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HomeMy WebLinkAboutMINUTES-11/06/2012-RegularNovember 6, 2012 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, November 6, 2012, 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: Horak, Manvel, Ohlson, Troxell and Weitkunat. (Secretary's note: Councilmembers Kottwitz and Poppaw arrived at 6:03 p.m.) Staff Members Present: Atteberry, Eckman, Nelson, Roy. Agenda Review City Manager Atteberry withdrew Item No. 27, Resolution 2012-103 Making Findings of Fact and Related Determinations Regarding the Appeal of the August 7, 2012 Administrative Hearing Officer's Decision Regarding the Aspen Heights PDP, to the Discussion Agenda. Citizen Participation Stacy Lynne, 305 West Magnolia, discussed the United States Constitution and its relationship to the duties of public officials. Bill Mullaney accused City officials of corruption. Eric Sutherland, 3520 Golden Currant, discussed the appropriate role of government and opposed City funding of the Rocky Mountain Innosphere and expressed concern regarding the fact that the downtown ice skating rink was not funded. CONSENT CALENDAR BUDGET CONSENT ITEMS 6. Second Reading of Ordinance No 107, 2012 Being the Annual Appropriation Ordinance of the Fort Collins Downtown Development Authority Relating to the Annual Appropriations for the Fiscal Year 2013 and Fixing the Mill Levy for the Downtown Development Authority for Fiscal Year 2013. Ordinance No. 107, 2012, unanimously adopted on First Reading on October 16, 2012, sets the Downtown Development Authority (DDA) 2013 Operations and Maintenance Budget amount of $769,440 to be appropriated for fiscal year 2013 for the administrative operations budget; appropriates the 2013 Line of Credit Draw in the amount of $1,000,000; sets the amount of $3,197,535 for debt service payments to be appropriated for fiscal year 2013; and 137 November 6, 2012 sets the 2013 Mill Levy for the Fort Collins DDA at five (5) mills, unchanged since tax year 2002. The approved Budget becomes the Downtown Development Authority's financial plan for 2013. 7. Items Relating to Water and Electric Development Fees and Charges for 2013. A. Second Reading of Ordinance No. 113, 2012, Amending Chapter 26 of the City Code to Revise Water Rates and Charges. B. Second Reading of Ordinance No. 115, 2012, Amending Chapter 26 of the City Code to Revise Electric Development Fees and Charges. The proposed water increase is a flat 4% across the board to all customer classes. Electric development fees are proposed to decrease an average of 2.4% for residential and decrease an average of 1.6% for commercial development. There are no changes in the monthly rates for wastewater or stormwater services being proposed for 2013. Both Ordinances were unanimously adopted on First Reading on October 16, 2012. NON- BUDGET CONSENT ITEMS 8. Consideration and Approval of the Minutes of the October 16, 2012 Regular Meeting and the October 23, 2012 Adjourned Meeting 9. Second Reading of Ordinance No. 108, 2012, Appropriating Unanticipated Grant Revenue from Colorado Parks and Wildlife in the Conservation Trust Fund for the Fossil Creek Trail at East Trilby Road. This Ordinance, unanimously adopted on First Reading on October 16, 2012, appropriates a $200,000 trail grant received from Colorado Parks and Wildlife for the completion of the Fossil Creek Trail at East Trilby Road. 10. Second Reading of Ordinance No. 109, 2012, Appropriating a Grant from Great Outdoors Colorado for the City's Portion of Larimer County's Poudre River Corridor and Re ig onal Trail Initiative Grant. This Ordinance, unanimously adopted on First Reading on October 16, 2012, appropriates a grant received from Great Outdoors Colorado in the amount of $737,597. The funds will be used as part of Fort Collins' portion of the Poudre River Corridor & Regional Trail Initiative project. The grant request includes open space acquisitions, trail easements, and trail development along the Poudre River from Fort Collins to Greeley. The total grant project cost is $8,074,926, with the Great Outdoors Colorado grant being in the amount of $5,098,150. The City of Fort Collins portion of the project is $1,558,880, with the Great Outdoors Colorado grant amount being $737,597. 11. Second Reading of Ordinance No. 110, 2012, Approving a Fourth Amendment to the Fort Collins-Timnath Intergovernmental Agreement Regarding,Cooperation on Annexation, Growth Management, and Related Issues, Eliminating Original Terms Related to the 138 November 6, 2012 Boxelder Overflow Project and Establishing the Terms of Cost Sharing for Design Engineering of Substituted Improvements in the Boxelder Basin. On February 17, 2009, the City of Fort Collins (City) and the Town of Timnath (Timnath) entered into an intergovernmental- agreement (IGA) regarding annexations, growth management, and related issues. The IGA resolved certain differences that had arisen between the City and Timnath concerning a variety of planning and growth management issues. The IGA sets forth provisions for the funding, design and construction of the Boxelder Overflow Project. The IGA has been amended three times since for items such as the extension of deadlines for approval of the respective growth management areas and the deletion of all references to Timnath's possible purchase of the Vangbo property. The parties have determined that development of the Boxelder Overflow Project originally contemplated by Timnath as described in the Intergovernmental Agreement is neither feasible nor desirable, and have further identified a mutually beneficial alternative approach to address flood impacts in the Boxelder Creek Basin as it impacts Timnath and Fort Collins, referred to as the Boxelder Creek Flood Mitigation Projects. In order to move forward cooperatively to further investigate, conceptually plan and preliminarily design the Boxelder Creek Flood Mitigation Projects, the parties desire to apply toward those Projects a portion of the funds previously paid into an escrow account by Fort Collins in accordance with Article 7 of the Intergovernmental Agreement. This Ordinance, unanimously adopted on First Reading on October 16, 2012, approves the Fourth Amendment to the Intergovernmental Agreement in order to clarify and document the City and Timnath's intentions and mutual rights and responsibilities with respect to the Boxelder Overflow Project and Boxelder Creek Flood Mitigation Projects. Between First Reading and Second Reading the proposed Amendment has been revised to specifically allow for Timnath to carry out the funding of the Boxelder Creek Flood Mitigation Projects through the Timnath Development Agency. 12. Items Relating to the 1-25/SH 392 Interchange Project. A. Second Reading of Ordinance No. 117, 2012, Establishing a Special Fee to Be Paid by the Owners of Property Within Close Proximity to the Reconstructed Interchange at the Intersection of Interstate 25 and State Highway 392. B. Second Reading of Ordinance No. 118, 2012, Approving the First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange. On December 21, 2010, the City Council approved an Intergovernmental Agreement (IGA) with the Town of Windsor pertaining to the development of the I-25 interchange at the intersection of State Highway 392. The IGA states that, by March 31, 2011, the City and Windsor will take certain actions to implement the fee requirements identified in the IGA. City Council has adopted several resolutions extending this deadline, the most recent extension being to October 16, 2012. 139 November 6, 2012 Ordinance No. 117, 2012, will establish the specifics of a special fee to be paid by the Property Owners near the interchange. The fee includes two parts and is summarized as follows: The first part of the fee is in proportion to the anticipated appreciation in property value as a result of the interchange improvements. This amount has been determined from an appraisal report prepared by a licensed MAI appraiser (the "Foster Study"). The second part of the fee is based on the relative impacts that the development or redevelopment of the properties will have on the Interchange, as measured by the estimated number of additional vehicular trips that will be generated by the developed use of the properties. Based on negotiation with the Property Owners, the City and Town have created a second option for Property Owners. Property Owners signing an agreement with the City would be permitted to defer payment of the entire amount of the fee until their properties are developed or redeveloped, the amount of their fee would be capped at the amount estimated in the agreement, and no interest would accrue on their fee for a period of two years from the date of execution of the agreement. Ordinance No: 118, 2012, adopts the modified 1GA first approved by City Council on December 21, 2010, now revised to be consistent with the implementation of the fees as described above. Both Ordinances were unanimously adopted on First Reading on October 23, 2012. 13. First Reading of Ordinance No. 119, 2012, Appropriating Unanticipated Revenue in the General Fund to the Fort Collins Housing Authority to Fund Affordable Housing and Related Activities. The Fort Collins Housing Authority paid the City of Fort Collins $15,457 as the 2010 and 2011 payments for public services and facilities. The Authority requests that the City refund the Payment in Lieu of Taxes (PILOT) to fund sorely needed affordable housing -related activities and to attend to the low-income housing needs of Fort Collins residents. Resolution 1992-093 reinstated the requirement that the Authority make annual PILOT payments to the City. The City may spend the PILOT revenues as it deem_ s appropriate in accordance with law, including remitting the funds to the Authority if the Council determines that such remittal serves a valid public purpose. The Council has remitted the PILOT payment to the Authority since 1992. 14. - First Reading of Ordinance No. 120, 2012, Appropriating Unanticipated Grant Revenue from Great Outdoors Colorado in the Conservation Trust Fund for the Fossil Creek Trail at County Road 38E Project. The City has received the grant payment from Great Outdoors Colorado for the construction of the Fossil Creek Trail at County Road 38E project. Great Outdoors, Colorado had awarded the City a Special Opportunity Grant for the completion of the Fossil Creek Trail 140 November 6, 2012 from north of Cathy Fromme Prairie to the Spring Canyon Community Park. Construction of the project was completed this past spring. 15. First Reading of Ordinance No. 121, 2012, Amending the City Code to Increase the Amounts of the Capital Improvement Expansion Fees Contained in Chapter 7.5 of the City Code so as to Reflect Inflation in Associated Costs of Services. The City Code requires annual adjustments to certain building permit related fees. Capital Improvement Expansion fees and Neighborhood Parkland fees are to follow the changes in the Denver -Boulder -Greeley Consumer Price Index (CPI). Street Oversizing fees are adjusted by the changes posted in the Engineering News Record (ENR). The CPI has increased 1.8% and the ENR has increased 1.6%. Additionally the Code is being updated to reference to the most recent amended manual, The /TE Trip Generation Manual, 8`� Edition, 2008. Staff is working with a consultant who specializes in capital impact fees to re-evaluate the underlying assumptions and formulas used to calculate the City's fees. A presentation is scheduled for a work session on February 12, 2013 and formal consideration on March 5, 2013. 16. First Reading of Ordinance No. 122. 2012, Amending Chapter 15 of the City Code Pertaining to Contractor Licenses. Community Development and Neighborhood Services is responsible for the enforcement of the contractor licensing requirements found in Chapter 15 of the City Code. The changes proposed will update the current Code by: • clarifying minimum experience and qualification requirements at the application stage • creating license categories that better align with the adopted residential and commercial building codes • streamlining the application and project verification process • establishing registration requirements for the currently non -licensed category of workers • increasing minimum liability amounts to recognized industry levels. 17. Items Relating to the Naming of Arterial and Collector Streets. A. First Reading of Ordinance No. 123, 2012 Amending Section 24-91 of the City Code Regarding the Naming of Arterial and Collector Streets. B. Resolution 2012-100 Updating the List of Names for Arterial and Collector Streets. This Ordinance amends the City Code relating to naming new arterial and collector streets so that City Council ,rather than the developer, would select the name of the new street. The Resolution will update the current list of names for arterial and collector streets. 141 November 6, 2012 18. First Reading of Ordinance No. 124, 2012, Amending Section 2-427 of the City Code Relating to Membership of the Transportation Board. The Transportation Board currently consists of eleven members appointed by the City Council, and is one of the larger advisory boards. At the end of 2012, the terms of four members will expire. One of those members is not eligible for reappointment because that member has met the Council -adopted two term limit. Another member is eligible but is not interested in reappointment. This provides an opportunity for Council to consider changes to the size of the Board without negatively impacting any current members. This opportunity was presented to the Board by staff, and the Board voted to recommend that the Council reduce the size from eleven to nine members. This Ordinance amends the City Code to reduce the size of the Board to nine members. 19. First Reading of Ordinance No. 130, 2012, Amending the Land Use Code by Designating Certain Types of Multi -family Housing Development Projects as Being Subject to Planning and Zoning Board Review. On October 9, 2012, Council directed staff to draft an ordinance amending the Land Use Code (LUC) to require larger multi -family housing developments (50 dwelling units, or 75 bedrooms) to be reviewed by the Planning and Zoning Board (Type 2). A Type 2 review requires that the developer hold a pre -submittal neighborhood meeting. The benefit to the neighborhood meeting is that the public is given an opportunity to provide input on a project while it is still in the early stages of development. In recent months a large amount of multi- family housing developments have been appealed by concerned citizens to Council based on the assertion that the projects are not compatible with adjacent neighborhoods. This proposed procedural change seeks to provide more opportunity for the public to participate in the development review process for multi -family housing projects. 20. First Reading, of Ordinance No. 125, 2012 Amending Section 26-543 of the City Code to Update the Stormwater Master Drainage Plans to Include Basin -Specific Water Quality Best Management Practices and Stream Restoration. The City of Fort Collins' Stormwater Master Plan has been updated to include stormwater quality and stream restoration projects, alongside the already identified stormwater flood control projects. The Master Plan update utilizes results and information obtained from the Stormwater Utility Repurposing program in conjunction with basin and stream specific recommendations obtained from the following two program efforts: A. Basin -Specific Stormwater Quality Best Management Practices (BMP) Selected Plans; and, B. _ Stream Restoration and Stability Study and Prioritization with the Multi Criteria Decision Analysis (MCDA) Tool. The BMP Selected Plans include recommendations for the treatment of stormwater within portions of the City that developed prior to the adoption of stormwater quality criteria. The majority of the BMP projects include the retrofit of existing stormwater detention ponds to include water quality treatment facilities. Funding for the construction of the identified BMP 142 ) November 6, 2012 and stream restoration projects will be drawn from existing stormwater fees. This funding request is included in the current 2013/2014 Budgeting for Outcomes (BFO) process for Environmental Health. 21. First Reading of Ordinance No. 126, 2012, Authorizing the Conveyance of City -owned Property Known as the Maxwell Farm and Related Water Ri htg s Subject to a Conservation Easement and Authorizing a Related Raw Water Transfer Agreement. The Natural Areas Department (NAD) purchased the 137-acre Maxwell Farm, along with 12 shares of North Poudre Irrigation Company (NPIC) water, with the intent of placing it under a conservation easement to help conserve a buffer between Fort Collins and Wellington; protect the open space and scenic values adjacent to I-25; and, sell it as an agricultural property with limited development rights. These purposes are supported by the Natural Areas Land Conservation and Stewardship Plan, the Council -adopted master plan for the Department.. The land has been leased to Larry Maxwell, the previous owner, for farming and livestock feeding since the initial purchase in 2009. Natural Areas and Utilities have worked out an agreement for the NAD to sell eleven of the twelve NPIC shares to Utilities for approximately 50% of the estimated market value, which is $14,000 per share (based on recent sales information from NPIC). In exchange, Utilities will enter into a raw water transfer agreement with the buyer of Maxwell Farm, and per the terms of the agreement, Utilities will transfer the equivalent of eleven shares of NPIC water on an annual basis to the Maxwell Farm in perpetuity. The advantage to Utilities is that water decreed solely for agricultural use derived from other Utilities -owned NPIC shares, can be substituted for water decreed for municipal use derived from the eleven NPIC shares, which Utilities can use. The buyer will purchase the remaining share of NPIC water as it is a NPIC policy that a farm must own at least some NPIC water in order to receive any rented or transferred water. The single NPIC share to be owned by the buyer will also be tied to the land by the conservation easement agreement. The funds received from the sale of the land and water will be used to conserve additional land and water. 22. First Reading of Ordinance No. 127, 2012, Authorizing the Conveyance of City -owned Property Known as the Vangbo Property ubject to a Conservation Easement The Vangbo Property was purchased by the Natural Areas Department (NAD) in 2005 with the intent to place a conservation easement on the property to conserve the open space and scenic value's along the I-25 corridor and then sell it'as an agricultural property with limited development options. These purposes are supported by the Natural Areas Land Conservation and Stewardship Plan, the Council -adopted master plan for the Department. . The land is currently leased to Alison Person, a neighboring landowner, for grazing. Staff recommends selling the 105-acre Vangbo property and associated ditch and water rights with a reserved conservation easement to Alison Person for $300,000. The conservation easement does not allow any future development, but does give the landowner the option to request the purchase of one building envelope on the property from a future City Council. The undeveloped portion would remain in agricultural use. 143 November 6, 2012 23. First Reading of Ordinance No. 128, 2012, Authorizing the Conveyance of a Non -Exclusive Drainage Easement on City Property to Cloud Peak Ranch, LLC. Cloud Peak Ranch, LLC is planning a 39.53 acre residential development called Mail Creek Crossing PLD/PD locatedjust north of Bacon Elementary School on South Timberline Road. This development will require the construction of off -site stormwater outfall improvements on adjacent property to the north in order to connect with a stormwater pipe in Kechter Road. The alignment of these improvements will cross the northwest corner of a property owned by the City's Social Sustainability Department. The City's 16-acre property was purchased in 2006 as a Land Bank property and is currently leased as a residential/horse property. In order to facilitate the installation of the planned improvements, the developer has requested a 2,346 square foot non-exclusive drainage easement from the City in the northwest corner of the City property adjacent to Kechter Road. 24. First Reading of Ordinance No. 129, 2012, Authorizing the Conveyance of a Non -Exclusive Utility Easement on City Property to the Nunn Telephone Company. Nunn Telephone Company (NTC) currently provides telephone and' internet services to portions of northwest Weld County and northeast Latimer County. With an increase in demand from their customers for broadband services, NTC has begun upgrading copper based telephone lines to fiber optic broadband lines. NTC has requested a utility easement from the City of Fort Collins across a portion of Meadow Springs Ranch in order to install approximately 7.0 miles of fiber optic line as part of this upgrade project. The proposed easement alignment would follow an abandoned state highway now used by the City as an access road to the City's property. 25. Resolution 2012-101 Authorizing a Revocable Permit for Brinkman Construction. Inc. to Access City. Property to Complete Mitigation Activities for the Construction of Tilden Street. In 2008, Council adopted Ordinance No. 030, 2008, authorizing the dedication of a portion of City property located at 2313 Kechter Road as Tilden Street. The property located west of the City property has been planned as the Kechter Crossing development. Tilden Street is located along the property boundary between the two properties. The developer of Kechter Crossing, Brinkman Construction, Inc., plans to begin construction of its development soon, including work within the new right-of-way of Tilden Street. This work will require the relocation of a number of site improvements in the right-of-way areas that are owned by the City. City staff has asked the Developer to relocate and replace a number of these site improvements elsewhere on the City property. The revo6able permit will allow the developer access to the City property to perform the requested mitigation activities. 26. Resolution 2012-102 Naming Three Alleys Within the Block Bounded by South College Avenue, West Laurel Street, South Mason Street and West Myrtle Street. The Downtown Development Authority has completed.a capital improvement project to enhance three public alleys in the aforementioned block. In conjunction with this project, the City of Fort Collins is preparing to name these three alleys. The three proposed names are "Dalzell Alley," "Corbin Alley," and "Wattles Alley." If approved, the alley naming will 144 November 6, 2012 simplify way -finding for pedestrians, bicyclists, drivers, delivery personnel and emergency responders. 27. Resolution 2012-103 Makin Fg indings of Fact and Related Determinations Regarding the Appeal of the August 7, 2012 Administrative Hearing Officer's Decision Regarding the Aspen Heights PDP. On August 16, 2012, the City of Fort Collins Hearing Officer issued a written decision approving Aspen Heights PDP, with one condition ensuring proper landscaping associated with the clubhouse. On August 30, 2012, Mr. Tom Lawton filed a Notice of Appeal seeking redress of the Hearing Officer's decision. On October 30, 2012, City Council voted 5 - 0 to modify the Hearing Officer's decision by requiring the following: 1. It shall be a condition of approval of the PDP that the applicant provide a shuttle bus for use of project residents, with the understanding that if there is insufficient ridership demand to sustain such shuttle bus, then the applicant may apply for a minor amendment to the approved Final Plan to reduce or eliminate the shuttle bus requirements of this condition. 2. It shall be a condition of approval of the P.D.P. that the applicant shall, at the time 'of submittal of the Final Plan and in consultation with City staff, enhance the design of the naturalized drainage channel transecting the property in such a manner as to provide an increased width and vegetation diversity; and to enhance the regional stormwater detention pond through variation in grading patterns and vegetation diversity, to the extent reasonably feasible. In order to complete the record regarding this appeal, Council should adopt a Resolution making findings of fact and finalizing its decision on the Appeal. 28. Postponement of Resolution 2012-099 Adopting a Water Supply and Demand Management Policy to November 20, 2012. At the October 30, 2012 Adjourned Meeting, Council voted to postpone consideration of this Resolution to November 6 to allow time for staff to revise the Water Supply and Demand Management Policy, based on Council's input. There is not adequate time to make these revisions and provide supporting material before the publication of the November 6 agenda. Staff requests postponement of consideration of this Resolution to November 20, 2012. 29. Routine Deeds. Three quit claim deeds, encompassing 105 easements within the Southwest Enclave Annexation from Poudre Valley REA. These easements were transferred to the City along with the purchase of Poudre Valley REA's electric systems in the annexation. 30. Routine Easement. 145 November 6, 2012 Easement for construction and maintenance of public utilities from TAV Property Management, Inc., to install an electric transformer at 504 South College Avenue. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Nelson. 6. Second Reading of Ordinance No. 107, 2012, Being the Annual Appropriation Ordinance of the Fort Collins Downtown Development Authority Relating to the Annual Appropriations for the Fiscal Year 2013 and Fixing the Mill Levy for the Downtown Development Authority for Fiscal Year 2013. 7. Items Relating to Water and Electric Development Fees and Charges for 2013. A. Second Reading of Ordinance No. 113, 2012, Amending Chapter 26 of the City Code to Revise Water Rates and Charges. B. Second Reading of Ordinance No. 115, 2012, Amending Chapter 26 of the City Code to Revise Electric Development Fees and Charges. 9. Second Reading of Ordinance No. 108, 2012, Appropriating Unanticipated Grant Revenue from Colorado Parks and Wildlife in the Conservation Trust Fund for the Fossil Creek Trail at East Trilby Road. 10. Second Reading of Ordinance No. 109, 2012, Appropriating a Grant from Great Outdoors Colorado for the City's Portion of Latimer County's Poudre River Corridor and Regional Trail Initiative Grant. 11. Second Reading of Ordinance No. 110, 2012, Approving a Fourth Amendment to the Fort Collins-Timnath Intergovernmental Agreement Regarding Cooperation on Annexation, Growth Management, and Related Issues, Eliminating Original Terms Related to the Boxelder Overflow Project and Establishing the Terms of Cost Sharing for Design Engineering of Substituted Improvements in the Boxelder Basin. 12. Items Relating to the I-25/SH 392 Interchange Project. A. Second Reading of Ordinance No. 117, 2012, Establishing a Special Fee to Be Paid by the Owners of Property Within Close Proximity to the Reconstructed Interchange at the Intersection of Interstate 25 and State Highway 392. B. Second Reading of Ordinance No. 118, 2012, Approving the First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange. 36. Second Reading of Ordinance No. 114, 2012, Amending Chapter 26 of the City Code to Revise Electric Rates, Fees and Charges 146 November 6, 2012 Ordinances on First Reading were read by title by City Clerk Nelson. 13. First Reading of Ordinance No. 119, 2012, Appropriating Unanticipated Revenue in the General Fund to the Fort Collins Housing Authority to Fund Affordable Housing and Related Activities. 14. First Reading of Ordinance No. 120, 2012, Appropriating Unanticipated Grant Revenue from Great Outdoors Colorado in the Conservation Trust Fund for the Fossil Creek Trail at County Road 38E Project. 15. First Reading of Ordinance No. 121, 2012, Amending the City Code to Increase the Amounts -of the Capital Improvement Expansion Fees Contained in Chapter 7.5 of the City Code so as to Reflect Inflation in Associated Costs of Services. 16. First Reading of Ordinance No. 122, 2012, Amending Chapter 15 of the City Code Pertaining to Contractor Licenses. 17. First Reading of Ordinance No. 123, 2012 Amending Section 24-91 of the City Code Regarding the Naming of Arterial and Collector Streets. 18. First Reading of Ordinance No. 124, 2012, Amending Section 2-427 of the City Code Relating to Membership of the Transportation Board. 19. First Reading of Ordinance No. 130, 2012, Amending the Land Use Code by Designating Certain Types of Multi -family Housing Development Projects as Being Subject to Planning and Zoning Board Review. 20. First Reading of Ordinance No. 125, 2012 Amending Section 26-543 of the City Code to Update the Stormwater Master Drainage Plans to Include Basin -Specific Water Quality Best Management Practices and Stream Restoration. 21. First Reading of Ordinance No. 126, 2012, Authorizing the Conveyance of City -owned Property Known as the Maxwell Farm and Related Water Rights Subject to a Conservation Easement and Authorizing a Related Raw Water Transfer Agreement. 22. First Reading of Ordinance No. 127, 2012, Authorizing the Conveyance of City -owned Property Known as the Vangbo Property Subject to a Conservation Easement. 23. First Reading of Ordinance No. 128, 2012, Authorizing the Conveyance of a Non -Exclusive Drainage Easement on City Property to Cloud Peak Ranch, LLC. 24. First Reading of Ordinance No. 129, 2012, Authorizing the Conveyance of a Non -Exclusive Utility Easement on City Property to the Nunn Telephone Company. Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt and approve all items not withdrawn from the Consent Calendar. Yeas: Weitkunat, Manvel, Kottwitz, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. 147 November 6, 2012 Consent Calendar Follow-up Mayor Pro Tem Ohlson requested follow-up and details regarding community parkland fees and capital expansion fees prior to Second Reading regarding Item No. 15, First Reading of Ordinance No. 121, 2012, Amending the City Code to Increase the Amounts of the Capital Improvement Expansion Fees Contained in Chapter 7.5 of the City Code so as to Reflect Inflation in Associated Costs of Services. Mayor Pro Tern Ohlson noted, with regard to Item No. 20, First Reading of Ordinance No. 125, 2012 Amending Section 26-543 of the City Code to Update the Stormwater Master Drainage Plans to Include Basin -Specific Water Quality Best Management Practices and Stream Restoration, that 90% of the public wants streams restored in Fort Collins but the current funding scenario means it will take at least 80 years or longer to accomplish that goal. Councilmember Reports Councilmember Troxell reported on a tour of Colorado Iron and Metal. He requested a report regarding waste diversion and the relationship of these types of private sector businesses to the City. Councilmember Manvel reported on an event for the Dental Connections Program and discussed Make a Difference Day. Councilmember Horak reported on a winter clothing distribution program sponsored by the North Fort Collins Business Association. Resolution 2012-103 Making Findings of Fact and Related Determinations Regarding the Appeal of the August 7, 2012 Administrative Hearing Officer's Decision Regarding the Aspen Heights PDP, Adopted The following is staff's memorandum for this item. 'EXECUTIVE SUMMARY On August 16, 2012, the City of Fort Collins Hearing Officer issued a written decision approving Aspen Heights PDP, with one condition ensuring proper landscaping associated with the clubhouse. On August 30, 2012, Mr. Tom Lawton filed a Notice of Appeal seeking redress of the Hearing Officer's decision. On October 30, 2012, City Council voted 5 - 0 to modify the Hearing Officer's decision by requiring the following: 1. The applicant must provide a shuttle bus for use of project residents, with the understanding that if there is insufficient ridership demand to support the need for the shuttle bus, the applicant may apply for a minor amendment to the approved Final Plan to reduce or eliminate this shuttle bus requirement. November 6, 2012 2. To the extent reasonably feasible, the applicant shall, at the time of submittal of the Final Plan and in consultation with City staff.- (a) enhance the design of the naturalized drainage channel transecting the property in such a manner as to provide an increased width and/or vegetation diversity provided that such enhancement does not unduly diminish the capacity of the channel to carry the anticipated stormwater flow; and (b) enhance the wetland mitigation area through increased size and/or vegetation diversity. In order to complete the record regarding this appeal, Council should adopt a Resolution making findings of fact and.finalizing its decision on the Appeal. BACKGROUND / DISCUSSION The Appellants' Notices of Appeal were based on allegations that the Hearing Officer failed to conduct a fair hearing and failed to properly interpret and apply relevant provisions of the Land Use Code. At the October 30, 2012 hearing on the matter, Council considered the testimony of City staff, the appellants and the applicants. In subsequent discussion at this hearing, Council determined that the Hearing Officer did not fail to conduct a fair hearing. Regarding the issue of whether ornot the Hearing Officer properly interpreted and applied relevant provisions of the Land Use Code, Council offered a motion to determine that the Hearing Officer did not fail to properly interpret and apply relevant provisions of the Land Use Code subject to two conditions. This motion had the effect of modifying the Hearing Officer's decision by adding the two aforementioned requirements. City Council voted 5 — 0 to approve the motion thus modifying the decision of the Hearing Officer. " Councilmembers Horak and Kottwitz recused themselves from the discussion of Resolution 2012- 103 Making Findings of Fact and Related Determinations Regarding the Appeal of the August 7, 2012 Administrative Hearing Officer's Decision Regarding the Aspen Heights PDP. Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to adopt Resolution 2012-103. Eric Sutherland, 3520 Golden Currant, stated a contract does not exist between the City and the developer to require shuttle service from the development. Mayor Pro Tern Ohlson requested a friendly amendment to rephrase a statement relating to the wildlife corridor to be: "as to provide an increased width and vegetation diversity." Councilmembers Manvel and Poppaw accepted the amendment to the motion. Councilmember Manvel requested input as to whether or not statements made in this Resolution have any legal weight. Deputy City Attorney Eckman replied the Land Use Code allows for both the Planning and Zoning Board and Council to impose conditions on the approval of a development project. All requirements and conditions are outlined in a development agreement with the developer, which is recorded with the Larimer County Clerk and Recorder. The methods of enforcement are set out in the Land Use Code. 149 November 6, 2012 The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Ohlson, Poppaw and Troxell. Nays: none. THE MOTION CARRIED. Consideration of the Appeal of the August 9, 2012 Zoning Board of Appeals Decision to Approve a Variance to Allow the Existing Off -premise Sign (Billboard) Located in the BNSF Railroad Right of Way at 190 West Prospect Road to Be Removed and Reinstalled at a New Location Within the Same Railroad Right of Way at 190 West Prospect Road, Board's Decision Overturned The following is staff's memorandum for this item. 'EXECUTIVE SUMMARY On August 9, 2012, the Zoning Board ofAppeals (ZBA) considered Appeal #2714, submitted by the City of Fort Collins Engineering Department. This Appeal was for a variance to Section 3.8.7(P) of the City of Fort Collins Land Use Code (LUC), which prohibits the construction of new off - premise signs. The variance was requested in order to allow the existing off -premise sign in the BNSF Railroad right of way on the north side of Prospect Road to be relocated within the railroad right of way 70 feet west of its current location. The sign's current location is in direct conflict with the guideway, alignment for the MAX BRT (Bus Rapid Transit) project. The ZBA unanimously approved the variance request as authorized by Section 2.10.1 of the LUC. On August 23, 2012, Richard L. Anderson (the Appellant) filed a Notice of Appeal with the City Clerk. The Appellant alleges that the ZBA: A. Failed to conduct a fair hearing in that: The Board considered evidence relevant to its findings which was grossly misleading; 2. The Board substantially ignored its previously established rules of procedure; 3. The Board exceeded its authority and jurisdiction. B. The Board failed to properly interpret and apply relevant provisions of the Land Use Code. BACKGROUND/DISCUSSION The Sign Code was amended in 1994 to prohibit the construction of new off -premise signs (aka billboards) anywhere in the city. Existing off -premise signs were grandfathered in due to protection afforded them by the Federal Highway Beautification Act. The sign that is the subject of this appeal was constructed pursuant to a sign permit issued prior to 1994 and falls within the scope of the Federal Highway Beautification Act. The City of Fort Collins has purchased an easement within the BNSF Railroad right of way on the east side of the tracks for the proposed MAX BRT guideway alignment. At the current location, the M&I November 6, 2012 existing off -premise sign is in direct conflict with the proposed guideway alignment. Removing the sign without relocating it will require monetary compensation, as required by the Federal Highway Beautification Act. The City of Fort Collins Engineering Department submitted an application to the Zoning Board of Appeals, requesting a variance to relocate the existing sign within the railroad right of way, 70 feet west of its current location. Removing an existing off -premise sign and reconstructing it in a different location,is equivalent to the construction of a new off -premise sign; therefore, a variance is needed, even though the new location is on the same property. The setback distance from Prospect Road at the new location will remain unchanged from the Prospect Road setback at the sign's current location. The appellant, Richard Anderson, owns the two commercial properties at 200 and 220 West Prospect Road, directly west of the Railroad right of way. Mr. Anderson testified at the August 9, 2012 ZBA meeting that he had concerns with billboards in general and with the effect that the relocation of the subject sign might have on the value of his property. In particular, he was concerned about the impact to his two properties if his tenant at 200 West Prospect decided to advertise on the billboard, thereby increasing his business and creating a parking problem for the tenants of his other building (lines 19 — 39, page 5 and lines 1— 2, page 6 of the verbatim transcript, Attachment 5). Mr. Anderson is appealing the decision of the ZBA. ACTION OF THE ZBA ZBA Appeal #2714 originally appeared on the July 12, 2012 ZBA agenda, but was postponed to the August 9, 2012 hearing. After testimony from the staff, the applicant, and the public, the ZBA unanimously approved the variance request on August 9, 2012 to allow the sign to be moved 70 feet west of its current location. THE QUESTIONS COUNCIL NEEDS TO ANSWER 1. Did the ZBA fail to conduct a fair hearing? 2. Did the ZBA fail to properly interpret and apply relevant provisions of the Land Use Code? ALLEGATIONS ON APPEAL On August 23, 2012, Richard L. Anderson filed a Notice ofAppeal with the City Cleric The appeal alleges that the Board failed to conduct a fair hearing and failed to properly interpret and apply relevant provisions of the Land Use Code, specifically Section 2.10.2(H). A. . Failure to Conduct a Fair Hearing Allegation: The ZBA considered evidence relevant to its findings which was grossly misleading. Mr. Anderson states in the Notice of Appeal, "The ZBA further considered the facts that were misleading in that information presented reflected that the signage was to be continued in substantially the same form as it currently or has historically existed. The current sign has only one used/usable sign face .(viewable by eastbound traffic). It is understood that there is intent to 151 November 6, 2012 significantly increase the impact of the sign by allowing signage on both sides of the pole (viewable from both east and west). The proposed signage would have a substantially greater impact than the existing signage. " Staff Response. The staff report provided to the ZBA and the verbatim transcript of the hearing contain no mention of the existing sign having only one used or usable face or that the relocated sign might have two. However, the slides contained in the staff's Powerpoint presentation for the ZBA meeting show that the existing sign has only one face and that a mock-up of the relocated sign at the new location shows sign faces on both sides of the sign (see slides 3, 16, and 17 on Attachment 3). The motion - maker moved to approve the variance based on the nominal, inconsequential standard of the LUC, noting that "It's on the same property, it's the same sign, it's moving west. " (Lines 14 - 17, page 12, and lines 11 - 23, page 13 of the verbatim transcript, Attachment 5). Since there was no discussion during the hearing about the number of faces of the existing sign or of the proposed, relocated sign, it's difficult to determine that the board members considered evidence which was grossly misleading or that they "understood that there is an intent to significantly increase the impact of the sign... " as stated by Mr. Anderson. Allegation: The ZBA substantially ignored its previously established rules of procedure. Another fair hearing argument raised by Mr. Anderson is that the ZBA ignored previously established rules of procedure. However, the Appeal does not contain any specific assertions as to how the ZBA ignored its established rules of procedure. Staff Response There are no specific assertions to respond to. Allegation: The ZBA exceeded its authority and jurisdiction. The Appellant argues that the Board exceeded its authority and jurisdiction in granting the variance but presents no specific argument in support of that assertion, other than referencing Section 2.10.2 — Step 8 of the Land Use Code, which reads as follows: Section 2.10.2 Variance Review Procedures (H) Step 8 (Standards): Applicable, and the Zoning Board of Appeals may grant a variance from the standards of Articles 3 and 4 only if it finds that the granting of the variance would neither be 'detrimental to the public good nor authorize any change in use other than to a use that is allowed subject to basic development review; and that: (1) by reason of exceptional physical conditions or other extraordinary and exceptional situations unique to'such property, including, butnot limited to, physical conditions such as exceptional narrowness, shallowness or topography, orphysical conditions which hinder the owner's ability to install a solar energy system, the strict application ,of the standard sought to be varied would result in unusual and 152 November 6, 2012 exceptional practical difficulties, or exceptional or undue hardship upon the occupant of such property, or upon the applicant, provided that such difficulties or hardship are not caused by the act or omission of the occupant or applicant; (2) the proposal as submitted will promote the general purpose of the standard for which the variance is requested equally well or better than would a proposal which complies with the standard for which the variance is requested; or (3) the proposal as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be varied except in a nominal, inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. Any finding made under subparagraph (1), (2) or (3) above shall be supported by specific findings showing how the proposal, as submitted, ,meets the requirements and criteria of said subparagraph (1), (2) or (3). Staff Response It is possible that the Appellant is arguing that a "new sign" could not be authorized by variance because the granting of such a variance would be a "use variance" or a "change in use" which would conflict with the standards in the aforementioned Section 2.10.2(H). However, that Section and other Sections of 2.10 only prohibit the Board from authorizing certain types of "changes in use" and there's no mention at all of a prohibition against "use variances". ZBA Appeal #2714 was presented before the Board as a request for a variance from the requirement of Land Use Code Section 3.8.7(P), which prohibits the construction of any new off -premise sign. Since all of the permitted and prohibited uses in the Land Use Code are contained in the Article 4 zone district standards, and not in Article 3, the variance request was not fora variance to any of the use standards in Article 4,but was rather a request only for relief from Section 3.8.7(P) of the Land Use Code. Section 3.8.7(A)(1) of the Land Use Code states that "Signs shall be permitted in the various zone districts as accessory uses in accordance with the regulations contained in this Section." Additionally, Section 3.8.1, "Accessory Buildings, Structures and Uses ", lists signs as an accessory use. All zone districts in Article 4 authorize "accessory uses ". The property in question is located in the CC — Community Commercial zone district wherein "accessory uses" are listed as a permitted use (Section 4.18(B)(1)(a)2.). Staff believes that the construction of this billboard on the other side of the railroad track does not constitute a "use variance" since the sign is classified as an accessory use, which is a permitted use. Similarly, it is not a change in use since the current use is an accessory use sign and the proposed use is an accessory use sign. City Council must determine whether or not the ZBA exceeded its authority or jurisdiction by granting the variance on the basis of any violation of Section 2.10.2(H) regarding uses. B. Failure to Properly Interpret and Apply Relevant Provisions of the City Code, the Land Use Code and Charter, Specifically Land Use Code Section 2.10.2(H). 153 November 6, 2012 Allegation: The ZBA based its granting of the variance on the desire to save the City money. The appellant argues that "The purpose for the ZBA's granting of the subject variance can be explained in no other way than a desire to save the City money. While it is certainly laudable that the that City staffand the ZBA focused on preserving taxpayer dollars, Section 2.10.2 does not allow the ZBA to grant a variance on the basis that there will be a positive impact on the public coffers. " Staff response On the question of the proper interpretation of the Land Use Code, Section 2.10.2(H) of the Land Use Code is the section that is referenced in the Notice of Appeal. This section sets forth the standards by which the ZBA is to make a determination as to whether or not a variance application can be approved, approved with conditions, or denied. In,order to approve a variance, the Board must find that the application satisfies one or more of the following criteria: 2.10.2(H)(1) by reason of exceptional physical conditions or other extraordinary and exceptional situations unique to such property, including, butnot limited to, physical conditions such as exceptional narrowness, shallowness or topography, or physical conditions which hinder the owner's ability to install a solar energy system, the strict application of the standard sought to be varied would result in unusual and exceptional practical difficulties, or exceptional or undue hardship upon the occupant of such property, or upon the applicant, provided that such difficulties or hardship are not caused by the act or omission of the occupant or applicant; 2.10.2(H)(2) the proposal as submitted will promote the general purpose of the standard for which the variance is requested equally well or better than would a proposal which complies with the standard for which the variance is requested; or 2.10.2(H)(3) the proposal as submitted will not diverge from the standards of the Land Use Code that are authorized by this Division to be varied except in a nominal, inconsequential way, when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. The record reflects that the Board granted the variance after finding that it would not be detrimental to the public good to grant the variance and that the proposal as submitted will not divergefrom the standards of the Land Use Code except in a nominal and inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposes of the Land Use Code as contained in Section 1.2.2. (Beginning on line 14, page 12 of the verbatim transcript and continuing to the end, Attachment 5). The Appellant argues that the Board based its granting of the variance solely on the desire to save money for the City (first paragraph on Page I of the Appellant's attachment to the Notice of Appeal). The record shows that there was discussion at the ZBA hearing regarding the requirement to compensate the sign owner in the event the sign is required to be removed and not allowed to be relocated. The staff report and the City Engineering Department's justification statement that were presented to the board also contained references to monetary compensation. However, the record shows that no further discussion regarding such compensation occurred just prior to the motion to 154 November 6, 2012 approve the variance or during discussion on the motion and the actual vote. The Board granted the variance upon the finding that it would not be detrimental to the public good to do so, and that the granting of the variance fit the nominal and inconsequential requirement of Land Use Code Section 2.10.2(H)(3). The Council should examine the findings and motion of the Board in granting of the variance to determine if the decision to approve the variance was on the basis of saving money or on the finding that it would not be detrimental to the public good and that it satisfied the nominal and inconsequential standard in Sec. 2.10.2(H)(3) of the LUC. SUMMARY The appellant alleges that the Zoning Board of Appeals failed to conduct a fair hearing and failed to properly interpret and apply relevant provisions of the Fort Collins Land Use Code. The Staff Report presented to the Board concluded that the variance request satisfied one or more of the standards necessary for the granting of a variance as required in Section 2.10.2(H) of the Land Use Code. The ZBA unanimously approved ZBA Appeal #2714 afterfinding that the variance request satisfied the nominal, inconsequential standard in Section 2.10.2(H)(3) of the Land Use Code. Council should review the record to determine whether or not the Board held a fair hearing and whether or not the Board properly interpreted and applied the relevant provisions of the Land Use Code in approving the variance to allow the existing off -premise sign at 190 West Prospect Road to be relocated 70 feet to the west. " City Attorney Roy stated Council will be considering an appeal of a Zoning Board of Appeals decision. He outlined the appeal process and Council's possible actions. Councilmember Troxell stated he attended a site visit in order to determine the current and proposed location of the sign. Peter Barnes, Zoning Supervisor, discussed the need for the sign relocation as its current location is in direct conflict with the proposed route for the MAX/BRT project. The variance request to relocate the sign was unanimously approved by the Zoning Board of Appeals which found the variance would not be detrimental to the public good and found that the proposal satisfied the nominal and inconsequential standard. Barnes briefly discussed the allegations of the appeal and the staff response to those allegations., He noted the possibility of the new sign having two faces was never discussed at the hearing. APPELLANT PRESENTATION Brad March, attorney representing the Anderson family, Appellant, stated the relocated sign would be five feet from the border of the Anderson property. He argued the reason for the variance is solely to save taxpayer dollars. He stated the Land Use Code no longer allows billboard signs; therefore the relocation of this sign is detrimental to the public good. 155 November 6, 2012 APPLICANT PRESENTATION Terry Tyrrell, Design Consultant Project Manager for the MAX/BRT project, Applicant, stated the variance to relocate the sign was requested in order to allow for the MAX/BRT project to go forward. He argued the Zoning Board of Appeals did conduct a fair hearing. Mark Barnes, Brownstein, Hyatt, Farber, and Shreck, LLC, Next Media representative, discussed the cooperation and negotiations between the City and Next Media to relocate the sign. He noted the Code does not define the term "detrimental to the public good" and argued that it is clear the Zoning Board of Appeals determined this met the standard for a variance regardless of the cost. He stated the existing sign will be relocated and there is nothing to prohibit Next Media from displaying advertisements on both sides of the sign. APPELLANT REBUTTAL Mr. March again argued the sole reason for this variance is money savings; however, this sign is detrimental to the public good as no billboard signs are allowed in the City. Additionally, it appears this is going to be a two-sided sign which was never discussed at the Zoning Board of Appeals hearing. APPLICANT REBUTTAL Mr. Barnes stated the fact the two-sided aspect was not discussed was because the exact sign, which is already two-sided, is going to be relocated. COUNCIL DISCUSSION Councilmember Troxell stated there is no frame on the now empty side of the sign. He argued a modification would be required in order to display on that side. Mr. Barnes replied this sign does have brackets in place that will allow for the display of advertising on the second side. Councilmember Troxell argued there is no existing framework for advertising on the second side. Jamie Rideout, Next Media, replied the sign's east face is engineered and built to have a face on it; currently, it only has angle iron on which to attach a face. Councilmember Troxell requested that Barnes explain his quote referencing the sign as a "new sign." Barnes replied the variance would not have been required if it were not a new sign. If a structure is moved, it ceases to exist at its original location and needs to comply with all regulations at the new location. Mayor Weitkunat asked if the new sign would need to comply with existing regulations. Barnes replied regulations have not changed regarding height and setback for this particular sign since 1985. The regulation that has changed, and therefore required a variance, was that the City no longer allows off -premise signs. Councilmember Manvel noted this variance is not nominal and inconsequential to the Anderson family, nor is it nominal and inconsequential to the City as the sign's value may now double with 156 November 6, 2012 advertising on two sides. Barnes replied the nominal and inconsequential finding is to be in the context of the neighborhood. Councilmember Manvel noted the long-term goal of the City is to remove these types of signs and asked'how it is not detrimental to the public good to up the future cost of that removal by changing a one-sided sign to a two-sided sign. Barnes replied the original permit"was issued for a two-sided sign; therefore, the second side could have been installed at any point without an additional permit. The replacement cost of the sign would be based on the sign being a two-sided sign, from the perspective of Next Media. Councilmember Horak made a motion, seconded by Councilmember Kottwitz, that the Zoning Board of Appeals did not fail to conduct a fair hearing. Councilmember Manvel noted a comment was made at the original hearing that the new sign was to be substantially the same; however, a sign displaying two sides of advertising does not appear to be substantially the same as a sign displaying one side of advertising. Yeas: Weitkunat, Horak, Kottwitz, Troxell, and Ohlson. Nays Manvel and Poppaw. THE MOTION CARRIED. Councilmember Horak made a motion, seconded by Councilmember Poppaw, that the Zoning Board of Appeals did fail to properly interpret and apply the relevant provisions of Land Use Code Section 2.10.2(H), due to the fact that this particular sign relocation is detrimental to the public good. Councilmember Horak stated this sign relocation is not good for the public as the City's policy is to have fewer, and less prominent, billboards. Councilmember Troxell stated the City's sign code was ignored by the Zoning Board of Appeals in making its decision. Councilmember Manvel stated that the fair market value for the sign to be dismantled should be based on the existing revenue stream of the single -sided sign. Mayor Weitkunat noted public goods other than just the cost of the sign need to be considered. The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Kottwitz, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Ordinance No.114, 2012, Amending Chapter 26 of the City Code to Revise Electric Rates, Fees and Charges, Adopted on Second Reading The following is staff's memorandum for this item. 157 November 6, 2012 "EXECUTIVE SUMMARY The 2013 electric rate increases which average 4.33% are proposed to vary by customer class from 3.35% to 5.33%. The proposed changes will impact individual electric customers more or less than the customer class averages and will vary by season. This Ordinance was adopted on First Reading on October 16, 2012, by a vote of 6-1 (Nays: Kottwitz). " Lance Smith, Utilities Strategic Financial Planning Manager, briefly discussed the proposed rate changes. Eric Sutherland, 3520 Golden Currant, requested information regarding the new substation rate class. He supported time of use rates with Smart Meter usage. Sean Dougherty, 1344 Catalpa, asked about the difference between commercial and residential class rates. Steve Catanach, Light and Power Operations Manager, stated a contract customer is now. moving to a standard rate as a result of the contract expiration. Due to the configuration with which the customer is served, the substation rate was developed. He noted commercial rates are not subsidizing residential rates, nor are residential rates subsidizing commercial rates. Each service class pays for its own cost. Councilmember Troxell asked how the AMI structure supports tiered rates. Catanach replied the newly installed meters will provide data allowing billing on a time of use rate. He stated staff plans to bring back the issue before Council next year. The AMI infrastructure is not needed to bill on a tiered rate basis. Councilmember Horak made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 114, 2012, on Second Reading. Councilmember Horak noted 83% of the rate increase is directly due to the wholesale increase from Platte River Power Authority. Of that, the majority of the increase is from fuel expense and the reduction in surplus revenues. ' The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Ohlson, Poppaw and Horak. Nays: Kottwitz and Troxell. THE MOTION CARRIED. Resolution 2012-104 Accepting Advisory Opinion and Recommendation No. 2012-2 of the Ethics Review Board, Adopted The following is staff's memorandum for this item. 158 November 6, 2012 'EXECUTIVE SUMMARY Under City Code Section 2-569, City Councilmembers may present to the Council Ethics Review Board inquiries regarding the application of state or local ethical rules to actual or hypothetical situations involving potential conflicts of interest. On October 22, 2012, and October 30, 2012, the Ethics Review Board met for the purpose of responding to an inquiry submitted to the Board by Mayor Weitkunat. The question submitted by the Mayor is whether, in the Board's opinion, she would have a conflict of interest in participating in upcoming decisions of either the City Council or the Urban Renewal Authority regarding the possible redevelopment of the Foothills Mall. The Mayor has presented the question because of the proximity of her residence to the redevelopment site. As required by the Code, the Board has forwarded its opinion and recommendations to the full Council for its consideration. Adoption of the Resolution would indicate that the majority of the Council agrees with the Board's opinion and recommendations. " Mayor Weitkunat recused herself from the discussion of the item. City Attorney Roy reviewed the role of the Ethics Review Board. He stated the Board came to the conclusion that the Mayor does have a conflict of interest with regard to the possible mall redevelopment, due to the proximity of her residence to the site. However, the Board came to the conclusion that the Mayor does not, at the present time, have a conflict of interest in her role as the Chair of the Urban Renewal Authority (URA) as its current rules regarding conflicts of interest are different. Additionally, the Board recommended that the Council consider modifying the City Code, which presently exempts the Urban Renewal Authority from the City Charter's conflict of interest rules, and make the rules the same for the URA Board and Council. Councilmember Manvel stated, as a member of the Ethics Review Board, it did appear the Mayor's property value would increase as a result of the mall redevelopment. Councilmember Poppaw, as a member of the Ethics Review Board, agreed with Councilmember Manvel's assessment. It did appear the benefit to Mayor Weitkunat's property value would be greater than that of the general public. Councilmember Troxell noted there is a possibility that the Mayor's neighborhood could be negatively impacted due to the redevelopment. Councilmember Manvel stated real estate professionals were consulted and did indicate an increase in property values. Councilmember Kottwitz stated, as a member of the Ethics Review Board, she disagreed that there was potentially a substantial financial impact, particularly given the property location being across Swallow Road. ' . Councilmember Horak stated the real estate professional's report'does not appear to be as clear as the conclusion made by the Board. Councilmember Poppaw replied the process needed to move quickly and it would have been extraordinarily expensive to have an actual appraisal done. The Board came to the decision that a reasonable person may conclude that the Mayor's property value may increase. 159 November 6, 2012 Councilmember Troxell asked if the Board could have come to the conclusion that there was not enough information, thereby allowing the Mayor to make her own decision regarding the recusal. City Attorney Roy replied there is no requirement .that the Board render a definitive opinion. Ultimately, under the Charter and the Code, it remains the responsibility of the individual Councilmember to decide whether or not to declare a conflict of interest. The purpose of getting an advisory opinion is to assist the Mayor in that decision. Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to adopt Resolution 2012-104. Councilmember Manvel noted the URA rules are different than those of the City and only require recusal should a member have a financial interest in the URA project itself. He encouraged the Mayor to follow the rules of the City with regard to her recusal from the URA aspects of the issue. Councilmember Poppaw stated the URA rules should be in line with those of the City. Councilmember Horak stated he would support the motion but suggested the conflict of interest rules may need to be clarified in the future. The vote on the motion was as follows: Yeas: Manvel, Ohlson, Poppaw and Horak. Nays: Kottwitz and Troxell. THE MOTION CARRIED. Other Business Councilmember Horak suggested, billboard signs be treated the same as all other properties with regard to public projects. Adiournment Mayor Pro Tern Ohlson made a motion, seconded by Councilmember Manvel, to adjourn to Thursday, November 8, 2012 at 6:00 p.m., so that the Council may consider any additional business that may come before the Council. Yeas: Weitkunat, Manvel, Kottwitz, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. The meeting adjourned at 8:29 p.m ORT Mayor SATTEST: U lNGiC.11� City Clerk [r11]