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HomeMy WebLinkAboutMINUTES-09/05/2006-RegularSeptember 5, 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, September 5, 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, Eckman. Citizen Participation Mayor Hutchinson stated each audience participant would have three minutes to speak. Nancy York, 130 South Whitcomb Street, spoke regarding the lack of funding for transit. Antoinette Lueck, 2400 North Taft Hill Road, supported funding for Dial -a -Ride services. Dave McDanal, Disabled Resource Services, 424 Pine Street, Suite 101, opposed budget cuts for night time Dial -a -Ride services. Sarah Allman, 1200 East Stuart Street, #38, spoke in support of funding for Dial -a -Ride. Rob Osborn, 207 West Myrtle Street, expressed concerns about train traffic through town and asked for "dramatic" action with other Front Range towns to do something about the problem. Timothy O'Neill, Executive Director of Foothills Gateway, 2800 Michener Drive, spoke in support of funding for Dial -a -Ride. Jenny Shock, 816 1/2 Timber Lane, opposed funding cuts for Dial -a -Ride and urged passage of the transportation maintenance fee. Thomas Baxendale, 1113 West Plum Street, Director of Community Affairs for ASCSU, introduced himself and his assistant Rebecca Spiegel. Vivian Armendariz, 820 Merganser Drive Apt #908, supported funding for Dial -a -Ride services. Citizen Participation Follow-up Councilmember Roy noted the Dial -a -Ride discussion would continue during the budget study sessions. He asked that staff provide a synopsis of the discussions that had taken place with the 209 September 5, 2006 railroad. City Manager Atteberry stated staff was working with the railroad on the unacceptable traffic situation. He noted State legislators were also interested in helping to pursue solutions. Councilmember Ohlson stated there were two different railroad issues since Mr. Osborn was talking about the increased train traffic through town and the City had been dealing with switching yard issues. Councilmember Manvel thanked those who spoke about Dial -a -Ride and noted Council was concerned about making cuts to that service. He stated there were constraints on charging Dial -a - Ride users more because of federal law. City Manager Atteberry noted the cost to provide a round trip on a fixed route would be about $4 and the cost to provide the same service with Dial -a -Ride was slightly more than $40. Mayor Hutchinson stated these were complex issues and noted the three -quarter -mile rule was a federal minimum standard i.e., service should be provided to anyone living within three-quarters of a mile of an existing transit route. He stated adding fixed transit routes to Harmony and Timberline would add to the numbers. He thanked everyone who participated during Citizen Participation. Agenda Review City Manager Atteberry stated there were no changes to the published agenda. Councilmember Ohlson withdrew item #10 First Reading of Ordinance No. 129, 2006, Appropriating Unanticipated Revenue in the Capital Projects Fund - Water Craft Course Capital Project to be Used for a Feasibility Study, Design and Construction of a Water Craft Course Along a Section of the Cache La Poudre River Near the Old Power Plant from the Consent Calendar. CONSENT CALENDAR 6. Second 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") has developed "Choose the Right Road", a prograrn designed to minimize the number of individuals who drive while intoxicated. PVHS has received a grant from The State of Colorado and the Alcohol and Drug Division of the Colorado Department of Human Services which requires that the grant funds be dispersed to a "local public procurement unit." PVHS requested that the City serve as the local public procurement unit and a pass -through recipient of the grant proceeds. This Ordinance, unanimously adopted on First Reading on August 15, 2006, allows 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. 210 September 5, 2006 7. Second Reading of Ordinance No 121 2006 Appropriating Unanticipated Grant Revenue in the General Fund for the Larimer County Drug Task Force Fort Collins Police Services applied to the Office of National Drug Control Policy on behalf of the Larimer County 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 Ordinance, unanimously adopted on First Reading on August 15, 2006, appropriates this grant award. 8. First Reading of Ordinance No 127 2006 Appropriating Unanticipated Grant Revenue in the Natural Areas Fund and Authorizing the Transfer of Existing Appropriations in the Natural Areas Fund to be Used to Gather Information Necessary for the Development of the Soapstone Prairie Natural Area Management Plan The Natural Areas Program was awarded a Colorado Wildlife Conservation Grant by the Colorado Division of Wildlife for $32,760. The grant, titled Initiation of Inventory and Monitoring Program for Breeding Shortgrass Prairie Birds of Greatest Conservation Need on Soapstone Prairie Natural Area (Larimer County, Colorado), will be used to gather information necessary for the development of the Soapstone Prairie Natural Area Management Plan. 9. First Reading of Ordinance No. 128 2006 Appropriating Unanticipated Grant Revenue in the General Fund for the Operation of the Fort Collins Welcome Center. The City has been awarded a renewal grant for the Fort Collins Welcome Center for the year July 1, 2006 to June 30, 2007. The Colorado Tourism Office awarded the City $70,222 for the operation of the Fort Collins Welcome Center. This amount exceeds the $57,000 originally anticipated, so this Ordinance is needed to appropriate the unanticipated $13,222 in grant funds. The City has contracted with the Fort Collins Convention and Visitors Bureau to operate this program. There are no City General Funds nor Lodging Tax revenue included in this project. 10. First Reading of Ordinance No. 129 2006 Appropriating Unanticipated Revenue in the Capital Projects Fund - Water Craft Course Capital Project to be Used for a Feasibility Study, Design and Construction of a Water Craft Course Along a Section of the Cache La Poudre River Near the Old Power Plant. The vision of developing of a water craft course in the Downtown area at the Old Power Plant was identified in the Downtown River Corridor Implementation Plan ("DRCIP"). The DRCIP was adopted on July 18, 2000. The course would be located in the area downstream of the North College Avenue Bridge to a take out area at the BNSF Railroad trestle. The DRCIP identified the need for a feasibility study prior to the development of the course. The project has come through the City's Preliminary Design Review. This Ordinance appropriates unanticipated revenue in the Capital Projects Fund to be used for a feasibility study, design and construction of a water craft course. 211 September 5, 2006 11. First Readins of Ordinance No 130 2006 Authorizing the Appropriation of Funds for Capital Improvements to Construct Capital Improvements at the Fort Collins Loveland Airport and Operating Expenses for Consultin2 Services Needed for a New Passenger Facility Charge Application. The 2006 operating budget for the Fort Collins -Loveland Municipal Airport did not include unanticipated Federal Aviation Administration ("FAA") Grant funds that were recently received. In order to fully fund the construction project associated with the $4,627,500 FAA grant, additional funds are needed in the total amount of $501,452. The capital funds will be used to construct improvements to the Airport's ramp area, reconstruct taxiway Alpha, replace taxiway Alpha's lighting system, replace the airfield lighting control system, fog seal the main runway and replace the markings. These projects will increase Airport safety. Also, operating funds in the amount of $7,500 are needed to hire a consultant to prepare a new Passenger Facility Charge ("PFC") Application. The $7,500 cost will be fully recovered from the PFC collections. The Airport's current budget does not include funding for this expense. This Ordinance appropriates the Citys 50% share of the costs in an amount of $254,476. 12. Items Relating to the Creation of a New Rural Lands Zone District (RUL) in the Land Use Code. A. Resolution 2006-091 Amending the City Structure Plan Map "Land Use Designations" for a Parcel of Property Located Southwest of the Intersection of Interstate Highway 25 and County Road 36 Based on Related Actions to Create a New Rural Lands Zone District. B. Resolution 2006-092 Amending the Fossil Creek Reservoir Area Plan Framework Map, Land Use Table and County Zoning Map Based on Related Actions to Create a New Rural Lands Zone District. C. First Reading of Ordinance No. 131, 2006, Amending the Land Use Code Article 4 to Add a New Rural Lands Zone District, as Division 4.1 and Re -Arrange Division Numbering and to Revise Article 3 Section 3.9.2 to Allow Single Family Residential in the RUL District Within One -Quarter Mile of Interstate Highway 25. The City's Land Use Code lacks a Zone District to properly implement City Plan policies for areas designated as "Rural Lands" and "Community Separator" on the City Structure Plan. The proposed RUL District is designed to fill that void. It is modeled very closely upon the County FA-1 and FA Farming zone districts, along with two other existing Larimer County 212 September 5, 2006 Zoning Districts, Airport and Rural Estate. The RUL District reflects a limited emphasis on low density single-family residential development, residual open lands, and agricultural activities. As a result of creating a new RUL District, several amendments are needed to City Plan Elements and the Land Use Code. Staff is recommending an amendment to the Fossil Creek Reservoir Area Plan and City Structure Plan maps. This amendment involves a change to the land use designation on a property outside the city limits located on the southwest corner of County Road 36 and I-25. This property was zoned Commercial in the County in 1995, but has been designated RUL on the City Structure Plan and Fossil Creek Reservoir Area Plan. The amendment includes changing the designation from Rural Lands to Commercial to be consistent with Latimer County zoning. Based on this change, two sections in the Fossil Creek Reservoir Area Plan need to reflect the added commercial designation including Land Use Table 2.1 and Existing County Zoning Map. Staff is recommending an amendment to the Land Use Code, Article 4, to add a new Rural Lands Zone District, Division 4.1. All proceeding Divisions will then be re -arranged. This action represents a housekeeping item to rearrange the numbering of the Article 4 Districts in the Land Use Code based on the inclusion of the new RUL District placed in the front as Division 4.1. The adjustment to the numbering of all other Divisions includes 4.1 — 4.28. As part of this amendment, three new Divisions are added as future placeholders, reserved for future use. Lastly, an amendment is needed to the Land Use Code, Article 3 — General Development Standards to allow single-family lots within 1 /4 mile of I-25, which would exempt the RUL zone from the residential restriction. 13. Items Relating to Sale of Hersh Property Natural Areas Lands A. First Reading of Ordinance No. 132, 2006, Authorizing Execution of the Amended Plat Related to the Dedications of Public Rights -of -Way in the Amended Hersh Minor Residential Development No. 06-52555 for the Benefit of the City of Fort Collins and the Natural Areas Program B. Second 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. Ordinance No. 132, 2006 authorizes the execution of the amended plat related to dedications in the Hersh Amended Residential Development. The County requires that the amended plat dedicate all roads as public rights -of -way. Ordinance No. 125, 2006, unanimously adopted on First Reading on August 15, 2006, authorizes the sale of three reconfigured lots and one residence and a portion of the water 213 September 5, 2006 rights from the 42.685 acre Hersh Property purchased in 2002 by the City for the Natural Areas Program. 14. First Reading of Ordinance No. 133, 2006 Authorizing the Grant of an Access Drainage, and Utility Easement from the City to The Greens at Collindale Homeowners Association D. Geisler Development and Packard Enterprise, Inc. is developing The Greens at Collindale PUD, First Replat located on South Lemay Avenue adjacent to Collindale Golf Course, which is owned by the City of Fort Collins. The proposed Access, Drainage, and Utility Easement will relocate and provide a necessary detention area for the development. In exchange for the granting of this easement, the developer has agreed to grant the City a needed access easement through the subdivision to access the Forestry Division Nursery area located on the golf course property, as well as for Golf Division Maintenance access to that portion of the Golf Course itself. 15. First Reading of Ordinance No. 134 2006 Vacating a Portion of Street Right -of -Way on Oak Street Located West of College Avenue Established as Part of the 1873 Man of the Town of Fort Collins, for Pu oses of Constructing Oak Street Plaza Park Improvements This Ordinance vacates aportion ofright-of-way for Oak Street, retaining ablanket easement over the entire vacated portion for access, drainage and public utilities. This portion of Oak Street right-of-way is being vacated for the purpose of constructing Oak Street Plaza Park, and to facilitate management and regulation of Oak Street Plaza Park as a park rather than as right-of-way. City Code does not permit park project funding to be used for projects within City right-of-way. Therefore, the right-of-way would need to be vacated back to the adj oining property owners and subsequently deeded back to the City by said property owners. Once deeded back to the City, the property will then be a City -owned parcel but no longer dedicated as right-of-way which will allow City Park funding to be used to complete the Oak Street Plaza project. Agreements with the adjoining property owners to deed this vacated right-of-way back to the City have already been secured by the City Attorney. The Ordinance is worded in such a way that the vacation shall not be effective until the Ordinance is recorded by the City Clerk. If the Council approves this Ordinance, the City will then secure deeds to the vacated portion of the right-of-way from the adjoining property owners and then promptly record the Ordinance and the deeds. In that way, the transfer of ownership back to the City would take place immediately following the vacation of the right-of-way. A blanket access, drainage and utility easement shall be retained with the vacation of Oak Street to ensure that no public services will be compromised as a result of the vacation. 16. First Reading of Ordinance No 135 2006 Authorizing the Conveyance of a Utility Easement and Temporary Construction Easement for the Greeley Waterline Enhancement Transmission Project. As part of the Greeley Waterline Enhancement Transmission Project, the City of Greeley needs to install a waterline on property owned by the City of Fort Collins. The City of 214 September 5, 2006 Greeley has asked the City of Fort Collins to grant two utility easements and two temporary construction easements for said waterline. City staff has reviewed the proposed easement areas and has agreed that there will be no negative impact to the City property by granting these easements. This Ordinance authorizes conveyance of these easements to the City of Greeley. 17. First Reading of Ordinance No 136 2006 Declaring Certain City -Acquired Pronertv as Timberline Road Ri t-Of-Way. The City completed the purchase of land for the Timberline Road Extension Project in 1998. However, none of the property was designated as right-of-way. In a previous similar situation on a separate section of Timberline Road, title companies raised title insurance issues for adjacent property owners because areas located adjacent to the roadway and the property line were not clearly delineated as part of the right-of-way. On January 18, 2000, the City Council approved Resolution 2000-011, declaring certain city -acquired property as Timberline Road right-of-way. Staff is recommending that a similar approach be taken for this section of Timberline Road. 18. Resolution 2006-093 Finding Substantial Compliance and Initiating Annexation Proceedings for the Arbor South Second Annexation. This in an involuntary annexation. The area to be annexed is the entirety of an enclave that has been surrounded by the City of Fort Collins for more than three years; therefore, no annexation petition is required. The property is 1.83 acres in size and is located on the west side of South College Avenue (State Highway 287), south of Harmony Road, east of the railroad tracks, and north of Fairway Lane. The address of the property is 4921 South College Avenue. It is currently a vacant, undeveloped piece of property. There are several groves of trees on the property. The proposed zoning for this annexation is C — Commercial. The surrounding properties are zoned C - Commercial to the north, east, west, and south. The proposed Resolution makes a finding that the annexation complies with the Municipal Annexation Act for annexation of an enclave, states the Council's intent to annex the Enclave, initiates the annexation, and directs that notice be given of the hearing. The hearing will be held at the time of first reading of the annexation and zoning ordinances on October 17, 2006. Not less than thirty days of prior notice is required by State law. 19. Resolution 2006-094 Authorizing the Lease of a Portion of the City -Owned Property at 250 North Mason Street, Fort Collins Colorado For Up to Two Years Since the Transit Center became operational, the City has leased an office to a company that has provided over -the -road bus service at the Center. The current tenant is Greyhound Lines, Inc. Greyhound's lease will expire September 30, 2006 and the company has expressed a 215 September 5, 2006 desire to continue leasing the premises. This service has been beneficial to the community and City staff would like to continue leasing the premises to the current tenant. The Lease Agreement will be for the rental of a 190 square -foot office space and an outdoor bicycle/storage unit. The lease term will be for one year, with the City having the option to renew for an additional one-year term. The annual rental for these spaces will be $3,552. The tenant will be required to carry commercial general liability insurance, commercial automobile liability insurance and worker's compensation insurance. 20. Resolution 2006-095 Identif idnf Projects to be Funded by Passenger Facility Charges Collected at the Fort Collins -Loveland Municipal Airport The Aviation Safety and Capacity Expansion Act of 1990 provided a new source of funding (Passenger Facility Charges-PFC), for authorized airports to fund needed airport expansion projects that might otherwise go unfunded. A new PFC Application is being submitted to the FAA for recovery of eligible project costs in accordance with this Act. The cities of Fort Collins and Loveland are required to approve the projects being submitted in the Application. This Ordinance identifies the projects submitted in the Application. 21. Resolution 2006-096 Establishing a "Leadership in Energy and Environmental Design" Green Building Certification Goal for New Municipal Buildings Green buildings increase human performance, reduce the use of non-renewable energy, minimize environmental pollutants, and reduce the use of water, and lower the life -cycle costs. The U.S. Green Building Council's LEED (Leadership in Energy and Environmental Design) Green Building Rating System and Certification program has become the nationally recognized standard for excellence in facility design. LEED certification can be achieved with little (<2%) to no incremental costs when the commitment to achieve LEED certification is established at the beginning of the design process and the design team is experienced in LEED design. The City of Fort Collins already pursues LEED Silver requirements for new construction (Action Plan for Sustainability; City Bid Specification Standards). This Resolution establishes a goal that all new City -owned buildings over 5,000 square feet achieve a LEED Gold certification, unless it is not technically or economically feasible to do so. LEED Gold buildings typically incorporate enhanced whole -building design solutions that result in significantly lower operations and maintenance costs over the building lifetime. Worker productivity is increased and environmental impacts are reduced. By demonstrating leadership in municipal construction, the City of Fort Collins can quicken green building market transformation and support economic development in the green building sector. To keep a tight control on costs, if the incremental cost of achieving a LEED Gold certification has a payback of greater than 10 years, the City may opt to seek the LEED Silver certification. For buildings where it is deemed technically infeasible to obtain a LEED Silver or Gold certification, the Resolution directs City staff to incorporate as many principles of 216 September S, 2006 green building as feasible. The Resolution also states that the City should begin using the appropriate LEED standard as a guide for the sustainable operation and maintenance of existing City buildings. 22. Resolution 2006-097 Adopting the Citv's Economic Action Plan One of the priority goals in the City Council's Policy Agenda for 2006 is the completion of the Economic Action Plan (the "Plan"). Staff presented a draft Plan to Council at its July 11, 2006 Work Session and received recommendations and suggestions that have been incorporated into the current version of the Plan. The Plan outlines the specific action items the City will undertake to support a healthy economy through four key strategies: diversify the economy, be proactive on economic issues, form partnerships with local and regional organizations, and balance the approach between business expansion and attraction. The Plan is intended to be a "living document" that will be regularly updated while it is being implemented. This Plan is expected to carry the City through the summer of 2007 when it is recommended that the overall strategy be revised by the City Council and changes reflected to the extent necessary in the City's 2008-2009 budget. City staff will present quarterly updates to Council regarding the progress under the Plan once implemented. 23. Resolution 2006-098 Appointing Two Representatives to the Colorado Municipal League Policy Committee. Appointments to the CML Policy Committee are made each fall and members serve for a one-year period. Each member municipality of the League is entitled to a representative, and all cities over 100,000 are entitled to designate two representatives. The Policy Committee is responsible for reviewing legislative proposals and recommending to the League Executive Board, positions of support, opposition, no position or amendment to a wide variety of legislation affecting cities and towns. At each annual conference in June, the Policy Committee proposes to the membership, revisions to the League's policies which guide League positions on public policy issues affecting municipalities. The Committee meets three or four times a year, before and during legislative sessions as well as in May prior to the annual conference. This Resolution appoints Mayor Pro Tern Karen Weitkunat and City Manager Dann Atteberry to represent the City of Fort Collins on the Colorado Municipal League Policy Committee. 217 September S, 2006 24. Routine Easement. Easement for construction and maintenance of public utilities from Stacy Jones and Richard Sinor, to underground electric system underground, located at 3614 Richmond. Monetary consideration: $10. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. 6. Second 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. Second Reading of Ordinance No. 121, 2006, Appropriating Unanticipated Grant Revenue in the General Fund for the Larimer County Drug Task Force. 13. Second 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. 29. Second 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. 30. Second Reading of Ordinance No. 123 , 2006, Extending the Contract for Advertising on Exterior and Interior of Buses for Up to Five Additional Years. Ordinances on First Reading were read by title by City Clerk Krajicek. 8. First Reading of Ordinance No. 127, 2006, Appropriating Unanticipated Grant Revenue in the Natural Areas Fund and Authorizing the Transfer of Existing Appropriations in the Natural Areas Fund to be Used to Gather Information Necessary for the Development of the Soapstone Prairie Natural Area Management Plan. 9. First Reading of Ordinance No. 128, 2006, Appropriating Unanticipated Grant Revenue in the General Fund for the Operation of the Fort Collins Welcome Center. 10. First Reading of Ordinance No. 129, 2006, Appropriating Unanticipated Revenue in the Capital Projects Fund - Water Craft Course Capital Project to be Used for a Feasibility Study, Design and Construction of a Water Craft Course Along a Section of the Cache La Poudre River Near the Old Power Plant. ar-3 September 5, 2006 11. First Reading of Ordinance No. 130, 2006, Authorizing the Appropriation of Funds for Capital Improvements to Construct Capital Improvements at the Fort Collins -Loveland Airport and Operating Expenses for Consulting Services Needed for a New Passenger Facility Charge Application. 12. First Reading of Ordinance No. 131, 2006, Amending the Land Use Code Article 4 to Add a New Rural Lands Zone District, as Division 4.1 and Re -Arrange Division Numbering and to Revise Article 3 Section 3.9.2 to Allow Single Family Residential in the RUL District Within One -Quarter Mile of Interstate Highway 25. 13. First Reading of Ordinance No. 132, 2006, Authorizing Execution of the Amended Plat Related to the Dedications of Public Rights -of -Way in the Amended Hersh Minor Residential Development No. 06-S2555 for the Benefit of the City of Fort Collins and the Natural Areas Program. 14. First Reading of Ordinance No. 133, 2006, Authorizing the Grant of an Access, Drainage, and Utility Easement from the City to The Greens at Collindale Homeowners Association. 15. First Reading of Ordinance No. 134, 2006, Vacating a Portion of Street Right -of -Way on Oak Street Located West of College Avenue, Established as Part of the 1873 Map of the Town of Fort Collins, for Purposes of Constructing Oak Street Plaza Park Improvements. 16. First Reading of Ordinance No. 135, 2006, Authorizing the Conveyance of a Utility Easement and Temporary Construction Easement for the Greeley Waterline Enhancement Transmission Project. 17. First Reading of Ordinance No. 136, 2006, Declaring Certain City -Acquired Property as Timberline Road Right -Of -Way. 28. Items Relating to the Southwest Enclave Annexation and Zoning A. First Reading of Ordinance No. 137, 2006 Annexing Property Known as the Southwest Enclave Annexation. B. First Reading of Ordinance No. 138, 2006, Amending the Zoning District Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in Phase One of the Southwest Enclave Annexation to the City of Fort Collins, Colorado. C. First Reading of Ordinance No. 139, 2006, Amending Land Use Code Sections 3.8.7(a)(3)(c) Regarding Amortization of Nonconforming Signs and 3.8.11(b) Regarding Fencing. 219 September 5, 2006 D. First Reading of Ordinance No. 140, 2006, Amending Chapter 26, Article VI, Division 4 of the Code of the City Relating to Rates and Charges for Electric Service. E. First Reading of Ordinance No. 141, 2006, Amending Chapter 26, Article VII, Division 2 of the Code of the City Relating to Stormwater Fees. F. First Reading of Ordinance No. 142, 2006, Amending Chapter 15, Article XI of the Code of the City of Fort Collins Pertaining to Secondhand Dealers and Flea Markets. G. First Reading of Ordinance No. 143, 2006, Amending Section 4-73 of the Code of the City of Fort Collins Relating to the Possession of Wild or Exotic Animals. Councilmember Manvel made a motion, seconded by Councilmember Roy, 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. Staff Reports City Manager Atteberry stated staff had an update on the West Nile virus situation. Tom Vosburg, Chief Information Officer, stated the City had adopted "trigger" criteria to determine the need to spray or fog for mosquitos. The City received a notice last week from the County Health Department indicating the West Nile risk index was getting close to the trigger threshold. Information was presented indicating the risk index was going down and it was unlikely that it would be necessary to spray or fog for adult mosquitos for the balance of the season. City Manager Atteberry commented on the cooperation of the County Health Department in monitoring the situation. City Manager Atteberry noted some road improvement projects had been completed ahead of schedule: southbound Taft Hill Road between Horsetooth and Harmony Roads; Taft Hill Road between Harmony and the Coyote Ridge open space parking lot; and the roundabout at Ziegler and Kechter. He stated major improvements had been completed by street crews to Laurel Street and the work on Timberline and Prospect Roads were operating efficiently during road work. He thanked those involved in getting the projects done early to minimize inconvenience to motorists. He also reported Police Services hosted a sobriety checkpoint on August 27 and 8 people were arrested out of 2,988 vehicles contacted. He thanked Police Services and its partners for this successful effort. Councilmember Reports Mayor Hutchinson stated Councilmembers had statements to make in opposition to the ballot issue on police binding arbitration. Councilmembers Roy, Ohlson, Weitkunat, Brown and Manvel and Mayor Hutchinson asked voters to cast ballots in the special election in opposition to the measure and to return mail ballots by the deadline. 220 September S, 2006 Items Relating to the Southwest Enclave Annexation and Zoning Adopted on First Reading The following is staff s memorandum on this item. "EXECUTIVE SUMMARY A. First Reading of Ordinance No. 137, 2006 Annexing Property Known as the Southwest Enclave Annexation. B. First Reading of Ordinance No. 138, 2006, Amending the Zoning District Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in Phase One of the Southwest Enclave Annexation to the City of Fort Collins, Colorado. C. First Reading of OrdinanceNo.139,2006,AmendingLandUseCodeSections3.8.7(a)(3)© Regarding Amortization of Nonconforming Signs and 3.8.11(b) Regarding Fencing, D. First Reading of Ordinance No. 140, 2006, Amending Chapter 26, Article VI, Division 4 of the Code of the City Relating to Rates and Charges for Electric Service. E. First Reading of Ordinance No. 141, 2006, Amending Chapter 26, Article VII, Division 2 of the Code of the City Relating to Stormwater Fees. F. First Reading of Ordinance No. 142, 2006, Amending Chapter 15, Article XI of the Code of the City of Fort Collins Pertaining to Secondhand Dealers and Flea Markets. G. First Reading of Ordinance No. 143, 2006, Amending Section 4-73 of the Code of the City of Fort Collins Relating to the Possession of Wild or Exotic Animals. This is an involuntary annexation and zoning of an enclave area approximately 2.7 square miles (1731 acres) in size, generally bordered on the north by Harmony Road, the south by Trilby Road, South Taft Hill Road on the west and 114 mile east of College Avenue to the east (see attached vicinity map). The annexation complies with the applicable state law, the Intergovernmental Agreement between Fort Collins and Larimer County, and the applicable criteria in the Fort Collins Land Use Code. The area is partially developed and partially undeveloped and in the FA-1 Farming District (Brookwood, Ap Knolls, Ader Estates, the west half of Skyview Acres 1st Filing, Skyview South 2ndFiling, Fossil Crestplewood, Scenic, and Wildflower Subdivisions), FA Farming District (Fairway Estates 3rd Filing, the west %2 of Lynn Acres, developed residential portions of Trilby Heights, and Skyview South 1st), R Residential District (Fossil Creek Meadows), R-2 Residential District (east ''/zofLynn Acres), E-1 Estate District (Fairway Estates), M-1 Multi -Family District (Pitner Estates), and C Commercial (Kel Mar Strip, South 13, Skyview 13, and portions of Trilby Heights properties fronting South College Avenue) in Larimer County. 221 September 5, 2006 BACKGROUND 1. Background The surrounding zoning and land uses as follows: N.• HC— HarmonyCorridorDistrict; existing retail C— Commercial District; existing retail RL— Low Density Residential District; existing single family residential S: RL — Low Density Residential District; existing single family residential POI— Public Open Lands; City -owned Pelican Marsh and Collna Mariposa Natural Areas LMN— Low Density Mixed Use Residential District; existing single family residential MMN— Medium Density Mixed Use Residential District; existing single family and multi- family residential E: RL — Low Density Residential District; existing single family residential LMN— Low Density Mixed Use Neighborhood; existing single family residential POL —Public Open Lands; City -owned Fossil Creek Community Park, City —owned Prairie Dog Meadow and Two Creek's Natural Areas W.- POL— Public Open Lands; City -owned Coyote Ridge and Cathy Fromme Prairie Natural Areas RL — Low Density Residential District; existing single family residential The City of Fort Collins and Larimer County, through an Intergovernmental Agreement (IGA), defined the Fort Collins Growth Management Area (GMA). Over time, the City will annex land area outside the current city limits and within the GMA. The GMA will become developed and urbanized. Under the IGA and adopted City Plan policy, the City has agreed to pursue the annexation of enclaves as they become eligible. Enclave annexations are subject to the requirements of Section 31-12-106 of the Colorado Revised Statutes. When any unincorporated area is entirely surrounded by land within the City's jurisdiction for at least three years, the City may annex the area without the consent of area property owners. Under the State statute, enclave annexations are subject to relatively limited public notice requirements and are exempt from the public hearing requirements applicable to voluntary annexations. The annexation area is located within the Fort Collins Growth Management Area (GMA) exceptfor 40 acres lying within the Wildflower GMA Expansion Area. Staff is recommending that those portions ofthe enclave located outside the C-Commercialzone district be included in the Residential Neighborhood Sign District, which was established for the purpose of regulating signs for non- residential uses in certain geographical areas of the City which may be particularly affected by such signs because of their predominantly residential use and character. A map amendment would be necessary to place this area within the Residential Neighborhood Sign District. 222 September S, 2006 2. State Law — Colorado Revised Statutes (CRS) & the Colorado Constitution A. Colorado Constitution, Article 1, Section 30. The annexation meets this Constitutional requirement in that the annexation area is entirely surrounded by properties within the City. B. CRS 31-12-106— Annexation ofenclaves: This area is also eligible for annexation according to this state statute, which permits an unincorporated area to be annexed ifsuch area has been entirely contained within the City's jurisdiction for a period of not less than three years. This annexation complies with this standard since the enclave was created upon approval of the Coyote Ridge Annexations more than three years ago (November 30, 2001). City Council reviews for enclave annexations are exempt from the provisions of CRS 31-12-104, 31-12-105, 31-12-108, and 31-12-109. C Phased Annexation Primarily because the resources needed to serve the entire enclave are limited at this point in time, staff believes that it would be in the best interests of the City if the annexation of the enclave were to take effect over a period of several years. This recommendation is reinforced by the fact that certain "outlying" portions of the enclave, especially those adjacent to or near the City's natural areas, are still more rural in character than other portions of the enclave, such as the South College frontage area. Staffs perspective is that the annexation of the South College frontage area (see Attachment 8) should take effect immediately not only because that portion of the enclave is the most urban in its character, but also because: a. it forms the southernmost entrance to the City, which makes it imperative that the City begin to apply its land use standards, including design standards, to the area in order to create an attractive gateway to the City and to promote the economic development of the City; b. it generates significantly more tax revenues than the rest of the Enclave because development in the area is primarily commercial, which means that the revenues from the area will make it more feasible for the City to fund and provide critical services to the area, such as police services; C. it generally has a higher crime rate than the rest of the Enclave, which makes the provision of urban level law enforcement services in the area more time sensitive than in the rest of the Enclave; and d. it requires fewer City funded amenities such as recreational and cultural facilities because of its non-residential nature. 223 September S, 2006 After the annexation map for the South College frontage area has been recorded, City staff will monitor land use development and other changes in the remaining portion of the Enclave, as well as the City's ability to serve those areas. When the City can better afford to provide services to other areas of the enclave and when electric utilities can be logically and sequentially extended to those areas, staff will recommend that the annexation of the rest of the enclave be finalized. Under this approach, the annexation ordinance describes the entire enclave. Because, however, state law provides that annexations do not take effect until the annexation map for the area to be annexed is filed with the County Clerk and Recorder, the annexation maps for the four phases will be recorded over a period ofapproximately eight years. Thus, the annexation ordinance authorizes and directs the City Manager to immediately record only that portion of the enclave that consists of the South College frontage areas (Phase One). Itfurther authorizes and directs the City Manager to subsequently file annexation maps for the additional portions of the enclave, separately described on Exhibit "C" to the Ordinance, according to the time frame shown on the exhibit. The approximate geographic boundaries and timeline for annexation ofphases 2-4 are also depicted in Attachment 9. The Ordinance further authorizes the City Manager to make minor changes in the boundaries of the phases and to seek Council approval to more substantial boundary changes or to change the time frames for finalizing the annexation of subsequent phases under certain circumstances. It also reserves to Council the right to modify the configuration or timing of the phases on its own initiative. 3. Intergovernmental Agreement between Fort Collins and Larimer County A. IGA Section 8 -Annexations: (1) IGA Section 8(A) - It is the City's intent to annex properties within the GMA as expeditiously as possible. (2) IGA Section 8(D) - The City agrees to pursue involuntary annexation of any parcel that becomes eligible for involuntary annexation. 4. Land Use Code Standards A. LUC Section 2.12 Annexation of Land This section of the Land Use Code requires: (1) that the annexation of lands be in accordance with state law, (2) that the Planning and Zoning Board shall hold a hearing on the matter and report a recommendation to the City Council, and (3) that a recommendation on the proper zoning for the lands be provided. 224 September 5, 2006 The annexation conforms to the requirements in the Colorado Revised Statutes (CRS). This hearing will be the forum through which the Planning and Zoning Board will forward a recommendation to Council. B. LUC Section 2.9 Amendment to the Zoning Map This section of the Land Use Code provides that any amendment to the Zoning Map involving the zoning ofmore than 640 acres of land (a legislative zoning) is at the legislative discretion ofthe City Council. Because the annexation will occur in phases, only Phase One, consisting of the South College frontage area, will be zoned at this time. Under the proposed annexation ordinance, the zoning of the other phases will occur within ninety days after the recording of the map for each phase, following such notice as may be required by law. Despite the fact that no specific criteria for legislative zonings is afforded under the Land Use Code, staff recommends that the City Council consider using the following criteria applicable to quasi- judicial zonings as a basis for the decision regarding the proposed zone districts. It is the City Council's right to utilize these criteria or any other factors for which it finds appropriate when making its decision. The proposed criteria areas follows: That the initial zoning request is: (I) consistent with the City's Comprehensive Plan; and/or (2) warranted by changed conditions within the neighborhood surrounding and including the subject area. Also, the following additional factors can be considered: (3) whether and the extent to which the proposed zoning is compatible with existing and proposed uses surrounding the subject land, and is the appropriate zone district for the land; (4) whether and the extent to which the proposed zoning would result in significantly adverse impacts on the natural environment, including, but not limited to, water, air, noise, stormwater management, wildlife, vegetation, wetlands and the natural functioning of the environment (5) whether and the extent to which the proposed zoning would result in a logical and orderly development pattern; The recommended zoning districts for Phase One are Urban Estate (UE), Low Density Residential (RL), Low Density Mixed -Use Neighborhood (LMN), Medium Density Mixed -Use Neighborhood 225 September 5, 2006 (MMN), and Commercial ©. The City's adopted Structure Plan, apart of City Plan, designates the corresponding portions of the annexation area as Urban Estate, Low Density Residential, Low Density Mixed -Use Neighborhood, Medium Density Mixed -Use Neighborhood, Rural Lands, Commercial, and Open Lands, Parks, Stream Corridors. Portions of the annexation area, aside from thepublicly-ownedHazaleus and Cathy Fromme Prairie NaturalAreas, are designated "Open Lands, Parks, Stream Corridors ", are held under private ownership, and are undevelopable due to their location within FEMA and City -regulated floodways. The proposed eventual zoning pattern for the entire enclave is depicted in Attachment 3. The proposed zone district designations are considered consistent with the Structure Plan designations. 5. Provision of services before and after annexation Infrastructure and municipal services are now being supplied to the annexation area by Larimer County, Poudre and Thompson R24 School Districts, Poudre Fire Authority, Transfort, Fort Collins/Loveland Water District/South Fort Collins Sewer District. Utilities are supplied by U.S. West for telephone, Poudre Valley Rural Electric Authority (PVREA) for electric service, Xcel Energy for gas (and electric service to approximately 100 customers), and independent cable companies for television cable service. Private Homeowner's Associations maintain some of the roads within the annexation area. All present City of Fort Collins municipal services would be provided to the annexation area. A comparison of which agencies carry responsibility for infrastructure and municipal services before and after annexation is noted below: Before Annexation After Annexation Law Enforcement Lorimer County Sheriff City of Fort Collins Planning, Engineering & Building Larimer County City of Fort Collins Streets Lorimer County Road and City of Fort Collins/ Bridge/private private Stormwater Larimer County City of Fort Collins Parks and Recreation (no existing Countyparks City of Fort Collins serve the area) Courts Lorimer County Larimer County/City General Gov't Admin Larimer County City of Fort Collins Water Fort Collins/Loveland District same Sewer South Fort Collins Sanitation same District or septic Flood Control Larimer County City of Fort Collins Libraries None City of Fort Collins Electric PVREA/*Xcel Energy City of Fort Collins Gas Xcel Energy City of Fort Collins Fire Poudre Fire Authority same 226 September 5, 2006 Schools Poudre School District (North same of Trilby Road) Thompson R24 South of Trilby Road) Transit Transfort same Animal Control Humane Society same *Xcel Energy provides electric service to approximately 100 customers (roughly 8% of the total) within the annexation area. 6. Impact on the City of Fort Collins and other agencies of change in provision of infrastructure and services Based on direction received from City Council and Planning and Zoning Board through past work sessions, staffhas completed an assessment ofpotential impacts to City infrastructure and services. The assessment has been prepared from existing and available information provided by City departments and other service agencies based on their understanding ofpersonnel, operating and capital expenses. The figures derived are approximate and not intended to be precise or over - prescriptive, but rather as indicators of revenues, service levels and expense. As is noted in the above section, no change will occur in the provision ofcertain services to residents in the annexation area. With respect to water and sewer service, fire protection, and transit, the same agency will provide the service before and after annexation and therefore, no fiscal impact on the City will occur in these areas. Nor is it expected that the special districts will experience a change in fiscal demands on them. In addition, no impact will occur to school services since schools are provided through the Poudre R-1 School District and Thompson R2-JDistricts both before and after annexation. The water and sanitary sewer service will continue to be the responsibility of the Fort Collins/Loveland Water District and South Fort Collins Sanitation District. In the areas oflawenforcement,planning, building and engineering; streets; stormwater; parks and recreation and general government administration, annexation would result in the shift in responsibility primarily from Lorimer County to the City the Fort Collins. What follows is a discussion ofpossible impacts of this shift in these areas. Estimates of the possible costs in these areas which could resultfrom annexation, stemmingfrom needed equipment and personnel, and the type and number of employees needed to extend the current level of services to this area are enveloped in the summary offiscal impacts. These costs were developedfrom the City's current and historical experience ofhow costs are related to such factors as the number ofexisting and projected future dwelling units to be served, amount of existing and future retail and service uses, size of population, lane miles ofstreets, and acres ofparkland. A. Law Enforcement Shifting law enforcement responsibilities from Lorimer County to the City is expected to reduce the demand for personnel and equipment on the County and increase the demand on the City. The cost ofpolice services in the City is paid primarily through the General Fund. The mill levy on property provides one source of income to the General Fund. 227 September 5, 2006 At present, mutual aid is provided between the Larimer County Sheriffs Office (LCSO) and Police Services, particularly with respect to the proposed first annexation phase that includes properties along the South College Avenue frontage. LCSO has provided updated statistics for the Phase I area for 2005. This data indicates a total call load ofapproximately 1, 479 incidents over the course of the year (this an estimate due to the fact that the LCSO response area boundaries do not precisely match the Phase I boundary). These incidents include a wide range of events (a summary list detailed in Attachment 5). Of these incidents, Police Services responded to (took the lead on) the 55 mutual aid responses noted above. Using these 2005 numbers, the additional incidents in the phase I area will result in a 14% increase in call load for Patrol Area 4. The City Council has established a target for providing Police Services at 1.5 Officers per one thousand population (L511000). The Southwest Enclave will have full time resident, employment, and transient populations (delivery drivers, client/customers, etc.). Each of these subgroups comprises the Service Population of the planning area. The Service Population of the Southwest Enclave has several components. The residential part comes from the U.S. Bureau of the Census which identifies 3,127 residing in the Enclave. The remaining component of Service Population is made up of traffic volume unique to the area, business employees, and customers. Based on traffic volumes on South College and the number of businesses in the area, it is estimated that there are, at least, another 2500 new individuals that could demand Police Services throughout the day. There is also a need to estimate the non -sworn or civilian staffneeded to support sworn officers. The patrol officer or detective relies on dispatchers, record clerks, and other administrative support personnel to provide service. Currently, there are approximately 0.58 FTE personnel per sworn officer. Based on the forecasted 1st year annexation cost to provide services, the first year Police Services FTE for the entire Enclave area would call for 12.0 FTE at an estimated cost of $1, 668, 000. The projected Phase One annexation involving properties fronting College Avenue would require 5.0 FTE, which would cost an estimated $665,513. Police Services anticipates that the additional police patrol necessary to serve the area could be accommodated through reallocation ofexisting police resources. Initially, Police Services will handle service calls from the Phase I area with existing resources. To deal with the longer term, General Fund revenues from the Phase I area will be used primarily to augment police services provided to the annexed areas in the future. B. Planning, Building and Engineering With annexation, the City will assume responsibility for the review of development proposals, including overall development plans, project development plans, final plans, and subdivisions; variances; stockpiling permits; sign and grading permits; review of building plans, issuance of building permits and building inspections. The amount ofactivity is expected to be accommodated through existing City staffing, given that the area is largely developed and that there are limitations 228 September S, 2006 to future development based on private residential covenants and the fact that much of the area is developed. Most of the planning, engineering and building plan review, permit and inspection activity will most likely be associated with small-scale residential and commercial land development applications, house additions and remodeling, and property improvements. The City will also assume responsibility for code enforcement, i.e., handling complaints about zoning, building, grading, sign violations, and nuisances. C. Street Maintenance and Improvements As the annexed area develops or redevelops, developers will be required to construct or upgrade affected streets to the Lorimer County Urban Area Street Standards (LCUASS) for safety and maintenance purposes. These standards include street paving installation requirements, and the provision of other public improvements such as curb, gutters and sidewalks, although there will be an opportunity to custom design street -related improvements based on neighborhood desires. With the shift of responsibilityfrom Larimer County to the City of Fort Collins for streets, there will be very slight impact to the City's street maintenance program. Most of the local streets within the annexation area do not conform to the LCUASSfor design. The City will provide the same level of service as the County provided prior to annexation. This usually includes minor surface maintenance like cracksealing and the filling ofpotholes, but does not include asphalt overlays or street reconstruction at the City's expense. In some cases the streets are privately maintained, that is they are the responsibility of a Homeowner's Association, by designation on the plat of the subdivision. In those cases, street maintenance will continue to be the responsibility of the association until the streets are reconstructed to the LCUASS. D. Parks and Recreation The City has made a significant investment in the 100-acre Fossil Creek Park, the City's newest and largest communitypark, which lies just east of the annexation area. The park has sports fields and playgrounds, as well as trails and passive recreation areas. Park amenities include: • two lighted ball fields • a roller -hockey rink • a dog park • lighted tennis and basketball courts • multi purpose fields • urban obstacle skateboard park There are no additional parks proposed in the annexation area. In the event that new residential development occurred within the area after annexation, the City would be obligated to provide parks or justify the use of parking fees for the existing parks in the service area (some examples: Fossil Creek Community Park, RidgeviewPark, MiramontParkandfutureProvincetownPark) The Parks and Recreation Policy Plan (Policy 1. b) states that at a minimum, one neighborhood park shall be provided in every square mile section (or portion thereof) of the city that is predominantly 229 September 5, 2006 residential and be sized and developed according to the population and fees which have been generated in that area. Parkland fees assessed against new residential development after annexation will provide funding for neighborhood parkland acquisition and development. The operation and maintenance ofparks will still need to be funded through the General Fund. Given the significant existing residential development within the Enclave, no parkland fees can or will be collected upon annexation. New neighborhood parks will be financed through future residential development fees. Several City -owned Natural Areas are within the Enclave or 114 mile of the annexation boundary, including the Hazaelus, Cathy Fromme Prairie, Collna Mariposa, Redtail Grove, Two Creeks, Prairie Dog Meadow, and Pelican Marsh Natural Areas. E. Library Services The Harmony Branch library is located near the north boundary of the Enclave area. A review of the library patron records indicates that there are 1,137 card holders residing within the annexation area. This is a conservative estimate. Many families use one card to check out materials for their children or their spouses in addition to themselves. Also, a significant number ofpeople use the libraryfor phone or in person reference without getting a card. F. General Government Administration/Personnel With annexation, the number of City employees and the amount of equipment are not expected to measurably increase in order to extend services to the annexation area. This can be attributed to the fact that the annexation area is largely developed at this time. 7. Financial Impact to the City of Fort Collins There currently are 1080 housing units, 108 businesses and an estimated population of 3,127 residents in the Enclave. Revenue sources areprimarily variousfees (e.g. Street Oversizing, Capital Expansion, Building Permits, Storm Drainage Basic Expansion) and taxes (e.g. Property, Electric, Sales). Provided below are two 15 year scenarios: low growth, and a second scenario that assumes moderate infill and redevelopment, including one large retail development. *Note: All of the projected revenues are based upon 2006 dollars. Proiected revenues (all funds/sources): Year 1 $ 1,789,080 Year15 $ 1,919,5 76 low growth $ 2,381,583 moderate growth General Fund revenues.• Year 1 $ 877.562 Year15 $ 903,842 low growth $ 1,365,844 moderate growth 230 September 5, 2006 Funding needs for City services in the Enclave area vary. Some services, such as Golf, Electric and Stormwater, are directly funded by user fees. Other General Fund departments such as Code Compliance plan to position staff to be able to serve the additional customers using existing resources, no additional funds will be required in the short term. Other services, such as the Library or Lincoln Center, are already used by many Enclave residents and do not trigger additional expenditures. The largest General Fund impact by far is the monies needed for additional Police Services employees. In the short term, staffcan be reassigned to extend coverage to the South College/Phase 1 area. However, additional funds will be needed to maintain police staffing at appropriate levels and the City Manager has made this a priority. The following are additional General Fund costs for the entire Enclave area: Police $1,668,000 Arterial Streets * 127,725 Collector Streets 80,355 Local Streets 12.070 Year I Total $1,888,150 * To be improved per Transportation Master Plan regardless of annexation The bottom line is that City revenues generated from the residential portions ofthe Enclave will not exceed costs necessary to serve them. This is true nationally, and especially true in Colorado with the shift in property tax to commercial property, and the reliance on sales tax to fund city services. A matrix outlining the annexation costs and revenues are outlined in Attachment 7. 8. Public Review Process During the summer of 2004, City staff conducted seven neighborhood meetings to elicit feedback fromproperty owners and residents within the SouthwestEnclave. The meetings were well attended, with more than 50 residents at most of the sessions. In conjunction with the neighborhood meetings, a web page was created that provided written summaries of citizen questions and comments and staff responses raised at each neighborhood meeting and, some cases, accompanying Powerpoint presentations. In addition, the web page featured a property tax calculator allowing residents to determine the difference between County and City tax rates. The City Council conducted a work session on February 22, 2005. At that meeting, the majority of Council members expressed support for considering a phased approach to annexation, with emphasis on annexing the properties fronting on S. College Avenue as the first phase. 231 September 5, 2006 Councilman Kurt Kastein led a facilitated District Meeting discussion with area residents at the Harmony Library on September 27, 2006 During a subsequent work session in November 2005 City Council members affirmed their intent to annex the Southwest Enclave area. However, Council also noted that many of the people living and working in the area continued to have concerns about the effects of the annexation, and that additional input from citizens could help them make decisions as to how to mitigate impacts. As a result, Council members directed staff to spend additional time working with Enclave residents, property owners and business owners in order to better hear citizens' issues, exchange ideas and answer questions. From January through May 2006 a number of outreach efforts took place, including: Meetings with board members of Citizens Against Forced Annexation (CAFA) • Twelve neighborhood meetings, each targetedata specific area; invitations extended in the form of a letter from the City Manager sent to property owners and tenants alike • Development of user-friendly "FAQs" containing answers to the most commonly asked questions; mailed along with invitations to the neighborhood meetings and posted on the internet • Dedicated City web site - ham:11www.fceov.com/swa - with a variety of information including maps, information on fees and taxes, and meeting minutes and related follow up from each neighborhood meeting. The meetings were generally well -attended and ranged from simple exchanges of information to highly -charged discussions. Questions were asked and answered and participants were asked to suggest how the City might ease the transition from County to City. A complete set of minutes from all 12 neighborhood meetings are shown in Attachment 10. In addition to formal public meetings, the local news media has provided extensive coverage about the prospective annexation. Articles providing various levels of detail about the annexation issues and process have appeared in the Fort Collins Coloradoan, Fort Collins Weekly, Rocky Mountain Bullhorn, Fort Collins Forum, Loveland Reporter -Herald, and the North Forty News. Local radio and television coverage has also been provided. Throughout the public process, citizens have generally voiced strong opposition to the annexation. Concerns have ranged from direct, increased costs, e.g. - monthly stormwater utilityfees and the electric utility service rights fee to a perceived fear that theirpresent way oflife will be dramatically altered under City regulations. 9. Public Notice/Second Reading. In addition to the outreach meetings, notice of the proposed annexation has been published as required by law. However, that notice was in the form of an extensive legal description which, at the time ofpublication, contained some typographical errors. Therefore, staff has republished the 232 September 5, 2006 notice and included a map of the enclave as well as the final legal description. To allow adequate time for that re publication, staff is recommending that second reading of the annexation ordinance and related ordinances be scheduled for October 3, 2006. 10. Summary of Proposed Mitigation Measures In order to reduce the financial burden on area property owners and residents and making a smoother transition to the City, the staff is proposing a series of mitigation measures. In some instances, implementation of the measures will require specific amendments to the City Code, Land Use Code, and/or elements added to the annexation resolution or ordinance. • Change the amortization period from 5 years to 7 years for nonconforming permanent signs located on properties annexed into the City. The City began working with Larimer County about 10 years ago on a project to amend the County sign code so that the County's regulations would conform to the City's regulations, at least for the properties in the urban growth area. However, the Countyplaced theproject on hold until last year when consistent sign regulations were finally adopted. Had the Code been amended 10 years ago, the number of potentially nonconforming signs that could be annexed would be substantially less and the economic impact to county property owners might not be as great. Replacement or remodeling ofnonconforming signs that are currently in the county can cost thousands of dollars and business owners have noted that this additional cost is especially burdensome when added to other potential costs they might be subjected to. Staff is recommending this Code revision apply city wide and include future annexations. Other regulations that pertain to nonconforming permanent signs will remain. Additionally, it is recommended that no changes be made to the provision that requires "temporary " signs such as portable signs, vehicle -mounted signs, banners, and flashing or animated signs to be removed within 60 days of the date of annexation. • Allow barbed wire fences and electrically charged fences used for livestock and pasture management in UE and RUL zones. Current regulations have not accounted for the types of agricultural uses found in the new Rural Lands zone district. Additionally, new technologies allow safe and practical electrically charged fences that were not possible in the past. This Code change will apply city-wide and allows electrically charged fences as long as they do not exceed a maximum amperage, are used within permanent fencing, and contain signs identifying them as being electrically charged if located along any public right of way. As with other structures considered non -conforming to the City's Land Use Regulations, existing barbed wire fences and electrically charged not meeting the proposed standards would be allowed to continue indefinitely, unless such fences would be removed, relocated or modified. 233 September 5, 2006 • Use Utility reserve funds to cover all except 5% of the 25% mandated service rights fee for Poudre Valley Rural Electric Authority (PVREA) customers in the Enclave area. As a result, a vast majority of PVREA customers will pay the same or less for City electric service than they do currently under PVREA. Xcel customers will see a 35-40% decline in electric rates. State law mandates that the Citypay an additional 25% of each customer's monthly fee to PVREA for a period of 10 years. In the past, the City has chosen to pass this fee along to customers. Enclave residents have voiced strong opposition to this practice, and many small business owners have expressed concern that it will not only harm their business but, in some cases, the 25% coupled with the City's demand rate could cause them to go out of business. By reducing the fee to 5916, PVREA customers in the Southwest Enclave will pay the same or less for City electric service than they do currently under PVREA. These calculations take the value of the PVREA "rebate" into account as well, even factoring this in, PVREA customers will pay the same or less with the City. Excel users, who are not impacted by the service rights fee, will see a 35-40% reduction in rates under City service. The remaining 2001ofee would be covered using Utility reserve funds, costing approximately $2.3 million over 10 years. (Absorbing the entire 25%fee would cost $2.9 million over 10 years) As of December 31, 2005 Light and Power fund reserves totaled $48 million, $8 million of which is non -cash, such as accounts receivable and inventory supplies. This measure would apply only to the Southwest Enclave area. Any future requests of this nature will be considered on a case -by -case basis. • Underground electric utilities at no cost to property owners. The total cost to the City'sElectric Utility to underground existingfacilities is approximately $9.3 million ($2006 dollars). Projected costs are broken down as follows: $4.5 million —purchase electric system from PVREA and Xcel Energy $2 million— underground electric lines $2.3 million— Service Rights Fee (SRF) 20% subsidy $450k— Equipment replacement ($200k transformers, $50k meters, $200k labor) Costs associated with the electric undergrounding would be covered using a combination of Utility reserve funds and undergrounding funds. The opportunity cost for such undergrounding would be the diversion offundingfrom other electric capital projects • Phase in monthly stormwater utilityfees over a five year period, charging 20% of the total fee the first year, then 40, 60, 80 and 100%, respectively. Enclave residents do not currently pay utility fees for stormwater. By phasing in the new stormwater fees residents and property owners will be able to factor the cost into their 234 September 5, 2006 budgets. This replicates the experience of other City residents, who have seen gradual increases in stormwater fees as rates have changed over the years. Once all property owners reach 100%, the total fee collected for stormwater is estimated at $24,100 per month. The estimated stormwater revenue for existing development in the Southwest Enclave at full current rates is $289,000 per year, totaling $8,680,000 over the next 30 years. This compares to $8,100, 000 over the next 30 years if the stormwater fees are phased in as recommended, a difference of $580, 000. The City-wide Stormwater Master Plan has numerous capital projects in the Fossil Creek Basin. These include improvements at the Union Pacific Railroad and Trilby Road, a detention pond on Lang Gulch at Shields Street, and box culverts on Taft Hill Road, various railroad crossings, Shields Street, Lemay Avenue and others. While some of these improvements are actually in the Enclave area, runoff from the Enclave impacts all the improvements, regardless of location. The Council approved a revised stormwater financing plan in 2004 that extended the completion of the stormwater master plan to about 2034. In 2006, the stormwater fund was asked to pay for a portion ofresidential street sweeping, extending the estimated master plan completion date to about 2036 In making these long term projections, the staff assumed the City customer base would continue to grow due to new construction and annexations. To the extent the growth in customer base from the proposed annexation of the Southwest Enclave is part of that long range growth projection, the impact of the annexation by itself is difficult to predict. If the implementation of the annexation is phased over a number of years as is being discussed, it is likely that growth projections will not be affected and the impact will be negligible. • Change the licensing requirements for secondhand dealers/flea markets so that the owner of the flea market is the licensed second hand dealer rather than the individual booth operators. The majority of booth operators rent a small space from the property owner or dealer, in some cases a small cubicle, and primarily sell goods that do not fall under the definition of second hand articles subject to the licensing and record keeping requirements of the City ordinance. Booth operators have expressed concern that current licensing requirement could put them out of business, especially in those cases where one booth owner sells merchandise from several locations. A code change would exempt individual booth operators from the license requirements and background checks; however, shop owners would still be required to obtain a license, pay the requisite fee and comply with the reporting and record keeping requirements of the Ordinance and state law. An additional provision requires the licensee to keep an up to date 235 September 5, 2006 list identifying the name, date of birth and address of each person renting a booth at the business. • Specify record keeping requirements for flea market operators so as not to put an undue burden on individual booth operators, while still addressing and satisfying the intent of the record requirements of identification of stolen property. Current regulations addressing the sale ofsecond hand property are in many ways intended to prevent people from trafficking in stolen property, and detailed information on the original seller is required on many items. Recommended code changes could differentiate items acquired by a second hand dealer at the premises from those obtained at garage sales or similar events. • Exempt animal shelters and bird rescue and education centers from restrictions on the possession and feeding of wild animals. Current codeprohibitsthepossessionandfeedingofwildanimals. This change would allow the Lorimer County Humane Society (located in the Enclave) and other such entities to continue their services. • Pursue actions to address specific concerns regarding road funding and neighborhood road connections. Some local roads in the area are deteriorating and in the South College commercial area some are failing. Business and property owners want them repaired. Work will need to be done to determine if adjacent property owners are willing to pursue a Special Improvement District to fund the street repairs. Staff can work with property owners to customize the design of the streets. In the future, property owners could also consider whether or not to form an Urban Renewal Authority to help fund infrastructure improvements. Two separate neighborhoods have also asked for assurance about certain streets. Applewood Estates property owners do not want Fossil Creek Drive and Crest Road connected, and Fairway Estates property owners want Palmer Drive to remain blocked to through traffic as it is currently. A similar situation arose during the 2003 South Taft Hill Road 7th Annexation where area residents expressed concern about connecting two existing dead-end sections of Moore Lane. In response, the City Council affirmed within the Annexation Resolution that the City has no present intention ofmaking the street connection. Staffsuggests thatsimilar language be included within the SouthwestAnnexation Resolution expressing the City's intention of not requiring the Fossil Creek Drive/Crest Road and Palmer Drive connections. The Planning and Zoning Board Hearing The Planning and Zoning Board considered the Southwest Enclave Annexation at its July 20, 2006 meeting (verbatim meeting minutes are attached). The Board voted unanimously (6-0, Rollins with a conflict -of -interest) to recommend that City Council approve the annexation request and initial zoning as recommended by staff and that residentially -zoned properties be placed in the residential 236 September 5, 2006 sign district. The Board also made specific recommendations regarding the proposed 8 mitigation measures as proposed by staff • Stormwater Utility Fee Phasing and Electric Service Rights Fee Subsidy - Recommendation of Denial (3-3, Fries, Meyer and Schmidt opposed) Extension of Sign Amortization to 7years-Recommendation ofApproval (5-1, Lingle opposed) • Remaining 6 Mitigation Measures- Recommendation ofApproval (6-0) " City Manager Atteberry stated the Southwest Enclave was formed 5 years ago in November 2001. The City, County and State were in agreement that enabling legislation was deliberately enacted to ensure a greater good for all residents in communities throughout Colorado. There was a longstanding agreement with the County that the City would annex enclaves because the City was best equipped to provide urban levels of service i.e., parks, police services, libraries, electric utilities, code enforcement, etc. It was important to uphold the commitment that had been made between the City and the County. The annexation was consistent with long range plans and ensured an orderly and cost effective provision of services. The City had not "rushed" into this because of a responsibility to the citizens of the Enclave to consider the impacts of the annexation on the area. There had been a productive dialogue on the issues and the City would endeavor to have "constructive relationships" with people in this area regardless of the outcome. Cameron Gloss, Current Planning Director, presented background information on the agenda item. He stated the first item was the annexation of about 2.7 square miles into the City and the second item was the assignment of the initial zoning for the area. There was also a series of changes to the City Code and the Land Use Code to provide mitigation measures that had been discussed at length at previous Council meetings that were intended to help with the transition from County to City jurisdiction. He presented visual information depicting the Enclave and the existing City limits. The area was surrounded by the City as a result of annexations that began in the 1970s. He stated one issue was the legality of annexation of a strip of land along Taft Hill Road on the west side of the Enclave. He presented visual information showing the Coyote Ridge First and Second Annexations and the Cathy Fromme Prairie Natural Area Annexation. He stated road right-of-way was used as part of the Coyote Ridge First Annexation. Area residents had alleged this was a "smoking gun" that showed the City was annexing right-of-way to create the Enclave. The City routinely used rights -of - way and flagpole -style annexations to bring land into the City, with right-of-way in the flagpole area. Annexations were done sequentially to obtain one -sixth contiguity. There were also questions about whether any rights -of -way were used to enclose the Enclave. Under State law, an enclave could only be created by having discrete parcels of land (not rights -of -way) to enclose an area. There was a 150 foot wide strip of land that was about one -quarter mile long that was under separate ownership and helped to create the enclave. From staff s perspective, the Enclave was created and the three-year period had been surpassed. He presented visual information showing a map presented to the Council during public testimony at a recent meeting. Comments were made that the area was semi - rural rather than urban, somewhat isolated and surrounded by natural areas. Staff presented an overlay to show how developed this area really was. There were large subdivisions west of College 237 September S, 2006 Avenue, east of College and south of Trilby Road, the Fossil Creek Community Park east of the area, a key commercial area to the north along Harmony Road and College Avenue, and subdivisions and Front Range Community College and Harmony Branch Library to the west. It was not valid to argue this Enclave was not part of the developed urbanized area. There had also been testimony at the last few meetings about whether the creation of the Enclave was publicized sufficiently. There was a great deal of publicity about the creation of the Enclave. He presented visual information showing the subdivisions and areas making up the Enclave. The City had evaluated the Annexation based on the State statute and State Constitution and found the requirements were met because the area had been surrounded for more than three years and was entirely surrounded by the municipality. Comments were made at public meetings that the City had no plan for this area. The Cityhad a plan and the area had been surrounded by the growth management boundary since 1981, indicating the City's intention to annex. City Plan, adopted in 1997, specifically called out a land use pattern for this area. The City had recently committed to creating a plan for South College Avenue. The City had an intergovernmental agreement with Larimer County and the City was upholding its part of the agreement with this process. The plan designations for this area largely reflected the conditions on the ground, with commercial development along College Avenue and a variety of residential districts. Earlier in the meeting, Council created the RUL District that would address some of the concerns raised during the public review process about affording those living in a semi -rural atmosphere to maintain that type of living. Council had asked for a map showing development potential and he presented visual information showing vacant parcels and parcels of change that had additional development potential under the zoning. There was a limited amount of development potential on phase 1 parcels largely at the southwest corner of College and Trilby and south of Skyway, east of College. The second phase was largely developed and in the third phase there was a considerable amount of developable land. There were parcels in the proposed fourth phase west of College where most of the development could potentially occur in an area that would largely be designated RUL. The City had been making storm drainage improvements in this area. Some residents had questioned the monthly stormwater fee and this fee went toward capital improvement projects, local drainage improvements, flood control and water quality improvements. City residents contributed to the stormwater utility fund to pay for improvements that were not in their local drainage basin but which contributed to the well being of the entire community. The transfer of electric service from Poudre Valley REA had been discussed at length. An electric rate comparison had been prepared and it showed that, in most cases, with the service rights fee being covered through a mitigation effort, most ratepayers would pay less after annexation with a few exceptions. He stated page 6 of the agenda item summary incorrectly stated the City would be providing gas service to this area and Xcel Energy would continue to provide that service. Impacts relating to regulations was a concern ofbusiness owners and property owners. The Police Department had been meeting with one citizen about his firearms business to find a way to issue a special permit. There would be special provisions for electric fences and an extended amortization period for signs. Without mitigation, the balance between revenues and expenditures for year one for the entire annexation area was not quite a 2:1 ratio i.e., expenditures would be slightly more than double the revenues. The biggest impact would be a cost of about $1.7 million to provide police services for the entire Enclave area. The General Fund revenues would be about half of the entire revenue and police services and street maintenance were provided by General Fund revenues. He presented data from 2003 from the Larimer County Sheriff's Office showing that calls tended to be centered on College, Additional information had been obtained from Latimer County relating to incidents in September 5, 2006 2005. There were about 1,479 incidents and about 55 of those were mutual aid calls. Based on this data there would be an estimated 14% increase in the call load for Patrol Area 4 as a result of the first phase of annexation. He presented a bar chart showing revenue by location and noted the greatest revenue would come from commercial, industrial and non-residential areas. There were issues relating to nonconforming permanent and temporary signs. Staff was proposing a phasing plan for four phases. The first phase was the College frontage; the second phase was the Fairway Estates and Pitner Estates area in 2007; the third phase was the largest phase and would be the balance of properties east and west of College, including most of the residential area in the Enclave; and the fourth phase was west of South Shields Street that would be largely zoned RUL. There had been a lengthy and extensive public process, including 19 public meetings held over more than two years. A series of mitigation measures were proposed and these were evaluated bythe Planning and Zoning Board at a public hearing. The Board recommended all of the mitigation measures except for two. Two of the mitigation measures were specific to this annexation and there was a 3-3 split Board vote on the phase -in of stormwater utility fees. The phase -in would occur over five years (20%, 40%, 60%, 80% and then 100%). Reserve funds would cover all except 5% of the 25% service rights fee. The Board was split on this issue and the Board's recommendation was therefore for Council to deny that mitigation measure. Other mitigation measures were: undergrounding of utilities at no cost; provisions for barbed wire fences and electric fences under certain circumstances in the UE and RUL Districts; extending the sign amortization period for permanent signs from five years to seven years; changing the licensing requirement for secondhand dealers and flea markets; revising the recordkeeping requirements for flea market operators; providing an exception for the care and feeding of wild animals relating to the Humane Society; and stating an intent to not extend two streets within the annexation area. With the annexation phasing, Council was the ultimate authority on the boundaries and the timing. The City Manager may also request Council delay or expedite an annexation phase. Under the upcoming State law there was a provision for formation of a transition committee and that the City had been working on creating such a committee. Staff recommended City Council approve the annexation, with the phasing and initial zoning as proposed, and the series of City Code and Land Use Code amendments to implement the mitigation measures. He noted County representatives were at the meeting to speak. Mayor Hutchinson invited County Manager Frank Lancaster and County Commissioner Glen Gibson to comment. Frank Lancaster, Latimer County Manager, stated he would be available to answer any questions. Glen Gibson, Larimer County Commissioner, stated the Board of County Commissioners sent a letter to the City Council last October voicing its support for the proposed Southwest Enclave Annexation to the City of Fort Collins. A fundamental value of land use planning for Larimer County for the past 20 years had been to encourage urban level development, with its associated demands for urban level services, to take place within the corporate boundaries of the County's municipalities. This principle was expressed in the intergovernmental agreement regarding development within the Fort Collins Growth Management Area. The Board understood this was a large area for the City to absorb and the Board supported efforts to phase -in the annexation in order to provide a more seamless transition into the City. The Board continued to support the letter that was sent to the City. 239 September S, 2006 Mayor Hutchinson thanked Commissioner Gibson for his statement of support for the annexation and the clarification about the IGA that was a central part of this issue. He asked for citizen comments on the agenda item and noted this was a serious issue that had been treated in a "civil way. The City had listened carefully and this resulted in the adoption of an Ordinance on the Consent Calendar to create the Rural Lands (RUL) zone to address concerns expressed by residents of the area who wanted to preserve the rural character of the area. The City was doing everything it could to minimize or eliminate impacts and Council would also be considering six additional ordinances designed to minimize or eliminate impacts. This was an "emotional issue" and requested the "civil discourse" continue. He stated each audience participant would have three minutes to speak. The following individuals spoke in opposition to the annexation: Neil Hurst, 5221 Griffith Drive. Jim Robbins, 5801 South Shields Street. Joann Malara, Kel-Mar strip business owner, 2701 Blackstone Court. Gary Thompson, South 13 Subdivision property owner. Al Baccili, 520 Galaxy Court. Sandy Robbins, 5801 South Shields Street. Jan Hamsher, 317 Greenvale Drive. Ray Allman, 1200 East Stuart Street. Diane Butler, Kel-Mar strip business customer,1932 Promenade Way. Linda Thompson, South 13 Subdivision property owner. B.J. Ferraro, Kel-Mar strip business owner. Lynne Block, 5329 Fossil Ridge Drive. Gordon Woelfle, 512 Pluto Court. Mindy Cooper, 4208 West Skyway Drive. Ann McSay, 6422 Kyle Avenue. Duane Janssen, Scenic Knolls resident. Roy Buchan, Enclave resident. Wayne Anderson, Enclave resident. Randy Fischer, 3007 Moore Lane. Gerry Horak, 123 North Mack. No individuals spoke in support of the annexation. ("Secretary's Note: The Council took a recess at this point in the meeting.) Councilmember Ohlson asked if the figures presented relating to year one projected General Fund revenues versus expenditures related to the entire Annexation. Gloss replied in the affirmative. Councilmember Ohlson noted this was the first phase of the Annexation with mitigation and questioned why figures were shown for the whole Annexation. Gloss stated figures were available for the first phase of the Annexation. He stated $665,000 would be expended for police services and there would be street maintenance costs as well. Phase one was largely the College Avenue frontage for which there were minimal street maintenance requirements because it was a State MH September 5, 2006 highway. The Phase One expenditures would total about $700,000 from the General Fund. Revenue for Phase One would be sales tax and property tax amount to just over $350,000. The mitigation measures were related to the Utility Fund rather than the General Fund. Councilmember Ohlson asked for confirmation that there would be about $700,000 in General Fund expenditures and $350,000 in revenue for Phase One. Gloss replied in the affirmative. Councilmember Ohlson asked if either of the two open space strips that were annexed were purchased with open space dollars or considered to be part of the open space "fabric." Gloss stated the property in question included road right-of-way that was not purchased with natural area funds and a 150 foot strip fronting the landfill that was not purchased with natural area funds. Councilmember Ohlson stated he had concerns about the use of the two parcels to create the Annexation. He wanted it to be clear that neither of the two parcels were purchased with open space/lands money or considered to be part of the open space program. Gloss stated this statement was correct. Councilmember Kastein asked if the following figures were correct for year 15: revenue of $3.8 million and expenditures of $2.8 million and if this would represent all four phases. Gloss replied in the affirmative. Councilmember Kastein asked for confirmation that in the 15th year there would be a $1 million cost benefit to the City. Gloss stated was correct assuming a moderate rate of growth. Councilmember Kastein asked what the cost benefit would be with a high rate of growth. Gloss stated, if a big box retailer went in, there could be a cost benefit to the City in as few as a dozen years. It was difficult to speculate about the marketplace and there were no projections for a high rate of growth. Councilmember Kastein noted the cost benefit would be minus $350,000 for year one and $1 million for year four (with all four phases). He asked if there was a graph showing the estimates from year one through 15. Gloss stated he would provide a hard copy of the graph. Councilmember Kastein stated some speakers had indicated it would take as much as 27 years for the costs to be balanced by the revenues. He asked when staff estimated the break-even point to be. Gloss stated it could take 27 years if there were relatively static conditions i.e., no in -fill and redevelopment either residential or commercial within the area. Councilmember Kastein asked if the 27 years could apply if the whole Enclave was annexed at once. He asked if the costs would be significantly higher in year one if the City annexed the whole area. Gloss replied in the affirmative and stated the two major costs to the General Fund would be for police services (over $1.3 million) and transportation maintenance. Councilmember Kastein asked for information on how long it would take to recover costs with the phased approach. He also asked about the flagpole annexation along the right-of-way on Taft Hill 241 September S, 2006 Road. He asked what percentage of the perimeter of the Enclave the flagpole was. Gloss stated the perimeter of the Enclave was 18.03 miles and the length of the 150 foot wide flagpole property was one -quarter of a mile (1,320 feet). Councilmember Manvel stated staff had indicated a 14% increase in law enforcement calls for Area 4 and asked for a comparison with the total calls for the area. Dennis Harrison, Chief of Police, stated the 14% increase was better represented as a "service load" representing the 1,479 contacts made by the County in 2005. Calls for the entire department across the City were in the tens of thousands. In Area 4 there were six overlapping active patrol areas. This would add a large area to the reporting district and the number of calls would depend on many factors. Councilmember Manvel asked if there would not be a large increase in overall calls for the Police Department i.e., less than a 5% increase. Harrison replied in the affirmative and noted the problem was the entire department was not devoted to the south end of town. Councilmember Weitkunat asked the County Manager to address the statements that had been made regarding the City/County IGA. She asked about the significance of the IGA and whether it needed to be updated. Frank Lancaster, Latimer County Manager, stated the IGA had been in effect for almost 30 years and the concept was to have a Growth Management Area around a municipality and the IGA to say how development would proceed. The IGA allowed coordinated planning between the City and the County in GMA areas and avoided some issues faced by other communities relating to incompatible development regulations in areas that would be annexed. The IGA also defined the relationship between municipalities with regard to future annexations. Cities were better able to protect their "character" and the area did not turn into a "megalopolis." Without an IGA, development in the County would be done to County standards that might not be compatible with plans for an area right outside the City limits. The County was not geared up to provide urban level services such as quick police response. The IGA had worked well and there were differences in the communities that had strong joint planning with the County compared with communities that did not. Councilmember Weitkunat asked the County Manager to address the relationship between the City and the County on this particular annexation. County Manager Lancaster stated there had been a lot of communication between the City and the County and support for the IGA. The County wanted to work to protect the rural character of the area during the transition, particularly on the western edge. The County also wanted to protect the rural businesses that would be compatible in the City limits. Area residents did consider themselves to be Fort Collins residents. The County was interested in setting a good precedent for IGAs with other communities. Mayor Hutchinson asked the County Manager to respond to a comment that the IGA was not appropriate for this kind of annexation. He asked if this type of annexation was different than other annexations. County Manager Lancaster stated he did not think there was a difference. This was the largest enclave annexation the County had dealt with anywhere in the County. There had been many enclaves annexed that were urban in character. He would be concerned about the precedent that would be set if this Enclave was not annexed. This could call into question the annexation of smaller enclaves. This annexation would set a precedent for other enclave annexations elsewhere in the County. 242 September S, 2006 Councilmember Kastein asked staff to respond to the citizen comment that the phased approach would be problematic because this Council can not "force the hand" of future Councils relating to the mitigation measures and the property owners would be "sitting ducks" for four years. He noted the Planning and Zoning Board was not unanimous on the mitigation measures. He asked if future Councils would be able to take a different position than this Council intended. Paul Eckman, Deputy City Attorney, replied in the affirmative with regard to the legislative measures this Council would be considering. This Council could not bind future City Councils to those actions and those Councils would have the ability to re -legislate. Future Councils could be lobbied on those legislative matters. Councilmember Kastein stated future Councils could choose to rebate 125% of the fees. Future Councils would have to change an adopted ordinance through adoption of another ordinance. Deputy City Attorney Eckman stated it would take an ordinance to undo any ordinances adopted by this Council. Councilmember Weitkunat stated a recurring theme was the City did not listen to the people in the Enclave. She asked that staff address "what they heard." Tess Heffernan, Policy and Project Manager, stated Council received, as part of an earlier work session, an extensive list of what staff heard during the public input. The City was asked to consider a long list of comments ranging from "do not annex" to many different mitigation measures. There had been some misinformation and there was still work to do. The nine proposed mitigation measures came directly from the public input meetings. Councilmember Weitkunat stated Council kept hearing this and reading in the newspaper that the City was not "hearing" what was being said or answering questions. Heffernan stated one comment that was heard repeatedly was the City had not provided a detailed costibenefit analysis on a neighborhood by neighborhood basis. Staff believed the City had responded as best it could. In some cases people did not like the answers they received from the City. Staff had done its best to answer all questions and in some cases answered the same questions repeatedly. Councilmember Weitkunat asked if most of the questions dealt with the costs of the annexation. Heffernan stated many questions related to the cost and people sometimes indicated they were not satisfied with the answers. Staff also heard many questions about the ability of Enclave residents to have a direct vote on this. Gloss stated the news media coverage in recent weeks focused on the City's "agenda" to generate revenue for the City. The cost to provide services would far exceed the revenues. Staff had made it clear during all meetings and in all information provided that this decision was not solely based on the City's finances. There was "continued questioning about the numbers" that implied the City would somehow derive financial benefit by going forward with the Annexation. Staff had been up -front on the taxes and fees that would be levied on property owners as a result of the Annexation. City Manager Atteberry stated he received the same types of questions and also questions about the relevance of the longstanding agreement with the County. Staff considered the IGAs to be "extremely important." Councilmember Kastein asked if staff had the answer on the break even point for costs and revenues. 243 September S, 2006 Gloss stated, for Phase One (the College frontage) with a moderate growth scenario, the crossover point was about five years. For the larger annexation, the crossover point was much longer at approximately 13 years with moderate growth and over 20 years for status quo growth. Councilmember Kastein noted there was a crossover point at which costs and revenues would be equal and the time to recover all of the up -front costs. It could take up to 27 years to reach that point and asked if staff had an estimate of when that point would be reached with the phased approach. Gloss stated it would take about eight years at a moderate growth rate to pay off the difference for Phase One. Councilmember Kastein asked if it would therefore take from 8 to 27 years to recover the total up- front costs. Gloss replied in the affirmative. Councilmember Kastein expressed concern about the financial stability of the City in the long run. He asked if the City was placing the City in "financial peril" over the next 8 to 27 years by annexing this Enclave. City Manager Atteberry stated he did not believe this was the case. The Annexation was about more than financial implications and it was about longterm land use policy. Some people were suggesting annexations were done to "make the City a profit" and the motivation was more long term. He had concerns about the future annexation phases and had suggested previously the revenues from Phase One should be earmarked for police services. The City would experience "short term issues" with this annexation. Neither the revenues nor the costs were reflected in the Citybudget and, if Council took an action in favor of the annexation, those revenues and costs would be "folded" into the budget. The issue was bigger than the fiscal impact. Staff had not ignored that fiscal impact and was recommending the Annexation in an "informed way." He did not believe the City would regret this Annexation decision in the future. Councilmember Kastein asked for assurance that the City would not be in financial jeopardy as a result of the Annexation. City Manager Atteberry stated the growth figures that had been given out by the City were "extremely conservative." The City's focus was on economic health, gateways, and active pursuit of retail and employment. He believed there would be "much greater return" than what was shown by those conservative figures advanced relating to "nominal" growth. Mayor Hutchinson asked staff to address one comment that it would cost a citizen $50,000 more to live there than it does now. Gloss stated he would provide that information after he had an opportunity to review written material. Mayor Hutchinson stated he would entertain individual motions on the items. Councilmember Roy made a motion, seconded by Councilmember Weitkunat, to adopt Ordinance No. 137, 2006 on First Reading. Councilmember Ohlson stated involuntary annexations were valid and important to land use planning to provide for efficient delivery of services, improving gateways to communities, and "keeping urban, urban and rural, rural." He stated, under normal circumstances, he would make the 244 September 5, 2006 motion to annex. It was unlikely he would vote for this Annexation because he did not believe it fit any kind of"normal circumstances" for involuntary annexations i.e., size, lack of surrounding urban level development, etc. The annexed strips of land (which were not purchased with open space money) were "outside of his comfort zone" even though they were annexed "openly and clearly." This was a "different kind of involuntary annexation." The major open space purchases were not done to create the Enclave. There was "zero evidence" that was the reason for the purchases. The annexations of the open space, which he opposed, may have been done to create the Enclave. He did not believe the County did only rural level development in the last five to ten years. There were many examples where the Countydid not follow the City's recommendations regarding development in the GMA. He did not "feel any compulsion" to honor the agreement with the County when he saw urban level development on which the County ignored City recommendations on property that would eventually come into the City. This was not a normal circumstance for an involuntary annexation but that he would remain open to the discussion. Councilmember Weitkunat stated the annexation of the open space areas did create the Enclave. She wanted to "clear the record" by saying that City -owned property should become part of the City. When Coyote Ridge was outside of the GMA, she supported annexing it because City -owned property should be in the City limits. She supported the annexation of other City -owned property in the same manner to provide City policing for the prairie. The open space areas were not annexed to create the Enclave. The only way to bring Coyote Ridge into the City was to annex the strip between the open areas. Councilmember Kastein stated good land use planning was a reason for the annexation of land surrounded by City services. He had concerns about the costs of annexation and there were good reasons to follow-through on the agreement with the County. The Annexation had to be done in a way that made sense financially for the City. Based on the City Manager's recommendation and the work done by City staff, it appeared to him there would be an initial financial "hit" to the General Fund budget that would balance out over time. The costs would be greater if the Annexation was delayed. If the Council felt this land should never be part of the City because it was not good use planning, the vote should be "no." He did not understand the argument that the size made this a different kind of Enclave annexation. He would like to hear more discussion about the size issue. He believed the City should follow-through on its commitments to the County even if it was true the County did not always follow-through. Mayor Hutchinson noted Cameron Gloss had indicated he had the information requested earlier. Gloss stated, not including the mitigation measures that had been discussed, the additional average cost per household for electric rates, stormwater utility fee, telephone charges, property tax and sales tax would be roughly $20,000 over a 50 year period. This would not include the service rights fee paid to REA and this would be a nominal difference because the City was paying that service rights fee over only half of the time period. Councilmember Manvel agreed this would be an "extraordinary annexation." He stated it was important to note that it was an enclave in terms of surrounding urban areas. There were surrounding rural areas and City open space in the southwest part of the Enclave. The narrow strip that was 245 September 5, 2006 annexed and which resulted in the formation of the Enclave was about 1 /70th of the boundary of the Enclave. When he first saw the map of this area it was obvious this area would eventually be part of the City. Much of the Enclave was rural and some of the immediately contiguous area was City open space but, beyond those open spaces there were subdivisions in the GMA. He agreed with Councilmember Ohlson that it was a large Enclave, that it was buffered by City open space on some sides, and that it was "sealed off' with a "strange" little strip of land. If that strip was not there, this area would be a "strange octopus -shaped" parcel sticking way into the City. Developments in this area were closer to City services than other subdivisions to the south and west. This did not seem appropriate for the long term and the question was whether it was appropriate to annex now because of the financial issues. This would never become easier or less expensive and he believed it was time to annex. Councilmember Weitkunat referenced a map showing the Enclave and stated the question was whether that area should be part of the City and how the City should be built. She stated this was an enclave in the "middle" of a City. The City's planning efforts were done openly and comprehensively. City Plan, the GMA, and the IGA with the County had been in place for many years to set forth the vision for what the City would become. There were State rules that determined when the Enclave was created. This particular area was along a "key entrance" into the community on a federal highway. This gateway should be part of the City. It would be "extremely naive" to say that nothing would happen in the way of development in the Enclave area. Urban development was inevitable in this area and this was part of the picture of "building" the City. There was "economic vitality" in the community's gateways. It should not be a "surprise" that this Annexation was coming or that development would occur, whether in the City or the County. It was appropriate for the development to occur in the City. It was true that the City had an "economic interest" in the Annexation. The City did want its edges to be "feathered" with rural land uses and that development would not take place at the same level on the edges as it would along the College Avenue corridor. This was the time to annex before developments took place in the County that could not be changed or regulated by the City. The southwest area should be part of the City based on the "changing character" of the area. Councilmember Ohlson stated he would be interested in information between First and Second Reading on whether there had ever been this large an involuntary annexation anywhere in the State or the immediate area. He would like to know the history of large involuntary annexations in other cities to provide a "context" for this annexation. He did believe that "size matters" and there were questions about the non -developed areas around the Enclave. Councilmember Brown stated the City had "good faith communication" with the Enclave people. Questions had been asked and answered repeatedly and the City had "bent over backwards" to accommodate the people in this area. He was not in favor of the annexation because a "basic right" was being taken away from the people in the Southwest Enclave area i.e., the right to vote. The City was justified in annexing the Enclave and he was referring to a vote on the phase -in period. He equated this with a "giant anaconda that had wrapped itself around its prey" to "slowly swallow it" without giving it the "option to control its destiny." He would be voting against the annexation. 246 September 5, 2006 Councilmember Roy stated annexing to the City would give the people in the Enclave the right to vote in the City on representation. The City should honor the IGA with the County. He had asked earlier for information on allowing the citizens of the Enclave to vote and it was determined this was not a possibility. The IGA did mean something. Councilmember Ohlson thanked those who spoke in a "well spoken and respectful" manner. The City had done a good job during the last year of the public input process. He believed the City was somewhat "arrogant" during the initial process but he hoped the City could "learn" from this process. He also did not believe the City "told its story very well" to explain why involuntary annexations were important to urban planning. Involuntary annexation in the right circumstances was appropriate. Areas within the GMA would eventually be annexed. He understood the support of other Councilmembers for this annexation. He was glad Council was at the point of making a final decision on this Annexation rather than "punting" it to a future Council. Deputy City Attorney Eckman stated the statute did not contain any limitation on the size of the Enclave annexation. There were "small area zonings" for less than 640 acres or one square mile called quasi-judicial zonings and "legislative zonings" for larger parcels. Councilmember Manvel commented he was representing his Council District and Council as awhole was representing the 100,000 plus residents of Fort Collins in making this decision. The Enclave contained 3,000 residents and it was not legitimate to "defer" to those Enclave residents to determine the shape that Fort Collins would take i.e., that it would exist forever with a "hole in the middle." He understood the wishes of the Enclave residents not to join the City but "development was coming" whether it would be in the City or the County. Councilmember Kastein stated he would support the motion because it was good land use planning to annex. The City needed the southwest area from a "larger community standpoint" and it would benefit the whole City to annex. The City had an economic interest in the Annexation and the "financial hit" to the City would be balanced in the long run. The City's economic interest was "intangible but real" and involved a better southern gateway and development in a coordinated fashion. Leaving the area as an enclave outside of the City would be a "cost to everyone" because there would be inefficiencies created by overlapping services in adjoining City and County areas. New development would not be coordinated in the City and County areas; there would be difficulty in agreeing to plans such as the South College Access Plan; there would be overlapping services such as street maintenance, snow plowing, law enforcement protection, infrastructure improvements; and there were differing development regulations. The City and County were geared to provide different kinds of services and the City was the "expert" in providing urban level services. It would be a "financial hit" to City and County residents to have services provided by the County government that should be provided by the City. He did not want to disregard years of good land use planning for "political expediency." One speaker asked if the City would sell the Cathy Fromme Prairie for development and there had never been any discussion about doing that. The City had no "hidden agenda" to do that. Another speaker asked the Council to vote its "heart." He did not like the fact that it would cost the average household $400 a year to join the City but there were costs for everyone if the Annexation was not done. He could not imagine his area being "de -annexed" from 247 September 5, 2006 the City in spite of the $400 cost, because he used City services everywhere even though he lived on the edge of the City. He stated, if he was an Enclave resident, he believed he would feel that it was worth $400 a year to be part of the City. Mayor Hutchinson thanked those who spoke on this issue. He stated his philosophy was that the Council must focus on the `overall good" of the City. This was a "heavy responsibility" to the community and to residents of the Enclave. The City had "listened" and the "wildly unprecedented" mitigation measures were evidence of that. The City residents also had a "big stake" in this Annexation. This situation was "unusual' in many ways and Council should not "walk away" from this decision. This Annexation was unique in size and configuration. The Enclave and the City touched on 18.03 miles of a common border. This showed the Enclave was "embedded" in the City. The mitigation measures addressed the unusual aspects of this Annexation to ease the impacts. This would set a precedent for how the City would address the "unusual' Mulberry corridor area. He did not want the Council to set a precedent that would make it difficult to address that situation. Fundamentally this was about community building and the map showed this Enclave was clearly in the community. The vote on the motion was as follows: Yeas: Councilmembers Hutchinson, Kastein, Manvel, Roy and Weitkunat. Nays: Councilmembers Brown and Ohlson. THE MOTION CARRIED. Councilmember Ohlson asked if there was any inconsistency in voting in favor of the other ordinances when he voted against the annexation ordinance. Deputy City Attorney Eckman stated there was no legal inconsistency at all. Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to adopt Ordinance No. 138, 2006 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Councilmember Ohlson made a motion, seconded by Councilmember Kastein, to adopt Ordinance No. 139, 2006 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Councilmember Ohlson made a motion, seconded byCouncilmember Weitkunat, to adopt Ordinance No. 140, 2006 on First Reading. MK September 5, 2006 Councilmember Ohlson stated he was concerned information had been presented that everyone would be paying $400 more each year. This figure was given in an informal way and it was without the mitigation that was now being passed. He asked that the news media be "careful' in how this was reported i.e., that the figure was before mitigation. Gloss stated there would be a slight reduction in electric charges as a result of this subsidy and he had provided a "quick calculation" of the average additional cost before mitigation. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None, THE MOTION CARRIED. Councilmember Roy made a motion, seconded by Councilmember Weitkunat, to adopt Ordinance No. 141, 2006 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Councilmember Kastein made a motion, seconded by Councilmember Ohlson, to adopt Ordinance No. 142, 2006 on First Reading. Councilmember Manvel asked about the language of Section 15-318 providing for a list of those renting booths and whether it meant the information on a renter did not need to be recorded if the renter began renting after a renewal and stopped renting before the next renewal. Deputy City Attorney Eckman suggested that staff review that language prior to Second Reading to determine the intent. Councilmember Manvel suggested the information about renters between renewals should be recorded i.e., that a continuing record would be preferable. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Councilmember Brown made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 143, 2006 on First Reading. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. The City Manager stated he had spoken with staff and the intent of Ordinance No. 142, 2006 was that a continuing record be maintained. He stated an amendment would be brought back for Second Reading. ►%lPJ7 September S, 2006 ("Secretary's Note: The Council took a brief recess at this point.) 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 Postponed to September 19 2006 The following is staffs memorandum on this 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 Ordinance No. 122, 2006, adopted on First Reading on August 15, 2006 by a vote of 5-2 (Nays: Roy, Manvel), 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 regardingprivate nursing home rooms. In response to Council discussion on First Reading, the Ordinance now adds definitions of the terms "retail tobacco business " and "tobacco ", and outlines requirements for operation of a "retail tobacco business ". The retail tobacco business exception replaces the existing "retail tobacco store" exception. " City Manager Atteberry introduced the agenda item. Carrie Daggett, Senior Assistant City Attorney, presented background information on the agenda item and stated the Ordinance had been revised since First Reading. Council's direction on First Reading was to use an approach that was consistent with the State's retail tobacco business concept. The definition originally proposed for "retail tobacco store" was being replaced with a definition for "retail tobacco business." Staff changed the ordinance to eliminate the requirement that revenues be generated primarily from sale of products for off -site consumption; to eliminate the requirement that the establishment conform to the Land Use Code definition of "retail establishment" which would have required 60% of the floor area be used for product display and other retail sales related activities; to eliminate a provision requiring that no more than 20% of the store's useable area be used for seating area lounge and other areas intended to accommodate smoking; and to eliminate the restriction on activities of store personnel which would have precluded store personnel from conducting serving activities in the establishment. Staff also added the definition of"tobacco" from the State law. Other changes were generally conforming to those changes. Mayor Hutchinson stated each audience participant would have three minutes to speak. Eric Levine, Air Quality Advisory Board chair, presented the Board's resolution on the issue. The Board was unanimous in its recommendation that allowing the operation of indoor hookah bars was the same as a new class of smoking establishment and this ran counter to the City's public health 250 September S, 2006 goals and contrary to the present policy on smoking. He read part of the Board's recommendation asking the Council to prohibit smoking in all indoor public places. The Board believed hookah bars could become the next "teen fad" and 18 to 21-year-olds were the target group for these establishments since 18-year-olds were not allowed to go to bars. The Board believed there could be repercussions from allowing this new class of establishments. He expressed concerns about the lack of an outreach process on this issue. John Wolfe, 3213 Wedgewood Court, respiratory therapist at Poudre Valley Hospital, spoke in opposition to the Ordinance. If Council was considering adopting the Ordinance, he had two proposed amendments: (1) warning labels regarding the use of a "toxic addictive drug" and (2) a significant fine for selling tobacco to a minor. R. J. Ours, Director of Government Relations for the American Cancer Society in Colorado, 2255 South Oneida Street, Denver, opposed the Ordinance and asked that the Council not take any action to "diminish" the Clean Indoor Air Act or the City's strong no -smoking Ordinance. Jennifer Corrigan, Colorado Tobacco Education and Prevention Alliance, spoke in opposition to the Ordinance and stated her group did not like any exemptions to the Clean Indoor Air Act. There was misinformation about the health effects of hookah smoking and hookah smoke contained four times the amount of nicotine as cigarette smoke. She asked, if the Council was going to adopt this Ordinance, then it should consider a grandfathering clause for existing establishments and prohibit any new businesses. Mark Williams, Algiers co-owner, stated he had customers who had given up cigarette smoking completely and the information quoted by the previous speaker was from an inaccurate study. Gwen Sievig, CSU Health and Wellness instructor, spoke in opposition to the Ordinance and spoke regarding the dangers of secondhand smoke. Hookah smoke was not safe and college students were the main target for tobacco use. Allowing hookah bars would remove the level playing field established with the adoption of the no -smoking ordinance. Hookah bars needed to be defined with a "tight definition" as a retail tobacco business i.e., not a lounge. She asked that the current establishments be grandfathered and that new businesses not be allowed. Diedre Sullivan, Larimer County Department of Health and Environment, opposed the Ordinance. She stated the designation ofhookah and other tobacco stores as retail tobacco businesses would "set the tone" for how these establishments were allowed to operate in the community and the State. It was imperative to create a tight and "loophole free" definition of a "retail tobacco business" and require these establishments to operate in competition with other retail tobacco shops rather than social venues. She asked Council to consider prohibiting the sale of any non -tobacco goods, restricting allowable lounge space for on -site use, limiting the number of employees in such establishments, and discouraging the inception of new tobacco lounges. Aria Khosravi, 2808 Ringneck Drive, co-owner of Narghile Nights, 621 South College Avenue, stated people would choose to come to this kind of establishment for "firsthand" smoke. Such 251 September 5, 2006 establishments were open and operating elsewhere in Colorado. His menus listed the Surgeon General's warning regarding tobacco use. Occasional hookah smoking had not encouraged him to begin smoking cigarettes again. Councilmember Brown asked if there was any City requirement for the posting of warning signs at these establishments. Daggett stated Section 12-64 of the City Code currently required that establishments in which smoking was allowed post "smoking permitted" signs conspicuously at all entrances but those signs were not required to provide the Surgeon General's warning. Councilmember Brown asked if there was a penalty in place for selling tobacco to minors. Daggett replied in the affirmative. Councilmember Brown asked if that would be enforced by the City or the State. Deputy City Attorney Eckman stated there was a State law prohibiting the sale of tobacco to minors. Councilmember Brown asked if there was a substantial fine. Deputy City Attorney Eckman stated he did not know what the fine would be. Councilmember Brown stated he would be interested in requiring the posting of a Surgeon General's warning sign in these types of establishments. The City, State and nation had done a good job of educating people about the hazards of smoking and an 18-year-old had the ability to make a decision to smoke or not. He would like to make sure there was a substantial fine for selling tobacco to minors. Councilmember Ohlson stated he wanted clarification on the City's interpretation of the State law. He noted he was not interested in putting the two existing hookah businesses out of business. He asked if the City's interpretation of the State law would allow hookah businesses that were not already in existence. Daggett stated the State law had an exception for "cigar tobacco bars" which was defined as "a bar with a liquor license." The City Ordinance would not address that exception at all but would address the exception in the State law for "retail tobacco businesses." The State definition was relatively broad and included "enterprises engaged primarily in the sale, manufacture, or promotion of tobacco products." The City's interpretation was that the exception as written in the Second Reading Ordinance was consistent with the State law i.e., that it was not less strict than the State law. Councilmember Ohlson asked if the State law allowed new hookah bars. Daggett stated the State law allowed "retail tobacco businesses." If the hookah bars were selling liquor, they would not be permitted unless they met the State's cigar tobacco bar grandfathering provision. Hookah bars fit under the definition of "retail tobacco businesses" assuming they were involved in the sale, manufacture, or promotion of tobacco products. Councilmember Ohlson asked if the Ordinance would create any kind of loophole under which an alcohol establishment could have the next building or half of the building ventilated to allow smoking next to the alcohol establishment. Daggett stated a retail tobacco business would be 252 September 5, 2006 required to be physically separated and independently ventilated i.e., it must be its own establishment and not have a liquor license or other license to serve non -tobacco products. Councilmember Ohlson asked if a bar and a tobacco lounge could be next door to each other. Daggett replied in the affirmative, provided they were physically separated and separate establishments as far as revenue i.e., the tobacco establishment would have to prove that sales were primarily from the sale of tobacco products. Councilmember Ohlson asked if this was the existing State law or the City Ordinance. Daggett stated this was part of what was originally proposed for retail tobacco stores and this was being carried forward to the Second Reading Ordinance. Councilmember Ohlson asked if the Council action taken last time negated this. Daggett stated this was still in the Ordinance. She stated one change was that on First Reading the Ordinance dealt with sales for off -site consumption and that this reference to off -site consumption had been eliminated. She stated the revenue restriction remained in the Ordinance. Councilmember Manvel stated the State law allowed an exception for retail tobacco businesses that manufactured, sold or promoted tobacco products. This was a broad definition and asked whether the State law intended to allow hookah bars under that exception. Daggett stated she did not believe hookah bars were discussed in detail and her conversations with attorneys involved in drafting the State law indicated nothing in the State law would be in conflict with the proposed City Ordinance. Councilmember Manvel stated the State law had strict provisions about the use of tobacco during a theatrical performance and the use of cigarettes in a therapeutic program supervised by a doctor. It was difficult to believe this strict State law intended to allow hookah bars. Daggett stated it was difficult to know whether this was intentional or even identified as an issue at the State level. Councilmember Weitkunat stated it appeared there had been some "second thoughts" on this. She believed most Councilmembers did not want to put anyone out of business but there were now questions on whether the Ordinance would provide a "free-for-all" for these types of smoking establishments. She asked if requiring that a certain percentage of the revenue must come from retail sales as opposed to on -site sales maybe a restriction on the amount of smoking that could be allowed man establishment. Daggett stated this would be a restriction on where the establishment's revenues would come from. Councilmember Weitkunat stated there was a difference in tobacco sales for on -site and off -site use. Daggett stated the reference to "on -site" was a reference to on -site revenues to make it clear that sales from a website did not count in the calculation. This referred to the money made at the establishment. This would affect the nature of who would come to the business as a customer and what could be sold on -site. Councilmember Weitkunat asked ifthe Second Reading Ordinance addressed internal smoking sales. Daggett stated the Ordinance addressed the total revenues and what tobacco products and accessories 253 September S, 2006 were sold on -site as opposed to non -tobacco products and accessories. Councilmember Weitkunat asked if there was anything that would restrict the amount of on -site smoking. Daggett replied in the negative. Councilmember Weitkunat asked if the square footage requirement was an attempt to restrict the amount of on -site smoking. Daggett stated the original intent of the square footage restriction was to make sure most of the area was being used for store -type activities as opposed to lounging or other activities. The floor area limit was a way to try to keep the concept of tobacco sales as opposed to a place for people to gather. Councilmember Roy asked what kind of language would need to be included to grandfather the existing tobacco businesses. Daggett stated, if the concept was to be relatively strict while allowing the existing businesses to continue, there would be a need to look at the restrictions that had been scaled back to some extent. Council could consider putting back in the restriction on the area of the establishment devoted to lounging and smoking activities. Council might also want to consider putting back in the restriction on activities of employees related to serving. This would restrict smoking to a more limited type of activity. An exception could be added to the definition of `retail tobacco business" for establishments that met all of the requirements except for off -site consumption and square footage as of a specific date i.e., July 1, 2006, which was when the State law went into effect. The language could specify an exception provided the establishment did not change in size, change its location and continued to operate with the other requirements for smoking establishments relating to physical separation and independent ventilation. Councilmember Kastein asked if there was a citizen advisory committee when the original no - smoking ordinance was adopted. He noted there was a great deal of discussion at that time about the "level playing field." Greg Byrne, CPES Director, stated there was an extensive public outreach process when the original no -smoking Ordinance was adopted. Councilmember Kastein asked if interested parties were consulted about this Ordinance and the issue of the level playing field. He expressed concerns about having a bar and a tobacco business next door to each other. Byrne stated the City did not engage in extensive outreach on this Ordinance because staff viewed this Ordinance as bringing the City Ordinance into conformance with the State law. Staff did not anticipate a lot of content change. Daggett stated there were limits under the liquor laws requiring licensees to prohibit customers from taking drinks from the licensed area. There would be a restriction requiring retail tobacco businesses to be physically separated and independently ventilated, and this would tend to prevent interaction with a neighboring liquor establishment. Councilmember Kastein stated he would like to know if the restaurant and bar owners had any concerns about a level playing field if a retail tobacco business could exist next to a bar. The no - smoking Ordinance dealt with secondhand smoke. Firsthand smoke situations were different. He expressed concerns about the playing field being level and added it was fair to talk about limitations on floor space and the maximum number of employees. 254 September 5, 2006 Councilmember Roy stated the City took a leadership role in the adoption of the no -smoking Ordinance. The hookah bar owners had indicated their establishments were a "safe place" that was a "social outlet' for young people. Hookah bars were not benign and they would provide a social setting for 18 to 21-year-olds where "smoke was served." The target audience were relatively young members of the community. Councilmember Weitkunat made a motion, seconded by Councilmember Brown, to adopt Ordinance No. 122, 2006 as amended on Second Reading. Councilmember Manvel stated this should not have been on the Consent Calendar last time and the health message was not heard. Although the item was withdrawn from the Consent Calendar and discussed, Council probably did not make the right decision on First Reading. Adoption of the Ordinance as it appeared on First Reading would be a "considerable step backwards" from the no - smoking Ordinance. The "health message was compelling." There needed to be enforcement relating to tobacco sales to minors. The target audience was certainly younger people. Hookah bars were an appealing social scene and people could forget that nicotine (which was contained in good - smelling hookah smoke) was an addictive substance. He did not want to put the existing establishments out of business. It was probably a mistake for City staff to approve those establishments as "retail tobacco stores" but these businesses had invested considerable time and effort. He did not want to allow new hookah bars. He did not believe the State intended that hookah bars should be allowed. He would offer some amendments to tighten the Ordinance to ensure there would not be an unlimited number of hookah bars in Fort Collins. Councilmember Kastein suggested going back to the State definition and making changes to it so that the existing hookah bars fit and more could be added. Daggett stated the City was trying to change the local law. The State law "technically" did apply to these places. Staff tried to write a retail tobacco business exception that would be allowed within the scope of the State exception. The State exception did allow new businesses as would be allowed under the Second Reading Ordinance, provided they met the requirements identified in the Ordinance. The City was being stricter than the State law as far as the requirement for physical separation and independent ventilation, the restriction that would allow access only to those age 18 and older, and the restriction that the establishments could not have any other kind of license. Councilmember Weitkunat made a motion to amend Section 12-56 by including a provision stating the total useable area in square footage and adding a provision relating to warning signs. Councilmember Weitkunat stated her intent was that these hookah bars would be places to sample tobacco products secondarily to the sale of the product. Mayor Hutchinson asked what the square footage would be. Councilmember Manvel asked if Councilmember Weitkunat was referring to a total square footage for an establishment. 255 September S, 2006 Councilmember Weitkunat stated she was referring to the square footage that could be used as a lounge area. Councilmember Brown stated the original square footage was 20% and Council decided to change that to 40%. Felix Lee, Building and Zoning Director, stated, under the Land Use Code, 60% would have to be in retail sales and display. In the original First Reading Ordinance a maximum of 20% would be dedicated to the smoking lounge. He asked if Councilmember Weitkunat was proposing grandfathering the existing establishments. Councilmember Weitkunat stated she was not proposing grandfathering at this point. Councilmember Brown stated the Council discussed changing the 20% figure to 40%. Councilmember Weitkunat noted her motion had not yet received a second and she was looking for input. Mayor Hutchinson asked if the motion to amend would be to restore the language that had been stricken relating to the percentage of floor area that could be used as a sitting area or lounge. Councilmember Weitkunat stated was her intent. She asked what the 40% figure would mean compared with a total square footage. Lee stated Algiers had about 300-400 square feet total and that 20% would be a very small area for smoking. Councilmember Weitkunat stated she would like to add the 40% figure to her motion to amend. Councilmember Brown seconded the motion to amend. Councilmember Manvel asked if the intent was to allow places where people were primarily buying tobacco products rather than smoking. He asked if it would be agreeable to include the phrase that had been struck in Section 1 that provided revenues must be generated primarily from on -site sale of tobacco products for off -site consumption. He asked if that was the intent of the motion to amend. Councilmember Weitkunat stated it was open for discussion. If the revenue from on -site consumption was greater than the revenue from off -site consumption it would no longer be a retail establishment. Councilmember Manvel agreed with that statement. He suggested that if this was the intent, the language that had been struck should be added back in. He offered that as a friendly amendment to the motion to amend. Councilmember Brown stated he did not agree with the friendly amendment. Councilmember Ohlson expressed concern that this item was originally on the Consent Calendar on First Reading and Council should have heard from the Air Quality Advisory Board at that time. He was concerned this would open this up "wider" when a majority of the Council seemed to be interested in tightening up the Ordinance and grandfathering the existing businesses rather than OAR September 5, 2006 allowing a proliferation of these businesses. He wanted someone to clarify that the intent was not to go "looser" than what was adopted on First Reading. Councilmember Roy asked that the grandfathering of existing businesses and continuing to protect the health of Fort Collins citizens be considered. Councilmember Ohlson requested clarification on whether or not the motion to amend would mean a "looser" or tighter Ordinance. Mayor Hutchinson suggested the motion to amend would tighten up the Ordinance because there was no floor space requirement in the Second Reading Ordinance. Councilmember Kastein asked the owner of Algiers if Algiers was the smaller of the two hookah establishments and if the 40% requirement would work. Mark Williams, Algiers co-owner, stated he would prefer to see a percentage of sales. Councilmember Kastein asked what percentage of the business was currently a lounge area. Mr. Williams stated it was a small establishment and, in his view, the entire area was retail space. The hookahs being smoked were for sale and were often purchased. Councilmember Kastein asked for the percentage of sales for off -site consumption. Mr. Williams stated about 75% of sales. Councilmember Kastein asked how many square feet Algiers contained. Mr. Williams stated it had about 350 square feet. Councilmember Weitkunat asked if off -site consumption might be more significant than floor space as far as restricting smoking. Councilmember Brown asked where the Ordinance would be amended and asked how the amount of retail sales could be verified. Lee stated that would be difficult to do. Councilmember Kastein asked if that was built into the City Code for other types of establishments i.e., if there was already a requirement for off -site sales. Lee stated the City Code provided that the incidental sales of goods other than tobacco and accessories may not generate revenues of no more than 8%. Daggett stated off -site consumption was a concern in relation to package liquor stores. She read the Land Use Code definition of "retail establishment' as follows: "Retail establishment also known as retail store shall mean an establishment of 25,000 square feet or less of gross leasable floor area in which 60% or more of the gross floor area is devoted to the sale or rental of goods, including stocking, to the general public for personal and/or household consumption or to services incidental to the sale or rental of such goods." Mayor Hutchinson stated this was fundamental rewriting of the Second Reading Ordinance. He would entertain a motion to continue this discussion to a date certain. He suggested a discussion to communicate to the staff the "main parameters" of what the Council wanted to consider. 257 September 5, 2006 THE MOTION TO AMEND WAS WITHDRAWN. Councilmember Kastein made a motion, seconded by Councilmember Brown, to postpone the Second Reading of Ordinance No. 122, 2006 to September 19, 2006 and to direct that the Leadership Team work in tandem with the City Attorney to collect input from Council and draft an Ordinance for discussion on Second Reading. Councilmember Ohlson stated he wanted these establishments to enable people to sample tobacco products. He did not want to put the two hookah bars out of business and he was not interested in creating new opportunities to promote the use of tobacco in the hookah environment. He did not want to create new places for young people to go and sample tobacco. He wanted to grandfather the existing businesses and allow legitimate tobacco stores to cut and light a cigar for someone. Councilmember Roy stated grandfathering the existing business would recognize their investment. Hid not want to move away from the intent to protect the health and safety of the community. Councilmember Kastein stated he wanted something that would allow existing and new businesses to exist in some limited fashion. He did not want to create a "monopoly" for the two existing businesses. Councilmember Brown stated he agreed a monopoly should not be created. Tobacco was a legal product and people should be able to enjoy it. Councilmember Manvel stated the Council had a responsibility to foster a healthful community and there needed to be some restrictions on places that had as their main purpose "promoting addiction among young people." Mayor Hutchinson stated he believed Council wanted to establish definite boundaries and restrictions while allowing hookah bars to exist (perhaps through grandfathering the existing businesses). He did not want to damage the ability of a speciality cigar store to have an area where the product could be sampled. He believed Council wanted an Ordinance that would be fair and not "gut" the no -smoking Ordinance. The vote on the motion to postpone was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Meeting Extended Mayor Hutchinson stated the meeting needed to be extended if it was to continue. Deputy City Attorney Eckman read the rule relating to extending meetings past 10:30 p.m. Councilmember Ohlson pointed out that staff members and citizens had been waiting on the two 258 September 5, 2006 remaining items all evening. He would support continuing the meeting if that was the desire of the Council. Councilmember Kastein made a motion, seconded by Councilmember Roy, to extend the meeting until no later than midnight. Yeas: Councilmembers Brown, Hutchinson, Kastein, Marvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Ordinance No. 123 , 2006, Extending the Contract for Advertising on Exterior and Interior of Buses for Up to Five Additional Years Adopted on Second Reading. The following is staff's memorandum on this item. "EXECUTIVE SUMMARY Outdoor Promotions, Inc. has the current contract for the sale of advertising space on the exterior and interior ofTransfort buses. The existing Agreement with Outdoor Promotions, Inc. expires on September 30, 2006. This Ordinance, unanimously adopted on First Reading on August 15, 2006, allows another five (5) year extension. " City Manager Atteberry stated staff would be available to answer any questions. Councilmember Roy made a motion, seconded by Councilmember Weitkunat, to adopt Ordinance No. 123, 2006 on Second Reading. Councilmember Ohlson stated he did not support public policy that allowed commercial signage on public buildings, buses or bus benches even to generate revenue. Councilmember Roy stated that, although he made the motion, he agreed with Councilmember Ohlson. Councilmember Kastein asked about the number of responses to the RFP. James O'Neill, Purchasing Agent, indicated that one proposal was received in response to a similar RFP. Councilmember Ohlson stated he did not support ten-year contracts and asked if the process was wide open for proposals. O'Neill indicated it was the same process but a different RFP for advertising. Councilmember Ohlson stated it seemed unusual that the City would receive five proposals for one RFP and only one proposal for another, making this essentially a ten-year contract. O'Neill stated there were two different RFPs. After the original RFP, the City entered into a contract with Outdoor Promotions for five years, and the RFP had a provision that stated it could be extended for an 259 September S, 2006 additional five years with Council approval. The other RFP that was done this year was for advertising. Councilmember Ohlson questioned the process and asked if staff was saying that the performance was adequate, there was no new RFP and staff was recommending that the contract be continued for another five years. O'Neill stated when an RFP was issued in 2000, the City indicated it had the potential ofbecoming a ten-year contract. City Manager Atteberry stated this was a separate contract from the one that was done four months ago. Mayor Hutchinson asked how much revenue was received each year. Marlys Sittner, Transfort/Dial- a-Ride Assistant General Manager, stated a minimum of $50,000 was received from this contract each year and that it could be as high as $65,000. Councilmember Ohlson asked how confident the City was in the audit that was done of the revenues that were due the City. O'Neill stated an audit was done last year and the City was receiving what it should. Councilmember Ohlson asked if this was audited every year. O'Neill stated audits were done on a periodic basis and the books were open to the City. Councilmember Ohlson stated he did not think that it was okay to have only "commercial speech" and to ban "non -offensive political speech" in advertising. Councilmember Kastein stated it could appear the City was running the ad on behalf of a candidate if political ads were allowed. Mayor Hutchinson asked if there were restrictions against political signs on City property. City Manager Atteberry replied in the affirmative. If the Council wanted to allow "political speech" that would require some research. He recommended approval of the Ordinance. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel and Weitkunat. Nays: Councilmembers Ohlson and Roy. THE MOTION CARRIED. Mayor Hutchinson asked if at least three Councilmembers favored examining the subject of allowing "political speech" on bus and bus bench advertising. He noted three Councilmembers were interested in looking at this issue. Councilmember Kastein stated he would like some information from the City Attorney on research that had been done previously before any type of work session was scheduled on this. Councilmember Ohlson agreed with that approach. Deputy City Attorney Eckman asked if this research would be limited to buses and bus benches. PR September 5, 2006 Councilmember Ohlson stated he wanted research about "political speech" in addition to "commercial speech" on City property and property leased by the City. Deputy City Attorney Eckman noted that streets and sidewalks were "quintessential forums for political speech" i.e., individuals could carry a political banner down a sidewalk. Councilmember Ohlson stated he was talking about cases in which the City allowed signs on things. Ordinance No. 129, 2006, Appropriating Unanticipated Revenue in the Capital Projects Fund - Water Craft Course Capital Project to be Used for a Feasibility Study, Design and Construction of a Water Craft Course Along a Section of the Cache La Poudre River Near the Old Power Plant Adopted on First Reading The following is staff s memorandum on this item. "FINANCL9L IMPACT The estimated design and construction cost for phase one is $150, 000. Funding for the course will be provided by private sources and sufficient funds to begin the design are currently available. Annual operation and maintenance costs are estimated at $1,000 to $1,500. EXECUTIVE SUMMARY The vision ofdeveloping of a water craft course in the Downtown area at the Old Power Plant was identified in the Downtown River Corridor Implementation Plan ('DRCIP'). The DRCIP was adopted on July 18, 2000. The course would be located in the area downstream of the North College Avenue Bridge to a takeout area at the BNSF Railroad trestle. The DRCIP identified the need for a feasibility study prior to the development of the course. The project has come through the City's Preliminary Design Review. This Ordinance appropriates unanticipated revenue in the Capital Projects Fund to be used for a feasibility study, design and construction of a water craft course. BACKGROUND No water craft course exists in Lorimer County. Many people currently drive to courses in Boulder, Lyons, Golden and Steamboat. The popularity of water craft courses in Colorado grows with every passing year. The course will add a recreational opportunity in the downtown area. The total length of the course from the North College Avenue Bridge to the railroad trestle is about 800 feet. Watercraft passage is presently possible due to earlier work. The Coy Diversion was modified in the mid 1980's and a downstream boulder drop structure was installed in 1999 to create a water pool below the Coy Diversion. This pool creates a needed higher pool water surface elevation making the passage of water craft easier. 261 September S, 2006 The water craft course will require the installation of two boulder drop structures downstream to complete the course. A sandbar area under the railroad trestle has been identified as a good take out point. A gravel path will be constructed from this point along the Poudre River Trail for users to return to the starting point of the course. The first phase of the course includes the new drop structures, small gravel path and re -vegetation of the river banks. Future phases would involve improvements for better access and parking movement in the existing parking area and additional landscaping. The development of the course is scheduled to start in 2007 if the feasibility study, land ownership issues, FEMA requirements and design are completed in time for construction to occur when the river water flow is low. " City Manager Atteberry stated staff would be available to answer any questions. Councilmember Ohlson asked about the private sources of funding for the water craft course and specifically if some of the funding was from the DDA. He would like to have clarification on Second Reading. City Manager Atteberry stated DDA funding was included. Councilmember Ohlson stated DDA dollars were public dollars and should not be classified as private dollars. City Manager Atteberry stated $30,000 would come from the DDA in addition to a matching amount. Matt Evans, a citizen who was part of the initiative, stated $63,000 would come from the DDA. Councilmember Ohlson asked if the other $90,000 in funding had been identified. Mr. Evans stated about $100,000 had been committed. Councilmember Ohlson stated it was unusual to do a feasibility study and design and construction in one vote. Those actions should be separate since it should not be assumed that the feasibility study would show that the project was feasible. Craig Foreman, Parks Planning and Development Manager, stated the intent was to bring in matching funds to allow the feasibility study to be done. Design and construction would not begin until a feasibility study was completed. Councilmember Ohlson asked if the design phase would should more details. Foreman replied in the affirmative. Councilmember Ohlson asked ifthe money that had been committed was private money and whether it was in -kind of cash. Mr. Evans stated most was cash. He noted the DDA money came with a caveat that the money could not be spent until later phases of the project. Enough funding was available to do the feasibility study and design studies. Some in -kind work was committed from design fines. Councilmember Ohlson stated he was "skeptical' about the project and asked if a "no" vote on his part would remove him from discussion on any appeal. Deputy City Attorney Eckman stated he did not believe there were any appeal rights associated with an appropriation ordinance. 262 September 5, 2006 Councilmember Ohlson noted the final project could come to the Council on an appeal since it would eventually go through the planning process. Deputy City Attorney Eckman stated the matter could then come to the Council on the appeal. There would be no conflict of interest issue on appeal for a Councilmember voting "no" on the appropriation ordinance. The issue would be whether there was an "impartial tribunal." He did not see much chance for the Councilmember voting "no" on the appropriation ordinance to be disqualified from considering an appeal. Councilmember Manvel asked if the concept plan presented was about half of the course and whether the plan would be worked on further. Mr. Evans replied in the affirmative. Councilmember Ohlson stated he would support the Ordinance and he would be looking closely at "real" habitat restoration along the Poudre River. Councilmember Roy made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 129, 2006 on First Reading. Councilmember Weitkunat stated she was pleased that the private sector came forward to work on this project. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None. THE MOTION CARRIED. Other Business Councilmember Brown stated the "whistle tip" muffler fad was "obnoxious" and coming to Fort Collins. The whistle could be heard over a mile away when the car is running and he would like to see an ordinance that would prohibit the selling, installation and owning of whistle tips. City Manager Atteberry stated staff was looking at the issue and whether this type of equipment would be covered in the current noise ordinances. The meeting adjourned at 11:30 p.m. ATTEST: \�u.AL City Clerk Adjournment Mayor 263