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MINUTES-08/15/2006-Regular
August 15, 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, August 15, 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 presented plaques honoring Mai Tran and Bruce Hottman, Information Technology Experts (ITX), Inc., winners ofthe 2006 U.S. Small Business Administration "Colorado Small Business Persons of the Year" award and the 2006 U.S. Department of Agriculture "Small Disadvantaged Business Contractor of the Year" award. He stated the company was also named by the Northern Colorado Business Report as number 22 on the Mercury 100 Fastest Growing Private Companies list for 2006. Mayor Hutchinson stated each speaker would have three minutes Ellen Lawson, Plum Street resident, spoke regarding the ozone levels during the summer and the danger of respiratory distress. She believed the numerous trash and recycling trucks contributed to the problem and also impacted City streets. Patricia Radford, International Boulevard resident, spoke regarding the Dry Creek mobile home park evictions. She stated Uniprop had "deliberately caused its own economic problems" by its treatment of the Dry Creek residents and the "shoddy maintenance" of the mobile home park. She asked for a moratorium on a change of use for the development. She stated Uniprop had done similar things in other areas for money motives and was "not a fine upstanding company." Steven Moritz, Wok `n Roll Teriyaki owner, expressed concerns regarding the traffic impacts of an additional railroad spur at Lemay Avenue and Riverside Drive. He asked that the City work with the railroad to see if something could be done. Manuel Martinez, 310 Cherry Street, Transfort driver, spoke regarding inequities in pay for classified and hourly bus driver positions. He asked that the City treat all of its employees fairly and pay them at the level of pay they deserved. Dean Taylor, 2050International Boulevard, Dry Creek resident, stated Uniprop would not be paying for any relocation of the Dry Creek homes, although they stated would be done. He stated they 169 August 15, 2006 would only move those mobile homes that wanted to move to another Uniprop property. It would cost about $11,000 for each of the 130 households to move. Uniprop sold a brand new mobile home after they knew that the park would be closed. He asked the City to help the Dry Creek residents. Reiner Lomb, 6718 Avondale Road, Fort Collins Sustainability Groups, asked the City to commit to meeting its 1999 targets for reducing greenhouse gas emissions. This would benefit the Fort Collins economy and environment. He asked Council to consider a proposed Resolution that he had presented. Phil Friedman, 201 South Grant Avenue, asked the Council to consider the Resolution presented by Mr. Lomb and a Clean Energy Cluster Resolution. Greg McMaster, 1409 Skyline Drive, vice -chair of the Air Quality Advisory Board, spoke in support of the two Resolutions referenced by the previous two speakers. He spoke regarding the importance of climate protection and the need for a task force to address the issue. Citizen Participation Follow-up Mayor Hutchinson thanked those who spoke during Citizen Participation. He stated he and the City Manager met with staff of the B&SF Railroad several months ago and traffic impacts relating to switching changes were discussed. The traffic situation had worsened and another meeting was a possibility. City Manager Atteberry stated he and Transportation staff met with one railroad company last week and conveyed a "high level of intolerance" for the current traffic disruptions. There were unacceptable levels of disruption on the Riverside corridor. The railroad company indicated technological improvements were needed at Mulberry and Riverside and other crossings. The railroad also talked about possible opportunities for sharing of switching yards upstream. The City would work to help facilitate that discussion. Councilmember Roy asked staff to discuss some of the work done by City staff to alleviate some of the problems associated with the Dry Creek closing. City Manager Atteberry stated staff had responded to questions received by Councilmembers at a recent Dry Creek meeting and had done other outreach. It was a "frustrating" situation and it was a "private relationship" between the park owner and park residents. City staff had worked on the issue at Council's request. Councilmember Roy stated the Council was concerned about the Dry Creek situation and had willingly done what was possible to "try to make a difference." Councilmember Kastein stated he understood the City Attorney's Office had done some work to define the City's formal role beyond facilitating meetings. He requested a one -page memo outlining Council's role in the immediate crisis. He wanted to understand if the Council had a role in trying to keep this kind of situation from happening in the future. City Attorney Roy stated he would provide a memo to the Council on the question of the role (if any) the City had in this matter and what (if any) role the Council should have in similar situations in the future. 170 August 15, 2006 Mayor Hutchinson stated this was a "tough issue" and there were questions about the proper role of the City in such matters. The City did not provide any incentives for Uniprop to work to develop the area and did not provide any dollars related to affordable housing funds. Councilmember Ohlson commented on the Transfort driver concerns and expressed concern that there was a two-tier "class" system in which the full-time classified employees were the beneficiaries of a generous salary and benefits program while full-time unclassified employees were "caught" in the lower tier system. Additional work was needed on this issue to ensure fairness. He also commented on the issue of trash districting and noted it had always been "one vote short" to change to trash districting. He expressed concern about the number of trash trucks serving each area. City Manager Atteberry responded to the citizen comment regarding a rumor of a pay freeze. He stated there had been no written materials or conversations suggesting a pay freeze for City employees. There had been budget discussions regarding a reduction of about $1 million for salary increases for 2007. Agenda Review City Manager Atteberry stated item #21 First Reading of Ordinance No. 12Z 2006, Amending Article III of Chapter 12 of the Code of the City of Fort Collins to Conform to the Colorado Clean Indoor Air Act, and to Clarify Certain Provisions was being moved to the discussion agenda; that item #23A First Reading of Ordinance No. 124, 2006, Authorizing the Conveyance in Fee of the Vangbo Natural Areas Property Subject to a Conservation Easement for the Benefit of the City of Fort Collins and the Natural Areas Program was being postponed; that item #24 First Reading of Ordinance No. 126, 2006, Authorizing the Conveyance of a Telephone Cable Right -of -Way Easement to Qwest Corporation on Cathy Fromme Prairie Natural Area was being withdrawn from the agenda for additional work; and that Councilmember Ohlson had announced perceived conflicts of interest on item #29 Resolution 2006-083 Approving the Downtown DevelopmentAuthority's Call for a Special Election to be Held in Conjunction with the Larimer County General Election on November 7, 2006, for the Purpose of Submitting a Proposed Ballot Measure to the Qualified Electors of the Downtown Development Authority District and item #30 Resolution 2006-084 Designating the City Manager as Representative of the Municipal Corporation for the Purpose of Casting the Ballot of the City with Regard to a Downtown Development Authority Ballot Measure. He suggested that those two items be heard as the first discussion items. CONSENT CALENDAR 6. Consideration and Annroval of the Minutes of the July 18 2006 Regular Meeting, 7. Second Reading of Ordinance No 105 2006 Appropriating Unanticipated Developer Contributions in the General Fund for Affordable Housing. This Ordinance, unanimously adopted on First Reading on July 18, 2006, appropriates unanticipated revenue in the Advance Planning budget from Flying Heights, LLC, for density 171 August 15, 2006 bonuses the City received in exchange for a binding, written recordable relinquishment of the City's rights under the Agreement of Restrictive Covenants Affecting Real Property. $14,242 will be appropriated to the Affordable Housing Fund to be used in the Competitive Process to award the funds for other affordable housing projects. 8. Second Reading of Ordinance No. 106 2006 Appropriating Unanticipated Revenue in the General Fund for the Development of the North Fort Collins Business Association Action Plan. On November 15, 2005, the City Council adopted Resolution 2005-123, which allocated $19,000 from the Community Development Block Grant ("CDBG") Program to the North Fort Collins Business Association ("NFCBA") to complete an Action Plan outlining redevelopment strategies for the North College Avenue commercial corridor. The City has contracted with PMG Associates, Inc. ("PMG Associates") for consultant services to help complete the Action Plan. The contract has a total cost of $20,000. As recommended by the CDBG Commission, the NFCBA is contributing $1,000 toward the development of the Action Plan. This Ordinance, which was unanimously adopted on First Reading on July 18, 2006, appropriates the $1,000 contribution from the NFCBA. 9. Second Reading of Ordinance No. 107, 2006. Authorizing the Transfer of Appropriations Between the Building Community Choices - Taft Hill Road Improvements Drake Road to Derby Court Proiect and the Building Community Choices - Prospect Road Improvements Poudre River to Summitview Drive Project to Be Used for the Riverbend Ponds Berm Stabilization Work. This Ordinance, unanimously adopted on First Reading on July 18, 2006, transfers $779,890 of excess funds from the previously constructed Taft Hill — Drake to Derby project, to the Prospect Road - Poudre River to Summitview Project to address a greater than anticipated drainage need. 10. Second Reading of Ordinance No. 109, 2006 Amending Various Provisions of the Fort Collins Traffic Code. The Colorado General Assembly amended certain statutory provisions this legislative session relating to various provisions in state traffic laws. This Ordinance, which was unanimously adopted on First Reading on July 18, 2006, ensures that the Traffic Code is consistent with state traffic laws. 11. Second Reading of Ordinance No. 110 2006 Calling a Special Municipal Election to Be Held in Coni unction with the November 7 2006 Larimer County General Election This Ordinance, unanimously adopted on First Reading on July 18, 2006, calls a Special Municipal Election to be held in conjunction with the November 7, 2006 Larimer County General Election, and preserves the opportunity for Council to place initiated or referred issues on the November ballot. 172 August 15, 2006 12. Second Reading of Ordinance No. 111. 2006, Authorizine the Conveyance of a Permanent Non-exclusive Underground Utility Easement and Multiple Temporary Construction Easements on City Property to the Boxelder Sanitation District for the Pumose of Extending Regional Sanitary Sewer. The Boxelder Sanitation District is extending a regional sanitary sewer line to the east of its current plant at the confluence of Boxelder Creek and the Cache La Poudre River. The sanitary sewer will provide service to areas designated within the District's service area to the east of I-25. Ordinance No. 111, 2006, unanimously adopted on First Reading on July 18, 2006, authorizes the conveyance to the District of a permanent non-exclusive utility easement and a temporary construction easement on a City -owned property that is part of the Timnath Community Separator and a number of temporary easements on former Resource Recovery Farm property and Archery Range Natural Area, all for the regional sewer line project. 13. Second Reading of Ordinance No. 112, 2006 Authorizing the Conveyance of a Temporary Construction Easement over City Prop=to the Boxelder Sanitation District for the Purpose of Extendin¢ Sanitary Sewer. This Ordinance, unanimously adopted on First Reading on July 18, 2006, authorizes a temporary construction easement along the western edge of the Vangbo property, a 2005 Natural Resources Timnath Community Separator purchase, east of the Boxelder Plant across I-25, for the construction of a sanitary sewer line on the east side of I-25 by the Boxelder Sanitation District. 14. Second Reading of Ordinance No. 113, 2006, Authorizing the Conveyance of a Permanent Drainage Easement on Pelican Marsh Natural Area for the Provincetowne Third Filing Development. This Ordinance, which was unanimously adopted on First Reading on July 18, 2006, authorizes apermanent, non-exclusive drainage easement on the Pelican Marsh Natural Area to the Provincetowne Third Filing Development. 15. Second Reading of Ordinance No.114,2006 Designating the Reinholt/Mitchell House509 East Myrtle Street, as a Fort Collins Landmark Pursuant to Chanter 14 of the City Code Ordinance No. 114, 2006, which was unanimously adopted on First Reading on July 18, 2006, designates the Reinholt/Mitchell House as a Fort Collins Landmark. The owner of the property, Robert Mitchell, is initiating this request. 16. Second Reading of Ordinance No. 115 2006 Amending Section 4 21(b)(2)© of the Land Use Code to Add Two Permitted Uses to the H-C Harmony Corridor Zone District This Ordinance, unanimously adopted on First Reading on July 18, 2006, makes two Text Amendments to the Land Use Code to add Small Animal Hospitals and Indoor Kennels as 173 August 15, 2006 permitted uses in the Harmony Corridor Zone District. The proposal to add Indoor Kennels would be conditioned such that there must be an association with either a Small Animal Veterinary Clinic or Small Animal Veterinary Hospital. Both new uses are proposed as being subject to Administrative Review (Type One). 17. Second Readins of Ordinance No. 116, 2006 Vacating an Alley Right-of-way on Block 33 Established as Part of the 1873 Man of the Town of Fort Collins This Ordinance, unanimously adopted on First Reading on July 18, 2006, authorizes the vacation of an alley right-of-way located north of Maple Street, west of North Mason Street, in Block 33. A pedestrian spine linear park is proposed through the middle of the block where the right-of-way is located. The right-of-way is no longer needed, but access, drainage, and utility easement will be retained. 18. Items Relating to Block 33, Fort Collins. Colorado A. Second Reading of Ordinance No. 117, 2006, Authorizing the Sale of City -owned Property Consisting of the Vacated Alley Right -of -Way on Block 33, Fort Collins, Colorado to Penny Flats, LLC. B. Second Reading of Ordinance No. 118, 2006, Authorizing the Conveyance of Non - Exclusive Public Access, Drainage, Utility and Maintenance Easement to Penny Flats, LLC. C. Second Reading of Ordinance No. 119, 2006, Authorizing the Conveyance of a Temporary Construction Easement over Portions of Block 33 to Penny Flats, LLC. In July 2004, the City Council adopted Resolution 2004-081, setting out a process for selling portions of Block 33 to a private developer. A developer was selected and on July 19, 2005, City Council approved Ordinance No. 077, 2005, which authorized the sale, in phases, of a portion of Block 33 to Penny Flats, LLC. The proposed development is a mixed use project having approximately 150 dwelling units with approximately 30,000 square feet of commercial space. The Option Agreement for Purchase and Sale of Real Property was entered into on February 24, 2006. This Agreement has the property being conveyed in three parcels, with the first portion to be conveyed 30 days following final approval of the PDP process for the development, which is expected this fall. During the negotiations and planning of this project, a few items were identified that needed further Council approval. These Ordinances, unanimously adopted on First Reading on July 18, 2006, approve these items. 174 August 15, 2006 19. First Reading of Ordinance No. 120, 2006 Appropriating Unanticipated Grant Revenue in the General Fund for the Poudre Valley Health System Choose the Right Road Driving Program. Poudre Valley Health System ("PVHS") developed a comprehensive prevention program called "Choose the Right Road" to minimize the number of individuals who drive while intoxicated. Choose the Right Road collaborates with local government, businesses, law enforcement, health care providers, Colorado State University, Poudre School District and other community sectors to reduce the number of individuals who drive intoxicated. The program uses many strategies to decrease the number of people who drive intoxicated, such as public education and dissemination of information about hazards of driving while intoxicated to youth in the community. A listing of strategies and the program budget are attached. The State of Colorado and the Alcohol and Drug Division of the Colorado Department of Human Services require that the grant funds be dispersed to a "local public procurement unit." A "local public procurement unit' means any county, city, municipality, or other public subdivision of the state, any public agency of any such political subdivision, any public authority, any education, health or other institution, and to the extent provided by law, any other entity which expends public funds for the procurement of supplies, services and construction. PVHS requested that the City serve as the local public procurement unit and a pass -through recipient of the grant proceeds. This Ordinance will allow the City to disburse the grant funds to PVHS (via the Hospital Foundation) upon completion of any grant -related documents and a subgrant agreement between the City and PVHS. 20. First Reading of Ordinance No. 121 2006 Appropriating Unanticipated Grant Revenue in the General Fund for the Latimer County Drug Task Force The Larimer County Drug Task Force ("Task Force") includes Fort Collins Police Services, Loveland Police Department, Larimer County Sheriff's Department, Drug Enforcement Administration, and the Colorado State University Police Department. Fort Collins Police Services applied to the Office of National Drug Control Policy on behalf of the Task Force for federal grant monies to help fund the investigation of illegal narcotics activities in Larimer County. The City has recently received notification of the grant award in the amount of $55,320. These funds will be used to help offset the overtime costs of each participating agency. This appropriation is not a request to identifynew dollars for the Fort Collins Police Services 2006 budget. This action appropriates the $55,320 in new federal grant money. As the administrator of this grant, Fort Collins Police Services will ensure participating agencies receive their share of the funds. 175 August 15, 2006 21. First Reading of Ordinance No. 122, 2006, Amendine Article III of Chanter 12 of the Code of the City of Fort Collins to Conform to the Colorado Clean Indoor Air Act and to Clarify Certain Provisions. Certain exceptions to the smoking restrictions found in the City Code are inconsistent with the requirements of the Colorado Clean Indoor Air Act, which was enacted in 2006. The Ordinance eliminates those exceptions. In addition, the Ordinance amends the restriction on placement of ashtrays in nonsmoking areas to allow ashtrays in the 20-foot exterior perimeter of a nonsmoking area where physical constraints make placement of ashtrays difficult. The Ordinance also adds to the City Code additional provisions regarding private nursing home rooms and the definition and operation of a "retail tobacco store". 22. First Readins of Ordinance No. 123 , 2006, Extending the Contract for Advertising on Exterior and Interior of Buses for Up to Five Additional Years The existing Agreement with Outdoor Promotions, Inc. expires on September 30, 2006. This five-year Agreement was entered into on September 18, 2001, after being awarded through Request for Proposals #P792. The contract allows for another five (5) year extension upon approval by the City Council. Outdoor Promotions also has a twenty (20) year contract with the City to provide bus bench and shelter advertising. Outdoor Promotions has developed business relationships with individuals and businesses who advertise on both the City buses and on the benches and shelters. It would be beneficial to the City to extend this contract for an additional five (5) years and take advantage of the synergy created by having one firm offering a variety of ways to advertise on the bus system. 23. Items Relating to the Sale of Certain Natural Areas Lands A. First Reading of Ordinance No. 124, 2006, Authorizing the Conveyance in Fee of the Vangbo Natural Areas Property Subject to a Conservation Easement for the Benefit of the City of Fort Collins and the Natural Areas Program. B. First Reading of Ordinance No. 125, 2006, Authorizing the Sale of Lots 1, 2 and 3 of the Amended Hersh Minor Residential Development for the Benefit of the City of Fort Collins and the Natural Areas Program. The first sale authorization and approval is for three thirty-five acre parcels from the 105 acre Vangbo property purchased in August 2005. The property is located in the Timnath Community Separator area along the I-25 frontage, and was purchased from a willing out-of- state seller who was not interested in selling a conservation easement to the City. The property was purchased in fee, with the intent of resale of the property, subject to conservation easements granted to the City which will restrict development of each parcel to a specific building envelope for the purpose of conserving open space in the Timmath Community Separator. Each tract will be subject to conservation easements, which will 176 August 15, 2006 restrict any development which could be allowed under Larimer County zoning to a specific building envelope. The second sale transaction is for the resale of three reconfigured lots and one residence and a portion of the water rights from the 42.685 acre Hersh Property purchased in 2002 by the City for the Natural Areas Program, with the intent to re -cluster and reconfigure the lots to sell for residential purposes. The original purchase was made in order to preserve and increase the acreage (approximately 34.4 acres) of the Cathy Fromme Prairie Natural Area. 24. First Reading of Ordinance No. 126. 2006, Authorizing the Conveyance of a Telephone Cable Ri t-of-WUEasement toQwest CorporationonCathyFrommePrairieNaturalArea. Presently, there is an existing telephone cable running along the north edge ofCathy Fromme Prairie where it abuts Taft Canyon Subdivision to the north. The cable runs from the right- of-way of South Taft Hill Road westerly just south of the northern boundary line of Cathy Fromme Prairie approximately 2,691.07 feet to the western boundary line of that Natural Area. The cable was installed by Qwest at some time shortly after the Second Replat of Taft Canyon PUD was approved in March, 1987, in a trench prepared for the cable by the developer(s) of Taft Canyon Subdivision. Qwest acknowledges that the cable was put in by Qwest and that Qwest is presently using that cable for telephone service. Staff has proposed that the City convey a perpetual, nonexclusive easement for the Qwest telephone cable subject to the following restrictions and limitations on that telephone easement: The easement shall be for operation, repair and maintenance of the existing cable only; 2. No new cable or additional cable, of any size, or any replacement cable of any size or type, shall be installed in the easement area; and 3. Any action by Qwest other than repair or maintenance of the existing cable will require Qwest to seek appropriate written approval and/or authorization from the City. 25. Resolution 2006-069 Authorizing the City Manager to Execute a Capital Funding Grant Agreement with the Federal Aviation Administration for Improvements to Existing Facilities at the Fort Collins -Loveland Airport. The Airport is programmed each year to receive FAA Entitlement Funds in the amount of $1,000,000 as a result of enplaning at least 10,000 passengers per calendar year. In addition, the FAA has programmed Discretionary Funds to help the Airport repair badly deteriorated pavements and lighting equipment. The amount of the Grant is $4,627,500 and combines the Entitlement and Discretionary Funds. The Grant Agreement is on file with the City Clerk's office. 177 August 15, 2006 26. Resolution 2006-080 Reestablishing a Telephone Exchange Access Facility Charge and a Wireless Communications Access Charge for the Larimer Emergency Telephone Authority Effective January 1, 2007. The Larimer Emergency Telephone Authority (LETA) was created in 1990 pursuant to C.R.S. Section 29-11-101, et. seq., by an intergovernmental agreement between the City of Fort Collins and nineteen other governmental entities in Larimer County. The telephone exchange access facility charge of fifty cents ($.50) per month became effective January 1, 1991, by approval of the Fort Collins City Council. This fee remained the same each year by annual approval of the LETA Board, until 1998 when the LETA Board decreased the feeby 10%to the current forty-five cents ($.45). The wireless communications access charge was first established at forty-five cents ($.45) commencing on April 1, 1998. The LETA Board has approved a telephone exchange access facility charge and a wireless communications access charge effective January 1, 2007, each at the rate of forty-five cents ($.45) per month. These surcharges to telephone subscribers are necessary to continue to adequately fund the Emergency 911 telephone service in the City of Fort Collins through 2007. By approving this Resolution, the Council will authorize telephone and wireless telephone service providers to collect the telephone exchange access facility charge and wireless communications access charge. 27. Resolution 2006-081 Authorizing a Grant Contract with the Colorado Council on the Arts for FundinQ for the Youth Pottery Program. The City Recreation Division was recently awarded a matching grant from the Colorado Council on the Arts in the amount of $7,030. This amount represents the difference between expenses directly attributed to the Youth Pottery Program and program revenues during the fiscal year, July 1, 2006 - June 30, 2007. The Colorado Council on the Arts requires that the City Council obligate the local funding match, and authorize the execution of the grant contract. 28. Resolution 2006-082 Authorizing the Mayor to Enter into an Intereovernmental Agreement with the Fort Collins Urban Renewal Authority. On February 21, 2006, the Board of Commissioners of the Urban Renewal Authority passed and adopted a resolution establishing an Ad Hoc Committee. The purpose of this Committee was to formulate recommendations to the Board generally regarding administration of the Authority. A report and recommendations of the Committee was submitted to the full Board on May 22, 2006. One of the recommendations was that a formal general "umbrella" IGA be entered into and between the City and the URA governing various topics. On June 27, 2006, 178 August 15, 2006 the Board held a work session on the Report and directed staff to prepare an Agreement. The IGA addresses several issues including, but not limited to, the City's responsibility to provide staff and other services necessary for the administration of the URA, and the URA compensating the City for such services at such time as the URA has sufficient funding sources; and, collection and disbursement of sales and property tax increment. 29. Resolution 2006-083 Approving the Downtown Development Authority's Call for a Special Election to be Held in Conjunction with the Latimer County General Election on November 7, 2006, for the Purpose of Submitting a Proposed Ballot Measure to the Qualified Electors of the Downtown Development Authority District. The Downtown Development Authority's original bond ceiling, established in 1982, was set at $25 million. The Authority is within $3 million of hitting that ceiling and is seeking authorization from qualified electors within the district to increase that ceiling by $150 million. Projections of tax increment collections between now and 2011 when the DDA tax increment district is scheduled to sunset reflect that roughly $15 million in additional project funding will be left unused because of the current bond cap of $25 million. City Council is being asked to approve a special election called by the DDA Board to ask voters to authorize the proposed new bond ceiling. Changing the bond ceiling has no impact on property tax obligations of those properties within the DDA district. Nor does it change the method by which bonds are issued. The procedure will still be, first, approval by the DDA Board of expenditures for projects and second, submittal of those Board -approved projects for approval by City Council and authorization by City Council to issue bonds to cover those expenditures. The $150 million bond ceiling does not mean bonds will ever be issued in that amount. Typically, the DDA Board will approve a series of projects with an aggregate amount somewhere between one and ten million dollars. That group of projects would then go to City Council for its approval and its authorization for the issuance of bonds. The current bond ceiling of $25 million that was established in 1982 is about $78 million in 2006 dollars. Therefore, the proposed $150 million ceiling is a little less than twice the current bond ceiling. Approval by the voters of this new ceiling will be carried over to any extensions of the existing tax increment district or to the creation of a new district in 2011. 30. Resolution 2006-084 Desianating the City Manager as Representative of the Municipal Corporation for the Purpose of Casting the Ballot of the City with Regard to a Downtown Development Authority Ballot Measure. This Resolution designates City Manager Darin Atteberry as the City's representative for the purpose of casting the City's ballot with regard to the Downtown Development Authority question on the November 7, 2006 ballot. 179 August 15, 2006 31. Resolution 2006-085 Conceming Senate Bill 06-090 Regarding Cooperation with Federal Officials on Immigration Matters. This past legislative session, the General Assembly enacted SB 06-090, creating Article 29 of the Colorado Revised Statutes pertaining to immigration status and local government cooperation with federal officials. The new law requires that Council provide written notice to peace officers of the duty to cooperate with federal and state officials regarding immigration enforcement and provide confirmation to the General Assembly that Council has done so. Further, the law requires the local governing body to provide an annual report to the General Assembly regarding the number ofpersons referred to the federal Immigration and Customs Enforcement Office pursuant to the new law. The penalty for non-compliance with the statutory requirements is that the City would be ineligible for grants administered by the Department of Local Affairs. 32. Resolution 2006-086 Approving an Intergovernmental Agreement with the Colorado Department of Transportation Providing for the Operation and Maintenance of Traffic Signals, Crosswalks, Stopbars. Sighs and Pavement Markings. The State of Colorado currently reimburses the City of Fort Collins for the operation and maintenance of46 traffic signals and 11.6 miles of signs and markings. The contract amount has been increased this year from $142,104 to $193,440 annually. During the five year period, traffic signals and lane miles can be added to the contract by submitting a Bilateral Change Order. For the efficiency of travel flow and the safety and convenience of the public, the City ofFort Collins maintains and operates CDOT's traffic signals within the Urban Growth Area. The traffic signals are connected to the City's Advanced Traffic Management System. A review of the costs has shown that the reimbursement rate from CDOT is consistent with our costs. This is a standard contract and payment schedule that CDOT has with all municipalities in Colorado. 33. Resolution 2006-087Authorizing the Lease of City -Owned Property at 906 East Stuart Street for Up to Two Years. The property at 906 East Stuart was acquired by the City of Fort Collins in 1985 for use by the Sunshine School to offer child care services. Community Development Block Grant Funding ("CDBG") was used to purchase the property. All Tenants of this facility must meet the criteria of the national CDBG objective by serving a majority (51% or more) of low - moderate income clients below 80% ofArea Median hncome (AMI). Sunshine School closed its doors in 2005. Through the City's Purchasing Department, a Request for Proposals ("RFP"), Proposal Number P1026, was distributed in the summer of 2006, looking for qualified non-profit tenants. Staff received proposals from River Song Waldorf School and The Family Center. The selection committee selected River Song Waldorf School as the qualified tenant. lCul August 15, 2006 The proposal from River Song Waldorf School is to operate a year-round early childhood program, and other associated uses, for pre -kindergarten children. Since this site has historically been used as a child care center, the use is permitted in the LMN zoning district. River Song Waldorf School meets all requirements of the RFP and will be beneficial to the community. Staff recommends Council authorize the City Manager to enter into a Lease Agreement with River Song Waldorf School. 34. Resolution 2006-088 Authorizine a Revocable Permit to the Fort Collins Fire Museum Foundation for Access to City -Owned Property at 330 North Howes Street for up to Two Years. The property at 330 North Howes Street (the "Car Barn") currently houses Poudre Fire Authority ("PFA") and City Museum antique fire fighting equipment. The Fort Collins Fire Museum Foundation, a non-profit organization created by former Fire Chief Ed Yonker for the purpose of restoring the City's and PFA's fire equipment, desires access to the Car Barn in order to perform the organization's restoration work, which shall be done off the premises. 35. Resolution 2006-089 Appointing a Representative to the Larimer County Open Lands Advisory Board. This Resolution reappoints Councilmember Ben Manvel as the City's representative on the Larimer County Open Lands Advisory Board. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. Second Reading of Ordinance No. 105, 2006, Appropriating Unanticipated Developer Contributions in the General Fund for Affordable Housing. 8. Second Reading of Ordinance No. 106, 2006, Appropriating Unanticipated Revenue in the General Fund for the Development of the North Fort Collins Business Association Action Plan. 9. Second Reading of Ordinance No. 107, 2006, Authorizing the Transfer of Appropriations Between the Building Community Choices - Taft Hill Road Improvements, Drake Road to Derby Court Project and the Building Community Choices - Prospect Road Improvements, Poudre River to Summitview Drive Project to Be Used for the Riverbend Ponds Berm Stabilization Work. 10. Second Reading of Ordinance No. 109, 2006, Amending Various Provisions of the Fort Collins Traffic Code. 11. Second Reading of Ordinance No. 110, 2006, Calling a Special Municipal Election to Be Held in Conjunction with the November 7, 2006 Latimer County General Election. 181 August 15, 2006 12. Second Reading of Ordinance No. 111, 2006, Authorizing the Conveyance of a Permanent, Non-exclusive Underground Utility Easement and Multiple Temporary Construction Easements on City Property to the Boxelder Sanitation District for the Purpose of Extending Regional Sanitary Sewer. 13. Second Reading of Ordinance No. 112, 2006, Authorizing the Conveyance of a Temporary Construction Easement over City Propertyto the Boxelder Sanitation District for the Purpose of Extending Sanitary Sewer. 14. Second Reading of Ordinance No. 113, 2006, Authorizing the Conveyance of a Permanent Drainage Easement on Pelican Marsh Natural Area for the Provincetowne Third Filing Development. 15. Second Reading of Ordinance No. 114, 2006, Designating the Reinholt/Mitchell House, 509 East Myrtle Street, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code, 16. Second Reading of Ordinance No. 115, 2006, Amending Section 4.21(b)(2)© of the Land Use Code to Add Two Permitted Uses to the H-C, Harmony Corridor Zone District. 17. Second Reading of Ordinance No. 116, 2006, Vacating an Alley Right-of-way on Block 33 Established as Part of the 1873 Map of the Town of Fort Collins. 18. Items Relating to Block 33, Fort Collins, Colorado. A. Second Reading of Ordinance No. 117, 2006, Authorizing the Sale of City -owned Property Consisting of the Vacated Alley Right -of -Way on Block 33, Fort Collins, Colorado to Penny Flats, LLC. B. Second Reading of Ordinance No. 118, 2006, Authorizing the Conveyance of a Non - Exclusive Public Access, Drainage, Utility and Maintenance Easement to Penny Flats, LLC. C. Second Reading of Ordinance No. 119, 2006, Authorizing the Conveyance of a Temporary Construction Easement over Portions of Block 33 to Penny Flats, LLC. Ordinances on First Reading were read by title by City Clerk Krajicek. 19. First Reading of Ordinance No. 120, 2006, Appropriating Unanticipated Grant Revenue in the General Fund for the Poudre Valley Health System Choose the Right Road Driving Program. 20. First Reading of Ordinance No. 121, 2006, Appropriating Unanticipated Grant Revenue in the General Fund for the Larimer County Drug Task Force. 182 August 15, 2006 21. First Reading of Ordinance No. 122, 2006, Amending Article III of Chapter 12 of the Code of the City of Fort Collins to Conform to the Colorado Clean Indoor Air Act, and to Clarify Certain Provisions. 22. First Reading of Ordinance No. 123 , 2006, Extending the Contract for Advertising on Exterior and Interior of Buses for Up to Five Additional Years. 23. Items Relating to the Sale of Certain Natural Areas Lands. B. First Reading of Ordinance No. 125, 2006, Authorizing the Sale of Lots 1, 2 and 3 of the Amended Hersh Minor Residential Development for the Benefit of the City of Fort Collins and the Natural Areas Program. Councilmember Roy made a motion, seconded by Councilmember Weitkunat, to adopt and approve all items not withdrawn from the Consent Calendar. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Consent Calendar Follow-up Mayor Hutchinson commented on item #25 Resolution 2006-069 Authorizing the City Manager to Execute a Capital Funding Grant Agreement with the Federal Aviation Administration for Improvements to Existing Facilities at the Fort Collins -Loveland Airport. Councilmember Kastein commented on item #31 Resolution 2006-085 Concerning Senate Bill 06- 090 Regarding Cooperation with Federal Officials on Immigration Matters. He asked that staff follow-up on whether arrests or law enforcement operations would now be handled differently as a result of the new State mandate. City Manager Atteberry stated there would be an impact and that he would prepare a written follow-up. City Attorney Roy stated staff had been working to develop policies and procedures to implement the new State law. Councilmember Manvel commented on item #33 Resolution 2006-087Authorizing the Lease ofCity- Owned Property at 906 East Stuart Street for Up to Two Years. Staff Reports City Manager Atteberry reported that, as authorized by Council, he had made appointments to the Annexation Transition Committee for the Southwest Enclave Annexation. He gave the names of the appointees and stated by law the appointees were City and County staff members and citizens. The first committee meeting was scheduled for August 21 at City Hall. He also reported on the "Great Sofa Round -Up" on July 28 and 29. 600 unwanted sofas were collected (200 more than last year) and more than half of the sofas were given new homes. 300 sofas were therefore diverted from the landfill, alleys and backyards, etc. He recognized and thanked those involved in making the round -up a success. 183 August 15, 2006 Mayor Hutchinson noted the Annexation Transition Committee was formed ahead of the required deadline. Councilmember Reports Councilmember Weitkunat reported on the Poudre School District/City/County liaison meeting discussions relating to the School District's efforts to build new energy efficient schools; partnerships among the School District, City and County to become more efficient in sharing tax dollars; fees in lieu of land for the School District; and the transportation maintenance fee. Resolution 2006-083 Approving the Downtown Development Authority's Call for a Special Election to be Held in Conjunction with the Larimer County General Election on November 7, 2006, for the Purpose of Submitting a Proposed Ballot Measure to the Qualified Electors of the Downtown Development Authority District. Adopted. The following is staff s memorandum on the item. "EXECUTIVE SUMMARY The Downtown Development Authority's original bond ceiling, established in 1982, was set at $25 million. The Authority is within $3 million of hitting that ceiling and is seeking authorization from qualified electors within the district to increase that ceiling by $150 million. Projections of tax increment collections between now and 2011 when the DDA tax increment district is scheduled to sunset reflect that roughly $15 million in additional project funding will be left unused because of the current bond cap of $25 million. City Council is being asked to approve a special election called by the DDA Board to ask voters to authorize the proposed new bond ceiling. Changing the bond ceiling has no impact on property tax obligations of those properties within the DDA district. Nor does it change the method by which bonds are issued. The procedure will still be, first, approval by the DDA Board of expenditures for projects and second, submittal of those Board -approved projects for approval by City Council and authorization by City Council to issue bonds to cover those expenditures. The $150 million bond ceiling does not mean bonds will ever be issued in that amount. Typically, the DDA Board will approve a series ofprojects with an aggregate amount somewhere between one and ten million dollars. That group ofprojects would then go to City Council for its approval and its authorization for the issuance of bonds. The current bond ceiling of $25 million that was established in 1982 is about $78 million in 2006 dollars. Therefore, the proposed $150 million ceiling is a little less than twice the current bond ceiling. Approval by the voters of this new ceiling will be carried over to any extensions of the existing tax increment district or to the creation of a new district in 2011. " m August 15, 2006 Councilmember Ohlson stated he had a perceived conflict of interest on this item and would withdraw from discussion and voting on the Resolution. ("Secretary's Note: Councilmember Ohlson left the room at this point.) City Manager Atteberry stated staff was available to answer questions. Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to adopt Resolution 2006-083. Councilmember Weitkunat requested clarification for the viewing audience about the election and who would be allowed to vote. Chip Steiner, DDA Executive Director, stated qualified electors in the DDA election were business owners and principals, property owners and residents. Each voter would be required to sign an affidavit stating he or she is a qualified elector. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Roy and Weitkunat. Nays: None. (Councilmember Ohlson withdrawn) THE MOTION CARRIED. Resolution 2006-084 Designating the City Manager as Representative of the Municipal Corporation for the Purpose of Casting the Ballot of the City with Renard to a Downtown Development Authority Ballot Measure Adopted The following is staffs memorandum on the item. "EXECUTIVE SUMMARY This Resolution designates City Manager Darin Atteberry as the City's representative for the purpose of casting the City's ballot with regard to the Downtown Development Authority question on the November 7, 2006 ballot. BACKGROUND At its July 6, 2006 meeting, the Downtown Development Authority adopted a resolution calling a special election on November 7, 2006for the purpose ofsubmitting to the qualified electors of the Downtown DevelopmentAuthority (DDA) a ballot question authorizing the issuance of bonds by the City of Fort Collins to finance development projects pursuant to the DDA's Plan of Development. Pursuant to C.R.S. 31-25-807(3)(b), the City Council has, this same date, approved the election and submitted the question to the qualified electors of the DDA. The City of Fort Collins is a qualified elector because it owns land within the DDA boundaries. Because the municipal corporation is not a natural person, a vote may be cast by the City only if the 185 August 15, 2006 City designates a representative to cast its ballot. This Resolution designates City Manager Darin Atteberry as the City's representative and authorizes and directs the City Manager to cast a ballot in favor of the DDA question on November 7, 2006 " Councilmember Roy asked if there were other entities similar to the City that would designate a representative to vote on behalf of the entity. City Manager Atteberry replied in the affirmative. Councilmember Roy stated he would like to know the number of entities that would be in the same situation. City Clerk Krajicek stated staff would provide information regarding the entities that would have to designate a representative to vote. Councilmember Kastein asked why the members of the District vote to decide to keep tax money that would otherwise flow outside of the District to other entities. City Attorney Roy stated the voters would be casting ballots to approve a new bond ceiling for the issuance of bonds by the City. Those bonds would be paid solely by tax revenues generated by a tax imposed within the District. A TABOR election was required and the electorate was limited to the taxpayers within the District. Councilmember Kastein asked for further clarification about the tax increment. City Attorney Roy stated the tax increment had a life of 30 years and the revenue stream would continue, while the bond ceiling previously approved by the voters did not allow for the payment of the anticipated revenues. If there was a new plan of development that authorized a division of taxes for another 30 years, this would provide enough room for the issuance of additional bonds to fund additional improvements using additional tax revenues. Councilmember Kastein stated he would have follow-up questions for staff and his questions had no bearing on adoption of the Resolution. Chip Steiner, DDA Executive Director, stated each entity would have one vote and he did not know how many corporations there were in the central business district that would have to designate a voting representative. Literature was being sent out to all property owners, tenants and business spelling out the voting procedure. Councilmember Roy stated he would like a better picture of the voters. Steiner stated staff had assembled a comprehensive list of potential voters and would provide the information to the Council. Councilmember Roy made a motion, seconded by Councilmember Brown, to adopt Resolution 2006- 084. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Roy and Weitkunat. Nays: None. (Councilmember Ohlson withdrawn) THE MOTION CARRIED. ("Secretary's Note: Councilmember Ohlson returned to the meeting at this point.) August 15, 2006 Resolution 2006-090 Submitting to the Registered Electors of the City at a Special City Election to Be Held on November 7, 2006, the Question of Whether Citizen -initiated Ordinance No. 142, 1999, Pertaining to the Relocation of the Colorado Hiehwav 14 Truck Route Should Be Repealed Adopted The following is staffs memorandum on this item. "FINANCL4L IMPACT Approximately $1.8 million dollars remain in this project fund following Phases I and 17 of the Northern Colorado Truck Mobility Study (2001, 2004). If voters choose to repeal Citizen -Initiated Ordinance No. 142, 1999, these funds can be directed to other immediate transportation infrastructure needs in northeast Fort Collins. Failure to repeal the Ordinance will hold these remaining dollars until such time as the City further pursues steps necessaryfor the relocation of State Highway 14 ("Truck Bypass') per the mandates contained within citizen -initiated Ordinance No. 142, 1999. EXECUTIVE SUMMARY At the May 23rd work session, Council directed staff to bring forward a Resolution placing the repeal of Citizen -Initiated Ordinance No. 142, 1999 and the subsequent release of any remaining project funds for other transportation uses on the November 2006 City Election Ballot. Following completion ofPhase Hof the Northern Colorado Truck Mobility Study (Non -Route Based Strategies), City Council was presented with several options as how best to proceed with the "Truck Bypass " issue. Feedback received from Lorimer County Commissioners, as well as the Colorado Department of Transportation, indicated that there was little interest in their participation of any joint effort to identify, fund and construct a new route to alleviate truck traffic on Mulberry, Riverside and Jefferson Streets (SH-14), unless all potential routes could be considered. This is currently prohibited by language contained within the 1999 Ordinance. Next steps included making certain that the project was included in the 2030 Regional Transportation Plan so as to be eligible for possible future Federal/State funding. The project will be prioritized against other regional transportation needs and available funding supplies. CDOT officials estimate that even if the "Truck Bypass" project rose to a level of regional significance warranting the National Environmental Policy Act (NEPA) process and analysis, it would be at least ten years before such a study could be undertaken. Given the economic situation the City of Fort Collins currently faces in regards to transportation funding, Council felt it inappropriate to hold the remaining project funds (est. $1.8M) for such an extended length oftime. Ifcitizen-initiated Ordinance No. 142, 1999 is repealed, these dollars could be spent now for more immediate transportation needs that would benefit the northeast area ofFort Collins. When warranted, Fort Collins would still participate in afuture NEPA analysis with CDOT and other key regionalstakeholders. Repeal ofcitizen-initiatedOrdinance No. 142, 1999 would also bring Larimer County and CDOT more willingly to participate in the analysis of a preferred route 187 August 15, 2006 for the "Truck Bypass. " BACKGROUND Since the 1960's, the Fort Collins community has struggled with truck traffic in its downtown area on SH 14 (Mulberry/Jefferson/Riverside) and US 287 (North College Avenue). While an important truck route for servicing local and regional business and industry, it is also used by many truck drivers traveling through Fort Collins en route to Laramie or to Denver. Many studies have been undertaken over the years to identify, fund, and construct an alternate route or strategy that would move or reduce truck traffic off of the current corridor to a more preferable, less intense location. City Transportation Staff recommendations of the 1999 Northeast Truck Route Study included moving SH-14 to a new realigned route based on Vine Drive. This recommendation was not approved (4-3) by the City Council seated at that time. A group ofLarimer County and Fort Collins citizens concerned with this issue placed an initiative on the November 1999 ballot, and it was passed (Ordinance No. 142, 1999). This Ordinance mandated that the City stop examiningpossible alternative routes within the City Growth Management Area (GMA) boundary and further directed that any future route be located a minimum of two miles north of the GMA boundary (approximately LCR-58). It also directed the City to examine strategies to encourage non -local through truck traffic to use the1-2511--80 route currentlyfavored by many drivers. Finally, it directed the City to examine possible funding scenarios and sources for an alternate route. Phase I of the Northern Colorado Truck Mobility Study (2001) examined potential routes as prescribed in Ordinance No. 142, 1999. Several routes were identified as candidates should the project make the next step in the planning process, a National Environmental Policy Act (NEPA) analysis. Several candidate "non -route -based strategies " (NRBS) were also examinedforpotential use in redirecting through truck traffic. Phase II of the Northern Colorado Truck Mobility Study (2006) developed and implemented a one year pilot program of education, marketing and outreach strategies to test the effectiveness of the NRBS as mandated by Ordinance No. 142, 1999. Due to nominal positive results, Council directed staff to cease further NRBS efforts. The next step in the planning process to relocate SH 14 is to conduct a NEPA analysis (necessary to receive any potential federal funding). To be eligible for NEPA, the project must be placed on the North Front Range Regional Transportation Plan (RTP) and must rise to a high prioritization level that identifies funding streams and construction time frames. The likelihood is that a NEPA analysis would not be considered by the Colorado Department of Transportation (CDOT) and Federal Highway Administration (FHWA) for as long as ten or more years. Rather than hold remaining project funds for this extended period of time, Council directed staff on May 23d to develop ballot language that would repeal Ordinance No. 142, 1999 and release any remaining project funds (estimated at $1.8 million dollars) for other immediate transportation infrastructure needs in the northeast portion of Fort Collins. " City Manager Atteberry introduced the agenda item. Mark Jackson, Transportation Services, presented background information relating to the agenda item. He stated City Council had directed staff to bring forward this Resolution placing the repeal W. August 15, 2006 of citizen -initiated Ordinance No. 142,1999, and the release of any remaining project funds for other transportation project use on the ballot for November 7. This had been a community issue for over 35 years. In 1999, voters approved a citizen initiative that stopped the City from looking at any truck bypass routes within the Growth Management Area and mandated that any possible route must be located a minimum of two miles north of the Growth Management Area boundary. The initiative mandated that staff study any methods to encourage through truck traffic to use 1-25 and 1-80 rather than State Highway 14 and US 287. The initiative also directed City staff to examine various funding scenarios and to work with Latimer County and CDOT, as well any other relevant agencies. The first phase of the Northern Colorado Truck Mobility Study was completed in 2001 in direct response to the initiative. The study examined potential routes north of the Growth Management Area, analyzed current and forecasted truck movements, evaluated potential non -route -based strategies to encourage trucks to use the Interstate corridors, examined funding sources, and recommended the next steps. He presented visual information showing a graphic of the routes that were recommended for consideration during the next phase ofplanning (the NEPA phase). This was a controversial project on many fronts, including resistance from Larimer County residents north of Fort Collins. The County Commissioners decided not to participate in further efforts until all possible routes could be examined. CDOT stated it was not interested in participating until the City and Larimer County agreed to make this a regional priority. In 2001, Council adopted the report recommendations and directed staff to meet regularly with Larimer County to determine the County's willingness to participate in discussions and to implement the non -route -based strategies to determine their effectiveness. The non -route -based strategies were tried for one year and were not successful. Staff asked Council for direction in the summer of 2006 and Council directed staff to discontinue the program. The multi -jurisdictional efforts to address the issue had been collaborative in nature. Staff contacted CDOT and the Larimer County Commissioners to determine if the issue could be brought forward and both entities would not participate until all potential routes could be on the table. Relocation of Highway 14 was listed on the 2030 Regional Transportation Plan for the North Front Range. Before the bypass could move forward it may also need to be on the Regional Plan for Upper Front Range Planning Council. The project would compete against many regional transportation issues and would have to be assigned a high priority by the City and the County to compete well. The NEPA analysis could take as long as 10 years and the funding process would also be lengthy. The project could not move forward until all potential routes were on the table and funds were tied up for many years because of the citizen initiative. There were arguments that the initiative did not preclude a NEPA study and the City should work with the County on a bypass on one of the routes that had been recommended. The project would not move forward until the City and the County could agree on the routes to be studied. Agreement appeared to be impossible because the citizen initiative prohibited the City from considering certain routes. Other options included holding the remaining funds until the project might rise on the regional priority list without the combined efforts of the City and Council; a continuation of the dialogue with Larimer County; reassignment of local project priorities by the City; and obtaining non-federal funding sources. There was approximately $1.8 million remaining in the project budget. There had been suggestions that the City could proactively purchase right-of-way on possible routes and staff believed this would be "risky." On May 23rd, Council directed staff to bring this Resolution forward for consideration to allow the funds to be released for transportation infrastructure projects in the northeast quadrant. Mayor Hutchinson stated each audience participant would have three minutes to speak. 9M August IS, 2006 Bob Zimdahl, 1210 East County Road 68A, Waverly Community Group chairman, stated the group completed two surveys and in both cases the results indicated that the truck bypass was a major concern. He stated the Waverly area residents would not be able to vote on a City measure and the residents wanted a voice in this issue. Judy Sorbie Dunn, 1405 Lindenwood Drive, stated the Hispanic community, promoters of the downtown and previous City Council had been "betrayed" because there had been no immediate action on a route beyond the urban growth area. The Vine Drive route had been studied and rejected. The City voters would be "betrayed" if the citizen initiative was found to be "wrong" by the City Council. The City Council and County Commissioners were "misled" by City staff that approached the truck route so "negatively" that no progress could be made. The initiative represented the will of the people. Richard Dunn, 1405 Lindenwood Drive, stated there was a "pattern of misinformation and bureaucratic language" on the truck route issue and presented "examples." He asked that the Council take positive action to move truck traffic out of Old Town. Kathy Dwyer, 1725 Linden Lake Road, stated the initiative did not prevent the NEPA study from going forward because it was paid for by federal funds channeled to the State. The City would not conduct the study. In 1999, all potential routes within the urban growth area were studied and rejected for social, safety and environmental reasons. She stated "local political will' was important for transportation projects and this will was in opposition to the Vine Drive route. City residents were also County residents and would like to see some cooperation from the County on this issue. She stated "perceived problems were excuses" to convince the Council to free up the money for more immediate transportation needs. Maury Albertson, 731 West Olive Street, asked the City Council to "move fast' toward a funded route. He stated a NEPA study would not take 10 years and the project could "jump" to number one overnight. Immediate action was necessary to fight smog. Betty Aragon-Mitotes, 140 2nd Street, stated there was a "suspect pattern" with this project and misunderstanding on the City Council. A true bypass would have a positive economic impact on the downtown and would help air quality and noise issues for affordable housing neighborhoods. Staff had brought forward "excuses" for bringing this Resolution forward. She asked that the Council let the citizen initiative stand and get on with a bypass to the north. Ron Lautzenhizer, North Fort Collins Business Association representative, spoke in support of the Resolution and the release of the funds. R. H. "Swede" Anderson, 1608 Linden Lake Road, spoke regarding the "big picture" of northern Colorado, the need to relocate State Highway 287 to the northwest, and the "Super Slab" transportation corridor to the east. Wellington was growing fast and would eventually be a "northern suburb" of Fort Collins. Within this context, Fort Collins would be a community center. The river was an "enormous asset' to the City and the barrier to development was an artery that carried thousands of vehicles every day. The choice was to leave the barrier in place or to lift the barrier. 190 August 15, 2006 He asked that Council not adopt the Resolution. Dave Dwyer, 1725 Linden Lake Road, stated there had been a significant change in the senior City management and a reasonable effort to gain the County's cooperation had not been made because of what senior management believed previously. There was an opportunity with the new City management to appoint a blue ribbon committee to work with the County to find a solution to this problem. Jane Clark, 417 East County Road 66E, Waverly, stated Waverly residents wanted to be involved if there was discussion at any time about a bypass on or north of County Road 58. This was a regional issue and the region should be able to vote on it. The citizen initiative was never was "fair or well-advised." A bypass to the north would destroy the "last viable working agricultural region" in Larimer County. The issue concerned the region and should be worked on by all those concerned with the bypass. Cheryl Distaso, 135 South Sunset Street, spoke regarding the 1999 initiative and asked that the Council not adopt the Resolution. Councilmember Brown asked if there would be a "stalemate" if the initiated ordinance was not repealed. Jackson stated his opinion was that "pragmatically" there was currently a stalemate based on the conversations with the Larimer County Commissioners since 2000. He did not believe there was any way to move this project forward until Larimer County was willing to "come to the table." Councilmember Brown asked staff to address the statements made by Mr. Dunn that the County Commissioners "had not been in the loop on this." Jackson stated staff had met with the County Commissioners several time to brief them on both phases of the Northern Colorado Truck Mobility Project; County Commissioners were involved on the policy level committee of the 2001 phase 1 effort; staff met this summer with Commissioners Rennals and Wagner and were told very "clearly" that until such time as all of the routes were on the table the Commissioners were not interested in moving forward. Commissioner Gibson called him after that meeting and stressed that he favored the Owl Canyon route. Councilmember Brown asked what effect Wellington's rapid growth might have on influencing the Owl Canyon route. Jackson stated there were pros and cons for each route. The growth of Wellington could "bring them to the table." Wellington was "vociferously" against any effort to locate a truck route to the north during the 2001 effort. The growth of northern Colorado in general made this a "salient issue." Councilmember Brown asked if there would be alternate choices if there was a NEPA study. Jackson stated the purpose of a NEPA analysis was to eventually come up with a preferred route. This would be a deliberate, process -oriented effort that would examine a myriad of alternatives, including doing nothing. There would be a rigorous public outreach process for anyone who wanted to be involved in the effort. These efforts would look at the pros and cons from the environmental, mobility and environmental justice perspectives. 191 August 15, 2006 Councilmember Brown asked about the prediction that the NEPA study would take 10 years. Jackson stated he got that estimate from Kara Harding, the region 4 transportation director for CDOT. There were so many projects in line that it would take that long to get a NEPA study going. He stated "political will" could make things happen sooner, although there were competing "big ticket" projects against which this project would have to compete. Councilmember Brown asked about the benefit of continuing to hold the funds. Jackson stated if the funds were held in reserve they could be put toward future analyses and right-of-waypreservation after the conclusion of the NEPA study but 10 years would be a long time to hold those funds. Councilmember Brown asked if there was any benefit in meeting once again with the County Commissioners to clarify their position. Jackson stated he would always support continuing discussions. It had been made clear to staff a number of times that the Commissioners were not interested in participating until such time as there was a "level playing field." City Manager Atteberry stated there was an annual obligation for a meeting between the City and the County. He had not been involved in any of those meetings and, regardless of the outcome on this agenda item, the direction from Council was clear with regard to an expectation that staff was expected to work proactively with the County. He was optimistic a "new leaf' was being turned and there was a "renewed sense of hope for a solution." This was not an indirect staff attempt to "force" a Vine Drive truck route. The intent was to move off of "high center." The objective was to move trucks out of downtown so the City could continue building a "world class" downtown. Regardless of Council's decision on this issue, the Council's direction should be for staff to work collaboratively and as proactively as possible with the County and CDOT. Councilmember Kastein asked about the proposed ballot language which stated "... the remaining funds in the approximate amount of $1.8 million would be used instead for such other transportation capital improvement projects as may be approved by the City Council for construction in the northeast quadrant of the City." He asked if the Council could put all of the options for the truck bypass back on the table (routes in the City and outside of the City) and use the $1.8 million for that purpose. City Attorney Roy replied in the affirmative and stated one question that could be explored further was the effect of the repeal of the citizen initiative on the Building Community Choices ballot measure, which was modified by the initiative. He believed it would be permissible to do what Councilmember Kastein was suggesting. Councilmember Kastein asked how staff would suggest Council proceed if this measure was placed on the ballot and the citizens agreed to repeal the citizen initiative. He asked how the City would proceed with looking at a truck route i.e., would all of the options be explored again. City Manager Atteberry stated his approach would be to get all of the parties together to determine how to find the best truck route in the region. He supported narrowing down the list of options locally before going into the process if CDOT and the Federal Highway Administration would allow that. Staffs understanding from CDOT was this could not be done. He would like an opportunity to map out the collaborative process. 192 August 15, 2006 Councilmember Kastein asked if the $1.8 million could used to spur the collaborative effort. City Manager Atteberry replied in the affirmative. He did not believe the money could be used for that purpose if the citizen initiative was not repealed. Councilmember Kastein asked for a rough accounting of the B.C. money. Jackson stated he could get that information to the Council and roughly $1.8 million remained after approximately $1 million was spent on the two phases of the mobility study over a 5 to 6 year time period. Councilmember Kastein asked about the ultimate build -out of Vine Drive and what the remaining costs would be for that under the current master transportation plan. Jackson stated in 1999, the Council amended the Master Street Plan to show Vine Drive being realigned to the northwest. This would be designed as a four -lane arterial. The old Vine Drive would become a local feeder roadway to Redwood Street and would remain as it is from Redwood Street to College Avenue. Councilmember Kastein asked about the cost for the remaining Vine Drive improvements. Jackson stated he would prepare that information for the Council. ("Secretary's Note: The Council took a recess at this point.) Mayor Hutchinson noted the City Attorney wanted to make a clarification. City Attorney Roy stated he misunderstood Councilmember Kastein's question and he now understood the question to be whether the proposed language would allow for the use of the $1.8 million to relocate the truck route either within or outside of the northeast quadrant. If this was what Council wanted to do, the language should be revised to state: "The $1.8 million would be used instead for such other transportation capital improvement projects and related studies as may be approved by the City Council." Councilmember Weitkunat stated the Resolution would repeal a 1999 citizen initiative because there were elements of the initiative that were fulfilled by the City and some that were difficult for the City to do. She requested staff summarize what was mandated by the initiative, noting that part of the mandate was for the City to examine potential routes north of the GMA. She asked for clarification that the City did undertake a series of studies that identified possible routes within the limitations of the mandated actions. Jackson presented visual information showing the City's Growth Management Area boundary was at approximately Douglas Road. The first most eligible route that was at least two miles north of the GMA was County Road 58. Councilmember Weitkunat asked if Douglas Road came out on Highway 1 at Terry Lake and where it came out to the east. Jackson stated the roadway eventually ended in Wellington. Councilmember Weitkunat noted this was further north than Anheuser-Busch. Jackson stated Anheuser-Busch was at Mountain Vista Drive. 193 August 15, 2006 Councilmember Weitkunat asked for clarification that the City could not look at any route south of County Road 58 due to the initiative. Jackson replied in the affirmative. During the phase 1 efforts the City looked at everything from County Road 58 north to almost the Wyoming state line. Councilmember Weitkunat asked if the northernmost possible route was at Owl Canyon. Jackson showed the Owl Canyon route on the map. Two potential routes would terminate at Owl Canyon: one using County Road 70 and one using a combination of County Road 70 and County Road 72. Routes were also identified on County Road 66 in the Waverly area and two routes were along County Road 58, with one diverting to the south and the other diverting to the north. Councilmember Weitkunat asked if those were the only potential routes that could be considered. Jackson stated these were the potential routes that made it through the screening process. The City examined virtually every route between County Road 58 and County Road 86. Councilmember Weitkunat asked what else was mandated by the initiative. Jackson stated it also mandated that staff look at strategies to encourage through truck traffic to utilize I-80. Councilmember Weitkunat asked if that was done. Jackson replied in the affirmative and stated a one-year pilot program was designed and implemented without any real effect on route choices for trucks. Councilmember Weitkunat asked if the City followed through on what was mandated in a citizen initiative. Jackson stated the route selection was taken as far as it could go up to a NEPA analysis. Councilmember Weitkunat asked if the NEPA study was the next step and whether it would take more money. Jackson stated the NEPA analysis would probably be funded with a combination of Federal Highway Administration and CDOT money. The City could choose to participate financially but this was not required. Councilmember Weitkunat stated going after federal dollars required cooperation and agreement among all parties. This was one of the problems that kept this from moving forward. Jackson stated that to make this a high priority for the region, a combined effort between Larimer County and the City would be necessary. Councilmember Weitkunat stated the City had fulfilled its obligations with regard to the mandates of the citizen initiative. Jackson stated the City had done as much as possible given the restrictions of the ballot language. Councilmember Weitkunat stated the question for Council was the repeal of the initiative to release the money so that the project could move forward. This was not a Vine Drive issue. It was important to look at Vine Drive as it was in the Master Street Plan i.e., a North College Avenue access point. The City's objective was to get the trucks out of the downtown by "opening the doors" to begin again. She stated the project could not move forward with the restrictions of the initiative. 194 August 15, 2006 Councilmember Manvel stated the question was how to get trucks out of the downtown. He noted a Berthold bypass had just been opened and asked how that bypass happened. Jackson stated he assumed there was a NEPA process that looked at all alternatives, including a do-nothing alternative, and funding was identified for the project. Councilmember Manvel stated the project was probably identified as a priority for Berthold. In the case of the Fort Collins bypass, it appeared the truck bypass had not been identified as the number one priority for the City. He asked what would happen if the City clearly took a position that the bypass was the number one priority. Jackson stated the potential routes were not all internal to Fort Collins and CDOT perceived this as a regional issue. CDOT would therefore determine how other parties stood on making the bypass a priority. The County's position had consistently been that it wanted to make sure all proposed routes were considered. CDOT was waiting to see a "regional push" on this project. Councilmember Manvel asked if the project would be higher on the priority list if both the City and the County saw it as a priority. Jackson stated it would move it up the list to a point and it would then have to compete against other regional high priority projects. Councilmember Manvel stated "political enthusiasm" was not the only criterion and the level of service provided by the existing roadway was another criterion. The current roadway was working well at this point. Jackson stated CDOT's current priorities were projects on I-25 and U.S. 34. City Manager Atteberry stated CDOT also looked at safety issues and intangibles such as the "vibrancy" of the downtown. He would contact the City Manager of Berthoud to find out how that bypass happened. He was optimistic the project would receive attention if there was cooperation among all parties to make it a priority. Councilmember Kastein stated the Berthoud bypass was a "seventh pot" project on the State Transportation Improvement Plan. Such funding was already forecast for about the next decade. There was a Regional Transportation Plan process that had $30 million available until the year 2035 to fund $4 billion in needs. Projects had to compete on seven criteria. There could be funding through a Regional Transportation Authority, if it was created by a vote of the people. Councilmember Ohlson asked when construction could begin on a bypass if "everything came together perfectly." Jackson stated it would take approximately 2-3 years for a NEPA analysis, funding would need to be identified, and construction could take years depending on the route chosen. It could take 7-10 years before construction could begin, assuming the current federal and State funding issues. Councilmember Ohlson asked if the other processes would have to be followed if "connections" facilitated federal funding for the project. Jackson stated the NEPA studies would still be required if federal funds were to be used for any part of the project. Councilmember Kastein asked if four potential routes were identified. Jackson stated three corridors were identified with route alternatives for each corridor. 195 August 15, 2006 Councilmember Kastein asked why the project could not proceed beyond that point. Jackson stated staff felt that the next logical step was the NEPA analysis. Councilmember Kastein asked if a NEPA study would be required if RTA money became available and federal dollars were not needed. He asked if a single route could be chosen from the four routes. Jackson stated if local funds covered 100% of the costs, that could be done. Councilmember Kastein stated the original language provided that the City was to pursue with all deliberate effort and speed on a truck route relocation in cooperation with federal, State and County government entities. He asked if a route could be chosen before funding was intended to be non- federal. He asked whether it was the intent to apply for federal funding or the need for a NEPA study that stopped progress on a route. Jackson stated he did not believe the County would have supported selection of one route in that scenario. Mayor Hutchinson stated the objective was clear i.e., to address the truck traffic in the downtown. He asked what the possible outcomes would be if the initiative was repealed. Jackson stated the most immediate outcome would be to facilitate bringing Larimer County to the table in a "meaningful way." This would result in more CDOT involvement and "political momentum." The NEPA analysis would be a fair and evenhanded look at all of the alternatives. Not all of the trucks on U.S. 287 and Colorado 14 were through trucks, although through truck trips were increasing. There would be a need for a "big picture" look. Councilmember Manvel asked if NEPA would develop its own cost figures. Jackson replied in the affirmative and noted costs had escalated since earlier studies were done. Councilmember Manvel asked what would happen if this measure did not pass. Jackson stated the issue was how to move off "high center." Staff and the Council could keep working with Larimer County and CDOT. The northern routes could be reexamined to narrow down the options to one. His opinion was there was no benefit in doing so because a NEPA study would be done. Councilmember Weitkunat made a motion, seconded by Councilmember Cession, to adopt Resolution 2006-090. Councilmember Kastein offered a friendly amendment to alter the language in line with the language suggested by City Attorney Roy. Councilmember Weitkunat stated she would like to hear a discussion on what might be accomplished by altering the language. Councilmember Kastein stated he would like to keep the language that targets the northeast quadrant but include the option of using some of the money for further work on the truck relocation project. The intent was to leave it open for future Councils to decide how to use the money in the northeast quadrant or to spur additional work on the bypass. 196 August 15, 2006 Councilmember Weitkunat asked if the intent was to include language relating to future truck relocation efforts. Mayor Hutchinson stated the City Attorney had suggested the inclusion of language relating to "additional studies" and asked if that was the intent of the friendly amendment. Councilmember Kastein stated he would like to keep language relating to the northeast quadrant. City Attorney Roy stated the question was how specific the Council wanted to be about the truck route relocation and whether it should be called that. His understanding of the friendly amendment was to have the Resolution state: "... and the remaining funds referenced in the Ordinance in the approximate amount of $1.8 million would be used for the construction of transportation capital improvements projects in the northeast quadrant of the City, or " Councilmember Manvel stated the "or" could be "further efforts toward a truck bypass relocation." City Attorney Roy asked if the intent would be to state: "... or continuing efforts to relocate the Colorado Highway 14 truck route." Councilmember Manvel stated this would be acceptable language. City Attorney Roy asked if the Council wanted language that specified relocation of the truck bypass to any particular area. The consensus was not to specify a particular area. City Attorney Roy stated he would refine the proposed language while the Council continued the discussion. Councilmember Brown agreed with the intent of the friendly amendment since the voters wanted the money to be put toward a truck bypass. Councilmember Weitkunat accepted the friendly amendment as an addition to her motion. Councilmember Manvel stated he did not want this to appear to "repudiate the will of the voters" or promotion of the Vine Drive route. If he voted in favor of the motion, that was not his intent. If all routes were open for consideration it was unlikely that Vine Drive would ultimately be chosen over the northern routes. The question was whether this process could be moved forward without an appearance of "repudiating" the voters. Councilmember Weitkunat stated the issue was not Vine Drive and the issue was removing trucks from downtown Fort Collins. The intent was not to "push Vine Drive." The intent was to solve the truck traffic problem in the downtown. The City had worked on solutions, alternate routes and alternate ways to get truck traffic out of the City for seven years. It was necessary to move to the next step of a "fresh start." The process was "stymied" until the initiative could be repealed and the issue could be addressed at a regional level. This was an opportunity to move forward and hear input from all interested parties. This had been an issue for 35 years and a "new direction" was needed. The friendly amendment was a good idea since it would keep the dollars in the northeast quadrant and help with the truck route relocation. She encouraged Council to adopt the motion. 197 August 15, 2006 Councilmember Ohlson stated this had been an issue for many years. The issue to him was this was a "sacred" citizen initiative and it was unlikely that he would be able to support the motion. Councilmember Manvel stated the citizens voted to have the $1.8 million spent on a bypass and that the proposal was that the money might be spent on a bypass. If this went to the voters the "urgency" regarding a bypass would "decrease." Many people really wanted a bypass but wanted to protect Vine Drive and the nearby neighborhoods. Citizen initiatives were important and this measure passed by a large margin. Councilmember Kastein believed repealing the initiative would provide motivation to "go back to the table." This would also make money available to use toward a truck bypass if necessary. He agreed citizen initiatives were important and he believed the City had done what it could to honor the initiative's mandates over the last seven years at a cost of over $1 million. Almost every project of this caliber required federal funding and a NEPA study. It was unlikely to obtain other funding for the project. This would allow the City to ask the voters whether the City had done what it was supposed to under the initiative. Councilmember Roy stated he did not believe the City organization had "pursued with all deliberate effort and speed" the truck bypass relocation. The $1.8 million could be used toward meeting some of the mandates of the original Ordinance. The $1.8 million would not go far toward a "solution" for transportation issues or a bypass. Citizens brought the initiative forward and, if the Resolution was adopted, the Council would be "working actively to change the original intent of the voters." He hoped new staff leadership could move the project forward. Mayor Hutchinson asked for the wording of the friendly amendment. City Attorney Roy asked if the following language captured the intent: "... be repealed in its entirety so that the duties imposed by said Ordinance would be of no further force and effect, and the remaining funds referenced in the Ordinance in the approximate amount of $1.8 million would be used in the discretion of the City Council to further pursue the relocation of the Colorado Highway 14 truck route and/or to fund capital improvement projects in the northeast quadrant of the City." Councilmembers Cession and Weitkunat accepted the language as a friendly amendment to the motion. Mayor Hutchinson stated the goal was clear and it had not been accomplished. It was reasonable to go back to the citizens to give the project a "fresh start." This would be the key to County cooperation and looking at this as a regional problem. The project would have more of a chance of success. He would support the motion. The vote on the motion as amended through the friendly amendment was as follows: Yeas: Councilmembers Brown, Hutchinson, Cession and Weitkunat. Nays: Councilmembers Manvel, Ohlson and Roy. THE MOTION CARRIED. August 15, 2006 Ordinance No. 122, 2006, Amending Article III of Chapter 12 of the Code of the City of Fort Collins to Conform to the Colorado Clean Indoor Air Act, and to Clarify Certain Provisions, Adopted on First Reading. The following is staff s memorandum on the item. "EXECUTIVE SUMMARY Certain exceptions to the smoking restrictions found in the City Code are inconsistent with the requirements of the Colorado Clean Indoor Air Act, which was enacted in 2006 The Ordinance eliminates those exceptions. In addition, the Ordinance amends the restriction on placement of ashtrays in nonsmoking areas to allow ashtrays in the 20 foot exterior perimeter of a nonsmoking area where physical constraints make placement of ashtrays difficult. The Ordinance also adds to the City Code additional provisions regarding private nursing home rooms and the definition and operation of a "retail tobacco store ". BACKGROUND In view of the adoption in the 2006 legislative session by the Colorado General Assembly of the "Colorado Clean Indoor Air Act" (HB-06-1175), which specifzcally allows local restrictions on smoking to be more, but not less, restrictive than the new state law provisions, staff has prepared the proposed Ordinance to modify the City Code smoking provisions to conform to state law where required. In general, the City Code includes a number ofexceptions (places in which smoking is allowed) that are not provided for in the state law, including: 1) private clubs, 2) designated smoking areas of bingo parlors and bowling alleys, 3) private functions, 4) smoking in theatrical performances, 5) rooms forpsychological treatment ofnicotine addiction, and 6) buildings under the control ofother governmental entities. The Ordinance eliminates these exceptions from the City Code, consistent with the new state law. In addition, there are three other modifications that staff is proposing to the smoking provisions of the Code. First, the Code currently prohibits smoking receptacles in areas where smoking is prohibited. Because this includes the twentyfoot smoke free perimeter around public establishments, there are locations in which close proximity of a number of businesses has made the location of ashtrays difficult, in particular in Old Town. In order to allow more flexibilityfor addressing problems of cigarette disposal in areas such as Old Town, the Ordinance includes amended Code language to allow this limited exception for ashtrays in physically constrained areas. Second, the City Code does not currently specify the status ofprivate nursing home rooms for the purpose ofdetermining applicability oftheprohibition on smoking. The administrative regulations 199 August 15, 2006 established by the City Manager pursuant to the Code state that private nursing home rooms should be deemed to be private residences, rather than public places, for the purposes of Article III. For public convenience and awareness, this clarification is included as an addition to the definition of 'public place" in the Code. Third, because there has been substantial interest in use of the "retail tobacco store" exception currently in the City Code, staff has worked extensively to prepare a more extensive definition of what constitutes a "retail tobacco store ". This additional interpretation was originally prepared to be included in administrative regulations established by the City Manager pursuant to the Code. However, it is expected that interest in the "retail tobacco store" exception will continue and potentially increase. Inclusion of this more detailed explanation of the concept of "retail tobacco store" in the City Code is intended to assist with public awareness and enforcement of the applicable requirements. " City Manager Atteberry introduced the agenda item and stated staff would be available to answer any questions. Mayor Hutchinson stated each audience participant would have three minutes to speak. Aria Khosravi, 2808 Ringneck Drive, co-owner of Narghile Nights, 621 South College Avenue, stated his business specialized in the sampling and selling of various types of exotic tobacco products imported mainly from Turkey and Egypt. The Colorado Clean Indoor Air Act provided that retail tobacco businesses were exempt from the Act. His establishment specialized in hookah and hookah - related accessories and was in full compliance with the new State Act. He asked the City to adopt the Act in its entirety without more stringent City regulations. Mark Williams, part owner of Algiers, 120 1/2 West Laurel Street, a retail tobacco business, stated his business was an alcohol -free meeting place. He asked the Council to repeal Sections 3 and 4 of the proposed Ordinance. Alan Blue, 2808 Ringneck Drive, co-owner of Narghile Nights, 621 South College Avenue, expressed concerns regarding the amount of floor space that would be allowed for tobacco sampling. The proposed restrictions would make it difficult to run his business. Narghile Nights became a membership club to comply with the City's smoking Ordinance. He asked that the Council allow his business to continue with no further restrictions. His business was in compliance with the Colorado Clean Indoor Air Act and retail tobacco stores were allowed to remain open elsewhere in Colorado. Armando Mange, owner of Edward's Pipe and Tobacco, I I I West Prospect Road, stated his store had existed for 35 years. Other cities in Colorado were not imposing the stringent restrictions that would be imposed in Fort Collins under this Ordinance. He was concerned about his business continuing if cigar smoking was not allowed to continue. He asked that the Council not impose regulations more stringent than the Colorado Clean Indoor Air Act. 200 August 15, 2006 Charles Klamm, co-owner of Algiers, 120 1/2 West Laurel Street, spoke regarding the "culture" offered by his business. The Ordinance would impose additional restrictions regarding floor space for smoking. He questioned the need for the additional restrictions for a business frequented only by adults. Matt Wilson, subcontractor for building Edward's Pipe and Tobacco, expressed concerns about the stringent City requirements for air exchange and floor area. Becky Morris, Edward's Pipe and Tobacco employee, stated the issue was the proposed 20% lounge area. She stated this was a small area and asked that the Council remove this requirement. Councilmember Ohlson asked why secondhand smoke would be prohibited in places where people were buying "firsthand smoke." He suggested grandfathering the three existing businesses during the transition period to allow time to determine if additional requirements were needed for future businesses. Councilmember Weitkunat stated she was not interested in putting three businesses out of business. She asked what needed to be done to adapt the City smoking regulations to accommodate the grandfathering of the three businesses. City Attorney Roy stated the City Ordinance was based on a model that exempted retail tobacco stores. He stated a question arose regarding how hookah and retail tobacco store lounges fit into the Ordinance. Staff s rationale was that the purpose of allowing smoking in retail tobacco stores was presumably to allow the sampling of tobacco products that would be sold there. This was a different concept than allowing smoking lounges. The basis for the square footage distinction was to prevent people from turning a retail sales outlet into a lounge. He suggested the Council decide whether it wanted to exempt smoking lounges (hookah and regular tobacco) or to grandfather the existing lounges. If Council wanted to grandfather the existing lounges the local definition of "retail tobacco store" could be amended between First and Second Readings. If the Council wanted to begin to allow smoking lounges, the definition of"retail tobacco store" could be amended to accommodate that. The City definition would have to remain within the State definition of a "retail tobacco business" so that the City was not more permissive. Councilmember Brown stated he would like to exempt smoking lounges and asked where the 20% floor area came from. This did not seem to be a reasonable amount of space for customers to sample a product. He had a problem with Subsections (3) and (4) of the Ordinance. Councilmember Roy asked if the three businesses represented were the only three in the City that fell into the category of smoking bar, smoking lounge or smoking retail shop. Felix Lee, Building and Zoning Director, replied in the affirmative. Councilmember Roy asked if there were any problems with grandfathering those businesses as related to the State law. City Attorney Roy stated that, assuming that the three businesses fell within the State definition of "retail tobacco business", then it would be acceptable to modify the City's definition of "retail tobacco store" to grandfather the three businesses. 201 August 15, 2006 Councilmember Roy asked if this would apply to only these three businesses. Lee replied in the affirmative and stated the City had no information about any similar businesses. Councilmember Weitkunat asked for clarification regarding grandfathering and the proposed change in definition i.e., if grandfathering would require the change in definition. City Attorney Roy replied in the affirmative. He stated the definition proposed in the Ordinance would not grandfather the businesses as they wanted to operate. Councilmember Weitkunat asked for clarification about what would need to be changed in the Ordinance to address the issue of the 20% floor area. City Attorney Roy stated the Ordinance could be amended to state those conditions would not apply to existing establishments that were in operation prior to this date. He suggested the Council consider whether they wanted to allow for expansion of the grandfathered businesses or not. Councilmember Manvel asked if that amendment would mean that existing establishments would not have to follow (3) and (4) while new establishments would. City Attorney Roy replied in the affirmative and asked if that was Council's intent. Councilmember Manvel stated he would support that to avoid encouraging all businesses in town to become a hookah bar so that they could allow smoking. This would allow established businesses that had followed the rules to continue in operation. City Attorney Roy asked if there was consensus to grandfather the existing businesses. Carrie Daggett, Senior Assistant City Attorney, stated Section 12-62(a)(2) specifically stated retail tobacco stores were exempt provided they met certain other conditions relating to "being designed, constructed and operated so as to prevent smoke from the premises from entering a smoke -free area." Those were additional requirements that applied to retail tobacco stores in this draft of the Ordinance. Councilmember Kastein asked if the City was allowed to "throw the door wide open" under the State law. City Attorney Roy stated the State law allowed retail tobacco businesses but the State had issued written material indicating that hookah bars needed to be grandfathered in order to be exempt. The Council could allow only existing businesses to continue or could allow existing and new businesses under the State law. Councilmember Kastein questioned allowing only the existing businesses. He asked if there would be requirements for the existing businesses. City Attorney Roy stated there would be ventilation requirements but that the minimum square footage requirement would not apply. The Council could impose additional requirements relating to expansion ofthe existing business. Grandfathering would be intended to mitigate the impacts of the change on existing businesses. Councilmember Kastein asked what change would need to be made to allow new businesses since they were allowed right now. City Attorney Roy stated there was a question about whether they were allowed under local law. The existing definition of "retail tobacco store" did not make it clear 202 August 15, 2006 whether tobacco stores could have lounges with significant square footage devoted to enjoying the product rather than purchasing the product. The City Manager was going to adopt administrative regulations that would make that determination and staff had decided the decision should be made by the Council because staff was uncertain about the original intent. Councilmember Brown asked where the 20% requirement came from. Lee stated there were some Land Use Code criteria for retail sales i.e., at least 60% of the floor space in a retail sales establishment had to be dedicated to display of products and resale items. The question was whether the establishment was for retail sales and not for consumption on the premises. A bar was not for retail sales but for consumption on the premises. The existing businesses were asking for consumption on the premises with much smaller space allocated for retail sales. Councilmember Brown asked about the language relating to on -site transactions between store personnel and customers and the prohibition against using store personnel as wait persons or servers for the purpose of serving or lighting tobacco products for customers on the premises. Lee stated if the business was for retail sales, the primary function was that rather than on -site consumption. Councilmember Brown stated he would not support Subsections (3) and (4). Councilmember Roy stated he had similar concerns. He noted Algiers and Narghile Nights opened up in December 2005 and February 2006, while Edward's Pipe and Tobacco had been open for many years. Two of the businesses opened since the City passed the no -smoking ordinance. He asked how the three businesses could be grandfathered without making the City's stringent ordinance more "lax." City Attorney Roy stated if existing businesses were grandfathered and future smoking lounges were not allowed then only the three existing businesses would be allowed. This action would "loosen up" the City's ordinance only if the original intent was to allow only retail sales without lounges. If the intent of allowing retail sales had been to allow some lounge activity along with the retail sales, the City's ordinance would not be loosened. He was not certain of Council's original intent with the exemption. Staff had looked at this as analogous to retail liquor outlets as opposed to taverns. Councilmember Ohlson stated there were exceptions for casinos at the State level and that smoking was allowed in many restaurant patio areas. He would support banning smoking in those areas but questioned regulating smoking in areas where people went to smoke. He did not see a need to regulate smoking in these types of establishments but would support appropriate regulations relating to proper ventilation, smoking outside, alcohol use, and appropriate square footage. City Attorney Roy stated if the majority of Council agreed with that direction the simplest action would be to eliminate the term "retail tobacco store" and use the term "retail tobacco business" as defined by the State law, with some independent ventilation requirements. Direction would not include grandfathering the existing businesses and to allow these kinds of establishments on an ongoing basis. Councilmember Roy stated he was open to grandfathering the existing businesses. He would like to hear discussion about Council's role in "making smoking easier" when the no -smoking ordinance had been well received by the community. He envisioned the local ordinance should protect health and safety and questioned opening it up by allowing more than the existing businesses. 203 August 15, 2006 Councilmember Kastein noted that there was no motion on the table and suggested a motion should be made and discussion of the motion entertained. Mayor Hutchinson stated the discussion seemed to be leading to a motion. Councilmember Ohlson made a motion, seconded by Councilmember Brown, to direct staff to come back with a new Ordinance or to amend the proposed Ordinance between First and Second Reading to allow new and existing smoking establishments to operate with the proper regulations in place dealing with ventilation, exposure to passers-by, etc., and with the deletion of Subsections (3) and (4). Councilmember Ohlson stated his first priority would be to prohibit smoking on restaurant patios. He asked if smoking on patios was allowed under both the Fort Collins Ordinance and State law. Lee stated it was allowed but no closer than 20 feet to the openings of the establishment. Councilmember Ohlson stated this was not being enforced since most patios were within 20 feet of a doorway. He thought it was a higher priority to enforce that provision than to go after smoking establishments. Tobacco was a "legal product' for sampling and he equated this with the alcohol tastings issue. Councilmember Roy stated the three businesses indicated they were geared toward being a community meeting place rather than a place for sampling a product. He supported the alcohol tastings ordinance but saw this as a different issue because groups of young people would come to these places to visit and socialize and would be subjected to smoke. Councilmember Weitkunat stated the intent was to bring Fort Collins into compliance with the State Clean Indoor Air Act. She stated a variety of businesses, such as bingo parlors and bowling alleys as well as private clubs and theatrical productions, would not be allowed to have smoking. In this case three businesses were caught in the new State law and the City needed to fix the local ordinance. She did not want to open up the whole no -smoking issue. The City had a strong no -smoking ordinance and it needed to be fixed to address the impacts to these three businesses. She would prefer not to address other issues and would like to focus on the issue at hand. She was comfortable with fixing this single problem. Councilmember Manvel stated he did not support going beyond grandfathering the existing businesses. There were serious health problems involved with smoking hookah products. He did not want to see the City encourage hookah lounges and he believed this Ordinance would do that. He would prefer to see the Ordinance grandfather the existing businesses instead of allowing more new businesses. Councilmember Kastein stated he did not see the logic of limiting smoking in a smoking establishment and, if it was to be allowed for existing establishments it should be allowed for future businesses. He did not think the no -smoking ordinance was intended to protect those who were consciously being exposed to smoke. He asked for clarification prior to Second Reading regarding how the City could depart from the State ordinance. City Attorney stated this would not depart from 204 August 15, 2006 the State ordinance and the City's ordinance could be more restrictive than the State law. The proposed ordinance would not be more permissive than the State law because these businesses would fall within the State exception for retail tobacco businesses. Councilmember Kastein asked how the 20% floor requirement fit. City Attorney Roy stated it was a local requirement rather than a State provision. Councilmember Kastein asked if the State had a floor space limitation. City Attorney Roy stated it did not. Mayor Hutchinson noted the motion would remove Subsections (3) and (4). City Attorney Roy stated if the Council wanted to exempt both existing and future businesses it was not necessary to have those requirements. If the Council wanted to grandfather the existing businesses then he would recommend requirements for the businesses that would not be grandfathered. Councilmember Roy stated he had been considering grandfathering the existing businesses. He did not support the current direction and saw it as a "step back." Councilmember Manvel stated there were laws that provided people under 18 could not buy and use cigarettes to discourage the use of this addictive substance. It was "legitimate" to have a local law to allow people to sell hookahs, hookah tobacco and pipes, cigars and cigarettes and to have a place for people to try the product in the store without having a "lounge" or social setting. He wanted to discourage the use of these products that were harmful to peoples' health. Councilmember Ohlson stated it did not make sense to restrain trade by prohibiting future businesses. He was a strong supporter of the no -smoking ordinance but when the State allowed smoking in casinos and when Fort Collins ignored smoking on patios it did not make sense to prohibit smoking in places that sell tobacco. Mayor Hutchsinson stated this made good sense and that there was a place for this kind of establishment. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Ohlson and Weitkunat. Nays: Councilmembers Manvel and Roy. THE MOTION CARRIED. City Manager Atteberry noted he spoke with staff about enforcement of the smoking ordinance relating to outdoor patios and this was enforced on a "limited proactive basis." He stated most enforcement depended on complaints. Councilmember Ohlson requested a memo on the rule for smoking on patios. City Attorney Roy clarified that the motion was to adopt the Ordinance on First Reading with the understanding that amendments were to be made prior to Second Reading to accommodate new and existing retail tobacco businesses and to delete Subsections (3) and (4). 205 August 15, 2006 ("Secretary's Note: The Council took a brief recess at this point.) Other Business Councilmember Manvel stated a citizen group had presented a sustainabilityresolutionhe felt should be considered. He asked for Council support on such consideration. Councilmembers Kastein and Ohlson supported bringing forward the resolution for consideration. Councilmember Kastein stated he would like to see information on how this would support or depart from the current policy and how much staff work would be needed. City Manager Atteberry stated he had met with the citizen group and that the proposal had merit. He had not discussed the issue with staff and after doing so could come back with a recommendation. Mayor Hutchinson noted there was support to bring this resolution forward for consideration and asked if Councilmembers were also interested in a look at the economic impacts. The consensus was to include an economic assessment when the resolution was brought forth for consideration. Councilmember Weitkunat stated the City had completed the construction of the Dry Creek Floodplain and this would bring flood protection to the North College Avenue area. There was a "snag" with FEMA officially changing the official floodplain maps. As part of the FEMA approval of the Dry Creek project, a Conditional Letter of Map Revision indicated that a Letter of Map Revision should be submitted upon completion of the project. The estimated time frame was 3-6 months. FEMA informed the City there had been a policy change at the national level and projects the size of Dry Creek were now required to use a different process for revising maps. This process was called a Physical Map Revision and it would take 12-24 months to complete. The consequence of this longer process was that properties would continue to be regulated for the next 12-18 months, resulting in unnecessary mandatory flood insurance for federal loans, higher flood insurance premiums, unnecessary floodproofing costs, continued depression ofproperty values, the stalling of tax increment financing for the Urban Renewal Authority, and the changed schedules. Staff had discussed this matter with FEMA to no avail. She asked Council to consider asking the Congressional delegation for assistance in resolving the issue. Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to direct staff to continue communications with FEMA and to pursue additional communication with the City's Congressional delegation and others in an effort to persuade FEMA to allow the City to review the Dry Creek Floodplain under the old regulations as opposed to the new Conditional Letters that were requested. Councilmember Manvel stated he hoped that everyone would contact their Congressional representatives to make a difference. Councilmember Ohlson stated he had concerns that he did not have enough information to feel comfortable with this action. City Manager Atteberry stated this would address the "bureaucratic process." Jim Hibbard, Water Engineering/Field Services Manager, stated both processes would end up in the modification of the FEMA-regulated floodplain and that these were two different paths to 206 August 15, 2006 get to that point. One would take 3-6 months and the other would take 12-24 months. The longer time frame would involve more steps for public notification and review. Staff was not arguing that the new process was bad but this started with rules that were being changed midstream. Councilmember Ohlson asked if the project was finished. Hibbard stated construction was 100% complete and the remaining step was the official change to the floodplain map. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Cession, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Adjournment The meeting adjourned at 10:35 p.m. Mayor ATTEST: �F.L-. J -,I \ .I, , , I. City Clerk % 207