties city-wide. Within the NCM zone district, numeric standards are
setformaximumbuildingsize(squarefootage)andmaximumbuildingheight(stories). The
Appellants contend that these two sets of Standards are in conflict and cite Land Use Code
Section 1.7.2 which states that, in the event that there is an internal code conflict between
code provisions, the more stringent standard prevails. The Appellants therefore.further
contend that the Planning and Zoning Board erred in using the general development
standards of Article 3 to evaluate the compatibility of the building instead of the more
specific standards. for the NCB zone district found in Article 4.
The Planning and Zoning Board did not find a conflict between the provisions ofArticles 3
and 4. In its deliberations and decision, the Planning and Zoning Board deemed that the
general compatibility standard of Article 3 was relevant in the evaluation of the proposed
development even though the numeric standards for size and height may have been met. In
other words, it believes there is no conflict between the two standards because it is possible
for both sets of standards to be met. Staff agrees with this assessment.
• Building Compatibility
The Appellants allege that, even ifthegeneral compatibility standards in Article 3 apply, the
Planning and Zoning Board failed to properly interpret and apply those standards as they
relate to building size, height, mass and scale.
Staff evaluated the development plan and concluded that the proposed building was
compatible with other structures on the same block. Several buildings within closeproximity
to the development site, including a church and office building, have similar building
heights. The zone district permits a maximum of 3 stories, where the applicant proposes a
2 '/2 storybuilding. Use of a pitched roof on the upper floor, where living space is located
within the roofpitch, minimizes the apparent building mass and makes it more compatible
with the scale and form of neighboring residences which predominantly use pitched roofs.
The proposed building has less floor area than the maximum size permitted, which is based
on the size of the lot. However, the Board disagreed with staff's position on this point and
said that the size and scale of the proposed building is not compatible with other buildings
on the same block.
List of Relevant Code Provisions
• Section 1.7.2 Conflict with Other Laws
Except as provided in Section 3.1.2, if the provisions of this Land Use Code are internally
conflicting or if they conflict with any other statute, code, local ordinance, resolution,
regulation or other applicable Federal, State or local law, the more specific standard,
limitation or requirement shall govern or prevail to the extent of the conflict. If neither
standard is more specific, then the more stringent standard, limitation or requirement shall
govern or prevail to the extent of the conflict.
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February 7, 2006
• Section 3.1.2 Relation to Zone District Standards (Article 4)
In the event of a conflict between a standard or requirement contained in Article 3 and
Article 4, the standard in Article 4 shall prevail.
• Section 3.5.1(C) Building and Project Compatibility
Building Size, Height, Bulk, Mass, Scale
Buildings shall either be similar in size and height, or, if larger, be articulated and
subdivided into massing that is proportional to the mass and scale ofother structures on the
same block, or if no buildings exist thereon, then on adjoining blocks.
• Section 5.1.2 Definitions
Compatibility shall mean the characteristics of different uses or activities or design which
allow them to be located near or adjacent to each other in harmony. Some elements affecting
compatibility include height, scale, mass and bulk of structures. Other characteristics
include pedestrian or vehicular traffic, circulation, access and parking impacts. Other
important characteristics that affeet compatibility are landscaping, lighting, noise, odor and
architecture. Compatibility does not mean "the same as ". Rather, compatibility refers to the
sensitivity of development proposals in maintaining the character of existing development.
Section 4.8(D)(1) Land Use Standards
(1) Density. Minimum lot area shall be equivalent to the total floor area of the building(s),
but not less than five thousand (5,000) square feet.
Section 4.8 (E)(2)(a)(1) Dimensional Standards
(5) Maximum building height shall be three (3) stories, except for carriage houses and
accessory buildings containing habitable space, which shall be limited to one and one-half
(I'12) stories.
Alternative Actions City Council May Take
A. If the Council finds that relevant laws of the Land Use Code were not properly
interpreted and applied, the Council should overturn or modify the decision of the
Planning and Zoning Board.
B. ff the Council finds that relevant laws of the Land Use Code were properly
interpreted and applied, then Council should uphold the decision ofthe Planning and
Zoning Board. "
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February 7, 2006
Mayor Hutchinson read a statement for the benefit of the public regarding the appeal process and the
basic rules under which the Council must operate in hearing appeals. He stated in hearing an appeal
the Council was not acting as lawmakers or policy makers but was instead acting as a "judge." The
Council's role was to determine if it agreed or disagreed with the decision that was being appealed
and with the way the decision was made. He stated there were specific rules that must be followed
relating to a hearing "on the record." Council must base its decision on the information already in
the record. There were only two exceptions to the "no new evidence rule"(to be explained by the
City Attorney). He stated a second requirement was "impartiality." Council could not do its own
research, talk to affected parties, or form opinions in advance of the hearing. Council could only
review the videotape and transcript and read the staff reports provided in the Council packet and
must try to avoid any conversations about the development and any new materials that might affect
the Councilmembers' opinions about the development. He stated Councilmembers were not at
liberty to talk to or respond in any substantive way to anyone who called or e-mailed about an appeal.
The Council's determination must be based on existing standards. If development application met
the applicable (current) standards it must be approved. If it did not meet the applicable (current)
standards it should be denied. He stated Council could note that the "wrong standards" were in place
and, after the appeal hearing, could ask staff to look at how those standards might be changed. In
looking at any future changes to standards the Council would be back to its policy -making role. He
stated it was important for Council to separate the two roles. The City Code did allow written
materials from a party -in -interest to be submitted to the City Clerk by noon on the Wednesday prior
to the appeal hearing. Those materials would be included in the agenda packet as part of the
"record.". He stated petitions that had been submitted were part of the record and that, to the extent
the petitions addressed the standards, the Council could consider them. This was a "criteria -based
decision -making process." The process was intended to ensure that everyone who was directly
affected by the Council's decision would have a fair hearing.
City Attorney Roy explained the appeal hearing rules. He stated this would be a decision based
primarily on the record, with two exceptions: (1) new evidence could come in response to questions
from Councilmembers, and (2) if there was an allegation that the Board relied upon some false or
misleading evidence, then parties could offer evidence to the contrary. He stated the parties -in -
interest who could speak at this hearing included the applicant or anyone who had a legal interest
in the property that was the subject of the application, or anyone who had been mailed notice of the
Planning and Zoning Board hearing, or anyone who submitted comments to the Board, or anyone
who appeared before the Board. He stated the Council must base its decision on the grounds stated
in the notice of appeal, the evidence in the record, the criteria in the Land Use Code, and any other
issues identified by a Councilmember in advance. He stated the options available to the Council
would be to uphold, overturn ormodify the decision of the Planning and Zoning Board, or to remand
to the Board if a determination was made that the Board did not conduct a fair hearing or if the
Council determined the Board needed to more fully explore certain issues. He stated the Mayor
would establish time frames for presentations.
Steve Olt, City Planner, stated the site in question was on the west side of South Shields Street,
located approximately one-half block south of West Mulberry Street and a block -and -a -half north
of Birch Street. He stated the property was in the NCB zone district. He stated two neighborhood
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February 7, 2006
meetings were held for this development proposal. A development proposal was submitted on
March 30, 2005. After significant development review of the project, on October 20, 2005 the
Planning and Zoning Board conducted a public hearing and received testimony forthe Shields Street
Lofts, which was a mixed use project containing five residential dwelling units and approximately
1,440 square feet of nonresidential commercial office uses. He stated the proposed project consisted
of demolition of an existing single-family house, construction of a new three-story mixed use
building containing 6,940 square feet, five residential dwelling units and 1,440 square feet of
commercial uses, and nine off-street parking spaces. After deliberation, the Board continued the
item to the December 8, 2005 public hearing with direction to the applicants (developers) to consider
revisions to the plan based on concerns regarding the adequacy of parking on -site and privacy issues
for residential properties to the west relating to a large second level outdoor deck on the west side
of the building. He stated on December 8, 2005 the Board resumed the public hearing and received
presentations and testimony from the applicant, staff and residents. He stated the revised plan
submitted in response to the Board's previous concerns retained five residential dwelling units (one
downstairs and four on a second level), increased the commercial area on the first floor by six square
feet, decreased the size of the outdoor deck from about 2,000 square feet to approximately 300
square feet in the form of a five-foot wide walkway along the west side of the building to the
entrances to the residential dwelling units, decreased the overall square footage by 260 square feet,
and retained nine parking spaces on -site. He presented visual information showing the site plan and
its surroundings. He stated the Board had a lengthy discussion about the size, scale and mass of the
building. The east elevation of the building was considered to be a 2 1 /2 story building with one
residential unit on the first floor and four residential dwelling units on the second floor with a loft
element on the half (or third) story. He presented visual information showing the west side of the
building and the lower roof line with a five-foot wide walkway behind the mansard roof to provide
access tothe four upstairs dwelling units. He showed visual information depicting the end elevations
toward an alley to the north and a residential area to the south. He stated after lengthy discussion,
the Planning and Zoning Board denied the Shields Street Lofts Project Development Plan based on
the development proposal not being compliant with Section 3.5.1 of the Land Use Code dealing with
building and project compatibility. The Board specifically found the proposed building was too high
relative to the mostly one-story buildings in the surrounding area, the bulk/mass of the building was
too large compared to surrounding buildings, and the overall size of the building was not compatible
with the predominantly single -story buildings that defined the general character ofthe neighborhood.
He stated the Board also had a lengthy discussion about the parking on -site relative to the proposed
uses. The five residential units required aminimum number ofparking spaces and the nonresidential
component had no minimum parking requirement and only a maximum parking allowance. He
stated on December 14, 2005 the applicants/developers filed a notice of appeal with the City Clerk's
Office alleging that relevant laws and Land Use Code were not properly interpreted and applied. He
stated the Council must now determine which Land Use Code standards govern the size, height,
mass and scale of the proposed building i.e., whether there is a conflict between Article 3 and Article
4 standards and if Article 4 standards supersede Article 3 standards and whether the building meets
the applicable standards.
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February 7, 2006
("Secretary's Note: After polling the audience, Mayor Hutchinson stated each side would have 25
minutes for a presentation, longer than would usually be allotted, due to the large number of people
who wanted to speak.)
Mayor Hutchinson stated the appellants and parties -in -interest in support of the appeal would have
25 minutes for a presentation.
Mika] Torgerson, M. Torgerson Architects, 223 North College Avenue, representing the owners of
the subject property, stated he would present details explaining the process that arrived at the current
design. He stated in September 2004 his client was looking at options for the site after attending a
conceptual review for a residential four-plex. After further review of the NCB zone district, the
applicant determined that a mixed use project would be more appropriate. This was based on the
purpose statement of the NCB zone district: "The Neighborhood Conservation Buffer district is
intended for areas that are a transition between residential neighborhoods and more intensive
commercial use areas or high traffic zones that have been given this designation in accordance with
adopted Subarea Plans." He stated the subject property was apart of the West Central Neighborhood
Plan, which also envisioned mixed use or more intensive projects as a logical buffer for commercial
areas such as the adjacent 7-Eleven and high traffic areas such as the arterial Shields and Mulberry
Streets. He stated the applicant proposed a three-story building, which was allowed in the zone
district, with a 40 foot high parapet. He stated this was proposed to be a brick building. The
applicant took this to a neighborhood meeting in March 2005. The primary concerns of the
neighbors related to height and the applicant was asked to look at options to reduce the height.
Several neighbors also favored a pitched roof over the proposed flat roof. The project was
redesigned as a 2 1 /2 story project with an eave height of 19' 8". This was brought back voluntarily
to another neighborhood meeting in May 2005. He noted the notification area was expanded at that
time beyond the area required by the Code in order to receive input. Some neighbors would always
have concerns about redevelopment in this zone district because NCB was a transition zone. It
clearly envisioned intensification over some existing uses such as single-family residences on a busy
arterial street. He stated "opposition commonly follows change" and the applicant was
"unfortunately not able to satisfy everyone." The applicant had proposed what was believed to be
appropriate for this zone district and the project would fall within the Code requirements for a
maximum height of three stories and a maximum floor area ratio of 1:1. The project would be 2 1 /2
stories and would have a floor area ratio of .78. He stated at the first Planning and Zoning Board
hearing there were six concerns related to the Code. At the second Board hearing on December 8
there was much discussion about those six sections of the Code. He stated the project was eventually
denied based on the Board's belief that the project did not comply with Section 3.5.1(C) of the Code
relating to building size, bulk, mass and scale. Parking and other questions were discussed at length
and the Board's determination related to one item only. He asked for clarification that discussion
at this hearing would focus only on the section of the Code that was appealed rather than a rehearing
of the project as it related to the Land Use Code as a whole.
Mayor Hutchinson stated the questions being considered by the Council were posted on the wall.
City Attorney Roy asked Mr. Torgerson to restate his question.
February 7, 2006
Mr. Torgerson stated the question would be to decide whether or not the Planning and Zoning Board
appropriately decided on the Code section that was being appealed or whether the Council would
review the project as it related to the Land Use Code as a whole.
City Attorney Roy stated he would hesitate to "constrain the applicant's comments with regard to
anything that he thinks might be relevant." After receiving testimony, the Council must decide
"what it thinks is relevant." He did not want to ask the applicant to "confine" his remarks at this
point.
Mr. Torgerson stated he knew many neighbors had concerns about parking, which clearly did not
relate to height, bulk, scale and mass. He stated if parking was going to be a relevant consideration
at this hearing, the applicant could give a lengthy presentation on parking. If parking was not going
to be part of the consideration, such a presentation would be out of context.
City Attorney Roy stated Councilmembers could ask for any additional information they believed
was relevant later in the hearing. He suggested the applicant "make whatever use of the 25 minutes
he felt was most appropriate." He noted the clock was stopped during this discussion.
Councilmember Manvel suggested if the applicant had comments about parking, then those
comments should be made during the applicant's presentation. He stated he believed"parking
figured in size" and size was the reason for denial of the project.
Troy Jones, M. Torgerson Architects, representing the applicant, spoke regarding the specifics of the
standards. He read from page 66 of the December 20 minutes, the motion for denial made by
Jennifer Carpenter: "I move for denial of this project for the PDP stating Section 3.5.1 that it is not
compatible in size and massing to the general area and to the residential area." He stated the
question was whether the project was compatible with Section 3.5.1 with regard to size and massing
in the general area and residential area. The question of parking had come up and he wanted to put
that issue into context. He stated the motion maker (Jennifer Carpenter) on page 68 clarified on line
19 that her motion did not speak to parking. The intent of the motion maker was specific to
compatibility in size and massing to the general area and residential area. He stated there was a
discrepancy between Article 3 and Article 4. He stated the neighbors would say the Article 3
standard in Section 3.5.1(C) provided: "If a building is larger it shall be articulated and subdivided
into massing that is proportional to the mass and scale of other structures on the same block." From
all four sides the building had articulation, a variety of materials, subdividing of the massing into
column spacing, and a roof line that mimicked the residential character of the neighborhood. The
building design met the Code requirements relating to articulation and subdividing. The question
for Council was whether the massing was proportional to the mass and scale on the block, and
whether this was the standard that should be considered or whether there were more specific Land
Use Code standards that should be considered. There were much more specific standards that dealt
specifically with this issue in Articles 4 and 5 of the Land Use Code. He stated Article 3 was making
a general statement that applied to all zones everywhere, while Article 4 stated the intent for the
NCB zone. The purpose statement in Article 4 stated this zone was intended to be a transition zone
between residential neighborhoods and a more intensive commercial or high traffic zone. He stated
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the intent was not for development to be the same as the residential neighborhood but that it would
have a "different transitional character." Article 5 provided additional clarity. The definition of
.'compatible" stated "compatibility was not the same as- what the project was trying to be compatible
with. He stated he would address each of the issues of size, height, scale, bulk and mass. Article
4 relating to the NCB zone district standards provided that the size of a building was regulated by
the lot area standards. A building could have a 1:1 ratio and the building square footage could be
equal to the size of the lot square footage in the NCB zone. The applicant was proposing a .78:1
ratio with a building that would have 6,667 square feet on a lot that had 8,520 square feet. With
regard to the height and scale of the building, the NCB standard provided for a maximum of three
stories. This would be a 2 1/2 story building. There was a definition of "half -story"' in Article 5.
He stated the intent of the half -story in the design was to minimize the impact with sloping. The
proposed building was approximately 34 feet in height and other buildings fronting Shields Street
in the immediate vicinity included a church across the street with a 36-foot high sanctuary and 50-
foot high steeple. He had visual information relating to that building that could be presented in
response to any Council questions. He stated Section 3.5.1 was more general than all of the Article
4 zone district standards and the definition of compatibility. He stated Articles 4 and 5 were more
specific. Section 1.7.2 provided that when two standards were in conflict the more specific standard
would prevail. Parking was a recurring theme in the letters from the neighborhood and at the
Planning and Zoning Board hearing. Parking was not part of the motion for denial. The applicant
was contending the issue before Council was whether the project was compatible with the
neighborhood in terms of height, scale, bulk and mass. He would address parking, although it was
not the issue before Council. In 1997, during the transition from the Land Development Guidance
System to the Land Use Code, there was a change from parking minimums to some parking
minimums and some parking maximums. There were parking maximums for projects such as the
proposed project. The project complied with the "spirit of the Code', if parking was the issue. The
Code was clear that zero parking was required as a minimum for the commercial use and there were
minimum parking requirements for residential uses. He stated the project complied with parking
requirements of the Code. It would be viable for people living in this project to use alternative
modes of transportation. Providing more parking would discourage the use of alternative modes.
Parking would be a recurring issue with "urbanization" and higher density in -fill development. He
stated it appeared the Code was intended to encourage compact urban form and the use of alternative
modes of transportation.
Mr. Torgerson stated City Plan was intended to be a more proscriptive code than the previous code.
It was intended to provide some level of predictability for neighborhoods and developers. If a
project met the numerical formulas, approval was expected. He stated the decision before Council
was "black and white." The applicant was proposing a 2 1 /2 story building which was 20% shorter
than the three-story building allowed in the zone district. The applicant proposed a .78:1 floor to
area ratio, and a 1:1 floor to area ratio was allowed. There were specific numbers of parking spaces
required for different uses and the project met those requirements. A development that met the
numerical requirements of the Code should expect approval. He had visual information available
regarding the original building and the redesigned building and could show that information if
Council requested that.
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February 7, 2006
Mayor Hutchinson stated the opponents to the appeal would have 25 minutes for a presentation.
Mayor Hutchinson asked if the visual presentation being prepared was new evidence.
An unidentified male member of the audience stated everything in the presentation was in the
Council agenda packet and had been addressed during the Planning and Zoning Board meetings.
Mr. Torgerson stated in past appeals he had been told that presentations were not allowed if they
were not viewed in the context of the hearing. He stated it appeared that this would be an "entirely
new presentation that has never been seen."
Mayor Hutchinson asked for clarification about what the opponents to the appeal intended to present.
An unidentified male member of the audience stated everything in the presentation had been
discussed at the Planning and Zoning Board meetings and was in the Council packets and/or in the
Land Use Code.
Councilmember Weitkunat asked if this presentation was "compiled in a different way" or if it was
what was actually presented.
The unidentified member of the audience stated it was not what was actually presented.
Councilmember Weitkunat asked if this was therefore new evidence.
An unidentified male member of the audience stated a group of neighbors in the vicinity of this
project had learned over the course of this project what was needed to "demonstrate our concerns."
He stated an opportunity was given to present earlier but the group did not realize that would be part
of the process.
Councilmember Weitkunat stated the Council could only look at the evidence that was presented.
She stated to "reconstruct and recompile' made the information a "new presentation."
City Attorney Roy stated in the past the Council had received the same information and the same
exhibits in a different form and if that was what was in this presentation, he would recommend
receiving it. There was a difference between the "substance' and the "form" of what was being
presented. He stated since the substance was not new, the fact that it was rearranged in a different
form should not preclude the Council from having an opportunity to see it in the context of the
presentation. He stated it would be up to the Mayor to rule on this matter.
Mayor Hutchinson asked if this was received whether that would open it up to both sides i.e.,
whether the appellant could then present the additional information mentioned in his presentation.
Mr. Torgerson stated it was not accurate to say this was a recompilation ofthe information presented
to the Planning and Zoning Board. He stated there were no PowerPoint presentations of any kind
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given to the Board by the neighbors. The neighbors spoke on certain items but that it was a "stretch"
to say that their PowerPoint presentation was a recompilation of what they presented to the Board.
City Attorney Roy stated it was important to recognize the "purpose" ofthe rules. The purpose was
to avoid "starting over again' or "catching people by surprise." Within those broad parameters the
rules needed to be interpreted in favor of fairness. There was an important difference between new
information, which should not come in unless the Council decided to request it, and information that
was arranged differently. He stated the point of argument was to persuade the Council to view the
available information in a certain way. If the rearrangement of the same information the Board had
would assist someone in making a more effective presentation, then he believed this was consistent
with the rules and the goals of the process to allow the presentation of the rearranged information.
Mayor Hutchinson asked if the Council was in favor of allowing the presentation. He noted that the
consensus was in favor of allowing the presentation.
Councilmember Roy asked if this discussion had used up part of the 25 minutes. City Clerk Krajicek
replied in the negative.
Mayor Hutchinson stated the opponents to the appeal would have 25 minutes for a presentation.
John Sanderson, 1012 Sunset Avenue, four houses east of the proposed development, stated a group
of concerned neighbors had a number of primary points. He did not purport to represent all of the
"strength and diversity of opinions on this subject." He asked those he was representing to raise their
hands or stand up. The neighborhood was primarily owner -occupied and a "strong, diverse
community of professionals" who cared about where they lived. He stated the neighborhood
recognized there was intensive change going on in Fort Collins. He asked that this change be done
with balance to maintain the character of the City and to protect the neighborhoods. He asked that
the Council uphold the Planning and Zoning Board's denial of the Shields Street Lofts and to place
a moratorium (comments interrupted).
Mr. Torgerson objected that a moratorium was never mentioned during the Planning and Zoning
Board hearing.
Mr. Sanderson stated he would withdraw the comment regarding a moratorium since it was not
"substantive" to his points.
An unidentified female member of the audience stated the point about a moratorium was in the
Council packet.
Mr. Sanderson stated it was in the packet and that he would go on with his presentation. He talked
about the "spirit" of the Land Use Code and two relevant components from Section 1.2.2 (Purpose),
which stated "the Land Use Code was to improve and protect the public health, safety and welfare
by fostering a more rational pattern of relationship among residential, business and industrial uses
for the mutual benefit of all." It also provided that "the Land Use Code should ensure that
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February 7, 2006
development proposals are sensitive to the character of existing development." The issue was
Section 3.5.1 (Building and Project Compatibility), which was the section of the Land Use Code
upon which the denial was based. He stated the neighborhood was arguing that compatibility
included more than the quantitative aspects addressed by the appellants. The appellant referred often
to the numerical components. The definition of "compatibility" in Article 5 included size and bulk
and mass, as well as "characteristics of different uses or design which allow them to be located near
or adjacent to each other in harmony." Even though the denial was not based upon parking
violations of the Code, parking was, in fact, part of the definition of "compatibility." He stated
"compatibility" also meant "sensitivity of development proposals in maintaining the character of
existing development." The neighborhood maintained that Article 3 and Article 4 were not in
conflict because both standards could be met simultaneously. Article 4 expressed some quantitative
specifics and Article 3 expressed a number of considerations that were qualitative. The fact that both
could be met at the same time was the position held by the Planning and Zoning Board. The staff
noted in the agenda item summary that they agreed with that position and the neighborhood also
agreed with that position. The qualitative aspects could fundamentally not be addressed with
specifics relating to building height and footprint. A Planning and Zoning Board existed for this very
reason i.e., the Code needed to be interpreted. The Board's role was to evaluate the qualitative
aspects of the Code. The qualitative aspects of the compatibility were the substance of the denial.
There would be two buildings compared by the applicant to the project to justify compatibility.
Those two buildings were not good comparisons and were not located on the block where the
proposed building would be located. He presented visual information showing the two buildings
used for comparison. The church was across the street and the prominent roof -line seen from Shields
Street was the lower one (21 feet). The 36-foot roof -line of the chapel was a small part of the
church, which was set back 45 feet from Shields Street and provided parking. The other building
used as a comparison was north on Shields Street and across the Shields and Mulberry intersection.
It was a historic building that was a little bit over 26 feet high, was set back 55 feet, provided parking
and fit with the homes next to it. He presented visual information on the silhouette for the proposed
building, which would be over twice as large as the building it would replace, more than twice as
tall as the adjacent buildings, and would be about three times as wide as the building that would be
demolished. It would be 34 feet high while the existing building was under 17 feet high, the setback
would be less than 20 feet, it would fill up the lot. There would be no commercial parking provided
and that there would be no adjacent on -street parking. The majority of the Planning and Zoning
Board did express parking concerns. He stated parking was part of compatibility. The neighbors
maintained that parking should be addressed in its own right. Mr. Lingle pointed out that Section
3.2.2(b), the general standard about parking, addressed convenience and safety. The parking
surrounding this project would be neither safe nor convenient for either the neighbors around the
project or for the patrons who would be parking in the neighborhood. The traffic and parking in the
neighborhood would be unsafe, would cause more noise, and would cause more busyness. Patrons
parking in the neighborhood would have to cross Shields Street to get to this building. It was not
"in the spirit of the Code" to have zero parking for a commercial establishment. He stated the
neighbors agreed there was no minimum parking specified forcommercial developmentbut believed
there was a difference between an `omission" and a "statement." There was no statement to
indicated that minimum parking for commercial was zero. Ms. Carpenter pointed this out at the
December 8th Planning and Zoning Board meeting when she stated: "We didn't consider that
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anybody would actually have zero commercial parking. This fundamentally does not make sense."
He stated the neighbors agreed with that statement. The appellants recognized several times in the
proceedings that it would be the neighborhood that would bear the brunt of a lack of commercial
parking. There was a lot of support for upholding the denial by the Planning and Zoning Board. The
neighbors submitted a petition with 213 signatures from neighbors (included in the agenda packet)
and there was also opposition from surrounding residents, a church, the Elderhaus that was a half -
block away, and a business. There had been multiple meetings and the neighbors felt strongly that
the proponents for this project had been "blind" to their concerns. Minor adjustments had been made
to the building and those adjustments did not address the concerns of the neighbors. Mr. Craig
pointed out at the Planning and Zoning meeting in December: "It seems to me the applicant has
taken a stance instead of stood back and understood what the issues are." All five Planning and
Zoning Board members expressed reservations about the project. He presented quotes from the
December 8th meeting: "Schmidt: We are hitting the extreme with this project. Lingle: It's not
going to work very well for a lot of different reasons. Stockover: It is fundamentally wrong to try
and push this on the neighbors. Craig: This isn't some NIMBY issue, this is going to be a big issue.
Carpenter: 1 don't believe this fits in the neighborhood." He asked the Council to uphold the
decision of the Board to deny the Shields Street Lofts PDP.
Dan Vincent, representing the membership of the American Baptist Church, 600 South Shields
Street, supported the objection to this project based upon the concerns of the membership related to
the effects of parking. He stated there were concerns that this project would generate more parking
than could be accommodated in the nearby community. The church facility had limited parking
spaces and the patrons of the project would overflow into the church's parking spaces on a day-to-
day basis. The church had been at this location for 50 years and the Elderhaus program across the
street had been there for 25 years. The church wanted to be a good neighbor and did not want to
"create hostility" by having cars towed. The congregants of the church felt this project would not
be in the best interests of the church.
Joanne Johnsen, Director of Elderhaus, 605 South Shields Street, expressed concerns about safety
issues relating to increased traffic and the lack of parking.
Edie Thompson, 623 Del Norte Place, stated the definition of "compatible" in her dictionary was
"capable of existing or operating together in harmony." She stated she did not believe the project
would be compatible with the neighborhood.
Rod Adams, 1008 Sunset Avenue, stated the Planning and Zoning Board denied the proposal on a
split decision (3-2). He stated a less obvious fact was that objection to the project was not split but
was in fact unanimous. The two dissenting votes (Schmidt and Lingle) were not cast in support of
the project, but for different reasons as reflected in the minutes. Ms. Schmidt voted for the project
on the grounds that it was "futile" not to because she assumed that the City Council would simply
overturn the decision. Mr. Lingle voted for the project on the grounds that it was wrong to penalize
the developer for a mistake that the developer did not cause i.e., the failure of the Land Use Code
to specify minimum parking for commercial development. He stated Mr. Lingle did not recognize
the principle he cited should also apply to everyone else, including the neighbors. The question was
February 7, 2006
what would cause the greatest harm. If the project was denied the developer could propose new
developments and little harm would be done. If the project was built the neighbors must live with
it for years and much harm would be done. It would be "morally wrong" to approve the project.
Mark Johnson, owner ofGilsdorfGarage, I I II West Mulberry Street, stated he was concerned about
the parking situation. The proposal was for five dwelling units with two bedrooms apiece, which
meant a potential for 10 vehicles. The project proposed nine parking spaces (with one handicapped
space). He had concerns with the lack of parking for the commercial uses for employees, owners
and customers at that particular site. He did not believe the commercial uses would be feasible with
no parking. There was no parking provided by the City in this area as there was in Old Town. He
stated there was no available public parking on Shields Street or down the alley. The big impact
would be illegal parking at the 7-Eleven and Gilsdorf Garage. He asked that Council deny the
project based on a lack of compatibility, especially in relation to parking.
Andrew Warnock, 600 Monte Vista Avenue, stated he lived in a "strong neighborhood" with many
owner -occupied houses. He stated the families with small children were worried about the impact
of that parking, noise and disturbances would have on the neighborhood. He asked the Council to
oppose the appeal.
Sui Su Lee, 939 Pioneer Avenue, stated the developer had used the church as an example but the
church was built over 50 years ago. When the church was built the homeowners in the area agreed
that the two lots that the church would occupy would be converted to the church and the church
worked with the homeowners to build. This was a very different situation with the proposed project.
She stated the neighbors felt that the church was compatible with the character of the neighborhood
and there was "endorsement' for the church to be built.
Floyd Taladay, 1500 Elm Street, American Baptist Church member, stated parishioners had to park
in the Elderhaus parking lot every Sunday. He noted that it was hazardous to cross Shields Street
to the church. He asked that the Council deny this project.
Mayor Hutchinson stated the appellants and any party -in -interest in favor of the appeal would have
10 minutes for rebuttal.
Mikal Torgerson, appellant, stated parking was not a consideration for the denial by the Planning and
Zoning Board. There were many people who walked to work and school every day. It was
"ludicrous" to assume that everyone who lived in the project's residential units would drive to
campus. Empirical data had been gathered for the Cambridge House and it had a lower parking per
person bedroom rate than most multifamily units. A parking modification to reduce the amount of
parking was granted by the Planning and Zoning Board. One of the opponents stated Jennifer
Carpenter said this was mistake and it was never intended that there be projects that would provide
no parking. He stated this was not true and multiple modifications to grant no parking to projects
had been given, even for residential projects. He stated the Planning and Zoning Board had, on
multiple occasions, explored the idea of reducing the parking requirement for residential around the
university because many students do not have cars and many choose to walk or ride a bike. He also
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wanted to address the "spirit of the Code' and the "idea of punishing someone because of this
loophole in the Code." He stated there was no minimum parking requirement for commercial units
in the Code. This was not a "mistake' or "oversight." The idea was if parking was minimized
people would tend to seek other modes of transportation. Opponents also indicated the church did
not have enough parking and there was concern that people would park in the church parking lot.
He doubted this would happen because the church was across Shields Street and it was perilous to
cross that street. A bike shop or other uses that did not require much parking would be good tenants.
Troy Jones, appellant, stated he had additional photos of the neighborhood that would be helpful and
asked if he could show those photos as the opponents were allowed to do.
Mayor Hutchinson indicated that Mr. Jones should proceed.
Mr. Jones presented visual information and noted that the mass of the church sanctuary area was
actually taller than the proposed building. He showed views from several different perspectives in
the neighborhood, noting the church was "towering" above the houses and was "very compatible'
with the houses. He stated the proposed building would be taller and could be seen from a street
away. Many in the neighborhood felt they would be impacted more than would actually be the case.
There would not be much more impact than the church and most in the neighborhood agreed the
church was compatible in bulk, scale and mass to the neighborhood. He showed additional views
of the church. He stated there were other buildings down the street that were "relevant." He showed
views of other buildings in the area and stated 2 1 /2 story and three-story buildings were prevalent
in close proximity to this site. This project would not be different than what was already in the
immediate vicinity. The motion for denial at the Planning and Zoning Board meeting was based on
the compatibility in size and massing to the general area and the residential area. The church was
a "perfect example' of why the proposed building would not be a "negative impact." He stated, on
page 68 of the December 8 minutes, Jennifer Carpenter clarified that her motion did not speak to
parking. Her motion was intentionally based on scale and mass with relation to the neighborhood.
The West Central Neighborhood Plan was revised in the last couple of years. NCB zoning was not
a new concept for this location and at this intensity. It should not be a "surprise' that a development
wanted to follow the specifics of the Code in terms of height and scale and building size in the NCB
zone. A speaker indicated that 213 people signed a petition. He pointed out that church members
were not by definition parties -in -interest and that many of the addresses on the petition were on
streets three and four blocks away. Many of the petition signers were not parties -in -interest and
would not even see this project from their houses. This project would not have the negative impact
the neighborhood thought it would have.
Mikal Torgerson stated a great deal of"financial harm" would be done to his client if the project was
not approved. The perception among many developers across the Front Range that Fort Collins was
an "unpredictable place to do business to develop because you could meet the Code and still be
denied"was further reinforced over time when this sort ofthing happened. He presented the drawing
showing the early version of the elevations.
Mayor Hutchinson stated the opponents to the appeal would have 10 minutes for rebuttal.
February 7, 2006
John Sanderson, 1012 Sunset Avenue, addressed the residential parking issue. He stated the notion
that people would take alternative transportation simply because parking was not provided was
"ludicrous." Mr. Lingle addressed this point in the minutes of a recent Planning and Zoning Board
meeting. He stated his street was immediately east of the project and the cars on the street were
"student cars." The residential parking aspect of this project, like every other aspect of the project,
"just sneaks in under the minimums." The 1.75 parking spaces per bedroom required by the Code
would require nine parking spaces. One space would be a handicap space and there were no
handicapped facilities on this building, meaning there would actually be only eight parking spaces.
He stated this was another point of "lack of clarity" in the Code that was addressed during the
Planning and Zoning Board meetings.
Ronnie Estelle, 1012 Sunset Avenue, stated each of the church members was considered an "owner"
of the property and they were therefore parties -in -interest. She stated the Planning and Zoning
Board did not cite other Codes because there were none. They "searched" through the Code to try
to find some parking regulations to cite because the parking issue was contentious. The City
Attorney guided the Board and said there was no Code that could be cited because there was no
minimum standard set. She stated minimum did not mean zero. The neighborhood had great
concern parking would be a problem 24 hours a day. She stated Mr. Torgerson said that the Board
denied the project on the basis of Section 3.5.1(C) and this was not accurate. The Board denied the
project based on Section 3.5.1 relating to compatibility. The definition of compatibility included
qualitative aspects and she believed the Board made the right decision.
Sui Su Lee, 939 Pioneer Avenue, stated Mr. Jones showed many pictures about the size and mass
of the church in relation to the neighborhood. She stated the church and its parking lot occupied
three lots (35,000 square feet). The proposed lot was less than 9,000 square feet. The church lot was
almost four times the size of the proposed lot and she did not believe it was a correct comparison to
compare the two.
Andrew McMahan, 605 Monte Vista Avenue, stated the fact that there was no mention of a
minimum parking requirement needed to be interpreted, not as the minimum equaled zero, but in
terms of the more general standard Section 3.2.2: "The parking and circulation system within each
development shall accommodate the movement of vehicles, bicycles, pedestrians in transit
throughout the proposed development to and from surrounding areas safely and conveniently."
Rod Adams, 1008 Sunset Avenue, stated he wanted to respond to a comment made by Mr. Jones
relating to signatures on the petition. He stated people who would not be directly impacted by the
project signed the petition because they understood this was an "issue of fairness " and it was not
fair for a developer to plan on the neighbors providing commercial parking space. He stated Mr.
Torgerson indicated it was intentional that there was no minimum parking requirement for
commercial. At the December 8 meeting, the Deputy City Attorney said: "I remember when this was
debated politically and the idea was that we didn't want over -parking, we didn't want commercial
business to provide too much parking, and we figured the developers ofbusiness parking uses would
surely provide some parking if they wanted to be profitable."
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Jim Parrish, 1008 Mantz Place, stated the buildings the appellant used as comparison all had
adequate parking. He stated most homeowners in the neighborhood believed that parking was part
of compatibility.
Carolyn Standring, West Mulberry Street resident, stated the structures used by the architects for
comparison were not valid. The businesses that would be adjacent to the project were one-story and
the proposed project would be multi -story. She stated the comparison to the church steeple was
"ludicrous."
("Secretary's Note: The Council took a recess at this point.)
Mayor Hutchinson stated he would entertain questions from Council.
City Attorney Roy stated he wished to interject a statement to "perfect the record." He stated
"exhibits in a different form" had been presented to the Council. For the record, those needed to
be preserved i.e., the PowerPoint presentation of the neighbors and the slides presented by the
appellant needed to be retained by the City for 30 days in some form. He requested that this
information be presented to the City Clerk.
Councilmember Kastein stated page 5 of the Agenda Item Summary summarized the Board's
decision and indicated the Board determined the proposal was not compliant with Section 3.5.1 and
"specifically" made three findings. He asked if the three specific findings were written elsewhere
in a separate document from the Board or if they were taken from the transcript.
Cameron Gloss, Current Planning Director, stated the findings were reflected in the minutes of the
hearing and the summary in the Agenda Item Summary was paraphrased.
Councilmember Kastein stated the motion had been referenced several times and that the motion was
for denial of the project based on Section 3.5.1 because it was not compatible in size and massing
to the general area and to the residential area. He asked if the Agenda Item Summary was therefore
summarizing what was in Section 3.5.1. Gloss stated the summary was based on the testimony and
deliberations and record of the hearing. He stated efforts were made to "capture the essence of the
motion."
Councilmember Kastein stated the opponents to the appeal brought up Section 5.1.2 (Definitions).
He stated there seemed to be a "gray area" in relation to the definition of "compatibility."
Throughout the transcript there was discussion about compatibility, especially with regard to mass
and size of buildings. He stated there were various opinions on whether this was an issue. There
was more discussion about parking. Section 5.1.2 indicated that some elements of compatibility
included height, scale, mass and bulk of structures and other characteristics of compatibility included
pedestrian and vehicular traffic, circulation, access and parking impacts. He believed it was right
to consider "parking impacts" in addressing compatibility and asked if that was correct. Gloss stated
this was correct under that Section. He stated the Board did not elect to choose parking as one of
the issues in the motion, although there was a lot of discussion about parking.
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Councilmember Kastein stated this was a "quandary"for him because parking was raised as an issue
by the neighbors at this hearing even though this was not part of the motion in the transcript. He
asked if the Council was allowed to consider compatibility with regard to parking impacts. City
Attorney Roy stated the scope of the review on appeal included the grounds stated in the notice of
appeal, the provisions of the Land Use Code and the evidence in the record. He stated two of those
brought in parking. The land use standards brought parking in through compatibility and the record
was "replete" with discussions about parking. The notice of appeal did not appeal the denial on the
parking issue because the Board did not use that as a grounds for denial. In his opinion the Council
could consider parking as part of compatibility for the reasons that had been pointed out. He stated
if the Council was to do that, it would be fair to give the Board the opportunity to review the parking
issue and to give the appellant and all other parties -in -interest an opportunity to speak to the parking
issue with the understanding that it was a relevant consideration. The City Attorney's Office had
advised the Board that, based upon the absence of a minimum parking requirement, it was not
relevant. This was also his opinion coming into this hearing. He believed parking became relevant
through the compatibility definition and the purpose statement in Section 3.5.1, which addressed the
physical attributes and the operational characteristics of a project. The Board and perhaps even the
Council may have"inadvertently been misled about the relevance of parking." He now believed that
parking was relevant despite the fact that there was no minimum parking requirement. According
to the Code it was a component of compatibility and, if the Council agreed with that, the Board and
the parties -in -interest should have an opportunity to consider the matter again. He stated the
appellant may have been "disadvantaged" in the way in which the decision was made and the advice
the Board received. He had been persuaded that parking was relevant because of the definition of
compatibility, despite the fact that there was no minimum parking requirement.
Councilmember Kastein stated this issue was key in his thinking and he would pursue a more
specific line of questioning to the appellant, those in opposition and the staff about how they would
define parking impacts regarding compatibility unless the rest of Council did not believe that this
was relevant.
Mayor Hutchinson asked if the Council should consider remanding the matter back to the Planning
and Board with direction to consider parking as an issue. City Attorney Roy replied in the
affirmative and stated the Council also had the ability to modify the decision and impose a parking
requirement. He stated he would recommend that, if parking was a consideration for the Council,
then the remand would be the better remedy since the Board made its decision based upon the
understanding that parking was not a factor.
Councilmember Roy asked staff to show visual information about the block on which this would be
located. Gloss stated a "block" was defined in the Land Use Code as a unit of land that was
surrounded by streets. He stated in this case there would be Mulberry Street on the north and Myrtle
Street on the south. In looking at compatibility, staff believed it was also appropriate to look at the
block face (the portion of the block fronting or facing the street). Staff looked at compatibility on
both sides of the street.
Councilmember Roy stated he was looking at a definition that indicated the buildings across the
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street were not in the same block. Gloss stated they were on the same "block face."
Councilmember Manvel stated that during the Planning and Zoning Board the appellants "pleaded
for" a "word for word interpretation of the Code." He stated Section 3.5.](C) provided that
"buildings shall either be similar in size and height or, if larger, articulated and subdivided into
massing that is proportional to the mass and size of other structures on the same block, or if no
buildings exist thereon, on adjoining blocks." In this case adjoining blocks should be excluded.
Gloss stated this was correct under a literal interpretation of the Code.
Mayor Hutchinson asked if this meant the church should not be considered as a comparison. Gloss
stated the staff analysis of compatibility did consider the church as well as other structures in the
immediate vicinity and facing the subject property. He stated this would bean "error" under a literal
interpretation of Section 3.5.1(C). From the staff s perspective there was some value in comparing
structures that would be facing each other within a "larger context."
Councilmember Manvel stated he understood that logic but noted the appellants had been "eager
to read the Code word-for-word" and he would like to do that as well. He stated under the current
Code the church and other buildings that had been mentioned were not "relevant comparison
buildings."
Councilmember Roy stated on page 73 of the transcript, Ms. Carpenter asked: "So where are we
legally as far as addressing parking since there isn't a minimum? Can it fall under compatibility?"
He asked if the Deputy City Attorney specifically answered that question at the Board hearing. He
stated Ms. Carpenter's question seemed to "get at the crux" of the issue. Deputy City Attorney
Eckman stated on page 74 there was discussion about Subpart 6) which was the provision under
which additional conditions could be imposed. He stated he did believe parking was a component
of compatibility based on the definition. He stated his position had changed since the Planning and
Zoning Board meeting and he could now see more clearly there could be a more "subjective review."
He stated the definitions of "block" and a "block face" were clear and that, from the literal "purist"
perspective, the building across the street was not relevant.
Councilmember Roy stated it appeared Ms. Carpenter was not given a definitive answer to her
question about whether parking would fall under compatibility. City Attorney Roy stated he
believed that in the "final analysis" parking was relevant through the compatibility definition.
Councilmember Kastein made a motion, seconded by Councilmember Manvel, to accept that there
was sufficient residential parking and to remand the matter back to the Planning and Zoning Board
to give a decision based on compatibility and parking impacts for the commercial portion of the
development.
Councilmember Kastein stated this was the "singular" issue i.e., there was some commercial space
with no parking and parking impacts were part of compatibility. He stated the requirements were
met for the residential parking. There were questions about the commercial part of the project and
that was not a lot of square footage for commercial. There may not be a large need for commercial
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parking. He stated there had been no discussion on that aspect of the project.
Councilmember Manvel stated he would support the motion. He hoped this project would go
forward in some form. In -fill redevelopment was important but it must be done with the proper
respect and consideration for the neighborhood. He did not see any local support for this building.
There would be benefits to the developer and the community but there were impacts that would be
"but of proportion" to the benefit. He hoped there could be a solution to the parking issue that would
mitigate the parking impacts on the neighborhood. The parking remained the same in the revised
plan because the developer argued that there was no parking requirement for the commercial. He
stated there was in fact a general requirement forparking in terms of compatibility (a judgement call)
that supplemented the numerical requirements. if this was remanded and the project could be
modified in some reasonable way that he hoped it would come forward again.
Councilmember Weitkunat stated she would not support the motion. She stated every time there was
an appeal it dealt with the elements of City Plan, which was intended to build a dense, urban
environment. This required "taking a different look" at how building and development should
happen. A dense, urban environment required the building of multi -story buildings, particularly with
in -fill projects. There was no place in the Code that said that a two-story building was incompatible
with one-story neighborhoods. Comparisons with other buildings was "somewhat irrelevant'
because the Code allowed three stories in this zone district. It could not be incompatible if it was
allowed. This appeal was all about density. She agreed parking could be a consideration for
compatibility. The City Plan did not want big parking lots and the project met the requirement for
residential parking. There was no minimum for commercial parking because of the belief that
commercial and residential could mutually use parking. There could be 3 or 4 small businesses on
the first floor that would have minimal parking requirements. The City was trying to encourage a
"walkable community" that did not use cars. The City Plan also encouraged mixed use. The
Planning and Zoning Board had difficulty with the parking standards because its "hands were tied"
by the Code. If the matter was remanded, the Board could look at forcing the applicant to do
something not supported by the Code. The Council needed to look at how parking standards were
to be applied within the community i.e., if commercial development would not be required to have
parking. Forcing a development to have one parking space per worker was against what the Code
was meant to do. She suggested the Council consider reversing the decision of the Board and impose
a condition relating to the commercial parking.
Councilmember Ohlson stated he supported in -fill redevelopment and a more dense urban
environment but it could not be done at the expense of existing neighborhoods. He supported
minimalist parking but this did not mean zero commercial parking for projects in existing
neighborhoods where there were no alternatives for parking. He believed parking was part of the
compatibility issue and he would support the motion to remand. The matter should be remanded to
the Planning and Zoning Board to see what they could do with the commercial parking aspects. He
also believed there needed to be changes to the Code language relating to "block' and commercial
parking.
Councilmember Roy supported the motion. He stated he hoped the citizens now understood why
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it was not appropriate for Councilmembers to discuss the appeal with citizens because Council
needed to be as unbiased as possible during the appeal process. The comments he received from
citizens were favorable toward in -fill redevelopment but not at the expense of the "character, heart
and soul" of the existing neighborhood. The motion to remand would provide a chance to clarify
and "reach a different set of conclusions' that would allow this much needed development to make
changes that would be in line with neighborhood values.
Mayor Hutchinson asked that the motion be read. City Clerk Krajicek requested clarification
regarding the motion.
Councilmember Kastein stated his intent was to accept that there was sufficient residential parking
and to remand for the Planning and Zoning Board to consider the commercial parking issue and
decide whether or not the project would work as proposed. He stated if the Board found that it
would not work then he believed the Board would be able to suggest modifications.
Mayor Hutchinson stated the appeal was based on a motion that was made to deny the project based
on the finding that it was not compatible in size and massing to the general area and to the residential
area. He stated the Council had determined that parking was an issue. He asked if the motion was
to remand for reconsideration by the Planning and Zoning Board on the commercial parking
problem. He questioned whether this would address the matter that was appealed i.e., compatibility
in size and massing to the general area and the residential area. He stated that had not been
addressed. City Attorney Roy stated that on remand the Board needed direction on that point. He
stated a friendly amendment or a formal amendment to the motion could be made to give the Board
direction on the Council's view with regard to mass, size and height and whether the Council agreed
with the Board's determination that it should be denied for that reason.
Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to amend the
previous motion to say the Council does accept the compatibility standard with regard to bulk, size
and mass and the exception noted was solely the parking impacts of the commercial portion of the
development.
Councilmember Manvel asked if the intent was to say that the project conformed in terms of size and
mass or if the Council would be agreeing with the Board that the project does not conform in terns
of size and mass.
Councilmember Kastein stated it would mean that the Council was disagreeing with the Planning
and Zoning Board.
Mayor Hutchinson stated he understood that the motion would overturn the denial on those issues
listed in the motion to amend.
Councilmember Manvel stated he did not agree with the intent of the motion to amend.
Mayor Hutchinson asked if the motion was that this Council overturns the denial of the project as
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it was based on size and massing and remands the issue for P&Z to consider the commercial parking.
City Attorney Roy stated the Council would be voting on the amendment to the main motion i.e.,
whether to instruct and direct the Board that the mass was acceptable and the issue for
reconsideration would be the commercial parking issue.
Councilmember Ohlson stated he was concerned the Council was not enforcing "what the end
product would actually look like." He asked if the building would just fit the length and the breadth
and the height or would it actually look as it was presented. He stated there was a statement by a
planner in the materials that implied that what was built might look different than what was
approved. Gloss stated a final plan review took place after a project was approved at the hearing and
this was an opportunity for staff to ensure that the "character" that was approved by the Planning and
Zoning Board or the Hearing Officer was reflected in the final design (architectural details, building
materials, colors, etc.).
Councilmember Ohlson asked if requirements could be more strict at the final plan review stage.
Gloss stated staff had the ability to work with an applicant and encourage higher quality design,
materials, etc.
Councilmember Ohlson asked the applicant to respond to the question.
Mr. Torgerson stated the elevations would be as set forward in the plan.
Councilmember Ohlson asked if the applicant intended to make the building look as it was shown
in every regard (at a minimum) in the pictures presented to the Council.
Mr. Torgerson replied in the affirmative and stated he stated this could be a relevant condition for
approval. He stated between the first and second hearings of the Planning and Zoning Board the
applicant revised the parking plan to put in lifts that would double the parking for all of the
residential and provided surface parking for the commercial. He stated this would also be a
reasonable condition of approval.
Councilmember Manvel spoke against the amendment to the motion. He stated it would mean the
Planning and Zoning Board could only consider the parking and should not consider the mass and
size. If the Board considered the parking it could determine that something needed to be changed
because the parking was increased. He noted that when the deck problem was addressed by the
applicant the building "came back larger" than it was in the original plan. He stated he did not want
a redesign to lead to a building that would be "arbitrarily preapproved" in terms of mass and size.
He would like the Board to be able to look at the parking and the size of the building. He did not
believe the size of the building was compatible. The building was "massive" compared with the
houses in the neighborhood. He strongly believed in in -fill and mixed use and he hoped when this
went back to the Board the building could be changed to make the neighbors "happy." He did not
want to instruct the Board to ignore size and scale.
Mayor Hutchinson asked, if the Council agreed that the project could be denied because of mass and
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size, whether there was any reason to remand for the Board to reconsider the parking. City Attorney
Roy stated that, if the majority wanted to deny the project, then the grounds were there, based on
mass. He stated that, if the majority did not want to take a position on mass and send it back for
further Board consideration of the parking, which could mean it might come back to the Council on
appeal, then the Board would have no direction on whether or not the size was a problem and would
have direction to focus on the parking. In that case, it would be up to the Board to decide on mass
and scale. The Council could give the Board direction whether the size was a problem or could
choose not speak to that issue and direct the Board to look at the parking.
Mayor Hutchinson asked if the Council directed the Board to look at the parking without looking
at the mass and scale then would the denial would stand. City Attorney Roy stated the Board's
denial would not stand unless the Council voted affirmatively to uphold the denial. The Council
would then have to decide why the project was being denied. It would be inconsistent to vote to
deny the project while voting to remand.
Councilmember Ohlson stated he did not want to see a vote on upholding the Planning and Zoning
Board denial based on mass and scale. He also did not want to prevent the Board from discussing
that issue since there would be three new Planning and Zoning Board members.
Councilmember Weitkunat stated this needed to be considered in the context of the zone district in
which the project was located. This was a transitional buffer zone, rather than a residential zone.
The Code provided that this kind of project could be built in this zone regardless of the
neighborhood. Size, mass and bulk had to do with other things besides the building height. She
stated there was discussion at the Board meeting that the building itself was acceptable because of
breaking of the features, window treatments, cornices, a breeze way, and the division of the building
to "break the bulk." To say the building was not compatible because it was 2 1/2 stories high was
not logical. She stated the Board appeared to be "groping for a reason" to deny based on parking and
did not find that reason, but made the determination instead based on mass. The Council had
determined compatibility could involve the parking and this issue should be sent back to the Board.
She was comfortable remanding the matter to have the Board look at parking and come up with some
solutions.
Mayor Hutchinson asked for clarification regarding the motion on the table. City Clerk Krajicek
stated the motion as she understood it was to overturn the Planning and Zoning Board denial of the
project and accept that the project meets the compatibility standards as related to height, bulk, mass
and scale and to direct the Planning and Zoning Board to reconsider the parking impacts of the
commercial aspect of the building. City Attorney Roy stated the restatement of the motion to amend
was correct except for the last part relating to reconsideration of the parking impacts.
Councilmember Ohlson stated none of the Councilmembers had indicated that a 2 1 /2 story building
was inappropriate at this location. Such a building could be compatible at some locations but he did
not believe this determination should ever be "automatic." He did not support taking mass and scale
off the table for the Planning and Zoning Board. The developer, Board and neighborhood could
work out something that would work for everyone.
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Councilmember Kastein stated as long as the scale and mass did not "get any worse" he believed this
project was acceptable. The motion to amend would say the Council believed the proposed mass
and scale were acceptable. He stated his intent was to focus the attention of the Board on the parking
issue since the bulk, size and mass of the building were acceptable.
Councilmember Roy asked for assurance that this would be the direction that would have to be taken
if the matter was remanded to the Board to look at parking. He asked if it would be a "whole new
project" if something changed about the scale. Gloss stated the Board would evaluate the revised
plan if the applicant had an opportunity to go back and make some changes to the plan and the Board
could decide to make a decision based on the Council's discussion. He stated there could potentially
be changes to the plan to provide more parking for the commercial units i.e., the square footage or
density of units could be reduced. He stated it would be up to the applicant to submit a revised plan.
Councilmember Roy stated he would not want to say the bulk and mass of the structure were
acceptable and then have a design change that would change the bulk and mass and make it
potentially unacceptable. City Attorney Roy stated the design change could happen but it could not
expand the mass of the building.
Mayor Hutchinson asked the City Clerk to read the motion to amend. City Clerk Krajicek stated the
motion to amend as she understood it was to overturn the Planning and Zoning Board denial of the
project and accept that the project meets the compatibility standards related to height, bulk, mass and
scale.
Mayor Hutchinson stated he would support the motion to amend because of the need to provide
direction to the Board regarding its denial based on size and massing. He stated the parking issue
would be treated separately.
The vote on the motion to amend was as follows: Yeas: Councilmembers Brown, Hutchinson,
Kastein, Roy and Weitkunat. Nays: Councilmembers Manvel and Ohlson.
THE MOTION TO AMEND CARRIED
Mayor Hutchinson stated the main motion would accept that the parking requirements forresidential
were met and remand the matter to the Planning and Zoning Board to consider the commercial
parking issue based on Section 5.1.2 relating to compatibility.
Mayor Hutchinson asked the City Clerk to read the main motion as amended. City Clerk Krajicek
stated the motion as she understood it was to overturn the Planning and Zoning Board denial of the
project and accept that the project meets the compatibility standards as they related to height, bulk,
mass and scale and to remand the project to the Planning and Zoning Board for a decision based its
reconsideration of the effects of the parking impacts due to the commercial aspect of the building
with regard to compatibility as referenced in Section 5.1.2.
Councilmember Ohlson stated he voted against the motion to amend because he believed that scale
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and mass and impacts on the neighborhood were "still real." He stated, to be "consistent' he should
vote no again, but this would mean voting against the reconsideration of the commercial parking.
He did not want to be on the record as agreeing that the scale and mass determination was correct.
City Attorney Roy stated Councilmember Ohlson's vote on the scale and mass issue had been
recorded.
The vote on the main motion as amended was as follows: Yeas: Councilmembers Brown,
Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED
("Secretary's Note: The Council took a recess at this point.)
Consideration of the Appeal of
the December 8, 2005 Planning and Zoning Board
Denial of the Modification of Standard
Relating to the Separation Requirements for
Convenience Retail Stores with Fuel Sales within the
Timberline Center Project Development Plan; Board Decision Upheld
The following is staffs memorandum on this item.
"BACKGROUND
On December 8, 2005, the Planning and Zoning Board conducted a public hearing considering the
Timberline Center Project Development Plan (PDP). A component of this PDP. was a Request for
Modification to Section 4.23(B)(c)5. which requires a minimum of three-quarters of mile (3,960
feet), measured in a straight line, as the distance between retail stores with fuel sales and anyfueling
station. The Board considered testimony from the applicant, the public and Staff. The Request for
Modification was denied. The PDP was approved. The site is located on the west side of Timberline
Road, approximately one-half mile south of Prospect Road, and is zoned I, Industrial.
PROJECT DESCRIPTION
This is a request for a PDP for a mixed -use project located in the Industrial zone. Proposed land
uses within the development can be roughly divided among three categories: (1) convenience
shopping center, (2) auto -related services and (3) enclosed mini -storage. Specific uses include a
convenience shopping center, general office, bank, retailstores with vehicle servicing, vehicle minor
repair, standard restaurant, fast food restaurant and enclosed mini -storage. Contained within the
"convenience shopping center" are two uses that would not be allowed unless considered part of
such a center. These are retail stores, and drive -through restaurants. Total gross leasable square
,footage is 179,200 square feet.
It is important to note that the convenience retail store with fuel sales is not located within the
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convenience shopping center component
The parcel contains 21.84 acres and is located on the west side of Timberline Road approximately
one-halfmile north of East Drake Road. The Union Pacific Railroad right-of-wayformsthe western
boundary. Two new public streets would serve the site. A request to rezone a portion of the site
from Transition to Industrial accompanies this PDP request.
Four Modifications are requested. Chief among these is a request to include a convenience retail
store with fuel sales which is not separated from the nearest one by the requisite distance of three-
quarter mile.
The applicant has submitted two siteplansfor consideration. Thefirst, labeled sheet I of5, includes
the convenience retail store withfuel sales (Building KI). Should the Modification to the separation
distance be denied, the second site plan, labeled sheet 2 of 5, removes the convenience retail store
with fuel sales and replaces it with a Drive -Through Restaurant (Building K2).
Allegations on Appeal. -
On December 20, 2005, a Notice of Appeal was received by the City Clerk's office regarding the
December 8, 2005 decision of the Planning and Planning Board to deny a Request .for a
Modification relating to the 314-mile minimum separation requirement for Convenience Retail Stores
with Fuel Sales. The appeal was submitted Ms. Linda Ripley, V-FRipleyand Associates on behalf
of and in conjunction with Mr. Kris Fleischli, owner and developer of Timberline Development,
LLC. In this appeal, it is alleged that
The Board failed to hold a fair hearing by improperly failing to receive all relevant
evidence offered:
Relevant laws were not properly interpreted and applied; and
Questions City Council Needs to Answer:
A. Did the Board improperly fail to receive any relevant evidence of by the
appellants?
B. Did the Board improperly deny the appellants'request to modify the Land Use Code
standard that prohibits a convenience retail store with fuel sales from being within
three-quarters of a mile of another such convenience store or a fueling station?
Staff Analysis of Relevant Issues:
The plan, with a convenience retail store with fuel sales, would be equal to or better than a
plan with two drive -through restaurants.
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February 7, 2006
The appellants allege that since the Industrial zone district allows drive -through restaurants
(only iflocated in a convenience shopping center), two drive -through restaurants would be
permitted within the center. This outcome, they claim, would overload the center and clearly
be less desirable than a center that featured only one drive -through restaurant and a
convenience retail store withfuelsales.
The Board was aware of all the permitted uses allowed under the Industrial zone. The issue
at hand, however, was not the various permutations of how these permitted uses will be
distributed. Rather, the issue related only to the separation requirement for one particular
use. Merely threatening to adjust the mix ofuses within the center in favor ofone particular
permitted use did not factor into the Board's discussion on the merits of whether to grant a
Modification to the 314-mile separation distance for the proposed convenience retail store.
In fact, one member acknowledged the potential of multiple drive -through restaurants but
voted to deny the Modification based on the separation criterion.
• The location of the convenience store with.fuel sales within Timberline Center is unique in
relationship to the two existing stores in Rigden Farm and Spring Creek Center. While the
store in Timberline Center would front on Timberline Road, the other two stores do not.
Therefore, the 314 mileseparation should be modified since the proliferation would not have
an aesthetic impact on Timberline Road.
The Board was shown the diagram that indicated the separation distance using two methods
ofineasurement. The straight-line measurement results in non-compliance while measuring
along the roadways results in compliance.
The Board considered both methods but relied upon the Land Use Code in basing their
decision on the straight-line method. The Land Use Code anticipates such discrepancies in
measuring methods. Section 1.4.10, Rules for Measuring Distances, was specifically added
to the Code and clearly states that the straight-line method shall be used.
The Board did not fail to consider the evidence offered by the alternative method of
measurement. The Board found that the standard does not address the aesthetic impact
along any one particular street. Further, the Board's packet contained a copy of a Staff
Administrative Interpretation regarding a measurement issue that relied upon the straight-
line method.
Issue Staff Considers to be Irrelevant.•
• Alleged Inconsistency in the Industrial Zone Permitted Use List
The appellants state that a gas station is permitted in the Industrial zone. In addition, a
retail store is permitted in the Industrial zone, but only as long as it is located in a
convenience shopping center. Both of these uses are permitted without regard to any
separation requirements. But, combining the two into a convenience store with fuel sales
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triggers the 314-mile separation standard.
The Land Use Code clearly makes a distinction between the two aforementioned uses and
a convenience retail store with, fuel sales. All three are separately listed as all three are uses
that have individual characteristics. It is not inconsistent, therefore, that a separation
standard is attached to a convenience retail store with.fuel sales.
List of Relevant Code Provisions:
Section 1.4.10 — Rules for Measuring Distances
When a distance is required between uses as set forth in Article 3 or 4, the distance shall be
measured in a straight line from the closest point on the boundary line of one (1) property
to the closest point on the boundary line of the other property.
Section 2.8.2(H) - Standard for Granting Modifications
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) Thegrantingofa modification would substantially alleviate an existing, difinedand
described problem ofcity-wide concern or would result in a substantial benefit to the
city by substantially address an important community need specifically and expressly
defined and described in the city s Comprehensive Plan or in an adopted policy,
ordinance or resolution of the City Council, and the strict application of such a
standard would render the project practically infeasible; or
(3) By reason ofexceptionalphysical conditions or other extraordinary and exceptional
situations, unique to such property, includingphysical conditions such as exceptional
narrowness, shallowness or topography, thestrict application ofthe standard would
result in unusual and exceptional practical difficulties, or exceptional or undue
hardship upon the owner ofsuch property, provided thatsuch difficulties or hardship
are not caused by the act or omission of the applicant; or
(4) The plan as submitted will not diverge from the standards 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 of the Land Use Code.
Any Modification shall be supported by a specific finding showing how the Project
Development Plan (PDP) meets the requirements and criteria of any of the four
Justifications.
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• Permitted Uses in the Industrial Zone
(C) Commercial/Retail. None of the following permitted commercial/retail uses shall exceed
twenty-
five thousand (25, 000) square feet in gross leasable area:
1. Animal boarding.
2. Standard and fast food restaurants (without drive-in or drive -through
facilities).
3. Bars and taverns.
4. Bed and breakfast establishments.
5. Convenience retail stores with fuel sales, provided that they are at least
three thousand nine hundred sixty (3,960) feet (three quarters 13141 of a
mile) from any other such use and from any fueling station.
6. Retail and supply yard establishments with outdoor storage.
7. Child care centers.
8. Veterinary hospitals.
9. Convenience shopping centers.
10. Recreational uses.
H. Vehicle and boat sales and leasing establishments with outdoor storage.
12. Sales and leasing of mobile homes, farm implements, heavy excavation
equipment.
13. Adult -oriented uses.
14. Drive-in restaurants (only if located in a convenience shopping center).
15. Day shelters, provided that they do not exceed ten thousand (10,000) square
feet and are located within one thousand three hundred twenty (1,320) feet
(one -quarter ('/.] mile) ofa Transfort route.
16. Adult day/respite care centers.
• Section 5.1.2 - Definitions
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Convenience shopping center shall mean a shopping and service center situated on seven
(7) or fewer acres with four (4) or more business establishments with separate exterior
entrances, located in a complex which is planned, developed and managed as a single unit,
and located within and intended to primarily serve the consumer demands of adjacent
employment areas. The principal uses permitted include retail stores; business services;
convenience retail stores with fuel sales (possibly including an accessory one -bay automatic
carwash); personal business and service shops; standard or fast food restaurants (without
drive -up windows); vehicle minor repair, servicing and maintenance uses; liquor sales (for
on- or of consumption); beauty or barber shops; dry-cleaning outlets; equipment
rental (not including outdoor storage); limited indoor recreational uses; pet shops; and uses
of similar character. Secondary uses may include professional offices; limited banking
services such as branch banks (with limited drive -up .facilities) and automated teller
machines; multi -family dwellings; medical offices and clinics; small animal veterinary
clinics; child care centers; and elderly day care facilities.
Convenience stores with fuel sales (also known as convenience store with fuel sales) shall
mean a convenience retail store which also sells gasoline or other. fuel products.
• Restaurant, drive-in shall mean any establishment in which the principal business is the sale
offoods and beverages to the customer in a ready -to -consume state and in which the design
or principal method of operation of all or any portion of the business is to allow food or
beverages to be served directly to the customer in a motor vehicle without the need for the
customer to exit the motor vehicle.
Alternative Actions City Council May Take:
A If the Council finds that an unfair hearing was conducted, the Council must remand
the matter to the Planning and Zoning Board for rehearing.
B. Ifthe Council finds that the hearing wasfair, then Council should determine whether
the Board properly interpreted and applied the Land Use Code with regard to the
requested modification of Standard and either:
• Uphold;
• Overturn or,
• Modify the Planning and Board Decision or,
• Remand the matter to the Planning and Zoning Board for rehearing to
consider additional information. "
City Attorney Roy explained the appeal process and the options available to the Council.
Ted Shepard, Chief Planner, presented background information relating to the agenda item. He
stated this was an appeal of a standard rather than an appeal relating to the PDP. The PDP itself was
approved. Within the PDP there was a standard for a convenience retail store with fuel sales and its
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separation. The project was located on Timberline Road about halfway between Drake Road and
Prospect Road on the west side of Timberline, abutting the Union Pacific Railroad right-of-way,
Parkwood East Subdivision, Parkwood East Apartments, EPIC and Edora Park, and the Sidehill
project east of Timberline. There was another convenience store at the Timberline and Prospect
intersection and one at the Rigden Farm neighborhood center. He presented an aerial view of the
area, the subject site and the surroundings. He presented visual information regarding the applicant's
preferred alternative site (building K-1) that was denied by the Planning and Zoning Board because
it did not meet the three-quarter mile separation requirement. He showed a slide depicting the
approved use (building K-2). This was a drive -through restaurant that would be a component of a
convenience shopping center. He presented a graphic that was prepared by the applicant and shown
to the Planning and Zoning Board. He stated the distance to the Spring Creek Center Shell gasoline
station was 2,700 feet and the distance to the Rigden Farm King Sooper's was 3,700 feet. This,
therefore, did not meet the three-quarter mile separation requirement. He presented a chart showing
how the three-quarter mile separation had been addressed for this particular land use throughout the
City in 10 different zone districts. Two of the zone districts (the Harmony Corridor and Employment
zones) also had a 25% rule i.e., they could not exceed 25% of the total development plan as a
secondaryuse. In the Harmony Corridor, land use was regulated on a per center basis. He compared
the uses allowed and requirements in different zone districts. In seven out of the 10 zones there was
some form of restriction for this land use. The policy basis for the proliferation issue was formed
in 1988 and was carried forward into the Land Use Code. He showed a slide summarizing the
questions that were included in the Council packet.
Mayor Hutchinson stated the appellants and parties -in -interest in support of the appeal would have
20 minutes for a presentation.
Linda Ripley, VF Ripley Associates, 401 West Mountain Avenue, representing Kris Fleischli, the
owner and co -developer of the Timberline Center PDP, stated she believed the Planning and Zoning
Board did not make the right decision. She was concerned about how the decision was made in
reference to the modification request. The modification should have been approved. There were
only four out of seven Board members present at the meeting. The members indicated a number of
times that they "did not want to go against the Code." They seemed to believe that approving a
modification was not respecting the Land Use Code. Even Board member Stockover, who voted in
favor of the modification, prefaced his decision with the following statement: `9 hate to go against
the Code but I really believe that this is an appropriate land use in this center." The prevailing
attitude of the Board was that if the modification was allowed then the Board would be bound to
approve future modifications of the separation requirement. She stated this logic was "flawed." A
modification request was an essential part of the Land Use Code because it was impossible to
anticipate every situation that could come up in the future. The modification request was a way to
allow development standards to be applied differently based on unique circumstances. The term
"modification" was selected because it did not have a good or bad connotation. The test was whether
the project would be "equal to or better than"it would be without the modification. There should not
be a "stigma" placed on a project that requested a modification. Granting a modification based on
a unique and specific set of circumstances did not set a precedent and should not be a concern to the
Planning and Zoning Board. She stated on December 8th, the Planning and Zoning Board approved
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the mixed -use project located on the west side of Timberline Road between Prospect and Drake
Roads. The Board also approved the rezoning of the property from T-Transition to 1-Industrial. The
land uses that were part of the proposed Timberline Center included auto -related uses, retail, office,
a fast food restaurant with a drive -through component, sit-down restaurants, a storage facility, and
a convenience store with fuel sales. All of the proposed uses were allowed in the I -Industrial zone
district. Staff made the interpretation that the convenience store needed to meet the separation
requirement. The circumstances at this location were unique enough that a modification could be
justified. Out of the 10 zone districts that allowed convenience stores with fuel sales, five enforced
the three-quarter mile separation rule and five did not. The separation rule did not apply to
commercial areas on College Avenue or in the Harmony Corridor or the Employment zone districts.
She asked if avoiding visual proliferation of c-stores was the purpose of the standard, then why was
that not a concern in those districts. In the Harmony Corridor and Employment districts there could
only be a convenience store with fuel sales if it was part of a convenience shopping center. It was
possible to have a gas station or a retail store that was part of a convenience shopping center in the
I -Industrial district. It was only when they were combined in a c-store that the three-quarter mile
separation rule applied. She believed this was inconsistent. She questioned why a c-store would be
a "visual problem" when a gas station by itself was not. The I district listed a convenience store with
fuel sales as a permitted use and that it must meet the three-quarter mile separation rule. A
convenience shopping center was also a permitted use in the I district without a separation
requirement. The definition of a "convenience shopping center" made it clear that fuel sales were
allowed as components. She stated the staff and the Board could have made the interpretation that
the proposed c-store was a convenience shopping center that would not have a separation rule. The
proposed c-store with fuel sales was part of a convenience shopping center i.e., a complex of several
businesses that were planned, developed and managed as a single unit. If the Council could not
make that determination then she still believed the modification should be approved based on the
fact that it would not be detrimental to the public good and the Timberline Center plan with a c-store
was "equal to or better than" the Timberline Center plan with the approved alternative by default i.e.,
a fast food restaurant in the exact same location. The applicant must show that the plan that did not
meet the standard will promote the purpose of the standard for which the modification is requested
"equally well or better than" a plan that met the standard. The purpose of the standard was to protect
the community from having too many c-stores located at every intersection that might not be
successful and would deteriorate over time. She stated the two closest filling stations were not on
Timberline Road. Locating a"more visible"filling station in between the two existing stations made
"perfect sense" as a convenience to people living and working in the Timberline corridor. She stated
this would be "good land use planning." She asked the City Council to either make an interpretation
that the three-quarter mile separation rule did not apply when a c-store was part of convenience
shopping center or to grant the modification based on the "equal to or better than" standard. She
stated the c-store would be on a comer and would have 48 feet of green space between Timberline
Road and the c-store. The store was planned to be built with high quality materials and would be
well designed. She stated the center as a whole was approved by the Planning and Zoning Board
and she believed the logic of the Board was "flawed" on this one issue.
Mayor Hutchinson stated the opponents to the appeal would have 20 minutes for a presentation.
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Peggy Grice, 2254 Eastwood Drive, stated she had an illustration to present to the Council.
City Attorney Roy asked if this was presented to the Board or a new diagram.
Ms. Grice stated it was the same information she had previously stated in a letter except that it was
now in illustration form.
Mayor Hutchinson asked Ms. Grice to show the illustration to the appellant to see if the appellant
had any objection.
("Secretary's Note: The appellant reviewed the illustration.)
Ms. Ripley stated she did not believe the illustration was information that was presented at the
original hearing.
City Attorney Roy asked Ms. Ripley to review the letter that Ms. Grice indicated was the same
information.
Ms. Ripley objected that the graphic was out of scale, showed all filling stations on the entire length
of Timberline Road without an indication of distance between each, did not accurately reflect
whether the filling stations were actually on Timberline Road, and was not accurate about the north
end. She stated she was not prepared to defend against this graphic.
Mayor Hutchinson asked the City Attorney if this graphic was part of the record. City Attorney Roy
stated the contention was that the information was part of the record in a different form. He stated
the question was whether or not the graphic depiction was true enough to the verbal description that
it was the "same information." He stated Ms. Ripley contended there were sufficient discrepancies
so that it was new and different. He stated it was up to the Mayor to look at the two and make a
comparison.
Ms. Grice stated she did not have the technical ability to address this at scale but it would illustrate
her point.
Mayor Hutchinson stated the illustration would be set aside and asked Ms. Grice to go through her
presentation verbally since there were "problems" with the illustration.
Ms. Grice stated she was a party -in -interest and had attended the meetings regarding this
development from the start. She had written a letter that was included in the packet. She stated she
was opposed to the placement of a convenience store gas station on Timberline Road approximately
one-half mile north of Drake Road. She lived in the adjacent neighborhood and felt that such a gas
station was too close to all of the existing convenience store/gas stations. She stated there was such
a store in close proximity to Timberline and Prospect Roads and there was a full service grocery
story and 24-hour fueling station at the new King Sooper's at Timberline and Drake Roads. She
stated there was a Schrader's Country Store at the intersection of Timberline and Vermont, a Texaco
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convenience store/gas station less than a mile south of that and another convenience store/gas station
just north of the intersection of Timberline and Harmony Roads. Further south on Timberline there
was another convenience store/gas station just south of Harmony Road. There was already a
proliferation of these types of stores along the Timberline Corridor. The City adopted zoning that
said these types of stores need to be three-quarters of a mile for good reason. The appellant wanted
to be granted an exception to this zoning based on driving distances rather than the accepted
measurement. The decision should be made based on the distance prescribed in zoning laws and the
reality of how many stations already existed on this corridor. The project's gas station would not
meet City zoning laws pertaining to the separation of these types of stores. If the City granted this
exception a "Pandora's box" would be opened that would undermine zoning that was put in place
during the adoption of City Plan to help preserve Fort Collins as the "choice city." She did not
believe there were any unique circumstances in this case. An exception should not be granted and
the zoning rules were enacted for a good reason. The City did not need another North College
Avenue or Harmony Corridor.
Mayor Hutchinson stated the appellants would have 10 minutes for rebuttal.
Ms. Ripley stated there were several c-stores along the entire length of Timberline Road. North of
Prospect Road there were not a whole lot of c-stores. The fueling stations at King Sooper's and the
Spring Creek Center were off of Timberline and Prospect Road. Those fueling stations were difficult
to see and that, if the point of the standard was "visual proliferation" on the north end of Timberline,
no fueling stations could be seen there now. The volume of traffic on Timberline was projected to
be the highest volume on any arterial in the City. The north end of Timberline was "underserved"
at this point given the projected future growth of that area. It would be detrimental and would be
"equal to or better than" a fast food restaurant at the same location.
Mayor Hutchinson stated the opponents to the appeal would have 10 minutes for rebuttal.
Ms. Grice stated it was possible to see the existing fueling stations from Timberline Road. She
stated there was a need to look at the whole Timberline Corridor.
Mayor Hutchinson stated he would entertain Council questions.
Councilmember Manvel stated the Agenda Item Summary on page 3 stated: "It is important to note
that the convenience retail store with fuel sales is not located within the convenience shopping center
component." He stated this contradicted a statement made by Ms. Ripley and asked staff to explain
the disagreement. Shepard stated, as presented, the PDP showed this K-1 building (convenience
retail store with fuel sales) was located outside the convenience shopping center component of
Timberline Center PDP.
Councilmember Manvel asked the appellant to speak to the issue.
Ms. Ripley stated Shepard was correct in stating that the way it was presented it was "outside of the
box." Two different alternatives were presented so the applicant would "end up with an approved
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project." The first alternative was for a convenience shopping center with the c-store out of the
defined area because the c-store was allowed without being in such a center. She showed a slide
showing the approved alternative. If the modification was approved the c-store would be a
convenience shopping center.
Councilmember Manvel asked why "boxes were being drawn around two different areas." Shepard
stated this was how the project was submitted to the Current Planning Department. Ms. Ripley
stated she "failed to notice" that there was a three-quarter mile separation requirement for
convenience stores with fuel sales. She stated if she had "noticed that before, she would have drawn
her box around that." She stated it was "irrelevant" where the line was drawn for version 1 and
version 2 because this whole center was planned and designed as a single unit.
Councilmember Kastein stated no matter "how you draw the box" a retail center with fuel sales is
not allowed in either of the boxes because of the distance requirement. Ms. Ripley stated that
depended on the interpretation. The separation rule applied to a convenience store with fuel sales
unless a modification was received. She believed the Code was unclear about whether the three-
quarters of a mile requirement still applied if there was a convenience store with fuel sales as part
of a convenience shopping center.
Councilmember Kastein asked if that was how the planners would read the Code. Shepard stated
staff read the Code to say that because the permitted use list in the I zone called out "distinctly,
separately and individually" convenience retail stores with fuel sales, and provided a caveat for a
three-quarter mile separation, that you could not choose to have a convenience shopping center
which would "hide" the same use. He stated staff believed the Code was straightforward in
providing that this was a use that was separate, unique and distinct since it was listed separately on
its own and it should not be "hidden" as a component of a convenience shopping center.
Councilmember Brown asked why this was not a convenience shopping center. Shepard stated a
"convenience shopping center" was defined to have a certain size, a certain number of separate
businesses and retail stores and drive -through restaurants. He stated this was a "blended center."
It was supposed to be a "secondary and complementary land use" to the Industrial zone district and
was not supposed to be, in staffs opinion, a single standing, arterial oriented, auto -related land use.
It was supposed to be located to complement the I zone. A convenience shopping center was a
permitted subcomponent of that.
Councilmember Brown asked if the determining factor was the size, the shape, and the number of
buildings. Shepard stated the PDP was 22 acres and the entire PDP could not be a convenience
shopping center. He stated it exceeded the maximum requirement of seven acres.
Councilmember Brown asked if the 22 acres included the storage area. Shepard replied in the
affirmative.
Councilmember Brown asked if that could be a separate component. Shepard replied in the
affirmative, provided it came in separately for consideration.
February 7, 2006
Councilmember Brown asked if the applicant could resubmit. Shepard replied in the affirmative.
Councilmember Ohlson asked why staff recommended against this modification and why this issue
was important enough that it was worth defending that recommendation. He asked how strongly
staff felt about their recommendation, and why. Cameron Gloss, Current Planning Director, stated,
in staff s opinion, the project did not meet the modification criteria. He stated the appellant believed
the plan was "equal to or better than" a plan that was compliant. Staff believed the main mission of
this center that would have a convenience store with a gas station would be primarily to capture the
motoring public on Timberline Road rather than to be integral to the Industrial district. He stated
there were separation requirements for a reason and the three-quarter mile separation requirement
for all commercial uses was investigated as part of the Land Use Code update last spring. He stated
staff presented an analysis last fall that upheld the principle of a three-quarter mile separation so that
there would not be situation in which there would be a gas station/convenience store at every
intersection. There was a "prime opportunity" on Timberline Road to avoid some of the strip
development that had occurred in other parts of the community. The applicant's argument bad some
merit but this argument did not override the urban design implications. Staff concurred with some
of the opponent's comments that there were other service stations with convenience stores
throughout the Timberline Corridor that met the market demand.
Councilmember Weitkunat asked if a gas station was allowed and could be built anywhere on this
site. Shepard replied in the affirmative.
Councilmember Weitkunat asked if the same was true for a retail store. Shepard stated a retail store
could only be a component of a convenience shopping center, which was the corner of the site.
Councilmember Weitkunat asked if fast food was also allowed. Gloss replied in the affirmative
provided it was part of a convenience shopping center.
Councilmember Weitkunat asked if those three things could therefore exist on this same spot. Gloss
replied in the affirmative provided they existed independently.
Councilmember Weitkunat asked if there was any separation requirement between them. She stated
the Code allowed for modifications and changes based on the "equal to or better than" standard. She
stated the fact that each of these buildings could exist independently "troubled" her. She stated in
reality the rule could be avoided by simply putting the buildings very close to each other. Gloss
stated the issue went back to the combination use of the convenience store and gas service station
and its orientation toward the arterial street rather than a secondary use serving the Industrial area.
He stated staff drew a distinction between the two. The distance between the buildings would be a
judgement call.
Councilmember Weitkunat asked if this was an issue and the modification was denied because the
access would be off Timberline Road. Shepard replied in the affirmative and stated this was
mentioned to the applicant during the review process.
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Councilmember Kastein asked if the convenience store with fuel sales was not allowed here because
of the separation requirements but what would be allowed was a separate, freestanding gas station
that did not qualify as a convenience store or a freestanding convenience store not associated with
the gas pumps. Gloss stated was correct.
Councilmember Kastein stated those two things seemed "really close." He asked if the intent was
to limit uses being too close to each other which could mean that none of them would fully succeed.
He asked if the integration of a convenience store with pumps was "more attractive" and would be
used more than a freestanding gas station. He asked if the fundamental idea was that a freestanding
gas station would not take business away from other convenience store/gas stations. Gloss stated
there were multiple considerations in addition to that issue. He stated there were other aesthetic
urban design issues as well. One issue was the "diminishing return" for other nearby commercial
center.
Councilmember Kastein asked about the aesthetic issues. Gloss stated there was a location on the
site that would have less of an aesthetic impact on Timberline Road. He stated it could be placed
further away from the road, and this alternative had been offered to the applicant but the applicant
elected not to go forward with that design. He stated the alternative that was presented was for a
convenience store with fuel sales right on the road as indicated on the site plan.
Councilmember Kastein asked if the economics and the aesthetics were the two primary issues.
Gloss replied in the affirmative.
Councilmember Ohlson asked for the slide showing why this was important.
Councilmember Brown asked if the other stations along Timberline were away from the road.
Shepard stated from an urban design perspective the City had decided that it did not want the arterial
streets to be dominated by convenience stores and fuel sales.
Councilmember Brown asked how far away from the arterial was considered to be on the arterial.
Shepard stated it depended on how the property was platted. If there was frontage on the arterial
then it was considered to be "on the arterial." Measurements were done "as the crow flies", in a
straight line.
Councilmember Brown asked how far off Timberline was considered to be "on the arterial."
Shepard stated if the lot did not front on the arterial, then it was not considered to be "on the
arterial."
Councilmember Brown asked if any of the other gas stations were located right on the arterial.
Shepard stated the gas station at Rigden Farm was about a half a block off Timberline and Spring
Creek Center was about a block off.
Councilmember Brown asked if a half block away was considered to be "on the arterial." Shepard
stated measurement was done in a straight line. He stated the original intent of the standard was to
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avoid stringing such facilities out along arterial streets.
Councilmember Brown stated he believed that there were only two similar stores within a mile.
Gloss stated if there was no three-quarter mile separation standard then there could be as many as
three per mile.
Councilmember Kastein stated it was an "exaggeration" to say there could be as many as three per
mile. He did not believe this was pertinent.
Mayor Hutchinson stated the Council needed to look at a modification for a specific project and was
not looking at changing the Code. He asked if this would establish an "ironclad precedent." Gloss
stated this could "potentially" set a precedent. Shepard stated these types of stores could be
"prolific" in the community.
Mayor Hutchinson asked, if the Council decided to grant this modification, whether it could apply
to other projects. Shepard stated staff knew of one project that was "waiting in the wings."
Mayor Hutchinson asked if the other project would be decided by itself. Shepard replied in the
affirmative. City Manager Atteberry asked the City Attorney whether this would set a precedent.
City Attorney Roy stated it would set a precedent in terms of future applications that were similarly
situated. He stated decisions could be made on a case -by -case basis but the same standards were
used. Applying the same standards differently could create problems.
Councilmember Ohlson stated this was a "boilerplate" for aesthetic urban planning to him. If this
modification was allowed then other applicants would appeal similar cases. If Council wanted to
grant the modification then the standard should be reconsidered to decide if it was an important
aspect of urban planning.
Mayor Hutchinson stated if that was true all modifications should be banned because a modification
would be equated with a change in the Code.
Councilmember Weitkunat stated the Industrial zone provided a variety of work places such as
manufacturing, warehouses and distributing. She stated the proposed uses were not Industrial uses
but were complementary uses to primary Industrial uses. She stated the Council needed to be
cautious. A convenience store with fuel sales was a non -primary use. The question was whether this
would be "equal to or better than" and this was a judgement call. Staff had told the Council they did
not view this as "equal to or better than." The question was whether this would be abetter site if the
modification was granted and she was not sure this would be the case.
Councilmember Manvel stated there was a good argument in favor of the modification. He stated
even though the other two convenience stores were not directly on Timberline they were apparently
both visible and easy to access from Timberline. The three -to -a -mile did apply because this store
would be in the middle of the one -mile stretch between the two. This would be exactly the situation
the Code was written to avoid. In some sense this would set a precedent. He would still listen to
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arguments.
Councilmember Kastein made a motion, seconded by Councilmember Ohlson, to uphold the
decision of the Planning and Zoning Board on December 8, 2005 to deny the request for
modification.
Councilmember Kastein stated there was some "history" with this issue and staff was trying to
protect the elements of the Code that were important while leaving room for "being reasonable."
The Code should be followed at this time. He would vote to uphold the decision of the Board.
Councilmember Ohlson stated staff and the Board approved other requests for modifications that
made sense and that did not have significant impact on the City's overall policies for this project.
He stated some modifications made sense and others did not. This standard was one of the
"boilerplate" standards for urban design to avoid a row of gas stations. He did not want to open a
"floodgate" for other requests for a similar modification.
Councilmember Weitkunat stated modifications were an important part of the process to achieve
quality development. She stated location, zone and proximity should be taken into consideration.
It did not make sense to allow a gas station or retail sales separately but not to allow a combined
building. The primary purpose of this Industrial zone was to capture manufacturing and warehouse
uses and other uses were complementary. She stated she would support the motion.
Councilmember Brown stated he would not support the motion. He stated the other two gas stations
were off Timberline and it did not make sense that another gas station could not go in between the
two existing stations.
Councilmember Manvel stated he would support the motion. He stated the Planning and Zoning
Board minutes reflected discussion that a stand-alone convenience store worked and a stand-alone
gas station did not. Tthe restriction was in place and he did not see a compelling reason to eliminate
the restriction in this case.
Councilmember Roy thanked the Planning and Zoning Board for the groundwork they did on this
type of issue. He stated it did not make sense to change something that was working for the
community. He stated he would support the motion.
Mayor Hutchinson stated he was persuaded that allowing the modification would not achieve a
project that was "equal to or better than" the alternative.
The vote on the motion was as follows: Yeas: Councilmembers Hutchinson, Kastein, Manvel,
Ohlson, Roy and Weitkunat. Nays: Councilmember Brown,
THE MOTION CARRIED
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Resolution 2006-011
Finding Substantial Compliance and Initiating
Annexation Proceedings for the Airpark Village Annexation, Adopted
The following is staffs memorandum on this item.
"EXECUTIVE SUMMARY
The Airpark Village is 148.55 acres in size. The site is an existing privately owned airport, and
three abutting properties, all generally located north of East Lincoln Avenue, south of East Vine
Drive and west of Timberline Road. Contiguity with the existing municipal boundary is gained
along portions of the west and east property lines. The east property line abuts the Dry Creek
Subdivision.
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 ofFirst Reading of the annexation and
zoning ordinances on March 21, 2006. Not less than 30 days prior, published notice is required by
State law.
BACKGROUND
This is a 100% voluntary annexation for a property located within the Growth Management Area.
The property satisfies the requirement that no less than one -sixth of the perimeter boundary be
contiguous to the existing City boundary. "
City Manager Atteberry stated staff was available to answer any questions.
Mayor Hutchinson stated each citizen participant would have three minutes to speak.
Kelly Risling, representing the Fort Collins Downtown Airport Pilots' Association, stated the group
opposed the Airpark Village Annexation because this was a step that would contribute to closure of
the Downtown Airport. Closure of the Airport would have an economic impact to the community.
According to a 2003 CDOT study, the economic loss would be $10.7 million to the area's economy,
there would be 240 jobs lost representing a payroll of $4 million, and 18 businesses would have to
close or leave. The Airport served many purposes.
Joe Rowan, 621 Gilgalad Way, spoke in opposition to the annexation proposal. He stated the East
Mulberry Corridor and the downtown Airport represented the "last best location for industrial uses
in the Urban Growth Area." One vital component of the local economy was the existence of
industrial districts of sufficient size and proximity where various commercial activities could occur.
Andrew Chumney, Chief Executive Office of Firewall Forward, Fort Collins -Loveland Airport,
stated the loss of the Airport would mean that there would be no secondary airport in the community
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catering to small aircraft and personal use.
Larry Hansen, Century Helicopters, stated he was "blindsided" when the Council made changes to
the zoning in the area and he was "blindsided" again because he received no notification of this
meeting. He stated taking away the Airport and the industrial area would eliminate the ability to
bring in funds from outside. He stated this action would hurt his business.
Gerald Eberhard, 902 Teal Drive, stated a lot of dirt had to be moved to raise Wal-Mart above the
floodplain and the citizens of Fort Collins were disturbed about that. He stated the functioning
Airport cost the community nothing and brought in almost $ I I million a year.
John Pernicka, 2636 Dumire Court, expressed concerns about lack of notification and stated the
Council seemed to make the decision on the rezoning with the assumption that the Airport would
be closed. He stated part of the property proposed for this project was not owned by the Airpark.
He stated the developer could not sell a common area of a development without the permission of
those using it.
Howard Abraham, nearby resident, stated there was a potential for two fine airports in the area. He
stated the Fort Collins -Loveland Airport was publicly supported and that the smaller airpark could
serve a different clientele.
Mayor Hutchinson stated the Council was not considering a development proposal at this time. He
stated the Resolution being considered was required by State law. He asked if notification was
required for this initiating action. City Clerk Krajicek stated the Resolution included a notice that
would be published four times in the newspaper before the hearing that would be held on the
Ordinance on March 21. Deputy City Attorney Eckman stated this was the initiating Resolution that
authorized the publication of notice and made a finding that the annexation petition had been
received and was in compliance with the State annexation act. He stated notice would be published,
a hearing on the annexation would be held as well as two readings of the annexation ordinance, there
would be a zoning ordinance, and there would be a development application from the property owner
if development was desired. He stated it appeared many of the speakers would be opposed to such
a development proposal. The property owner could apply for development whether or not the
property was annexed to the City.
Mayor Hutchinson stated there would be formal processes for the annexation and any subsequent
development. Deputy City Attorney Eckman stated the annexation petition was signed by an
attorney certifying that all of the owners of the property had signed the petition. He stated the City
would rely on that certification unless there was some type of legal action presenting evidence to the
contrary.
Councilmember Ohlson stated it was his understanding that this property was currently in the
Growth Management Area, that it was a voluntary annexation and would likely become part of the
City, that any development may have negative consequences to some who spoke, and it was not the
City who was doing this. He stated the City was not trying to force the closure of the Airport and
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February 7, 2006
the current property owner had rights to do that. He stated property in the Growth Management Area
could expect to annex to the City.
Councilmember W eitkunat made a motion, seconded by Councilmember Brown, to adopt Resolution
2006-011.
Councilmember Kastein stated the City had done some strategic planning about what to do with the
Airport. He stated many of the issues being presented were "new" and he would like more
discussion at a Study Session prior to March 21. He noted the City was not required to annex land
when an annexation petition was received. He stated he would like more information on the City's
options. City Manager Atteberry noted that the Council's agenda was full and that there could be
difficulty in scheduling this discussion. He stated it was the intent of the City that property in the
Growth Management Area be annexed and this should come as no "surprise."
Councilmember Weitkunat stated the concerns that had been expressed related to development rather
than annexation. She suggested the annexation was voluntary and the City needed to accommodate
that.
Councilmember Kastein stated his main question was that there was a landowner who wanted to
annex and there was an impression given that several business owners did not want to annex. He
stated there was enough confusion on this that he wanted some feedback before the decision was
made to annex.
Mayor Hutchinson stated this would simply initiate the proceedings.
Councilmember Kastein expressed a concern that business owners in the voluntary annexation area
did not want to annex.
Councilmember Weitkunat stated the comments were not in disagreement with annexation and
focused on the development.
Councilmember Ohlson stated the annexation would lead to development plans for the area and that
the businesses would be impacted.
Mayor Hutchinson asked if the Council was required by State law to adopt this Resolution. City
Attorney Roy stated the Council could ultimately decline to annex the property. He stated the
Council had a responsibility to respond to the petition and had some flexibility in the time frame to
do that. He stated the Council needed to decide at some point whether to annex. He encouraged the
Council to move ahead with this Resolution and get to a point where it could deliberate on the
wisdom of adopting the annexation ordinance. He stated the Resolution was a decision on whether
the annexation petition conformed to the technical requirements of the State law.
Councilmember Manvel thanked those who spoke and assured everyone that the Council would hear
input on the annexation.
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February 7, 2006
Councilmember Ohlson stated legal requirements were met for notification and questioned whether
it might have been appropriate to go beyond the legal requirements. He stated the City could "never
do too much notification."
Mayor Hutchinson thanked those who spoke.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED
Meeting Time Extended
Councilmember Manvel made a motion, seconded by Councilmember Roy, to continue the meeting
beyond 10:30 p.m.
Councilmember Kastein asked about the urgency of the remaining items. City Manager Atteberry
stated the remaining items would not take much time and that staff had been present since 6:00 p.m.
City Attorney Roy stated the Enterprise Board item was the same as the item that Council was about
to address except that it would be heard by the Council sitting as the Wastewater Utility Enterprise
Board.
The vote on the motion was as follows: Yeas Councilmembers Brown, Hutchinson, Manvel,
Ohlson, Roy and Weitkunat. Nays Councilmember Kastein.
THE MOTION CARRIED
Resolution 2006-013
Authorizing an Intergovernmental Agreement with the
Grove Metropolitan Districts Numbers I through 3 for the Provision
of Wastewater Treatment Services by the City's Wastewater UtilityAdopted
The following is staff s memorandum on this item.
"FINANCIAL IMPACT
The agreement requires the Districts to pay a wastewater plant investment fee and monthly service
charges for wastewater service based on a cost of service study. A payment -in -lieu -of -tax
(`PILOT') contribution to the General Fund at the generally applicable PILOT rate will be added
to the monthly service charge, totaling an estimated $I0, 000 per year at build -out of the Laporte
Planning Area. Additional one-time revenues estimated at $2,400,000 will be collected overtime
as administrative surcharges for Parks, Library and Street Oversizing.
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EXECUTIVE SUMMARY
Resolution 2005-018 authorized the CityManager to negotiate an agreement with new development
near the town ofLaporte for the provision of wastewater treatment services by the City's Wastewater
Utility. As directed by City Council, the City Manager has negotiated an agreement, has approved
a schedule ofsurcharges for projected usage of City streets, community parks and libraries by the
new development and has included such surcharges in the proposed agreement with the Grove
Metropolitan Districts Numbers I through 3.
BACKGROUND
In January 2004, Larimer County adopted the Laporte Area Plan. Portions of the Laporte Area
Plan include approximately 2000 dwelling units shown to develop at urban level densities. These
densities will necessitate service from a public sewer system.
Staff believed it was important for the City to provide wastewater treatment service to reduce the
potential of new wastewater treatment facilities upstream from Fort Collins and to protect water
quality in the Poudre River.
After discussion in late 2004 and early 2005, City Council adopted Resolution 2005-018,
designating an Approved Service Area and directing City staff to:
Cooperate with interested parties in the formation ofa special district for the
collection of wastewater,
Negotiate an agreement for the provision of wastewater treatment services
by the City's Wastewater Utility and present the proposed agreement to City
Council for approval, and
Develop a schedule ofsurchargesfor usage of City streets, communityparks
and libraries by new development in the Approved Service Area, and to
include such surcharges in any arrangement for the provision of utility
services by the City.
Property owners have been successful with the formation of The Grove Metropolitan Districts
Numbers 1 through 3. The Districts provide the means for constructing and financing public
improvements to serve The Grove development located within the Districts' boundaries as
contemplated in their Service Plan and to serve such additional areas in the Laporte area as may
in the future be added to the Districts'service territory. The Grove development will be located on
70 acres that constitute a portion of the Approved Service Area.
Staffhas negotiated aproposed intergovernmental agreement with the Districts (Attachment]). The
Districts will provide.for the construction and financing of the capital improvements as well as the
ownership, operation and maintenance ofthe sanitary sewer collection system as deemed necessary
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for the phased growth of the Districts. The City will provide wastewater treatment services and
programs associated with treatment such as laboratory services and the industrial pre-treatment
program.
The City used the services ofRed Oak Consulting, a firm that recently completed a review ofutility
plant investment fees, to determine the portion of the City's wastewater plant investment fee and
monthly service charge attributable to the Districts. Red Oak recommended a plant investment fee
of $6.00 per gallon per day of capacity. The recommended monthly service fee is $1.362 per 1000
gallons. The numbers are approximately 72% and 79% of standard City wastewater rates
respectively, due to the facilities and services included in the standard rates that will not be used to
provide treatment services to the Districts.
City staffdeveloped a schedule of administrative surcharges for street oversizing, communityparks,
and libraries in the Laporte Planning Area (Attachment 2) as requested by City Council and
authorized by City Code Sec 7.5-3, Establishment of special surcharges. The street oversizing
surcharge of $649persingle family home was determined by looking at the component of the Street
Oversizing Program that is attributable to regional growth. The proposed surcharge is less than
the comparable $2,319 per single family home inside the city. The parkland surcharge was set at
$669 per single family dwelling unit, and is the same as the amount collected by the County for
development inside the Growth Management Area but outside the city limits. This proposed
surcharge is less than the comparable inside city community parkland amount of $1,473. The
library surcharge was set at $508 for a single family home, and is the same charge as inside the city
for a comparably sized home. These administrative surcharges have been included in the proposed
agreement.
The Wastewater Enterprise Board is also being asked to authorize the intergovernmental agreement
at its meeting scheduled/br immediately after the February 7"' City Council meeting. The Enterprise
is included as a party to the agreement solely for the purpose of making the Enterprise responsible
for any multiple fiscal year obligations embodied in the agreement."
City Manager Atteberry stated staff was present to answer a question asked by Councilmember Roy.
Councilmember Roy stated he had asked for the names of people elected to the metropolitan sewer
district boards. He noted two of the directors were the developers of the district and he was
concerned that this could happen. Carrie Daggett, Senior Assistant City Attorney, stated many
special districts were often formed by developers at the time they still owned essentially all of the
property within the special district. She stated in this case, the board of directors was comprised of
property owners within the district. She stated there was language in the agreement that raised a
related potential issue. This provision of the agreement was revised to tie into the specific State laws
in place that were intended to address this type of situation. She stated there was a specific State law
related to special districts and actions by directors who owned a substantial portion of the property
within a special district. Staff had worked with the district representatives and had reached
agreement on a revised paragraph 18 to replace the paragraph that raised this concern. She stated
all of the actions of the district officers and employees in negotiating and approving the agreement
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February 7, 2006
would comply with all of the applicable State laws related to their fiduciary duties. She stated the
Resolution allowed staff to make minor modification such as this to the text of the agreement.
Councilmember Ohlson asked why the original paragraph 18 was included when it was not "truthful'
or"accurate." Daggett stated it was not clearly incorrect because the language referenced employees
of the district. She stated the change was being made to avoid any ambiguity. The language was
included because it was one of a number of standard provisions often used to try to minimize the
likelihood of conflicts of interest. She stated staff was still working on some of the specifics of the
agreement.
Councilmember Roymade a motion, seconded by Councilmember Brown, to adopt Resolution 2006-
013. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED
Other Business
Councilmember Brown expressed a concern about traffic circulation plans in the area of the property
at the intersection of Harmony and Ziegler Roads. He stated he was concerned about the proposed
extension of Corbett Drive north from Harmony Road to the English Ranch Subdivision. He
believed the connection was a "bad idea." He would like staff to review the Master Street Plan with
an eye toward reconsidering the connection and he would like more information as to why the
connection was shown and the pros and cons of removing that connection.
Councilmember Weitkunat asked if that would be a major undertaking. City Manager Atteberry
stated the request was narrowly focused, although it would reopen an assumption in the
transportation master plan. Ron Phillips, Transportation Services Director, stated the connection of
Corbett Drive to English Ranch was considered in the previous Bayer proposal. He suggested that
this be examined in light of the development plans that would come forward for that property in
relationship to the required traffic impact analysis and the kinds of mitigation that might be
appropriate for the English Ranch neighborhood. He stated this connection would help people avoid
having to access the arterial network to get to a development that would be directly to the south of
the neighborhood. He stated if the connection could be accomplished while discouraging through
traffic through the neighborhood, then that would be the best solution. He asked that staff be
allowed to look at this issue in great depth in connection with any development proposals that would
come forward.
Councilmember Brown stated that would be acceptable. He asked if the neighborhood would be
involved in the discussions. Phillips replied in the affirmative.
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Adjournment
The meeting adjourned at 11:25 p.m.
Mayo
ATTEST:
Cit Clerk
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