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Home My WebLink AboutMINUTES-08/21/2012-RegularAugust 21, 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, August 21, 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, Kottwitz, Manvel, Ohlson, Poppaw, and Troxell. . Councilmembers Absent: Weitkunat Staff Members Present: Atteberry, Nelson, Roy. Agenda Review City Manager Atteberry recommended withdrawing.Item No. 15, First Reading of Ordinance No. 075, 2012, Appropriating Unanticipated Grant Revenues in the General Fund for Police Services and Appropriating Funds from the Police Operating Budget, until September 4, 2012. An amended Ordinance for Item No. 18, First Reading of Ordinance No. 678, 2012, Amending Article VI of Chapter 23 of the City Code relating to Art in Public Places, was included in Council's read -before packet and an amended resolution for Item No. 25, Resolution 2012-073 Making Findings of Fact and Related Determinations Regarding Appeals of the May 7, 2012, Administrative Hearing Off cerApproval of The District at Campus West Project Development Plan, was also included. City Manager Atteberry stated the title has been changed for Item No. 28, Resolution 2012-076 Promoting Improved Results Through Performance Measures and Data -Driven Decision Making. An additional whereas clause has been added to the'Emergency Ordinance for Item No. 36, Items Relating to the High Park Fire Remediation. Additionally, Avago Technologies has requested withdrawal of its discussion Item No. 37. City Manager Atteberry stated an exhibit has been added to Item No. 40, Items Relating to the 2012 Downtown Development Authority -Related Financing Activities. Citizen Participation Roger Dodds, Corporation Separation Movement, discussed the Movement and presented documents from other states to Council. Nancy York, 130 South Whitcomb, read from the Corporation Separation Resolution presented to Council. 514 August 21, 2012 Cheryl Distaso, 115 South Sunset, read from the Corporation Separation Resolution. Rose Lou, Fort Collins resident, read from the Corporation Separation Resolution. David Bell, Fort Collins resident, read from the Corporation Separation Resoution. Trudy Haines, 625 Hinsdale Drive, opposed the proposed incentive package for Avago. Mel Hilgenberg, 172 North College, thanked Councilmember Manvel for attending the Neighborhood Night Out event at the Northern Hotel. He announced the Corn Roast parade in Loveland and thanked Council for its work on campus -area parking and the Mason Street Corridor project. Glen Colton, 625 Hinsdale Drive, opposed the proposed incentive package for Avago and opposed the City's tax incentive process. Bill Milleny discussed crimes and corruption related to the Stacy Lynne case. Ross Cunniff, 2267 Clydesdale, expressed concern about the process and appearance of the Avago tax incentive package. He discussed an article in the Fort Collins Coloradoan related to oil drilling and fracking. Stan Schure, 2613 Adobe Drive, supported the Corporation Separation Resolution. Lynn Hull, Fort Collins resident, discussed the vision for the arts in Fort Collins and suggested the Arts in Public Places program should allow artists to propose projects. Matt Flick, Fort Collins resident, opposed the City's decision to not hire an FC Bikes manager and supported the hiring of the current interim manager. Russ Harvey spoke on behalf of Stacy Lynne and opposed what he called the organized and corrupt court system. Jeanne Hines discussed the effects of visitation and custody changes for children. John Wines, Larimer County resident, discussed Tim Masters' book and alleged City and County officials have broken laws. Jeff Morell, 1615 Sand Creek Court, thanked Council and the City for making Fort Collins a good bicycle riding community. He supported positive momentum on that front and expressed disappointment that the City opted not to hire an FC Bikes manager. He supported the hiring of the current interim manager. Sandy Lemberg, 6851 Poudre Canyon, encouraged additional enforcement of traffic laws relating to cars rolling through stop signs and endangering bicyclists. Thomas Edwards, 1101 South Bryan, stated safety relating to bicyclists in Fort Collins has decreased and discussed unruly student behavior at homes west of campus. 515 August 21, 2012 Eric Sutherland, 3520 Golden Currant, expressed concern about the process relating to tax incentive packages for businesses. He stated the City needs a prescriptive methodology for the use of public funds and a means for the private sector to compete for those funds. Deborah Dooley, Denver resident, spoke on behalf of Stacy Lynne and her son, Jayden. Kendall Gustafson, Fort Collins resident, supported the hiring of Molly North for the FC Bikes manager position. Jeanne Patton, 619 Skysail Lane, Save our Stadium, presented a petition signed by over 9,100 people in support of keeping Hughes Stadium and in opposition to the proposed on -campus stadium. She requested Council place a referendum opposing the on -campus stadium on the ballot. Lloyd Walker, 1756 Concord Drive, discussed emails sent to Council regarding disruptive behavior at homes near campus, particularly in the Avery Park neighborhood. He opposed the proposed on - campus stadium. Frank Johnson, Fort Collins resident, opposed the proposed on -campus stadium citing parking and traffic issues and negative impacts on neighborhoods. Bob Overbeck, Fort Collins resident, supported the Corporation Separation Movement and expressed concern regarding the proposed on -campus stadium. He supported the placement of a referendum on the November ballot. Bob Vangermeersch, 4405 Upham, supported the placement of a referendum regarding the on - campus stadium on the November ballot. Louis Sharf, 1129 West Oak, noted CSU President Frank will decide the future of the on -campus stadium, and would be influenced by the will of the people. He supported the placement of a referendum on the November ballot. Chris Marshall, 926 West Mountain, opposed the proposed on -campus stadium and supported the placement of a referendum on the November ballot. Doug Brobst, 1625 Independence Road, opposed the proposed on -campus stadium, and asked for a show of hands from the audience of those in opposition. He supported the placement of a referendum on the November ballot. Carl Patton, 619 Skysail Lane, supported the placement of a referendum regarding the proposed on - campus stadium on the November ballot. Citizen Participation Follow-up Councilmember Horak noted the hiring of an FC Bikes manager is solely up to City Manager .Atteberry. He stated the referendum issue will be discussed at Other Business at the end of the meeting. Additionally, he noted Chief Hutto and the Police Services Department are aware of the issues in the Avery Park neighborhood. 516 August 21, 2012 CONSENT CALENDAR 6. Consideration and Approval of the Minutes of the July 17. 2012 Regular Meeting and the July 10 and July 24, 2012 Adjourned Meetings. 7. Second Reading of Ordinance No. 062, 2012. Appropriating Unanticipated Revenue in the Capital Projects Fund for the Fort Collins Museum of Discovery Science Center Exhibits Proiect. This Ordinance, unanimously adopted on First Reading on July 17, 2012, appropriates $135,249 of Non -Profit Partner revenue, raised through fundraising efforts, to be used to construct exhibit walls and the digital dome infrastructure at the Fort Collins Museum of Discovery. 8. Second Reading of Ordinance No. 063, 2012 Approving a Grant Proiect with the Colorado Department of Public Health and Environment. Appropriating Unanticipated Revenue in the General Fund for the Natural Resources Radon Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Natural Resources Operating Budget to the Grant Project. This Ordinance, unanimously adopted on First Reading on July 17, 2012, appropriates a $11,525 grant given by the Colorado Department of Health and Environment. It also transfers a matching amount of $11,525 from the 2012 General Fund and combine these in the Radon Program account. The Radon Program carries out radon risk -reduction activities identified in the current City Budget. 9. Second Reading of Ordinance No. 064, 2012, Appropriating Unanticipated Revenue from the Colorado Department of Transportation and the Federal Transit Administration in the Transit Fund for the Purchase of Six Buses. In 2011, the City of Fort Collins was awarded $1,920,000 in Congestion Mitigation and Air Quality (CMAQ) capital funding from the Federal Highway Administration for the period 2012 - 2015 to cover 80% of the total expense ($2,400,000) to purchase six replacement Compressed Natural Gas (CNG) buses for Transfort's fixed route service. This CMAQ grant award has been transferred to the Federal Transit Administration for disbursement and management. The City was also awarded a Colorado Department of Transportation FASTER grant in the amount of $384,000 to cover 80% of the local match ($400,000) to purchase the six 35-foot CNG buses. The City will contribute $96,000 from the Transit Fund to cover the remaining portion of the required 20% local match. An appropriation in the amount of $1,250,000 is already in place for bus procurement. Ordinance No. 064, 2012, unanimously adopted on First Reading on July 17, 2012, appropriates an additional $1,150,000 to equal the total project amount of $2,400,000. 517 August 21, 2012 10. Second Reading of Ordinance No. 066. 2012, Calling a Snecial Municipal Election to Be Held in Conjunction with the November 6, 2012 Larimer County General Election. This Ordinance, unanimously adopted on First Reading on July 17, 2012, calls a Special Municipal Election to be held in conjunction with the November 6, 2012 Larimer County General Election, and preserves the opportunity for Council to place initiated or referred issues on the November ballot. If Council decides to place any measures on the ballot it would need to do so no later than at its September 4 meeting. If Council does not take final action by ordinance or resolution before the statutory deadline (September 7) to certify ballot language to Larimer County, the election will be cancelled and' the provisions of this Ordinance will be of no further force and effect. This Ordinance does not submit a specific measure to the November 6, 2012 ballot. However, Resolution 2012-062 Submitting a Citizen -initiated Ordinance Dealing with Medical Marijuana Businesses to a Vote of the Registered Electors of the City at a Special Municipal Election to Be Held on November 6, 2012, in Conjunction with the Lorimer County General Election was adopted on July 17, 2012. The purpose of the initiated measure is to strictly regulate, control and permit a limited number of state -authorized medical marijuana businesses within the city of Fort Collins and establish reasonable restrictions on the signage and advertising of these businesses to match community needs. IL Items Relating to the Historic Preservation Process. A. Second Reading of Ordinance No. 067, 2012, Making Certain Amendments, to Chapter 14 of the City Code Pertaining to Landmarks. B. Second Reading of Ordinance No..068, 2012, Amending Section 2-277 of the City Code Regarding the Requirements for Membership on the Landmark Preservation Commission. These Ordinances, unanimously adopted on First Reading on July 17, 2012; amend Chapters 2 and 14 of the City Code and provide for an appeals process for determinations of historic eligibility; provide for an independent professional review of eligibility if a determination is appealed; give timely public notice to citizens early in the demolition/alteration review process about historic eligibility status and major alterations; and provide more specificity to Landmark Preservation Commission board member experience requirements, ensuring compliance with Certified Local Government standards. Following adoption of these Ordinances on First Reading on July 17, 2012, staff has amended Ordinance No. 067, 2012, to clarify the definition of Determination of Eligibility. The definition of Determination of Eligibility will be amended to clarify that the decision of eligibility is made by both the Director of Community Development and Neighborhood Services and the Landmark Preservation Commission Chair; and to clarify that a determination of eligibility will stand for one year. 518 August 21, 2012 12. Items Relating to Housin¢ Leases for On -Site Housing Located on Natural Areas. A. Second Reading of Ordinance No. 069, 2012, Authorizing the Lease of City -Owned Property at Gateway Natural Area. B. Second Reading of Ordinance No. 070, 2012, Authorizing the Lease of City -Owned Property at Bobcat Ridge Natural Area. C. Second Reading of Ordinance No. 071, 2012, Authorizing the Lease of City -Owned Property at Reservoir Ridge Natural Area. Natural Areas owns four houses at three natural areas, including Gateway Natural Area, Bobcat Ridge, and Reservoir Ridge. These Ordinances, unanimously adopted on First Reading on July 17, 2012, update the four on -site housing leases for these natural areas. In all cases, employees living at these locations provide a range of "on call" duties, including site security, visitor assistance, maintenance, and other duties outside of normal work hours without receiving "on call" pay. To compensate the employees for their requirement to respond to these "on call" duties when necessary outside of normal working hours, the monthly rental rates are reduced by approximately 50% of fair market value. The fair market rental rates were determined by Real Estate Services, based upon recent rental comparisons. Similarly, the value of the employer -provided lodging is excluded from the employee's income as the lodging is a condition of employment. 1-1 Second Reading of Ordinance No. 072. 2012, Authorizing the Conveyance of a Non - Exclusive Waterline Easement and a Temporary Construction Easement on City Property to the North Weld County Water District and the East Larimer County Water District. The North Weld County Water District and the East Larimer County Water District (ELCO) have planned the North Weld — ELCO Water Transmission Pipeline (NEWT) Project to install an underground pipeline to connect the Soldier Canyon Water Filter Plant to the Districts' distribution systems. This Ordinance, unanimously adopted on First Reading on July 17, 2012, authorizes the conveyance of a 40-foot wide waterline easement and a temporary construction easement across the northern portion of the City's Water Treatment Facility property located on Laporte Avenue. The City has previously granted easements for this Project on other City properties. 14. First Reading of Ordinance No. 074, 2012, Appropriating Unanticipated Grant Revenue in the Cultural Services and Facilities Fund for the Native American Graves Protection and Repatriation Act Program. The Fort Collins Museum of Discovery was awarded a grant in the amount of $57,522 from the National Park Service, Native American Graves Protection and Repatriation Act (NAGPRA) Program. This Ordinance will appropriate these grant funds to complete the grant objectives. 519 August 21, 2012 15. First Reading of Ordinance No. 075, 2012, Appropriating Unanticipated Grant Revenues in the General Fund for Police Services and Appropriating Funds from the Police Operating Budget. A grant in the amount of $45,000 has been received from the Colorado Division of Criminal Justice (DCJ) Juvenile Diversion fund for salaries associated with the continued operation of Restorative Justice Services, which includes the RESTORE program for shoplifting offenses, and the Restorative Justice Conferencing Program (RJCP) for all other offenses. Restorative Justice is an alternative method of holding a young offender accountable by facilitating a meeting with the offender, the victim/victim representative and members of the community to determine the harm done by the crime, and how to repair the harm. By identifying and repairing the harm caused by the crime, Criminal Justice Officials are optimistic repeat offenses by these youth will be reduced and the needs and concerns of the victims and affected community will be addressed. A $7,440 cash match is required and will be met by appropriating funds from the police operating budget designated for restorative justice. Total required match is 25% so an additional 57,560 in -kind match is designated from the Eighth Judicial Probation Department. 16. Items Relating to the Vine Drive and Shields Street Intersection Improvements Project. A. Resolution 2012-065 Authorizing the Mayor to Sign an Intergovernmental Agreement with the Colorado Department of Transportation to Receive Funding for the Vine Drive and Shields Street Intersection Improvements Project. B. Resolution 2012-066 Authorizing the Mayor to Execute an Intergovernmental Agreement with Larimer County to Receive Funding for the Vine Drive and Shields Street Intersection Improvements Project. C. Resolution 2012-067 Determining that a Single -Lane, Modem Roundabout is the Preferred Alternative for the Vine Drive 'and Shields Street Intersection Improvements. D. First Reading of Ordinance No. 076, 2012, Appropriating Unanticipated Revenue in the Capital Projects Fund for the Vine Drive and Shields Street Intersection hmprovements Project. The City has received a federally funded grant through the North Front Range Metropolitan Planning Organization, category STP-Metro, for operational and safety improvements at the Vine Drive and Shields Street intersection. In accordance with Council adopted Resolution 2001-120, an Alternatives Analysis was completed as part of the Arterial Intersection Priority Study. The conclusions of the Alternatives Analysis show that a single -lane, modern roundabout is the preferred alternative for this intersection. Resolution 2012-065 will authorize the Mayor to sign an Intergovernmental Agreement with the Colorado Department of Transportation (CDOT) to receive federal grant funds. Resolution 2012-066 will authorize the Mayor to sign an Intergovernmental Agreement with Larimer County to receive Regional Road Fee funds. Resolution 2012-067 will authorize the construction of a single -lane, modem roundabout at this intersection. Ordinance No. 6 11 August 21, 2012 076, 2012, will appropriate federal grant funds and Regional Road Impact Fee funds into the Capital Project Fund for use on the Vine Drive and Shields Street Intersection Improvements Project. 17. . Items Relating to the Harmony Road and Union Pacific Safetv and Maintenance Project. A. Resolution 2012-068 Authorizing the Mayor to Execute an Intergovernmental Agreement with the Colorado Department of Transportation to Receive Funding for the Harmony Road and Union Pacific Maintenance Project. B. First Reading of Ordinance No. 077, 2012, Appropriating Federal Grant Funds and Transferring Previously Appropriated Project Savings from the Harmony Bridge Project into the Capital Project Fund for the Harmony Road and Union Pacific Safety and Maintenance Project. Phase One of the Harmony Road Maintenance Project is currently under construction. This project will provide congestion relief and rehabilitate the pavement on East Harmony Road from College Avenue to Timberline Road by completing the following major work items: turn lane construction, utility relocations, asphalt overlay, restriping and median landscaping. Phase Two of the project will consist of safety improvements and signal maintenance at the Harmony Road and Union Pacific Railroad crossing in order to accommodate a six -lane roadway, bike lanes and sidewalks. 18. First Reading of Ordinance No. 078, 2012, Amending Article XII of Chapter 23 of the Citv Code relating to Art in Public Places. . At the January 24, 2012 Council Work Session, Council reviewed the Art in Public Places (APP) program and requested that staff develop several modifications to address Council concerns with the program. Staff has identified proposed changes, additions and clarifications to the program to address Council concerns that require revisions to Article XII of Chapter 23 of the City Code relating to Art in Public Places. 19. First Reading of Ordinance No. 079, 2012, Amending Certain Provisions of Chapter 23.5 of the City Code Relating to Special Events Permits. Chapter 23.5 of the City Code authorizes Special Events and currently requires that all permittees, including governmental entities, indemnify the City. This Code requirement has proven very difficult from fellow governmental entities and recent discussion with peer cities has indicated a willingness to no longer require governmental entities to indemnify. 20. First Reading of Ordinance No. 080, 2012, Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements Related to the Mason Corridor Bus Rapid Transit Project. Mason Corridor Bus Rapid Transit (MAX BRT) Project staff recently identified an additional/new Temporary Construction Easement interest which is necessary to construct the MAX BRT Project. As with prior acquisitions, CityCouncil authorization for eminent domain (if necessary) is the first step in the acquisitions process. 521 August 21, 2012 Asa federally funded transportation project, acquisitions will conform to the provisions of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970, as amended (Public Law 91-646). In accordance with this act, property owners must be informed about the possible use of eminent domain and their rights pursuant to Colorado State Statute in the official Notice -of -Interest Letter. Authorization from City Council is needed prior to sending this information to property owners. This letter is the first official step in the acquisition process, which must occur prior to the appraisals. Given the construction schedule for the Project and the fact that acquisitions must be conducted under procedures for federally funded projects, timely acquisition of the required property interests is necessary. Therefore, City Staff requests authorization to utilize eminent domain for the MAX Project, if necessary, and only if good faith negotiations break down. 21. Items Relatine to Strauss Cabin Road and East Harmony Road. A. First Reading of Ordinance No. 081,2012, Declaring Certain City -Acquired Property as Strauss Cabin Road and East Harmony Road Right -of -Way. B. Resolution 2012-069 Authorizing a Revocable Permit for Redline Pipeline LLC to Excavate a Portion of Strauss Cabin Road to Install an Irrigation Pipeline. A land survey identified a strip of land that is improved as a road was not included in the road dedication grant from the property owner. As a result, this strip of land was never in the Larimer County Road Book and Larimer County had never identified this as a County Road. Most of this strip, which is 750 feet long, is in the western half of Strauss Cabin Road and a small portion is in East Harmony Road. City staff has now acquired all the property rights for this strip from the current owner of the adjacent property, LaFarge West, Inc. The City acquired the property, but it was not designated as right-of-way. This Ordinance will dedicate this strip as right-of-way. The City has received a request to install a private utility in a right-of-way from Redline Pipeline LLC, a private company that represents the owner of Harmony Gardens. Resolution 2012-069 will authorize both an excavation permit and an encroachment permit. 22. Items Relatine to the Kechter No. 1 Annexation and Zonine. A. Resolution 2012-070 Setting Forth Findings of Fact and Determinations Regarding the Kechter Annexation No. 1. B. Hearing and First Reading of Ordinance No. 082, 2012, Annexing Property Known as the Kechter Annexation No. 1. C. Hearing and First Reading of Ordinance No. 083, 2012, Amending and Classifying for Zoning Purposes the Property Included in the Kechter Annexation No. 1. As the Owner and Applicant, the City of Fort Collins has submitted a written petition requesting the annexation of three sequential annexation tracts. Kechter Annexation No. 1 is the first Ordinance of this series of sequential annexations, which are as follows: Kechter Annexation No. 1- 0.130 acres; Kechter Annexation No. 2 - 0.505 acres; Kechter Annexation 522 August 21, 2012 No. 3 - 18.644 acres; Kechter Annexation total area: 19.279 acres. The majority of the land within the Kechter Annexation series includes 2313 Kechter Road, which is owned by the City of Fort Collins as part of the Land Bank program. 2313 Kechter Road contains one single-family residence and is in the FA-1 — Farming Zoning District in Larimer County. The Kechter Annexation does not create an enclave. There are no immediate plans to develop this annexation area. Kechter Annexation No. 1 is 0.31 acres and is located approximately 945 feet east of the intersection of South Timberline Road and Kechter Road. The requested zoning for this annexation is the Low Density Mixed -Use Neighborhood District (L-M-N). The surrounding properties are existing residential land uses currently zoned FA-1 — Farming Zoning District in Larimer County to the north, south, east and west. 23. Items Relating to the Kechter No. 2 Annexation and Zoning. A. Resolution 2012-071 Setting Forth Findings of Fact and Determinations Regarding the Kechter Annexation No. 2. B. Hearing and First Reading of Ordinance No. 084, 2012, Annexing Property Known as the Kechter Annexation No. 2. C. Hearing and First Reading of Ordinance No. 085, 2012, Amending and Classifying for Zoning Purposes the Property Included in the Kechter Annexation No. 2. As the Owner and Applicant, the City of Fort Collins has submitted a written petition requesting the annexation of three sequential annexation tracts. Kechter Annexation No. 2 is the second of this series of sequential annexations, which are as follows: Kechter Annexation No. 1 - 0.130 acres; Kechter Annexation No. 2 - 0.505 acres; Kechter Annexation No. 3 - 18.644 acres; Kechter Annexation total area is 19.279 acres. The majority of the land within the Kechter Annexation series includes 2313 Kechter Road, which is owned by the City of Fort Collins as part of the Land Bank program. 2313 Kechter Road contains one single-family residence and is in the FA-1 — Farming Zoning District in Larimer County. The Kechter Annexation does not create an enclave. There are no immediate plans to develop this. annexation area. Kechter Annexation No. 2 is 0.505 acres and is located approximately 925 feet east of the intersection of South Timberline Road and Kechter Road. The requested zoning for this annexation is the Low Density Mixed -Use Neighborhood District (L-M-N). The surrounding properties are existing residential land uses currently zoned FA-1— Farming Zoning District in Larimer County to the north, south, east and west. 24. Items Relating to the Kechter No. 3 Annexation and Zoning. A Resolution 2012-072 Setting Forth Findings of Fact and Determinations Regarding the Kechter Annexation No. 3. B. Hearing and First Reading of Ordinance No. 086, 2012, Annexing Property Known as the Kechter Annexation No. 3. 523 August 21, 2012 C. Hearing and First Reading of Ordinance No. 087, 2012, Amending and Classifying for Zoning Purposes the Property Included in the Kechter Annexation No. 3. As the Owner and Applicant, the City of Fort Collins has submitted a written petition requesting the annexation of three sequential annexation tracts. Kechter Annexation No. 3 is the third of this series of sequential annexations, which are as follows: Kechter Annexation No. 1 - 0.130 acres; Kechter Annexation No. 2 - 0.505 acres; Kechter Annexation No. 3 - 18.644 acres; Kechter Annexation total area is 19.279 acres. The majority of the land within Kechter Annexation No. 3 includes 2313 Kechter Road, which is owned by the City of Fort Collins as part of the Land Bank program. 2313 Kechter Road contains one single-family residence and is in the FA-1 — Farming Zoning District in Larimer County. The Kechter Annexation does not create an enclave. There are no immediate plans to develop this annexation area. Kechter Annexation No. 3 is located approximately 900 feet east of the intersection of South Timberline Road and Kechter Road. The requested zoning for this annexation is the Low Density Mixed -Use Neighborhood District (L-M-N). The surrounding properties are existing residential land uses currently zoned FA-1 — Farming Zoning District in Latimer County to the north, south, east and west. 25. Resolution 2012-073 Making Findings of Fact and Related Determinations Regarding Appeals of the May 7, 2012, Administrative Hearing Officer Approval of The District at Campus West Project Development Plan. On May 7, 2012, the City of Fort Collins Hearing Officer issued a written decision approving The District at Campus West P.D.P. with one conditionensuring proper vacation of public streets. On May 21, 2012, Zeta Tau Alpha Fraternity Housing Corporation and Robert M. Meyer each filed a Notice of Appeal and on May 29, 2012, each Appellant filed an Amended Notice of Appeal both alleging that the Hearing Officer failed to properly interpret and apply the Land Use Code. On July 17, 2012, City Council voted unanimously to modify the Hearing Officer's decision by requiring the following: 1. All three residential buildings must achieve a L.E.E.D. Silver designation, 2. The north side of Building Three must be reduced in height from five to four stories and feature a pitched roof similar to the roof shown in the approved PDP for Building One, and 3. Along the entire north property line, all,new trees must meet or exceed the minimum size requirements as specified in Section 3.2.1(F)(1). In order finalize this appeal process, Council is required to adopt a Resolution making findings of fact and finalizing its decision on the Appeal. 524 August 21, 2012 26. Resolution 2012-074 Further Extending the Deadline for the Citv of Fort Collins and Town of Windsor to take Certain Actions Required by the Parties' Intergovernmental Agreement Pertaining to the Development of the I-25/SH 192 Interchange. On December 21, 2010, the City Council approved an intergovernmental agreement with the Town of Windsor (the "IGA") pertaining to the development of the I-25 interchange at the intersection of State Highway 392 (the "Interchange"). The IGA states that, by March 31, 2011, the City and Windsor will take certain actions to implement the IGA. City Council adopted several resolutions extending this deadline, the most recent extension being to August 21. 2012. Staff of the Town of Windsor and the City continue to engage the public and affected property owners regarding the implementation of the provisions of the IGA. The documents accomplishing the final implementation of the provisions of the IGA are now in draft form and being reviewed by staff from both Fort Collins and Windsor. The documents should be ready for approval by the Fort Collins City Council and the Windsor Town Board by October 2012. The staff of both municipalities recommend that the August 21, 2012 deadline be extended in order to complete the public outreach, draft necessary documents, and make their recommendations. The deadline for all actions to be taken under the IGA by August 21, 2012 should be extended to October 16, 2012. . 27. Resolution 2012-075 Authorizing the City Manager to Enter into a Grant Agreement with the State Board of the Great Outdoors Colorado Trust Fund for the Citv's Portion of the Poudre River Corridor and Regional Trail Initiative Grant. Great Outdoors Colorado has awarded a grant to Larimer County for its Poudre River Corridor & Regional Trail Initiative project. Larimer County is the lead agency for the grant application that includes the City of Fort Collins, Town of Timnath, Town of Windsor, and the City of Greeley. 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 $8,074,826, 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. . The City's portion of the project involves a new trailhead parking lot along Strauss Cabin Road, extending the 10-foot wide concrete Poudre River Trail to the west side of I-25, an overpass of I-25 and short trail connection to Timnath's trail east of I-25. The total length of new trail will be about 0.5 mile. The trail placement on Arapaho Bend Natural Area has been coordinated with the Natural Resource staff. Construction of the project is scheduled to start in 2013. Pursuant to the grant agreement, the City has until September 2015 to complete the project. 525 August 21, 2012 28. Resolution 2012-076 Promoting Improved Results Through Performance Measures and Data -Driven Decision Making. The City of Fort Collins is committed to being a data -driven organization. The City is working at continuously improving the organization through various reporting and evaluation efforts. Citywide participation in this effort helps maximize the quality of City services in the most cost-effective and resource -efficient manner. Collecting and reporting meaningful data and performance measures keeps the City accountable to the community and reinforces the City's commitment to transparency. Performance Management also allows the City of Fort Collins to act as advocates and educators for performance excellence and continuous improvement programs. 29. Resolution 2012-077 Appointing Two Representatives to the Colorado Municipal League Policy Committee. Appointments to the Colorado Municipal League (CML) Policy Committee are made each fall and members serve for a one-year period from approximately September through August. 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. CML has asked that representatives be appointed by the end of July and has been notified that a resolution appointing Fort Collins' two representatives is scheduled to be considered on August 16. The first CML Policy Committee meeting will be held on Thursday, October 6. This Resolution appoints Councilmember Wade Troxell and City Manager Dann Atteberry to represent the City of Fort Collins on the Colorado Municipal League Policy Committee. 30. Resolution 2012-078 Making an Appointment to the Housing Authority Board of Commissioners. A vacancy currently exists on the Housing Authority Board of Commissioners due to the resignation of John Sollenberger. Councilmember Lisa Poppaw conducted a phone interview and is recommending Paul Schnaitter to fill the vacancy with a term to begin immediately and set to expire on December 31, 2013. ***END CONSENT*** 526 August 21, 2012 Ordinances on Second Reading were read by title by City Clerk Nelson. Second Reading of Ordinance No. 062, 2012, Appropriating Unanticipated Revenue in the Capital Projects Fund for the Fort Collins Museum of Discovery Science Center Exhibits Project. 8. Second Reading of Ordinance No. 063, 2012 Approving a Grant Project with the Colorado Department of Public Health and Environment, Appropriating Unanticipated Revenue in the General Fund for the Natural Resources Radon Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Natural Resources Operating Budget to the Grant Project. 9. Second Reading of Ordinance No. 064, 2012, Appropriating Unanticipated Revenue from the Colorado Department of Transportation and the Federal Transit Administration in the Transit Fund for the Purchase of Six Buses. 10. Second Reading of Ordinance No. 066, 2012, Calling a Special Municipal Election to Be Held in Conjunction with the November 6, 2012 Larimer County General Election. 11. Items Relating to the Historic Preservation Process. A. Second Reading of Ordinance No. 067, 2012, Making Certain Amendments to Chapter 14 of the City Code Pertaining to Landmarks. B. Second Reading of Ordinance No. 068, 2012, Amending Section 2-277 of the City Code Regarding the Requirements for Membership on the Landmark Preservation Commission. 12. Items Relating to Housing Leases for On -Site Housing Located on Natural Areas. A. Second Reading of Ordinance No. 069, 2012, Authorizing the Lease of City -Owned Property at Gateway Natural Area. B. Second Reading of Ordinance No. 070, 2012, Authorizing the Lease of City -Owned Property at Bobcat.Ridge Natural Area. C. Second Reading of Ordinance No. 071, 2012, Authorizing the Lease of City -Owned Property at Reservoir,Ridge Natural Area. 13. Second Reading of Ordinance No. 072, 2012, Authorizing the Conveyance of a Non - Exclusive Waterline Easement and a Temporary Construction Easement on City Property to the North Weld County Water District and the East Latimer County Water District. 35. Second Reading of Ordinance No. 073, 2012, Amending the City of Fort Collins District - Precinct Map. 527 August 21, 2012 39. Second Reading of Ordinance No. 061, 2012, Authorizing the Conveyance of a Non - Exclusive Drainage and Landscaping Easement and an Access Easement on City Property to Cornerstone Associates, LLC. Ordinances on First Reading were read by title by City Clerk Nelson. 14. First Reading of Ordinance No. 074, 2012, Appropriating Unanticipated Grant Revenue in the Cultural Services and Facilities Fund for the Native American Graves Protection and Repatriation Act Program. 16. First Reading of Ordinance No. 076, 2012, Appropriating Unanticipated Revenue in the Capital Projects Fund for the Vine Drive and Shields Street Intersection Improvements Project. 17. First Reading of Ordinance No. 077, 2012, Appropriating Federal Grant Funds and Transferring Previously Appropriated Project Savings from the Harmony Bridge Project into the Capital Project Fund for the Harmony Road and Union Pacific Safety. and Maintenance Project. 18. First Reading of Ordinance No. 078, 2012, Amending Article XII of Chapter 23 of the City Code relating to Art in Public Places. 19. First Reading of Ordinance No. 079, 2012, Amending Certain Provisions of Chapter 23.5 of the City Code Relating to Special Events Permits. 20. First Reading of Ordinance No. 080, 2012, Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements Related to the Mason Corridor Bus Rapid Transit. Project. 21. First Reading of Ordinance No. 081, 2012, Declaring Certain City -Acquired Property as Strauss Cabin Road and East Harmony Road Right -of -Way. 22. Items Relating to the Kechter No. 1 Annexation and Zoning. B. Hearing and First Reading of Ordinance No. 082, 2012, Annexing Property Known as the Kechter Annexation No. 1. C. Hearing and First Reading of Ordinance No. 083, 2012, Amending and Classifying for Zoning Purposes the Property Included in the Kechter Annexation No. 1. 23. Items Relating to the Kechter No. 2 Annexation and Zoning. B. Hearing and First Reading of Ordinance No. 084, 2012, Annexing Property Known as the Kechter Annexation No. 2. C. Hearing and First Reading of Ordinance No. 085, 2012, Amending and Classifying for Zoning Purposes the Property Included in the Kechter Annexation No. 2. 528 August 21, 2012 24. Items Relating to the Kechter No. 3 Annexation and Zoning. B. Hearing and First Reading of Ordinance No. 086, 2012, Annexing Property Known as the Kechter Annexation No. 3. C. Hearing and First Reading of Ordinance No. 087, 2012, Amending and Classifying for Zoning Purposes the Property Included in the Kechter Annexation No. 3. 36. Emergency Ordinance No. 088, 2012, Appropriating Prior Year Reserves in the Water Fund for the High Park Fire Remediation. Councilmember Manvel withdrew Item No. 25, Resolution 2012-073 Making Findings of Fact and Related Determinations Regarding Appeals of the Allay 7, 2012, Administrative Hearing Officer Approval of The District at Campus West Project Development Plan, from the Consent Calendar. Councilmember Poppaw withdrew Item No. 18, First Reading of Ordinance No. 078, 2012, Amending Article X11 of Chapter 23 of the City Code relating to Art in Public Places, from the Consent Calendar. Councilmember Manvel made a motion, seconded by Councilmember Horak, to adopt all items not withdrawn from the Consent Calendar. Yeas: Ohlson, Manvel, Kottwitz; Poppaw, Horak and Troxell. Nays: None. THE MOTION CARRIED. Staff Reports City Manager Atteberry acknowledged the citizens who spoke regarding the FC Bikes Manager position. He stated an appointment was not made and he stands by that decision; however, the City is committed to moving forward in making Fort Collins a platinum bicycling community. City Manager Atteberry clarified the end goal of the City is not to avoid a lawsuit with respect to the tracking issue. Councilmember Reports Councilmember Troxell reported on the success of the Neighborhood Night Out events. Councilmember Horak stated Jackie Sargent has been hired as the new general manager for Platte River Power Authority. Ordinance No. 078, 2012, Amending Article XII of Chapter 23 of the City Code relating to Art in Public Places, Adopted on First Readino The following is staff's memorandum for this item. 529 August 21, 2012 "EXECUTIVE SUMMARY At the January 24, 2012 Council Work Session, Council reviewed the Art in Public Places (APP) program and requested that staff develop several modifications to address Council concerns with the program. Staff has identified proposed changes, additions and clarifications to the program to address Council concerns that require revisions to Article XII of Chapter 23 of the City Code relating to Art in Public Places. BACKGROUND /DISCUSSION Section 23-303 of the City Code, added in 1995, established the Art in Public Places Reserve Account, and designated it for use in acquiring or leasing works of art, maintenance, repair or display of works of art, and administrative expenses related to the Art in Public Places Program, in accordance with the Art in Public Places Guidelines adopted by Ordinance No. 020, 1995. The Council permanently adopted the Art in Public Places Program, and reenacted City Code Chapter 23, Article IX with certain modifications in 1998. At the January 24, 2012 Council Work Session, Council reviewed the Art in Public Places (APP) program and requested staff develop modifications to the program to address Council concerns. The following changes, additions, and clarifications are proposed to Article XII of Chapter 23 of the City Code relating to Art in Public Places: 1. Modify the definition of a "construction project" in the City Code to reduce ambiguity and exempt non-traditional capitalprojectsfrom the APPprogram. Theproposed change would exclude vehicles, and equipment not affixed to public property, excluding projects like advanced metering and bus acquisitions. 2. Amend the City Code to remove the requirement to f lly fund the 1 %contribution from non- restricted funding sources when there are project funding sources that cannot be used for art. For example, under the current Code, if50%ofa capital project is funded by a Federal grant that cannot legally be used for art, 1 % of the total project cost would be contributed to APPfrom the unrestricted 50%fending source. With the proposed modification, the APP contribution would be I % of the unrestricted project funds. 3. Reduce the level of Utility contributions to APP by amending the City Code to cap the total annual contribution to APPfrom each Utility Fund (Water, Waste Water, Stormwater, and Light& Power) at $100,000. Utility contributions represent approximately 75% oftheAPP program revenue (estimated over the five year period of 2006 — 2010). The proposed $100, 000 annual cap equates to a 24%reduction in Utility APP funding and an estimated 18% reduction to the total program for the same time period. By implementing this modification, APP will have less funding for projects. Examples of projects that would likely not be funded include the Linden/Willow pocket park with a waterfeature and the Fort Collins Museum of Discovery Utility based exhibits now in development. Staff explored several other options for limiting the level of Utility contributions to APP through various cap options, eliminating underground projects from contributing, or requiring integration of art into functional project elements. Staff recommends the Utility 530 August 21, 2012 Cap as the most straightforward way ofaddressing changes to Utility contributions to APP. This option provides a clear and discernable contribution amount and avoids the inherent difficulty of determining the amount of the contribution under the other options. 4. Fix a long-standing issue with the City Code by clarifying that monies credited to APP Utility reserve accounts may be expended on maintenance, repair or display of art, and expenses of administering utility funded APP projects. APP staff is also working with Finance to address the non -lapsing status ofAPPprojects to improve accountability and transparency. This will be addressed through a proposed administrative policy change, and is not included in the -Ordinance. FINANCIAL/ECONOMIC IMPACTS Implementing the $100,000 annual contribution cap for each Utility Fund (Water, Waste Water, Stormwater, Light and Power) reduces APP funding, particularly for projects that are not located on the project site. The $100,000 cap equates to a 24% reduction in Utility APP funding and an estimated 18% reduction to the total program. Projects like the Linden/Willow pocket park with a water feature that is now in development may not be possible in the future with reduced funding. Other Utility APP projects may be delayed or reduced in scope, such as the Water Weir Wall (Water Restoration Project) and the Pickle Plant site. BOARD / COMMISSION RECOMMENDATION The APP Board reviewed the proposed changes as submitted by staff. The APP Board does not recommend the capping of Utility contributions. " Marty Heffernan, Director of Community Services, stated the proposed modifications to the Art in Public Places Program (APP) deal with tightening up the definition of a construction project, and modifying the current requirements regarding funding. Additionally, a reduction in funding for the Program from the Utilities funds is being proposed. York, Art in Public Places Board Chairman, stated the Board supports the change in definition of a construction project and supports the change from a lapsing to a non -lapsing fund. He stated the Board does not support the cap on the Utilities funds contributions. Carole Hossan, 504 Edwards Street, opposed staff's proposal to cap Utilities funds contributions to the Art in Public Places Program. Hart' Rose, 504 Edwards Street, expressed support for the Art in Public Places Program and opposed staffs proposal to cap Utilities funds contributions. Nancy York, 130 South Whitcomb, supported the Art in Public Places Program and supported maintaining funding for the Program. Councilmember Manvel asked about the actual size of the Art in Public Places program, and how that would change under the proposed budget cuts. Heffernan replied the Art in Public Places budget, on average over the last five years, was 5423,000. If the cap was in place for Utilities funds 531 August 21, 2012 contributions, representing an 18% reduction, the average budget would be reduced to about $360,000. Councilmember Manvel asked what percentage of the Utilities total budget is represented by the $63,000 difference. Heffernan replied the reduction is likely a percent of a percent, but he was unsure of the exact number. Councilmember Horak noted the difference represents 0.3% of the Water Utility, and noted the capped budget will always be around $400,000. Councilmember Poppaw asked what the $63,000 represents to the Utility budget as a whole. Councilmember Horak asked how much of the Art in Public Places budget is represented by the painting of utility boxes. Jill Stillwell, Cultural Resources Director, replied the amount is around S 1800 per box and represents about 10% of the APP program in general. Councilmember Troxell asked about the rationale for capping the Utilities' funds contributions. Heffernan replied concern was expressed regarding the contribution from Utilities at the January Council work session. Councilmember Troxell asked how the Mason Street Corridor project and other large capital projects will affect the APP budget. Heffernan replied a major capital project outside of the Utility would be contributing 1 %. The Mason Corridor MAX project has some restrictions due to federal funding. Councilmember Troxell asked about other funding sources for the APP Program. Stillwell replied the Program collaborates with the Downtown Development Authority and the Bohemian Foundation, as well as others. Tonight's proposal does not limit external sources of funding. Councilmember Poppaw noted economic development funding and General Fund money could still be used for this Program. Councilmember Poppaw made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 078, 2012, on First Reading, eliminating the phrases "would reduce the level of Utility contributions to the program," "the amount paid into each such reserve account shall be capped at $100,000 per year," and "subject to the cap on funding for each Utility reserve account as provided in 23-303(B)." Councilmember Troxell asked about the effects of Councilmember Poppaw's proposed changes. Heffernan replied the changes would eliminate the proposed cap on Utility funding resulting in the amount of contribution to the program being as it has been in the past. Councilmember Manvel stated he would want to know the impact on the individual Utility funds prior to Second Reading. Councilmember Troxell stated he would not support the motion and would like additional information regarding the APP annual budget and possible effects on Utility rates. 532 August 21, 2012 Councilmember Horak commended staff on the other changes but disagreed with the potential funding changes in the motion. Councilmember Manvel suggested a possible different type of capping limitation. Councilmember Poppaw stated she proposed these changes to the Ordinance as they are in line with community desires. Mayor Pro Tem Ohlson stated he would support the motion. The vote on the motion, as amended, was as follows: Yeas: Ohlson, Manvel and Poppaw. Nays: Kottwitz, Troxell and Horak. THE MOTION FAILED. Councilmember Horak made a motion, seconded by Councilmember Troxell, to adopt Ordinance No. 078, 2012, on First Reading. Councilmember Horak suggested a hard cap not be in place for each Utility. Councilmember Poppaw stated she would like a more nuanced change in the funding. Councilmember Troxell stated the APP Program has Council's full support and agreed a further refinement of the funding issue is necessary. The vote on the motion was as follows: Yeas: Kottwitz,'Manvel, Troxell and Horak. Nays: Ohlson and Poppaw. THE MOTION CARRIED. Resolution 2012-073 Making Findings of Fact and Related Determinations Regarding Appeals of the May 7, 2012, Administrative Hearing Officer Approval of The District at Campus West Project Development Plan, Adopted as Amended The following is staff s memorandum for this item. "EXECUTIVE SUMMARY On May 7, 2012, the City of Fort Collins Hearing Officer issued a written decision approving The District at Campus West P.D.P. with one condition ensuring proper vacation of public streets. On May 21, 2012, Zeta Tau Alpha Fraternity Housing Corporation and Robert M Meyer each filed a Notice ofAppeal and on May 29, 2012, each Appellant filed an Amended Notice ofAppeal both alleging that the Hearing Officer failed to properly interpret and apply the Land Use Code. On July 17, 2012; City Council voted unanimously to modify the Hearing Officer's decision by requiring the following: 533 August 21, 2012 1. All three residential buildings must achieve a L.E.E.D. Silver designation, 2. The north side of Building Three must be reduced in height from five to four stories and feature a pitched roofsimilar to the roofshown in the approved PDP for Building One, and 3. Along the entire north property line, all new trees must meet or exceed the minimum size requirements as specified in Section 3.2.1(F)(1). In orderfinalize this appeal process, Council is required to adopt a Resolution makingfindings 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 properly interpret and apply relevant provisions of the Land Use Code. At the July 17, 2012 hearing on the matter, Council considered the testimony of City staff, the appellants and the applicants. After consideration ofthe record and discussion, Council determined that the Hearing Officerfailed to properly interpret Section 3.5. 1 (G)(1)(a)(2). This section contains standards relating the impact of light and shadow of buildings over 40 feet in height on adjacent property. Accordingly, City Council then offered a motion that would modify the Hearing Officer's decision by adding the three aforementioned requirements. City Council voted 7— 0 to approve the motion thus modifying the decision of the Hearing Officer. " Councilmember Manvel asked about the wording relating to tree size. City Attorney Roy suggested eliminating the word "higher," as the intent is to say that trees must exceed the normal requirements, and instead meet the requirements stated in the other section, which requires larger trees: Mayor Pro Tern Ohlson asked about Council's direction that all new trees exceed the minimum size requirements. Ted Shepard, Chief Planner, replied, Council is automatically exceeding the base minimum by invoking 3.2.1(F). Mayor Pro Tern Ohlson requested that staff work with the developer to potentially increase the number of trees, as well. Shepard replied the issue has been discussed and the overall goal is to mitigate the parking structure building with a large coverage of evergreen trees. Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to adopt Resolution 2012-073, eliminating the word "higher." Yeas: Ohlson, Manvel, Kottwitz, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Ordinance No. 073, 2012, Amending the City of Fort Collins District -Precinct Map, Adopted on Second Reading The following is staff s memorandum for this item. OLI August 21, 2012 "EXECUTIVE SUMMARY This Ordinance, adopted on First Reading by a vote of 4-3 (Nays: Kottwitz, Troxell, Weitkunat), amends the City of Fort Collins District -Precinct Map in accordance with Article II, Section 1(c) of the City Charter and Chapter 7, Article III, Division 3 of the City Code. The District boundaries established in the amended map will be used for determining eligibilityfor City Council district officesfor the April2013 election and determining eligibilityfor any interim appointments to fill any City Council office vacancies which may occur after July 27, 2012. Five options were presented, with Option 5 being the adopted version. This Option achieves the highest acceptable deviation and moves three precincts into different districts; two moves are negative, one is positive. " Eric Kronwall, 1613 Bamwood Drive, discussed the Council district requirements per the City Charter and stated Option 1 most closely meets the requirement of the districts having equal numbers of residents. Councilmember Troxell asked for comment on the issue of precedence between the City Charter and the City Code. City Attorney Roy replied the Charter takes precedence if there is a conflict. Councilmember Manvel noted there is no procedure to change the districts as quickly as may be needed for population changes. Option 5 allows room for growth, specifically in District 5, which will have an increased population given new development projects in the near future. Councilmember.Troxell stated the data was not provided to assess the impact of such development. Councilmember Troxell suggested amending Ordinance No. 073, 2012, by adopting Option 1. Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to adopt Ordinance No. 073, 2012, on Second Reading. CouncilmemberTroxell made amotion, seconded by Councilmember Kottwitz, to amend Ordinance No. 073, 2012, by adopting Option 1 on Second Reading. Councilmember Troxell stated Option 1 meets the provisions of the City Charter. Councilmember Manvel asked how often the District map is revised. Rita Harris, Deputy City Clerk, replied there is a provision for another review five years after the release of census data. Councilmember Kottwitz agreed the districts are dynamic, and stated Option 5 is the worst for her district in terms of expected population growth and the deviation from other district. She suggested a compromise between Option 1 and 5. The vote on the motion to amend Ordinance No. 072, 2012 by adopting Option 1 on Second Reading was as follows: Yeas: Troxell, Horak and Kottwitz. Nays: Poppaw, Ohlson and Manvel. THE MOTION WAS DEFEATED. 535 August 21, 2012 The vote on the original motion was as follows: Yeas: Manvel, Poppaw, Horak and Ohlson. Nays: Kottwitz and Troxell. THE MOTION CARRIED. Items Relating to the High Park Fire Remediation, Adopted The following is staff s memorandum for this item. "EXECUTIVE SUMMARY A. Resolution 2012-079 Authorizing the Mayor to Sign Two Intergovernmental Agreements Regarding Funding of Cache La Poudre Watershed Mitigation in Response to the High Park Fire. B. Emergency Ordinance No. 088, 2012, Appropriating Prior Year Reserves in the Water Fund for the High Park Fire Remediation. The High Park Fire, which began on June 9, 2012 and ended on July 11, 2012, has affected the Cache la Poudre watershed. Recent rain events (July 5 — 6, 2012, July 16, 2012) have demonstrated the negative effects of erosion on the Cache la Poudre River, a key water source for the city. Fort Collins Utilities have been involved with local, state and federal agencies to secure possible recoveryfunding. At this time, no local, state or federal funding sources have been identified for post fire recovery efforts specific to water supplies. As a result, staff has worked with the City of Greeley, the Tri-Districts, and Lorimer County to develop an erosion mitigation plan with an immediate need to address the highest priority area, Hill Gulch, which represents 1152 acres out of the 2600 acres identified as the most critical area comprising Phase I of the effort for the whole 5657 acres requiring aerial mulching and seeding per the Burn Area Emergency Response (BAER) report. The BAER report specifically identifies an emergency situation exists with potentially significant impacts to water diversion infrastructure due to the increased risk ofdamagefrom the accumulation of debris and sediment at intake locations. The report also identifies an emergency situation exists with significant risk of degradation in water quality due to soil erosion. This Resolution authorizes the City Manager to enter into the intergovernmental agreement with the other parties to fund the mitigation of the impacts of the High Park Fire. This Emergency Ordinance appropriates $626, 015 immediatelyso that mitigation efforts can begin as soon as possible. The other parties agreeing to fund the Hill Gulch mitigation work are in the process offinalizing the exact cost share percentages; if the City's share is modified as a result, revisions to the agenda materials will be made as early as possible prior to the Council meeting. BACKGROUND /DISCUSSION 536 August 21, 2012 The High Park Fire, which began on June 9, 2012 and ended on July 11, 2012, has affected the Cache la Poudre watershed. The City has a large vested interest in the quality of water in the Poudre River. The Cache la Poudre watershed is not owned by Fort Collins Utilities and consequently, it is necessary to work with other governmental entities and private landowners to effectively address the negative effects of erosion/sediment transport into the River due to rain on the burn area. Over 70% of the burned area resides on private land, which will not be mitigated without participation of the City of Fort Collins. Recent rain events (July 5 — 6, 2012, July 16, 2012) have demonstrated the negative effects of erosion on the Cache la Poudre River. As a result, staff has worked with the City of Greeley, Tri- Districts, and Lorimer County to develop an erosion mitigation plan. The City of Greeley has already entered into an agreement with Western States Reclamation to do similar mitigation after the Hewlett Fire. That contractor is currently completing the reseeding and mulching necessary to slow the erosion affecting the watershed from thatfire and will be ready and available for this effort. The cooperative efforts after the High Park Fire have identified the Hill Gulch as a priority area for similar efforts. The Hill Gulch represents 1152 acres of the 2200 acres making up Phase I of the effort. A total of 5657 acres require treatment. This funding represents the City ofFort Collins portion of the $1.45M required to treat this area. Staff will continue to update the City Council and community as more information becomes available. What is known at this time is that the water quality is, and will continue to be, challenging to treat after any rain or snow melt. Based on literature of watershed fires, we could experience negative effects for years after this fire. In addition, these negative effects will change as the years go by — immediate effects are the ash and sediment in the river, longer term changes to the water quality such as metals concentration and algae growth leading to taste and odor issues are anticipated. For example, Denver Water is still dealing with the Hayman fire more than a decade later. FINANCIAL / ECONOMIC IMPACTS This effort will be coordinated through the National Resources Conservation Service (MRCS) through a program called "Emergency Watershed Protection (EWP) ". The program is designed for recovery measures. The measures must be environmentally and financially sound. It is possible the City will be eligible for up to 75% reimbursement from the federal agencies and the City would pay the remaining 25%. At the August 21, 2012 Council meeting, staff will report if efforts are successful in receiving any federal funding. However, it is necessary to begin the mitigation efforts immediately. Since the total recovery cost impacts are still being determined at this time, this Emergency Ordinance is requestingfunding only for the initial mitigation efforts related to the Hill Gulch area. As further financial assessments are completed, staff will update the City Council. It is anticipated at this time that a rate increase will be necessary in 2013 to cover the additional costs associated with the fire mitigation efforts and the increased water treatment costs. This region is known for its high quality water and the economic impact is significant to the city. Many businesses have located here specifically because our water exceeds drinking water standards. 537 August 21, 2012 ENVIRONMENTAL IMPACTS The City of Fort Collins, along with two other water providers together serve over 320, 000 citizens with high quality drinking water in northern Colorado. In Fort Collins, we are collaborating with the other agencies to reduce the negative environmental impact. The fire has increased debris in the river, erosion, and the sediment continues to degrade water quality. Staff plans to mitigate the areas that have the highest severity by placement of seed and mulch. BOARD / COMMISSION RECOMMENDATION There has not been sufficient time to present this Ordinance to the Water Board, although updates on the situation have been given to the Water Board. The complete mitigation plans will be presented to the Water Board when they are more fully developed. " Kevin Gertig, Water Resources and Treatment Operations Manager, stated one of the items for Council consideration is an intergovernmental agreement, and the other is an Emergency Ordinance to appropriate funding for the High Park Fire remediation. Negative water quality has continued as a result of the fire and the watershed continues to erode. There is a potential of S24 million needed for emergency stabilization costs. The following entities are working together to address the issue: City of Greeley, East Larimer County Water District, Fort Collins Loveland Water District, North Weld County Water District, Larimer County, and the City of Fort Collins. Gertig stated staff has several leads on possible federal and state funding assistance. The goal is to leverage any available federal funding; however, no federal or state funding is available for 2012. Councilmember Horak asked for assurance the process is effective. Gertig replied staff is working with Natural Conservation Services and has consulted other communities that have dealt with forest fires. The technique is 60-80% successful and the input received indicates the procedure should be done now in order to stabilize the soil and reduce negative impacts on the water supply. Councilmember Horak asked if the other jurisdictions involved have already approved this expenditure. Gertig replied the City of Greeley is considering an Emergency Ordinance this evening and the Tri-Districts (Fort Collins -Loveland Water District; East Larimer County Water District, and North Weld County Water District) have committed funding based on its water use percentages. Councilmember Horak asked what would occur, in terms of the emergency nature of this item, should a Council meeting not be scheduled. City Manager Atteberry replied he would have consulted Council and gone ahead with the expenditure, and then sought a reappropriation of funds to backfill. Gary Wockner, 516 North Grant, Save the Poudre, supported the Resolution and Emergency Ordinance and stated his organization is willing.to volunteer with seeking federal funding. Councilmember Manvel asked who owns the land to be reseeded. Gertig replied those acres are privately owned and the County is working with the landowners. Councilmember Manvel noted the federal land is being taken care of by the federal government, the County land is being taken care of by the County, and the City and various water districts who are 538 August 21, 2012 concerned about Poudre River water quality are helping various private landowners. Gertig replied that assessment is true and noted the watershed is not owned by the utility, as it is in other states. Federal funds were quickly diminished due to the season's high number of wildfires. Councilmember Horak made a motion, seconded by Councilmember Poppaw, to adopt Resolution 2012-079. Yeas: Ohlson, Poppaw, Horak, Kottwitz, Manvel and Troxell. Nays: None. THE MOTION CARRIED. Councilmember Horak made a motion, seconded by Councilmember Poppaw, to adopt Emergency Ordinance No. 088, 2012. City Attorney Roy stated he needed to modify an additional whereas clause in the Ordinance. The clause was added to better explain the emergency behind the appropriation. City Attorney Roy suggested new language. Councilmembers Horak and Poppaw accepted the inclusion of the revised language. Councilmember Horak stated he would support this Emergency Ordinance as the City of Greeley is also participating. Councilmember Manvel suggested staff look ahead to possible fires in the Grand Lake area. Mayor Pro Tern Ohlson noted the use of Emergency Ordinances has not been abused in the City and noted the adoption of such an Ordinance requires five affirmative votes. The vote on the motion was as follows: Yeas: Ohlson, Poppaw, Horak, Kottwitz, Manvel and Troxell. Nays: None. THE MOTION CARRIED. (Secretary's note: The Council took a brief recess at this point in the meeting.) Consideration of the Appeal of the Administrative Hearing Officer's June 25, 2012 Decision Regarding the Legacv Senior Residences Project Development Plan The following is the staff memorandum for this item. "EXECUTIVE SUMMARY In May 2012, Cornerstone Associates LLC submitted a Project Development Plan for a multi family project in the RDR, River Downtown Redevelopment zone district and the Transit -Oriented Development Overlay District (TOD). As proposed, the project consists ofthe redevelopment ofthe former Kiefer Concrete Storage Yardfor the purpose of constructing one new building that contains 72 one- and two -bedroom affordable apartments for seniors earning between 30 to 60% ofthe Area Median Income. The parcel consists of on 1.97 acres and is located between Linden Street on the southeast and Pine Street on the northwest. 539 August 21, 2012 On June 11, 2012, the Administrative Hearing Officer conducted a public hearing in consideration of the Legacy Senior Residences PDP and three Modifications of Standard. On June 25, 2012, after testimony from the applicant, the public and staff, the Hearing Officer issued a written decision, approving the PDP and three Modifications of Standards. On July 9, 2012, Save the Poudre (STP) filed a Notice of Appeal seeking redress of the Hearing Officer's decision, which was superceded by an Amended Notice ofAppeal, filed July 27, 2012. The STP appeal asserts the Hearing Officer failed to properly interpret and apply relevant provisions of the Land Use Code, specifically Sections 2.82(H), 4.17(D)(3)(c)(1), Section 4.17(D)(3)(c)(4), Section 4.17(D)(1)(a), Section 3.2.4, Section 3.4.1(D)(1), and Section 3.4.1(D)(1)(k). In addition, the STP appeal asserts that the Hearing Officer failed to conduct a fair hearing in that the Hearing Officer considered evidence relevant to its finding which was substantially false or grossly misleading on two accounts: The project's Ecological Characterization Study did not provide sufficient evidence to support the statement that the project would create no additional impacts to the Poudre River Corridor. and The applicants indicated'at the Hearing there was no other place in Fort Collins to build a comparable project, and STP contends that there are other sites in the City where this project could be built. BACKGROUND /DISCUSSION This project represents a 100%affordable housingproject, redevelopment ofabandoned industrial land, and an assemblage ofsix lots. The site is located within the Downtown Strategic Plan and is highlighted within the Downtown River Corridor Implementation Program Summary Report. The proposed land use, multi family, is permitted in the 'R-D-R zone district subject to Administrative Review. The proposal consists of 72 one- and two -bedroom affordable apartments for seniors (age 62 and over) who earn between 30 to 60%of the Area Median Income. As the project is located within the TOD, multi family dwellings have no minimum parking requirements. However, the applicant is providing 51 off-street parking stalls for the residences. All units (100%) are planned to be permanently affordable. The River Downtown Redevelopment zone district allows a maximum height offive stories. Section 4.17(D)(3)(c)(1) of the Land Use Code outlines two exceptions to the five stories allowed within the R-D-R zone district: 1. Height/Mass. Multiple story buildings of up to five (5) stories are permitted; however, massing shall be terraced backfrom the River and from streets as follows: (1) buildings orparts ofbuildings shall step down to one (1) story abutting the River landscape frontage; and (2) buildings or parts of buildings shall step down to three (3) stories or less abutting any street frontage. 540 August 21, 2012 The proposed building is 4 stories tall with a maximum building height of 50 feet-6314 inches. The project requested a Modification of Standard to the requirement of stepping down to three stories along a public street (Pine Street), and this Modification was granted for being in compliance with Section 2.8.2(H)(1) and Section 2.8.2(1-1)(2). A Modification of Standard was not required to step down to one story, as this project does not abut the River landscape frontage. Legacy Senior Residences, PDP, complies with applicable General Development Standards of Article 3 and the land use and development standards of Division 4.17 RDR, River Downtown Redevelopment District, with the exception of three Modifications of Standard requests: Reduction of minimum vehicular overhangfor a landscaped area from 7feet to 5.95 feet (Section 3.2.2(L)(4)), which was granted for being in compliance with Section 2.8.2(H)(2) and Section 2.8.2(H)(4); 2. Maintaining a building height of 4 stories along where the building abuts a public street (Section 4.17(D)(3)(c)(1), which was granted for being in compliance with Section 2.8.2(H)(1) and Section 2.8.2(H)(2); and 3. Increasing the frequent view/access standard from 125 feet to 180 feet (Section 4.17(D)(3)(c)(4)), which was granted for being in compliance with Section 2.8.2(H)(2). The only Modification of Standard at issue with the appeal is the Modification to increase the frequent view/access standard from 125 feet to 180 feet (Section 4.17(D)(3)(c)(4) of the Land Use Code). ACTION OF THE ADMINISTRATIVE HEARING OFFICER The Administrative Hearing Officer conducted a public hearing on June]], 2012. At the hearings, the Hearing Officer considered the testimony ofthe applicant, affected property owners, the public andstaff The Administrative Reviewprocess allows the Hearing Officer ten working days to render a written decision. On June 25, 2012, the Hearing Officer provided a decision approving the PDP and the three Modifications of Standard outlined above. THE QUESTIONS COUNCIL NEEDS TO ANSWER Did the Hearing Off cer fail to properly interpret and apply relevant provisions of the Land Use Code? 2. Did the Hearing Officer consider evidence relevant to its findings which were substantially false or grossly misleading? APPEAL ASSERTIONS On July 9, Save the Poudre (STP) filed a Notice of Appeal seeking redress of the Hearing Officer's decision, which was superceded by an Amended Notice of Appeal, filed July 27, 2012. The STP appeal asserts that the Hearing Off cer failed to properly interpret and apply relevant provisions 541 August 21, 2012 of the Land Use Code, specifically Sections 2.82(H), 4.17(D)(3)(c)(1), Section 4.17(D)(3)(c)(4), Section 4.17(D)(1)(a), Section 3.2.4, Section 3.4.1(D)(1), and Section 3.4.1(D)(1)(k). In addition, the STP appeal asserts that the Hearing Officer failed to conduct a fair hearing in that the Hearing Officer considered evidence relevant to its finding which was substantially false or grossly misleading on two accounts: The'project's Ecological Characterization Study did not provide sufficient evidence to support the statement that the project would create no additional impacts to the Poudre River Corridor, and The applicants indicated at the Hearing there was no other place in Fort Collins to build a comparable project, and STP contends that there are other sites in the City where this project could be built. A. FailuretoProperlyInterpretandApplySection2.82(H)toSection4.17(D)(3)(c)(4) of the Land Use Code. ASSERTIONS STP states the following in its appeal: "The decision by the Administrative Hearing Officer to allow the modification of standard 'Increasing the frequent view/access standard from 125' to 180' (Section 4.17(D)(3)(c)(4) ",for "Senior Legacy Residences, " P.D.P. #12-0015 violates the following section of the land use code: Section 2.8.2(H). The proposed modification ofstandard is detrimental to the publicgood and violates Section 2.8.2(H) of the land use code. The reasons why the proposed modification of standard is detrimental to the public good are described in Save The Poudre (STP) public testimony document: "Request to deny the development proposal for "Legacy Senior Residences" Project Development Plan, #12-0015" (henceforth "STP Request" http: //savethepoudre. org/documents/STP-request for-deny-SLR-6- 11-2012.pdj) sections 2, 3, 4, 5, and 6. In the following sections of the appeal, STP contends why each Sections 2.8.2(H)(1), 2.8.2(H)(2), 2.8.2(71)(3), and 2.8.2(H)(4) of the Land Use Code were violated. As the Modification of Standard was approved under Section 2.8.2(H)(2) of the Land Use Code, these sections of the appeal are highlighted below. 3. The proposed modifications ofstandard is not the only way to substantially alleviate an existing problem (affordable housing) in the City and therefore violates Section 2.8.2(H)(2) of the land use code. The reasons why the proposed modification of standard is not the only way to substantially alleviate an existing problem (affordable housing) in the City is described in "STP-Request " section 3. Further, STP stated at hearing that there were many places in Fort Collins where the project could be built to alleviate this existing problem — STP will repeat and support this statement at appeal. 542 August 21, 2012 SIP states the following in 'STP Request' in #3, Section A: 3. The project's proposed "modifications" will negatively impact the sensitive Cache la Poudre River ecological corridor and are unnecessary when other alternatives exist. The project requests two 'modifications. " a. Theproject requests a modification to 4.17(D)(3)(c)(4) which states: 4. Frequent view/access. No building wall shall exceed one hundred twenty-five (125) feet on the axis along the River. " The project requests that the building wall on the axis along the River be 180' instead of the maximum length of 125'. We strongly object to this modification. In addition to the wall being 4 stories tall— which we objected to in (2) above —this additional55'feet of wall abutting the Poudre River frontage will significantly mar the natural area scenery, the natural area experience, and the River Landscape Buffer. The City claims this modification is acceptable due to the need for affordable housing in the community. We contend that affordable housing can be built in numerous alternative places where modifications would not be needed and so this justif cation is erroneous. In fact, we were told on the telephone by Affordable Housing staff that other locations were consideredfor this project that we believe would have been better choices. We contend that although affordable housing is a problem of city wide concern, it is notjustifiable to sacrifice other city wide concerns or values related to "Environmental Health "as noted in City Plan Principles and Policies including ENV].l (Protect and Enhance Natural Areas), ENV1.2 (Regulate Development along Waterways), ENV2.7 (Involve and Inform the Public), ENV4.2 (Enhance and Restore Streams), ENV4.4 (Provide Neighborhood Natural Areas), ENV4.6 (Utilize Corridors), and Principles and Polices applying to the Poudre River including ENV23.1(Poudre River Corridor Overlay), ENV24.1 (Support Ecological Resilience), ENV24.2 (Conserve Natural Features), ENV24.3 (Provide Natural Area Protection Buffers), ENV24.4 (Restore and Enhance), ENV27.2 (Maintain and Enhance Visual Resources), and ENV.27.4 (Restore and Enhance) (http: //www. fegov. com/planfortcollins/pdf/cityplan. pdf). LAND USE CODE STANDARDS: Section 2.8.2(H) of the Land Use Code states the following: "(H)Step 8 (Standards): Applicable, and the decision maker may grant a modification ofstandards only if it finds that the granting of the modification would not be detrimental to the public good, and that:.. (2) the granting of a modification from the strict application ofany standard would, without impairing the intent and purpose of this Land Use Code, substantially alleviate an existing, defined and described problem of city-wide concern or would result in a substantial benefit to the city by reason of the fact that the proposed project would substantially address an important community need specifically and expressly defined and described in the city's Comprehensive Plan or in an adopted policy, ordinance or resolution of the City Council, and the strict application ofsuch a standard would render the project practically infeasible; or... 543 August 21, 2012 ... Anyfindingmade under subparagraph (1), (2),(3) or (4) above shall be supported by specific findings showing how the plan, as submitted, meets the requirements and criteria of said subparagraph (1), (2), (3) or (4). " Section 4.17(D)(3)(c)(4)of the Land Use Code states thefollowing: "4. Frequent view/access. No building wall shall exceed one hundred twenty-five (125) feet on the axis along the River. " Page 18 of the Staff Report contains an analysis of this Modification of Standard. The complete quote from the StaffReport is as follows: "Staffhas evaluated the Applicant's requestagainst the criteria provided in Section 2.8.2(H) of the Land Use Code. The purpose of the standard is not only to allow visual access into the river corridor but also to break up the visual experience a pedestrian has while on the Poudre River Trail. City staffheld two design charrettes with the applicant to determine how a wall that exceeds the standard could achieve the standard equally or better than a wall 125 feet in length. The applicants have recessed the buildingfor a length of35 feet and provided significantly different landscaping treatments around the building in the recessed area along the river. In addition, the materials provided have brick in the recessed areas, which is darker in color than the other dominant materials on the building, which furthers the visual variability a pedestrian will experience on the site. While staff finds that the project has achieved a visual experience equal to a better than the standard, visual access into the river is still precluded by a 180foot long building. Instead of meeting the criteria for a modification under Section 2.8.2(H)(1), staff finds that the modification can be justified based on Section 2.8.2(H)(2) as the project meets a significant community need, as discussed above. Thus, as this project meets the criteria set forth in Section 2.8.2(H)(2), staff recommends approval of this request. " With regard to the request for a Modification of Standard to Section 4.17(D)(3)(c)(4), the Hearing Officer states on page 28 and 29 of the decision: "The Hearing Officer finds that the Applicant has proposed modifications to the frequent view/access "standard are reasonable efforts to mitigate the 180foot length ofthe building. As proposed the building is 55 feet longer than the standard length. With regards to the statements by the STP spokesman that "affordable housing can be built in numerous alterative places" the Hearing Officer finds that not one, let alone, numerous alternative places were identified by STP. Counsel for the Housing Authority testified that they had lookedfor several years for a potential site and proposed site was the only feasible site. While these modifications would not be detrimental to the public good, the Hearing Officer finds that the granting of the modification would substantially alleviate an existing, defined and described problem of city wide concern. The provision of affordable senior housing at this location will result in a substantial benefit to the city. This type of housing addresses an 544 August 21, 2012 important community need that is specially and expressly defined and described in the City's Comprehensive Plan and adopted policies. The strict application of the 'frequent view/access"standard would render the project practically infeasible. The Hearing Officer approves this modification pursuant to Section 2.8.2(H)(2). - B. Failure to Properly Interpret and Apply Section 4.17(D)(3)(e)(1) Height/Mass ASSERTIONS STP states the following in its appeal: "The P.D.P. violates Section 4.17(D)(3)(c)(1) of the land use code as described in "STP-Request " section 2." STP states the following in `STP Request' in #2: "The project violates this section of the land use code because the building is four (4) stories tall abutting the River landscape frontage, whereas the code requires one (1) story. We strongly object to this violation. This 4 story wall of a building abutting the Poudre River landscape frontage will significantly mar the natural area scenery, the natural area experience, and the Poudre River Buffer as well as potentially negatively impact wildlife and the ecology in the area. This violation of the land use code was noted in a staff email from City Sustainability Director, Bruce Hendee, to Assistant City Manager, Diane Jones, March I1 the "Diane, I have not been in the day to day negotiations of this project and perhaps it is too late to turn back the state of things but, the applicant is failing to meet whatl consider to be a key provision of the Land Use Code which is to step back the upper stories next to the river. " Further, Figure 20 in section 4.17(D)(1)(a) very clearly depicts a building that steps down to one (1) story abutting the "River landscape frontage. " There is no ambiguity or subjectivity in this wording in the code. Additionally, the attached photo (SLR-imagel jpg) clearly shows the fence line abutting the grassy area along the trees at the top of the river bank. In addition, section 5.1.2 defines "abut or abutting ": "Abut or abutting shall mean touching. An abutting condition shall not be affected by the parcelization or division of land that results in an incidental; nonbuildable, remnant lot, tract or parcel. " We contend that the grassy area between the fence and the trees along the river is indeed an incidental, nonbuildable, remnant lot, tract or parcel, and thus that the project "touches" the river landscape. Indeed, the grassy area is the "River landscape frontage. " In fact, the grassy area is a small nonbuildablepiece ofproperty owned by the Cityfully integrated with and managed with the Poudre River natural areas and bike path. (See images SLR-image2 jpg and SLR-image3 jpg). 545 August 21, 2012 LAND USE CODE STANDARDS: Section 4.17(D)(3)(c)(1) of the Land Use Code states the following: "1. Height/Mass. Multiple story buildings of up to five (5) stories are permitted, - however, massing shall be terraced backfrom the River and from streets as follows: (1) buildings or parts of buildings shall step down to one (1) story abutting the River landscape frontage; and (2) buildings or parts of buildings shall step down to three (3) stories or less abutting any street frontage. " As noted above, the definition of abutting is as follows: "Abut or abutting shall mean touching. An abutting condition shall not be affected by the parcelization or division of land that results in an incidental, nonbuildable, remnant lot, tract or parcel. " • Page 26 ofthe Administrative Hearing Officer's decision notes thefollowing discussion that occurred during the Hearing: "Staffnoted that the City owned land adjacent to -the PDP could be the site ofa park structure at a future date. Therefore, the PDP does not touch or abut the River. See Division 5.1.2 Definitions, Abut or abutting shall mean touching. An abutting condition shall not be affected by the parcelization or division ofland that results in incidental, nonbuildable remnant lot, tract or parcel. (Emphasis added) " • Page 22 of the Hearing Transcript notes the following comments made by staff during the Hearing: "...Regarding that, staff had significant discussion about the term abutting versus along, and it really 7 came down to, for us, whether or not you could build on that parcel of City land. And even 8 though it is on park land, when you look at the definition of a building being a permanent 9 structure, we do require parks properties to come through our development review process, so 10 they could have come through for numerous different structures on that parcel. And so that is 11 how staff arrived at the notion that it was not abutting, not only that it wasn't touching, but also we relied on the second sentence of the term as well. " • With regard to the request for a Modification of Standard to Section 4.17(D)(3)(c)(4), the Hearing Officer states on page 26 of the decision: "In addition, the Hearing Officer finds that the existing pedestrian/bike pathway provides a buffer between the PDP site and the River. As Staff noted, a park structure could be built in this area between the PDP and the River. Therefore, by definition, the PDP does not abut or touch the River. " C. Failure to Property Interpret and Apply Section 4.17(D)(3)(c)(4) Frequent View/Access This section of the appeal has been addressed in "A" above under the Modification of Standard. 546 August 21, 2012 D. Failure to Properly Interpret and Apply Section 4.17(D)(1)(a) River Landscape Buffer ASSERTIONS STP states the following in its appeal: "The P.D.P violates Section 4.17(D)(1)(a) of the land use code as described in "STP-Request" section 4. Further, STP contends that the buffer zone in the R-D-R zoning district is interpreted as a minimum of 200 feet henceforth. " STP states the following in 'STP Request' in #4 4. The project misinterprets the "buffer" along the Poildre River ecological corridor. The project requires a "River Landscape Buffer" (section 4.17(D)(1)(a)): "... the applicant shall establish, preserve or improve a continuous landscape buffer along the River as an integral part of a transition between development and the River. " In the zoning district directly upstream of this area, the buffer width is determined by code to be 200 feet (section 3.4.1(c), Buffer Zone Table: "Cache la Poudre River in Downtown (College to Lincoln Avenue) = 200 feet). In the zoning district directly downstream of the R-D-R zoning district, the buffer width is determined by code to be 300 feet. The code (section 4.17(D)(1)(a) goes on to say: "In substitution for the provisions contained in Section 3.4.1(C).... "As such, the code makes no determination about the buffer width in the R-D-R zone district, but again says: "the applicant shall establish, preserve or improve a continuous landscape buffer along the River as an integral part of the transition between development and the River. " STPcontends that there are no other relevant projects in this zone district abutting the river because this is the first one that will set the precedent in this zone district. As such, the buffer width has not yet been interpreted nor set as a precedent or in code. Because there is no precedent, STP contends that the buffer should remain at 200 feet in the R-D-R zone district unless the City can prove, through a scientific ecological study, that the sensitive ecological corridor of the Cache la Poudre River can be protected by a buffer of some other width. A 200 foot buffer could meet the criteria to "establish, preserve or improve a continuous landscape buffer along the River... " Given that this project proposes to build structures (parking lots, buildings, etc) within 150 feet of the river channel, and even closer to the "top of bank" (100 feet or less) STP believes staff and developer have mis-interpreted the land use code with regards to the buffer width and thus that the hearing officer should deny the project. LAND USE CODE STANDARDS: Section 4.17(D)(1)(a) of the Land Use Code states the following: "(a) River landscape buffer. In substitution for the provisions contained in Section 3.4.1(C) (Natural Habitats and Features) requiring the establishment of "natural area buffer zones, " the applicant shall establish, preserve or improve a continuous landscape buffer along the River as an integral part of a transition between 547 August 21, 2012 development and the River. To the maximum extent feasible, the landscape buffer shall consist predominantly of native tree and shrub cover... • Page 6 of the Staff Report contains an analysis of this standard. The complete quote from the Staff Report is as follows: Section 4.17(D)(1)(a) Transition between the River and the Development: "(a) River landscape buffer. In substitution for the provisions contained in Section 3.4.1(C) (Natural Habitats and Features) requiring the establishment of "natural area buffer zones," the applicant shall establish, preserve or improve a continuous landscape buffer along the River as an integral part of a transition between development and the River. To the maximum extent feasible, the landscape buffer shall consist predominantly of native tree and shrub cover... • With regard to Section 4.17(D)(1)(a), the Hearing Officer states on page 5 of the decision: "The city owned strip of land between the PDP and the River is part of the Poudre River Trail. This PDP will improve the existingpedestrianlbike path along the River. The Hearing Officer finds that this PDP complies with the standard. " E. Failure to Properly Interpret and Apply Section 3.2.4 Site Lighting ASSERTIONS STP states the following in its appeal: "9.The PDP violates Section 3.4.2 of the land use code. Neither staffnor applicant have adequately described how they can build a 2417 fully lighted parking lot within 100 feet of the sensitive ecological corridor of the Poudre River without light pollution leaking over and into the Poudre River buffer negatively impacting wildlife, ecology, and the riparian ecosystem. " LAND USE CODE STANDARDS. - Section 3.2.4(D)(6) of the Land Use Code contains the Design Standards regarding lighting adjacent to a natural area or natural feature and states the following: "6) Unique areas or neighborhoods within the city may have additional design guidelines for lighting as part of a neighborhood or area plan. The Community Planning and Environmental Services Department can provide information regarding neighborhood or area plans. Natural areas and natural features shall be protected from light spillage from off -site sources. " • Page 9 of the StaffReport contains an analysis of this standard. The complete quote from the Staff Report is as follows: "4.Section 3.2.4 Site Lighting - A photometric plan was submitted as part of the initial project development plan submittal. As proposed, the project complies with 548 August 21, 2012 the minimum lighting requirements. Parking lot lighting will feature down - directional and sharp cut-off fixtures. No light spillage occurs within the Natural Habitat Buffer Zone. " • With regard to Section 3.2.4 the Hearing Officer states on page 5 of the decision: "The Hearing Officer finds that the proposed site lighting will be placed on this Legacy Senior Residences site. No additional lighting is proposed along the pedestrian bike paths. All lighting will comply with City standards. " F. Failure to Properly Interpret and Apply Section 3.4.1(D) and 3.4.1(D)(1) Ecological Characterization Study ASSERTIONS STP states the following in its appeal: "The PDP violates Section 3.4.l(D) and Section 3.4.l(D)(1) of the land use code requiring an Ecological Characterization Study (ECS). The Hearing Officer wrote: "The Hearing Officer notes that Section 3.4.l (D)(1) must be replaced by Section 4.17(D)(1) and applied to the PDP because it lies in the RDR District. " The Hearing Officer incorrectly interprets this section of the land use code. In fact, Section 4.17(D)(1)(a) only states: `In substitution for the provisions contained in Section 3.4.1(C) (Natural Habitats and Features) requiring the establishment of "natural area buffer zones, "... ". As such Section 4.17(D)(1) substitutes for the buffer zones in Section 3.4.1(E), but it does not substitute for any other part of Section 3.4.1. Therefore, every other part of Section 3.4.1 stands and is required in the R-D-R zoning district including Section 3.4.1(D) and Section 3.4.1(D)(1). In addition, in Section 3.4. l (D)(1) the "Director -has the discretion to require an ECS —staff has already required an ECS and the Council (as "Director') should reaffirm that requirement. The P.D.P. must comply with the requirements of the ECS as defined in Section 3.4.1(23)(1) and noted in section 5 of STP's "STP-request. " The ECS must also comply fully with Section 3.4.1(F through O) including but not limited to 3.4.1(F) "Protection of wildlife habitat. " Also note that in Section 3.4.1(D)(1), the "area "is the area surrounding the site, whereas the "site" is the parcel of land under the project — therefore the ECS must analyze the impacts to, and mitigationsfor, the "area" including the surrounding the natural areas and Poudre River ecological corridor, not just the site. " LAND USE CODE STANDARDS: Section 4.17(D)(1)(a) of the Land Use Code states the following.• "a) River landscape buffer. In substitution for the provisions contained in Section 3.4.1(C) (Natural Habitats and Features) requiring the establishment of "natural area buffer zones, " the applicant shall establish, preserve or improve a continuous landscape buffer along the River as an integral part of a transition between development and the River... " 549 August 21, 2012 Section 3.4.1(D) and 3.4.1(D)(1) of the Land Use Code states the following. (D) Ecological Characterization and Natural Habitat or Feature Boundary Definition. The boundary of any natural habitat or feature shown on the Natural Habitats and Features Inventory Map is only approximate. The actual boundary of any area to be shown on a project development shall be proposed by the applicant and established by the Director through site evaluations and reconnaissance, and shall be based on the ecological characterization of the natural habitat or feature in conjunction with the map. (1) Ecological Characterization Study. f the development site contains, or is within five hundred (500) feet of, a natural habitat or feature, or if it is determined by the Director, upon information orfrom inspection, that the site likely includes areas with wildlife, plant life and/or other natural characteristics in need ofprotection, then the developer shall provide to the City an ecological characterization report prepared by a professional qualified in the areas of ecology, wildlife biology or other relevant discipline. At least ten (10) working days prior to the submittal of a project development plan application for all or any portion of a property, a comprehensive ecological characterization study of the entire property must be, prepared by a qualified consultant and submitted to the City for review. The Director may waive any or all of the following elements of this requirement if the City already possesses adequate information required by this subsection to establish the buffer zone(s), as setforth in subsection (E) below, and the limits ofdevelopment ("LOD'), as set forth in subsection (N) below. The ecological characterization study shall describe, without limitation, thefollowing: An Ecological Characterization Study was required in compliance with Section 3.4.1(D)(1) of the Land Use Code. Page 9 of the Staff Report states the following regarding Standard 3.4.1(E) of the Land Use Code: "The buffer standards that apply to the Poudre River are described above, as the metrics described in Section 3.4.1(E) of the Land Use Code do not apply in the RDR Zone District. In addition, this site does not abut the river but has City -owned property separating itselffrom the river. However, while the standard metrics do not apply and this project does not abut the river, this project is still providing a "continuous landscape buffer along the River as an integral part of a transition between development and the River. " This buffer is being provided on City land and will be maintained in perpetuity by the applicant. The buffer will be composed of native trees (13), shrubs (44) and grasses. " With regard to Section 3.4.1(D)(1), the Hearing Officer states on page S of the decision: "The Hearing Officer notes that Section 3.4.1(D)(1) must be replaced by Section 4.17(D)(1)(a) and applied to this PDP because it lies in the RDR District. The Hearing Officer finds that this PDP meets the standards of Section 4.17(D)(1)(a). " G. Failure to Properly Interpret and Apply Section 3.4.1(D)(1)(k) Ecological Characterization Study and Mitigation 550 August 21, 2012 ASSERTIONS STP states the following in its appeal: "11. The PDP violates Section 3.4. 1 (D)(1)(k) of the land use code, as described in "STP-request " section 5. " STP states the following in `STP Request' in #5: "...Further, section 3.4.1(D)(1)(k) states that the ECS shall describe "any measures needed to mitigate the projected adverse impacts ofthe developmentproject on natural habitats andfeatures. " The ECS has failed to describe the impacts to the sensitive ecology of the Poudre River corridor, and certainly has not described any mitigation measures on projected adverse impacts., Thus, STP believes the hearing officer should deny the project. " LAND USE CODE STANDARDS: Section 3.4.1(D)(1)(k) of the Land Use Code states the Ecological Characterization Study shall describe the following: "(k) any measures needed to mitigate the projected adverse impacts of the development project on natural habitats and features. " The Project's Ecological Characterization Study does include mitigation recommendations. Page 22 of the Hearing Transcript notes the following comments made by staffduring the Hearing: "Regarding the ecological characterization study, Dr. Wockner suggested that there were no mitigation recommendations. Those begin on page two of the document... " With regard to Section 3.4.1(D)(1), the Hearing Officer states on page 5 of the decision: "The Hearing Officer notes that Section 3.4.1(D)(1) must be replaced by Section 4.17(D)(1)(a) and applied to this PDP because it lies in the RDR District. The Hearing Officer finds that this PDP meets the standards of Section 4.17(D)(1)(a). " H. The Hearing Officer Considered Evidence Relevant to its Findings that was Substantially False or Grossly Misleading regarding the project's Ecological Characterization Study ASSERTIONS STP states the following in its appeal: In supporting the P.D.P and the request for modifications ofstandard, the Administrative Hearing Officer violated Chapter 2, Article II, Division 3, Section 2-48(b)(2)(c) which states: "The board, commission or other decision maker considered evidence relevant to its findings which was substantially false or grossly misleading. " 551 August 21, 2012 The ECS for the P.D.P stated: "Development of the Legacy Senior Housing parcel would create no additional impacts to the Poudre River corridor beyond those already occurred from existing disturbance and development. "The ECSprovides no evidence to support this statement. Save The Poudre alleges that this statement is `substantiallyfalse"and provides the following summary ofevidence, and scientific articles supporting this summary, below: Native bird species decrease as housing density and housing encroachment into habitat increases. Abundance of mammals decreases as housing density and housing encroachment into habitat increases. As both housing density and quantity increases, nearby wildlife habitatis degraded. LAND USE CODE STANDARDS: Section 3.4.1(D)(1) of the Land Use Code states the the following: (1) Ecological Characterization Study. f the development site contains, or is within five hundred (500) feet of, a natural habitat or feature, or if it is determined by the Director, upon information orfrom inspection, that the site likely includes areas with wildlife, plant life andlor other natural characteristics in need ofprotection, then the developer shall provide to the City an ecological characterization report prepared by a professional qualified in the areas of ecology, wildlife biology or other relevant discipline. At least ten (10) working days prior to the submittal of a project development plan application for all or any portion of a property, a comprehensive ecological characterization study of the entire property must be prepared by a qualified consultant and submitted to the Cityfor review. The Director may waive any or all of the following elements of this requirement if the City already possesses adequate information required by this subsection to establish the buffer zone(s), as set forth in subsection (E) below, and the limits ofdevelopment ("LOD'), as set forth in subsection (N) below. The ecological characterization study shall describe, without limitation, the following: (a) the wildlife use of the area showing the species of wildlife using the area, the times or seasons that the area is used by those species and the "value" (meaning feeding, watering, cover, nesting, roosting, perching) that the area provides forsuch wildlife species; (b) the boundary ofwetlands in the area and a description ofthe ecologicalfunctions and characteristics provided by those wetlands, (c) any prominent views from or across the site; (d) the pattern, species and location of any significant native trees and other native site vegetation; (e) the top of bank, shoreline and high water mark of any perennial stream or body of water on the site; (0 areas inhabited by or frequently utilized by Sensitive and Specially Valued Species; (g) special habitat features; (h) wildlife movement corridors; (i) the general ecological functions provided by the site and its features; 552 August 21, 2012 6) any issues regarding the timing of development -related activities stemmingfrom the ecological character of the area; and (k) any measures needed to mitigate the projected adverse impacts of the development project on natural habitats and features: Staffdid not provide information regarding the ECS during the Hearing nor is the ECS specifically referenced in the Hearing Officer's decision; Based on the staff report sections above, the project was found to be in compliance with Section 3.4.1 and Section 4.17(D)(1)(a) which also applies in the RDR Zone District. L The Hearing Officer Considered Evidence Relevant to its Findings that was Substantially False or Grossly Misleading regarding the availability of locations for this project to be built ASSERTIONS STP states the following in its appeal: Statements oftestimony by the FCHA and applicant at the hearingsaid that there was no otherplace in Fort Collins to build a comparable project after a "thorough and exhaustive search. " Save The Poudre alleges that these statements of testimony were substantially false or grossly misleading. At appeal, Save The Poudre will produce a map (using City zoning maps) showing other areas in Fort Collins where a comparable project can be built. Save The Poudre also submits as evidence a statement in the "Environmental Assessment, 7-25-2011, Terracon project 420117008, that claims the site was chosen because of the "purchase price" and because it was downtown, not because it was the only site available: "2.3 Alternative Locations Alternative locations for the 72-unit residential facility were considered; however due to the purchase price and location in relationship to the Fort Collins Old Town area, the proposed site was selected. " With regard to this assertion, the Hearing Officer states on page 26 of the decision: "Although the STP Spokesman argued that there were other equally suited sites for affordable senior housing, none were identified. The other members of the public who testified in favor of the PDP stated that the site selection process had been thorough and exhaustive. The Hearing Officer approves this modification pursuant to Sections 2.8.2(H)(1) and 2.8.2(H)(2). " City Attorney Roy explained the City's appeal procedure. Mayor Pro Tern Ohlson asked Councilmembers to explain any observations made or conversations held during the site visit. 553 August 21, 2012 Councilmember Troxell stated he attended the site visit and noted the proposed structure's location with respect to the Poudre River, the trail, streets, and other structures. He stated he did not recall any conversations other than those shared with the entire group. Mayor Pro Tern Ohlson stated he attended the site visit and agreed with Councilmember Troxell's assessment of the visit. Lindsay Ex, Environmental Planner, presented project facts and maps and discussed the modifications of standard sought by the project. She discussed the assertions of the appeal and provided information relating to each of the assertions. APPELLANT PRESENTATION Gary Wockner, 516 North Grant, Save the Poudre/Poudre Waterkeeper Director, alleged that substantially false and misleading information was considered; therefore, the decision must be remanded back to the hearing officer. He also alleged that relevant laws were not properly interpreted and applied by the Hearing Officer, which would require the decision be overturned. Mr. Wockner stated there was no evidence of a thorough and exhaustive search on the part of the developer for an alternative site for the project. He stated the ecological characterization study was substantially false. In terms of relevant laws not being properly interpreted and applied, Mr. Wockner contended the building abuts the Poudre River, and should therefore include stepped -back upper stories. He contended the lot between the River and the project lot is an incidental, non - buildable lot; therefore, the project abuts the River. Additionally, Mr. Wockner suggested modifications should not be granted as the project can be built elsewhere. He stated the project should require a river landscape buffer, per the Land Use Code, as it abuts the River. Mr. Wockner stated his group has offered several compromises to the developer, who has refused to compromise. APPLICANT PRESENTATION Julie Brewen, Fort Collins Housing Authority Executive Director, discussed the Legacy Senior Residences project which would provide 72 one and two -bedroom affordable housing units for seniors. The project is a joint venture with Cornerstone. Cathy Mathis, representing the applicant, Birdsall Group, discussed the proposed development location and the benefits of the proposed project. She discussed the continuous landscape buffer and site arrangement, as required by the Land Use Code, and discussed the architectural features of the proposed building. She noted the project could have been five stories tall, as allowed by the zone district. Dividing the building into two did not make sense, given the population. Jim Martell, attorney representing the Housing Authority and the applicant, discussed Mr. Wockner's allegations and noted the revised ecological characterization study stated there would be minor additional impacts to the River. He noted the price of any other property would be critical given the affordable housing nature of this project; additionally, the Code does not require a developer to attempt to find alternate sites for a project. Mr. Martell noted the lot between the proposed development and the River has been deemed as buildable by Deputy City Attorney Eckman. Mr. Martell discussed the surrounding developments and their impacts on the Poudre River corridor. He stated the Hearing Officer's decision should not be overturned as the proposal complies with every section of the Land Use Code and modification requirements. 554 August 21, 2012 APPELLANT REBUTTAL Mr. Wockner stated Save the Poudre is fully in support of affordable housing in Fort Collins. He reviewed the development's alleged negative impacts on the sensitive ecology of the Poudre River Corridor and on the natural resource experience for River users. APPLICANT REBUTTAL Ms. Brewen stated the relationship between the Housing Authority and Cornerstone resulted in the project being awarded the competitive tax credits. She stated part of that application was a thorough site selection process. Ms. Brewen read comments in support of the project from Bryce Hawk with the Affordable Housing Coalition. Mr. Martell stated Mr. Wockner discussed new information, including the false statement allegation, and a list of papers. Mr. Martell stated he would like to respond to that new information with Mr. Phalen's statement regarding his interpretation of that list of papers, and the joint statement referenced by Ms. Brewen. City Attorney Roy stated Mr. Wockner should have the ability to object to the new information and Council has the option to receive the new information, which would need to be marked as exhibits and given to the City Clerk. Mr. Wockner stated he has a concern regarding the admission of evidence that did not show up in a Colorado Open Records Act request. Mr. Wockner asked how the City Attorney would respond to the allegation that the Housing Authority did not provide that information when an Open Records Act request was submitted, and how he would respond to that information being submitted at this hearing. City Attorney Roy replied he was unsure what the scope of the request was, or whether the Housing Authority complied with the request. Whether it is admissible at this hearing does not hinge upon whether there was proper compliance with the Colorado Open Record Act. It hinges upon whether the evidence is offered to support or rebut an allegation of substantially false or grossly misleading evidence relevant to the findings that the Hearing Officer relied upon. Mayor Pro Tem Ohlson stated Council would receive the new evidence. Mr. Larry Mazata, Cornerstone Associates, stated he has never had a conversation with Mr. Wockner and never received a suggestion from him that some form of mediation should occur. He stated he did receive word of a meeting with the City administrator the day prior to the meeting and could not attend. Mr. Mazata stated, in the thirty months prior to submitting the application for this project, he made nineteen specific trips to Fort Collins solely for the purpose of looking at potential sites for this project. Mr. Wockner objected to Mr. Mazata's statements potentially being new evidence. City Attorney Roy stated this reference to the search to alternative sites addresses Mr. Wockner's allegation that the project was not rendered infeasible so as to warrant a modification. He asked if Mr. Mazata is speaking to the issue of whether or not the Hearing Officer properly interpreted and 555 August 21, 2012 applied provisions of the Code. Mr. Mazata replied he is speaking to Mr. Wockner's statement that the Hearing Officer did not properly interpret and apply provisions of the Code. City Attorney Roy stated this evidence appears to be relevant, and should therefore be received. Mr. Mazata discussed his location -seeking trips and stated his search took into account the City's planning preferences and the Colorado Housing Finance Authority's preferences. COUNCIL DISCUSSION Councilmember Manvel asked about the developer's reference to the fact that not allowing the modifications would make the project infeasible. Specifically, he asked if it is accurate that changing the site plan to place the parking lot between the building and the River is not allowed by the Code. Ex replied it would be a violation of the Code requiring a modification to do so. Councilmember Manvel asked about the intent of the 125-foot long wall maximum. Ex replied the standard is designed to protect the pedestrian experience along the trail, and to provide frequent access for views to the River. Councilmember Manvel asked about the lack of buffer specification. Ex replied there is a continuous landscape buffer required, though no specific number of feet is required. She stated she has reviewed the proposed landscape buffer with several experts on staff. Councilmember Troxell requested some measurement information from the proposed building to the River bank. Ex provided the measurements. Councilmember Troxell asked if there is any type of pristine element to the property given its previous use. Ex replied there is a natural area to the north of the project. She stated she spoke with several article authors regarding the potential effects of this project on the area and those authors agreed with the staff interpretation that the buffer is sufficient. Councilmember Poppaw asked if staff measurements were different than those provided by the applicant. Ex replied her measurements were done in the field based on engineering stakes for the project, not based on a survey. Councilmember Horak asked how the Code addresses the axis of the building. Ex replied the Code standard discusses frequent view/access and states that no building wall shall exceed 125 feet on the axis along the River. Councilmember Horak pointed out the River has many axes as it is not a straight line. Councilmember Manvel stated there is a 45 degree angle between the building and the River. Ex replied it can be interpreted conservatively; staff interpreted the section to mean "along the River." Councilmember Horak asked if it matters if there are other structures that would be in between this 180 foot wall and the River. Ex replied it does not matter for that particular standard. Councilmember Horak made a motion, seconded by Councilmember Manvel, that the Hearing Officer did not fail to conduct a fair hearing in consideration of Legacy Senior Residences. 556 August 21, 2012 Councilmember Kottwitz commended Ms. Ex on her presentation and question responses. Councilmember Troxell asked for the rationale behind the motion. Councilmember Horak replied it was a fair hearing. City Attorney Roy noted there were allegations specific to the fair hearing question regarding whether or not the Hearing Officer considered evidence that was grossly misleading. The vote on the motion was as follows: Yeas: Kottwitz, Manvel, Troxell and Horak. Nays: Ohlson and Poppaw. THE MOTION CARRIED. Councilmember Manvel noted the community needs more affordable housing, but stated he is concerned about the size of the project. He questioned whether or not the size and arrangement of the site are necessary as possible changes could lessen the impact on the site. Councilmember Horak asked how the CSU Engines Lab building compares size -wise to this proposal. Mayor Pro Tem Ohlson stated he was present when that question was asked and was told the proposal was comparable in height to the Penny Flats building. Ex replied the Engines Lab axis is oriented more toward College Avenue than the River, and that building is likely taller than the proposed building. Mayor Pro Tern Ohlson noted the thinking about wildlife and ecological sensitivity has changed since the time the other buildings were built. He stated the building is too long and too large and is architecturally uninspired. Councilmember Poppaw asked if forced mediation is an available option. City Attorney Roy replied it is not an option. Council must determine whether or not the Hearing Officer properly interpreted and applied the Code. Councilmember Troxell made a motion, seconded by Councilmember Kottwitz, that Council uphold the decision of the Hearing Officer approving the modification of standards from the Land Use Code, Section 4.17(D)(3)(c)(4) for Legacy Senior Residences PDP, because the Hearing Officer properly interpreted and applied provisions of the Land Use Code in approving the proposed modifications of standards. Councilmember Manvel stated the question of public good is involved, in terms of which public good should take precedence. Councilmember Horak stated he would support the motion. Mayor Pro Tern Ohlson stated this project could be done better and expressed disappointment that the project received a staff recommendation of approval. He added he does not believe the Hearing Officer should work for the City any longer. Councilmember Poppaw stated she would not support the motion as the design is disappointing. 557 August 21, 2012 Councilmember Horak asked for suggestions on changing the design. Mayor Pro Tem Ohlson stated opposing the motion could result in a more appropriately -designed project coming forward in the future. Councilmember Poppaw noted Mr. Wockner brought forth suggestions and the issue is not about affordable housing. Councilmember Horak stated the issue is about affordable housing as that is part of the basis for the standard to be modified. City Attorney Roy noted Council does have the option to remand the decision back to the Hearing Officer. Mayor Pro Tem Ohlson asked if Councilmember Horak would be open to the option of remanding. Councilmember Horak replied he would need to have a basis for doing so. Councilmember Horak asked Ms. Brewen for her opinion on the issue. Ms. Brewen replied the rendering Council has seen has been the only one allowed to be viewed by Council. There have been many discussions regarding materials and other changes. The project needs to be built with certificate of occupancy by the end of December, 2013. The tax credits would cease to exist if this is not the case; therefore a redesign is not possible. Mayor Pro Tem Ohlson asked about the full landscape plan. Ms. Brewen replied the landscape rendering was designed by the architect and is not representative of what will actually be in place, which will be fully native landscaping. Councilmember Poppaw made a motion, seconded by Mayor Pro Tem Ohlson, to amend the motion to remand the decision back to the Hearing Officer in order to consider scale, mass, the building length along the River, design, and landscaping. Councilmember Horak asked about the timing of a potential remand. Ex replied a mailed notice must go out ten days prior to the hearing, so the soonest it could be would be two weeks from tomorrow. The Hearing Officer then has ten business days to render a decision. Councilmember Horak asked how long after a decision an appeal could be filed. Deputy City Attorney Paul Eckman replied an appeal must be filed within fourteen days. The vote on the motion to amend was as follows: Yeas: Poppaw and Ohlson. Nays: Manvel, Troxell, Horak and Kottwitz. THE MOTION FAILED. The vote on the motion to uphold the Hearing Officer's decision regarding the modification of standards was as follows: Yeas: Kottwitz, Manvel, Troxell and Horak. Nays: Poppaw and Ohlson. THE MOTION CARRIED. 558 August 21, 2012 Councilmember Horak made a motion, seconded by Councilmember Kottwitz, to uphold the decision of the Hearing Officer approving the Legacy Senior Residences PDP, because the Hearing Officer properly interpreted and applied provisions of the Land Use Code in approving the PDP. Yeas: Kottwitz, Manvel, Troxell and Horak. Nays: Poppaw and Ohlson. i THE MOTION CARRIED. Extension of the Meeting Councilmember Horak made a motion, seconded by Councilmember Troxell, to continue the meeting to address Item No. 39, Ordinance No. 061, 2012, Authorizing the Conveyance of a Non - Exclusive Drainage and Landscaping Easement and an Access Easement on City Property to Cornerstone Associates, LLC, and to continue other business to the Adjourned Meeting to be held on August 28, 2012. Yeas: Troxell, Horak, Ohlson, Kottwitz, Manvel and Poppaw. Nays: none. THE MOTION CARRIED. Ordinance No. 061, 2012, Authorizing the Conveyance of a Non -Exclusive Drainage and Landscaping Easement and an Access Easement on City Property to Cornerstone Associates, LLC, Adopted on Second Reading The following is staff s memorandum for this item. "EXECUTIVE SUHiWARY Cornerstone Associates, LLC (the "Developer') is planning a 1.97 acre affordable housingproject called the Legacy Senior Residences PDP (the "Development') located at 360 Linden Street. The Development requires off -site drainage and landscaping improvements and access improvements on adjacent City -owned property which is maintained as the Old Fort Collins Heritage Park, adjacent to the NorthsideAztlan Community Center. This Ordinance, adopted on First Reading on July 10, 2012 by a vote of 5-0 (Horak and Poppaw absent), authorizes the conveyance of a 11,198 square foot non-exclusive drainage and landscaping easement and 321 square foot non-exclusive access easement from the City on the Cityproperty. Second Reading of this Ordinance was postponed from July 17 to August 21, 2012 due to Council hearing an appeal of the Development. Consideration of Second Reading will occur after Council hears the appeal and is dependent upon the outcome of the hearing. Councilmember Horak made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 061, 2012, on Second Reading. Yeas: Troxell, Horak, Kottwitz, Manvel and Poppaw. Nays: Ohlson. THE MOTION CARRIED. 559 August 21, 2012 Adiournment The meeting adjourned at 11:05 p.m. o� FORT C0` ATTEST:SEAL �: • •��y ,N City Clerk 560