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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/18/2004 - CONSIDERATION AND APPROVAL OF THE COUNCIL MEETING ITEM NUMBER: 7 AGENDA ITEM SUMMARY DATE: May 18, 2004 FORT COLLINS CITY COUNCIL STAFF: John Fischbach SUBJECT Consideration and approval of the Council meeting minutes of March 16, 2004. March 16, 2004 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, March 16,2004, 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: Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and W eitkunat. Staff Members Present: Fischbach, Krajicek, Roy. Citizen Participation Beth Cook commented regarding the cable television franchise and expressed concern that Comcast raised rates without notice. She stated that some cities had a"lower cost"option and that she would like to subscribe under such an option. She stated she had been told that only"basic" service was available in Fort Collins. She presented a petition signed by 150 low income people and seniors who were interested in a"lower cost"option with fewer channels. She stated many people did not want to have to pay for channels they did not watch and that many people could not afford the "basic" service package. Brian Shum,5948 Colby Street,stated he wanted to meet with the Council at the earliest opportunity on a "quasi-judicial" issue relating to a rezoning in the County. He stated he disagreed with the rezoning and that it would impact future annexations relating to the South College enclave and the adjacent properties. He expressed a concern that the properties could become Commercial. He requested a meeting with Council immediately. Ryan Staychuck, 1603 Westbridge Drive,stated he had a concern that the term "cost effective"was not used in City Plan in connection with water conservation,waste disposal or road construction and that the term "cost effective" was used in connection with environmental policies and strategies. He also expressed a concern with the description of parks on the City's website and stated he would prefer that the term "parks"not be included in the description of"open spaces." Kelly Ohlson, 2040 Bennington Circle, thanked the Coloradoan for its coverage of the City's compensation policies. He stated historically the taxpayers bad been contributing 95%of the cost of employee benefits,while the employees contributed 5%. He stated the biggest issue was that the number of health claims must be reduced and that cost containment was needed. He stated for the five-year period 2000-2004 the City would spend$46.5 million on health care costs for employees. He stated for 2005-2009 the City's estimate was that $92.4 million would be spent on employee health care costs. 95 March 16, 2004 Al Dunton, 1400 Ash Drive, downtown property owner and tenant, expressed concerns regarding the new downtown parking enforcement program. He stated the program was so expensive and complicated that it would drive away customers and clients. He expressed a concern that City and County employees had priority for prime parking in the parking garage and other limited parking lots. He suggested that City and County employees park in the higher parking garage levels, that City employees be required to park in the lot on Mason Street between Maple and Cherry, and that parking enforcement needed to apply on Saturdays for on-street and garage parking. Bob Kinsey, Green candidate for Congress in the 4" Congressional District, spoke regarding an upcoming march in honor of military personnel who had died or been maimed during the war and occupation of Iraq. He spoke against the war effort and this country's dependence on oil. Dick and Dianne Rule, 4824 South Lemay Avenue, stated they had purchased their 3.25 acre tract of land because of the country setting and the development potential. They stated the property was now completely surrounded by commercial, retail and residential development. They stated they had accepted a contract to sell their property to a local nursing home to build a skilled nursing home facility. They stated they had discovered that the City had other plans for the property in terms of landmark preservation. They stated they had been told that their property must remain in its current state and that any development must occur around the existing structures. They stated this dramatically reduced the value of the property. They stated this imposition of forced preservation without compensation was harsh and overreaching. They stated no one had been able to demonstrate the benefits gained in preserving the property in its current state. They asked that the City immediately revise the Landmark Preservation Ordinance to eliminate the harsh effects of forced preservation upon private property rights and to continue to support individuals who voluntarily wished to preserve historic structures. They stated the current Ordinance was too far reaching and damaging to people like them. They stated if the City was adamant about preserving the property, the City should purchase their property at the current contract amount or allow the buildings to be donated to the City or to other parties to be moved to another location. Bob Wilson, 913 Breakwater, stated he was the potential buyer for the Rule property and spoke in support of the statements made by the Rules. He stated they should be allowed to sell their property for its fair value or the City should purchase the property from them in the amount of the current contract. Citizen Participation Follow-up Mayor Martinez thanked those who spoke under Citizen Participation. Councilmember Hamrick stated he would have issues under Other Business regarding some of the issues brought up under Citizen Participation. Councilmember Roy stated he would also have some questions to discuss under Other Business. 96 March 16, 2004 Councilmember Bertschy stated he would like a brief staff response on each of the issues raised under Citizen Participation. Councilmember Kastein stated he would like more information under Other Business about the issues raised by Mr. Shum and the Rules. City Manager Fischbach stated the Rules were eligible to appeal the preliminary decision and findings of the Landmark Preservation Commission. He stated that was a quasi-judicial matter and indicated that the Commission could not practice"forced preservation." Councilmember Weitkunat stated it was unclear what would be discussed under Other Business. She stated the cable franchise issues brought up by Ms. Cook were under discussion. She stated it was important to let Mr. Shum know what the process would be for him to speak to Council regarding the rezoning. City Manager Fischbach stated staff had been meeting with Mr. Shum and that he did not like the answers given to him by staff. Mayor Martinez noted that because the matter brought up by Mr. Shum was quasi-judicial that there would be limitations on Council's ability to discuss the matter with him. City Manager Fischbach stated that fact had been conveyed to Mr. Shum repeatedly. Mayor Martinez requested that staff put that information in writing to Mr. Shum with a copy to Council. Councilmember Weitkunat stated the issues brought up by Mr. Staychuck would be part of the City Plan discussions. She stated, in response to Mr. Ohlson's comments,that work was underway with regard to health benefits for City employees. She stated the downtown parking issue was an ongoing discussion as well. Mayor Martinez stated any additional discussion on the issues brought up under Citizen Participation would be done under Other Business. Agenda Review City Manager Fischbach stated item#15 First Reading of Ordinance No. 050, 2004,Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary for the Construction of Public Improvements in Connection with the Stormwater Utility Drainage Outfall for the North Tributary System and the Street Oversizing Ziegler Road Realignment Project and item #19 Resolution 2004-041 Establishing Rental Rates and Delivery Charges for the City's Raw Water for the 2004 Season would be withdrawn from the Consent Calendar for discussion,that item#26Items Relating to Solid Waste Collection and Recycling Service would be deferred to April 6, 2004 and that a Resolution 2004-045 had been added to the agenda under Other Business regarding affordable housing. 97 March 16, 2004 CONSENT CALENDAR 7. Second Reading of Ordinance No. 041,2004, Amending Section 24-95 of the City Code to Clarify The Language That Assigns Responsibility for Constructing Streets to Adjacent Property Owners at the Time of Development or Redevelopment. This Ordinance, which was unanimously adopted on First Reading on March 2, 2004, amends Section 24-95(a) of the City Code. The change was made to remove a confusing phrase referencing"undeveloped property" at the beginning of the first sentence which does not match the reference to redevelopment at the end of the same sentence. The clarification makes it clearer that property owners have the responsibility to improve streets adjoining their property at the time they develop or redevelop their property. This, in turn, clarifies that the City may recover costs under Section 24-95© that are incurred by the City with City-constructed capital project improvements from the adjacent property owners at the time of their development or redevelopment. 8. Items Relating to Harmony Farm Second Annexation. A. Second Reading of Ordinance No. 042, 2004, Annexing Property Known as the Harmony Farms Second Annexation to the City of Fort Collins, Colorado. B. Second Reading of Ordinance No.043,2004,Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Harmony Farms Second Annexation to the City of Fort Collins, Colorado. On March 2, 2004, Council unanimously adopted Resolution 2004-031 Setting Forth Findings of Fact and Determinations Regarding the Harmony Farms Second Annexation. On March 2,2004,Council also unanimously adopted on First Reading Ordinance No. 042, 2004 and Ordinance No. 043, 2004, annexing and zoning the property known as the Harmony Farms Second Annexation. 9. Second Reading of Ordinance No. 044, 2004, Designating the Aaron Kitchel House, 601 West Mountain Avenue, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. The owner of the property, Sue Walker, initiated the request for Fort Collins Landmark designation for the Aaron Kitchel House, 601 West Mountain Avenue. The home is significant for it architectural importance, being a good example of vernacular masonry Queen Anne architecture in Fort Collins; and is significant for its historical importance due to its association with Aaron Kitchel, Civil War veteran,pioneer farmer of Larimer county and former County Commissioner. The garage does not contribute to the historic and 98 March 16, 2004 architectural character of the Property and is not being designated. This Ordinance was unanimously adopted on First Reading March 2, 2004. 10. Second Reading of Ordinance No. 046,2004,Amending Section 25-123©of the Cites Relating to Compensation of Vendors for Collecting and Remitting Sales Tax. Resolution 2004-006 was adopted by City Council in January directing the City Manager to proceed with public outreach regarding a change to the vendors' fee. The City Manager was further directed to present a recommendation to Council no later than the first meeting in March. The vendors'fee was last changed in 1989 in response to the need for additional funding for the Choices 95 Capital Improvement Program. Prior to that time, vendors were allowed to retain 3.0%of all sales tax they collected. The 1989 change limited vendors to 3.0%of the first $3,000 in tax they collected plus 1.0% of all taxes thereafter. There was no dollar cap on the total amount vendors could retain. This Ordinance,which was unanimously adopted on First Reading on March 2, 2004, limits the vendors'fee to 3.0%of the first$3,000 in tax collected. 11. First Reading of Ordinance No. 047, 2004, Appropriating Unanticipated Revenue in the Capital Projects Fund Building Community Choices - Community Horticulture Center Capital Project to be Used for Design and Construction of a Children's Garden. In 1997, the voters approved Ordinance No. 29, 1997, which provided funding for the establishment of the Community Horticulture Center (now referred to as the Gardens on Spring Creek), as part of the Building Community Choices capital improvement program. The first phase of construction has now been completed, and the Gardens on Spring Creek is open to the public (with a Grand Opening scheduled for Saturday, May 8). This project has benefited significantly from community involvement and private fundraising. A private non-profit group, the Friends of the Gardens on Spring Creek, was established to assist staff with membership development and private fundraising. During the first phase of construction, $80,000 in private donations enabled the inclusion of the 900 square foot Evelyn Clark Classroom. The current focus for private fund raising by City staff and the "Friends" group is for the establishment of a Children's Garden, as the next step in the Gardens on Spring Creek development. The mission of the Children's Garden will be to provide outdoor recreation and education on horticulture and the natural world, within a garden-like setting. 99 March 16, 2004 12. Items Relating to the Advanced Traffic Management System. A. Resolution 2004-030 Authorizing the Mayor to Execute an Intergovernmental Agreement with the Colorado Department of Transportation Regarding the Installation of Fiber Optic Communication, Wireless Communication and the Purchase of Associated Equipment of the Advanced Traffic Management System. B. First Reading of Ordinance No. 040, 2004, Appropriating Unanticipated Grant Revenue in the Capital Projects Fund - Traffic Signal Timing System Project to Be Used for the Installation of Fiber Optic and Wireless Communications and the Purchase of Additional Equipment for the Advanced Traffic Management System. The City of Fort Collins has been awarded a Federal Congestion Mitigation and Air Quality Grant in the amount of$893,849. The grant has been specified for use on completing the fiber optic communication system and installing wireless communication. Fiber optic lines will be installed along the Taft Road Corridor, Timberline Corridor, North College Corridor, and the far south US287 Corridor. Wireless communication will be used in the downtown area. Equipment such as cabinets, controllers, and associated electronics will also be purchased with this grant. During the system analysis phase of the ATMS project, a decision was made to use fiber optics as the principle mode of communication between the on-street controllers and the master traffic signal system. Fiber optics is the most reliable form of communication medium in the market today. Wireless technology has also proven itself to be reliable. Phase I of the ATMS has installed fiber optic communication along the South College Corridor, Harmony Road, Shields Street, East Mulberry Street, West Drake Road, and Lemay Avenue. 13. First Readine of Ordinance No. 048, 2004,Amending Chapter 23,Article III, Division 3 of the City Code Pertaining to Encroachments. This Ordinance revises Sections 23-81 and 23-82 of the City Code. The proposed changes simply clarify the requirement for encroachment permits when privately-owned utilities, telecommunications lines,irrigation pipes,and similar facilities are allowed to reside within the public rights-of-way. The changes also give the City Manager the ability to require liability insurance to protect the City, if necessary and appropriate. 100 March 16, 2004 14. First Reading of Ordinance No. 049, 2004, Authorizing the Lease of City-owned Property at 6916 South College Avenue, Fort Collins, Colorado, for up to Five Years. The City acquired this property as part of the Affordable Housing Land Bank Program. The property is composed of 17.11 acres of vacant development land. Prior to the City's purchase and during last summer, the site was leased for hay production. This lease is for land only and does not allow the use of City-owned water on the property. One of the goals of the Land Bank Program is to hold land for a minimum of five years. Leasing the property during this time period generates revenue for the program and eliminates the cost of ground maintenance for the City. 15. First Reading of Ordinance No.050,2004,Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary for the Construction of Public Improvements in Connection with the Stormwater Utility Drainage Outfall for the North Tributary vstem and the Street Oversizing Ziegler Road Realignment Project. A stormwater drainage easement is required for the North Tributary outfall across property east of CR 9 owned by Ed McDowell. The North Tributary Stormwater pipe drains areas of existing Parkwood,Parkwood East,and Meadows East neighborhoods.Installation of this storm water pipe across Timberline Road was done in 1999, and currently floods property owned by the Rigden Farm Development before spilling into the Fossil Creek Reservoir Inlet Ditch (FCRID), overtopping CR 13 and draining into the Poudre River. The developer for Rigden Farm Sixth Filing is planning development of this flood affected property and has proposed a siphon structure to carry 100 year storm flows under the FCRID ditch and CR 9 and into an open channel to the Poudre River. As is standard practice, the Stormwater Utility has been working with the developer to design and construct these regional drainage improvements. The Street Oversizing Program has also been working with the developer to obtain the right of way necessary to construct Ziegler Road from Drake to Horsetooth on a new alignment west of the FCRID. This new alignment will meet minor arterial standards and eliminate the current substandard roadway with narrow one lane bridges. 16. First Reading of Ordinance No. 034, 2004,Authorizing the Sublease to Larimer County of Portions of the Fossil Creek Reservoir Property Leased by the City from North Poudre Irrigation Company. The Natural Areas Program holds a lease on 810 acres of land and surface water rights from North Poudre Irrigation Company for Fossil Creek Reservoir. This Ordinance approves a sublease of all or a portion of that leased property to Larimer County. The sublease will 101 March 16, 2004 allow Larimer County Open Lands to lease, operate, maintain and manage a 150' strip (approximately 25 acres) along the south shore of the reservoir adjacent to Fossil Creek Reservoir Regional Open Space (FCRROS). FCRROS is jointly owned by the City and County, but it will be operated by Larimer County. Larimer County has completed the design of the public improvements for FCRROS, which will be constructed this spring/summer/fall and the site opened to the public late this year. 17. Resolution 2004-039 Authorizin the he City Manager to Execute an Agreement with Barnard Dunkelberg & Company to Prepare a Comprehensive Master Plan Study for the Fort Collins-Loveland Municipal Airport. The Airport's current master plan is over 10 years old and is in need of updating. The Cities have already accepted a grant from the FAA in the amount of$450,000 to pay for 90% of the new master plan study. The Cities have also received a grant from the State Aeronautics Division in the amount of$25,000 for half of the local share of the project costs. The FAA procedures were followed for the procurement of the planning consultant as well as negotiating fees with the selected firm of Barnard Dunkelberg & Company. The agreement with Barnard Dunkelberg & Company establishes a not to exceed sum of $490,620 for completing the study. 18. Resolution 2004-040 Authorizing the Lease of City-owned Property at 304 North Howes Street. The City purchased this property as part of the Civic Center Master Plan in 2000. The City's use of this block is still being planned. In the interim, the residence has continued as a rental. The current rental term and approval expires this spring. The existing tenants have expressed an interest in continuing their lease of the Property. The new lease term will be for one year, with the City having the option to renew for an additional term. 19. Resolution 2004-041 Establishing Rental Rates and DelivM Charges for the City's Raw Water for the 2004 Season. This Resolution approves rates for the rental and use of the City's raw water supplies. The Water Utility uses these rates to assess charges for agricultural use, for various contractual raw water obligations and for raw water deliveries to other City departments. Each year prior to the irrigation season,the City's Water Board("the Board")makes a recommendation to the Council regarding the raw water charges. The Board discussed the proposed rental rates and charges at its February 26,2004 meeting. The proposed rate for each type of water is based on several factors including market conditions and assessments charged by irrigation companies. 102 March 16, 2004 20. Resolution 2004-042 Making Appointments to Various Boards and Commissions. Vacancies currently exist on the Commission on the Status of Women due to unfilled vacancies remaining from the annual appointment process. Applications were solicited and Councilmembers Weitkunat and Tharp interviewed the applicants. The Council interview team is recommending Beena Bawa and Rondell Ferguson with terms to begin immediately and set forth to expire on December 31, 2005. Councilmembers Weitkunat and Tharp are also recommending Barbara Goff with a term to begin immediately and set forth to expire on December 31, 2006. A vacancy currently exists on the Human Relations Commission due to the resignation of Kimberly Clouser. Councilmembers Roy and Hamrick reviewed the applications on file and are recommending JoAnn Gina] to fill said vacancy with a term to begin immediately and set to expire on December 31, 2007. Vacancies currently exist on the Parks and Recreation Board due to the resignations of Mike Gavin and Paul VanValkenburg. Applications were solicited and Councilmembers Bertschy and Hamrick interviewed the applicants. The Council interview team is recommending Mark Lueker and Jon Sinclair with terms to begin immediately and set forth to expire respectively on December 31, 2005 and December 31, 2006. A vacancy currently exists on the Telecommunications Board due to the removal of Rob Koeller for attendance violations. Councilmembers Kastein and Tharp reviewed the applications on file and are recommending Chip Cushman to fill said vacancy with a term to begin immediately and set to expire on December 31, 2005. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. 7. Second Reading of Ordinance No. 041, 2004, Amending Section 24-95 of the City Code to Clarify The Language That Assigns Responsibility for Constructing Streets to Adjacent Property Owners at the Time of Development or Redevelopment 8. Items Relating to Harmony Farm Second Annexation. A. Second Reading of Ordinance No. 042, 2004, Annexing Property Known as the Harmony Farms Second Annexation to the City of Fort Collins, Colorado. B. Second Reading of Ordinance No.043,2004,Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Harmony Farms Second Annexation to the City of Fort Collins, Colorado. 103 March 16, 2004 9. Second Reading of Ordinance No. 044, 2004, Designating the Aaron Kitchel House. 601 _West Mountain Avenue, as a Fort Collins Landmark Pursuant to Chanter 14 of the City Code. 10. Second Readine of Ordinance No. 046, 2004,Amending Section 25-1230 of the City Code Relating to Compensation of Vendors for Collecting and Remitting Sales Tax 24. Second Reading of Ordinance No.039,2004,Amending Article III of Chanter 12 of the City Code Pertaining to the "Private Club" Exception to the Prohibition Against Smoking in Enclosed Public Places. 28. Second Reading of Ordinance No. 045, 2004, Amending Chapter 26 Article III Division 4 of the City Code Relating to User Rates and Charges for Water. Ordinances on First Reading were read by title by City Clerk Krajicek. 11. First Reading of Ordinance No. 047 2004 Appropriating Unanticipated Revenue in the Capital Projects Fund Building Community Choices - Community Horticulture Center Capital Project to be Used for Design and Construction of a Children's Garden 12. First Reading of Ordinance No 040 2004 Appropriating Unanticipated Grant Revenue in the Capital Projects Fund - Traffic Signal Timing System Project to Be Used for the Installation of Fiber Optic and Wireless Communications and the Purchase of Additional Equipment for the Advanced Traffic Management System 13. First Reading of Ordinance No. 048, 2004,Amending Chanter 23 Article III Division 3 of the City Code Pertaining to Encroachments. 14. First Reading of Ordinance No. 049, 2004, Authorizing the Lease of City-owned Property at 6916 South College Avenue, Fort Collins. Colorado for up to Five Years 15. First Reading of Ordinance No.050,2004 Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary for the Construction of Public Improvements in Connection with the Stormwater UtilityDrainage Outfall for the North Tributary System and the Street Oversizing Ziegler Road Realignment Project 16. First Reading of Ordinance No. 034, 2004 Authorizing the Sublease to Latimer County of Portions of the Fossil Creek Reservoir Propertv Leased by the City from North Poudre Irrigation Company. 104 March 16, 2004 25. Items Relating to the Adrian Annexation and Zoning. B. First Reading of Ordinance No.051,2004,Annexing Property Known as the Adrian Annexation. C. First Reading of Ordinance No. 052, 2004, Amending the Zoning Map and Classifying for Zoning Purposes the Property Included in the Adrian Annexation. CouncilmemberTharp made a motion,seconded by Councilmember Bertschy,to adopt and approve all items not withdrawn from the Consent Calendar. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED Staff Reports City Manager Fischbach gave an update on the Council status report. Councilmember Reports Councilmembers Weitkunat and Bertschy reported on the National League of Cities Conference and a meeting with Senator Allard's staff. Councilmember Tharp reported on the North I-25 Front Range Environmental Impact Statement Committee. Mayor Martinez reported that he and Councilmember Weitkunat attended a Business and the Arts Awards lunch in Denver at which Gary and Carol Hixson were recognized with a statewide award. Ordinance No. 039, 2004 Amending Article III of Chapter 12 of the City Code Pertaining to the "Private Club" Exception to the Prohibition Against Smoking in Enclosed Public Places Adopted on Second Reading The following is staff's memorandum on this item. "EXECUTIVE SUMMARY This Ordinance, which was adopted 4-2 as amended(Councilmembers Hamrick and Roy opposed, Councilmember Bertschy was absent) on First Reading on February 17, 2004, amends Article III 105 March 16, 2004 of Chapter 12 of the City Code, which generally prohibits smoking in enclosed public places, so as to clarify the private club exception to that prohibition against smoking. BACKGROUND In December 2002, City Council adopted sweeping changes to Article III, Chapter 12 of the City Code which generally prohibits smoking in places of employment and in enclosed public places, including taverns and restaurants, but excludes certain public places such as retail tobacco stores and designated smoking areas in bingo facilities or bowling alleys. The definition of a 'public place"is contained in Section 12-56 of the Code. That definition excludes 'private clubs"except when functions are held at such clubs that are open to the public. That same section of the Code defines a private club as follows: Private club shall mean any establishment that has a defined membership and restricts admission to members of the club and their guests. Private club shall not include an establishment that is open to members ofthe generalpublic upon payment of a nominal fee. A private club shall not be considered a public place except when it is the site of a meeting, event or activity that is open to the public. The City Manager's administrative regulations, which were enacted pursuant to Section 12-65(e) of the Code, require private clubs to have a defined membership; limit admission to only card- bearing members and a limited number of invited guests; and charge a fee for membership that is sufficient in amount to defray the ongoing costs to providing services to members. Staff,per Council direction, brought forth a proposal on First Reading of this Ordinance which would have limited private clubs to non-profit organizations. The Council passed the Ordinance on First Reading but onlyfor thepurpose of adopting certain "companion"changes to the Ordinance, that is, those that exempt private clubs from the definition ofplaces of employment; includeprivate clubs in the listing of places where smoking is not prohibited; and add private clubs to the kinds of establishments whose books and records must be open to inspection. The Council chose not to limit private clubs to non-profit organizations. In adopting the Ordinance on First Reading, the Council also directed staffto explore thepossibility ofestablishing a license requirementforprivate clubs,since it appeared that doingso would benefit not only the City but also those establishments that wished to know, in advance, whether they would meet the private club requirements of the Code. Therefore, the Ordinance has been revised on Second Reading to include a licensing requirement. Licenses would be issued for private clubs for a two-year period and would be renewed, upon application, so long as the establishment holding the license continued to meet the private club requirements of the Code. A grace period has been added to the licensing requirement so that existing private clubs will have until September 1, 2004, to meet the private club requirements, 106 March 16, 2004 including the ventilation requirement. That ventilation requirement has also been modified. As presented on First Reading, the requirement was that private clubs would need to effectivelyprevent smokefrom leaving theirpremises and entering any smokefree area. Staffbelieves that compliance with this requirement would be difficult to monitor. Therefore, the ventilation requirement has been modified on Second Reading so that private clubs will simply have to be equipped with the kind of ventilation system that the Building and Zoning Director determines is adequate to ventilate the premises and to confine smoke to the private club premises. Staff believes that this requirement establishes a more objective standard by which compliance could be monitored. " City Manager Fischbach introduced the agenda item. Sarah Fox, Natural Resources, presented background information regarding the agenda item and described the changes made to the Ordinance on Second Reading. Linda Miller, 1612 Independence Court, thanked the Council for supporting this Ordinance. She stated people working within the service industry had a right to a smoke-free environment and that bar and restaurant owners had requested that they preferred a "level playing field" with all establishments being smoke-free. Councilmember Hamrick asked if there would be administrative rules that would go along with this Code. City Attorney Roy stated there could be additional administrative regulations developed as staff worked on implementing the new language, particularly with respect to the issuance of a private club license. Councilmember Hamrick asked how it would be determined that the fee charged for membership was sufficient to defray the ongoing cost to provide services to members. City Attorney Roy stated the regulation stated a fee would be charged"in an amount intended to defray the ongoing cost'and that it was not intended that the fee entirely cover the total costs of operations. He stated a judgement call would have to be made in comparing the fee charged with the expenses of a particular operation. He stated there would be a case-by-case determination and that this was one of the reasons for requiring access to records for inspection. Councilmember Hamrick asked about the change made on Second Reading with regard to the ventilation requirement and how the proposed language differed from the initial language. Greg Byrne, CPES Director, stated language was taken from the commercial Energy Code setting a standard for cubic feet per minute per person for air exchange into a separately ventilated area. He stated this was an objective standard. Fox stated the current language was that the establishment must keep the smoke on its own premises. Councilmember Hamrick asked how this would address the issue of the office that was in proximity to the Service Club that had issues with smoke in the office. Byrne stated the Service Club ventilation system would not comply with the new standard and that modifications would be required for the system. 107 March 16, 2004 Councilmember Hamrick asked how current bars with public facilities would be prevented from going "private" and charging a nominal fee in order to skirt the original intent of the smoking ordinance. City Attorney Roy stated existing"for profit'taverns could choose to become"private" but that once they became"private"that they would no longer be open to the public. He stated such establishments might no longerbe profitable if they limited their patrons to members only. He noted an error in the Ordinance that would need to be corrected in the motion. He stated in Section 12-67 under the private club license requirements that the word "automatically" should be deleted from the phrase: "All such licenses shall be issued for a two-year term and shall be renewed upon application automatically so long as . . . ." Councilmember Roy asked who would issue membership cards to private club members. Fox stated the business would issue the cards. Councilmember Roy asked if there were any standards or mechanisms regarding use of the cards. Fox stated Code Enforcement Officers could ask to see the cards and would have access to a list of members that must be maintained by the business. Councilmember Roy asked about the reference to "a limited number of invited guests." City Attorney Roy stated there was no set number and that there would be discretion and judgment exercised in making a determination on a case-by-case basis regarding whether the establishment allowed entry to anyone or limited entry to bona fide members. He stated it would be impractical and arbitrary to establish a specific number for the limit on invited guests. Councilmember Roy asked if there would be any way to determine if a person was an invited guest or was a member of the general public. City Attorney Roy stated it was not unusual for ordinances to allow some discretion, reasonable judgement and interpretation in enforcement. Councilmember Hamrick asked how enforcement would be accomplished if staff believed that the establishment was not charging a sufficient fee. City Attorney Roy stated the City could investigate the books and records to acquire evidence to demonstrate that a particular establishment was open to the general public. Councilmember Hamrick asked if the City Attorney would feel comfortable defending this in court. City Attorney Roy replied in the affirmative. Councilmember W eitkunat made a motion,seconded by Councilmember Tharp,to adopt Ordinance No. 039, 2004 on Second Reading, as amended by the elimination of the word "automatically" in Section 12-67. Councilmember Roy offered a friendly amendment to require the annual inspection of the books as part of the requirement for license issuance. 108 March 16, 2004 Councilmember Weitkunat stated she would not accept that as a friendly amendment. She stated there were future options if there were problems with public businesses becoming private clubs to skirt the law. Councilmember Tharp suggested revisiting the issue in six months to see how the Ordinance was working. Mayor Martinez stated Council had given direction on First Reading that the Ordinance be reviewed in a year. City Attorney Roy stated licensed establishments would have to demonstrate every two years that they were in continuing compliance. He stated the City always had a right of inspection if it was believed that the information provided by the establishment was not accurate. Councilmember Roy stated this Ordinance had "holes"because it was unknown who could carry a membership card,how much someone would be charged to have a card,how many guests would be allowed,or how the smoke from the establishment might affect nearby businesses. He stated this Ordinance would create a more hazardous work environment and a more hazardous gathering spot. Councilmember Kastein stated this Ordinance would only apply to private clubs and that the definition of"private club"had been narrowed. He stated City staff would have latitude to enforce the Ordinance and that if the Ordinance did not work it could be reviewed and amended. Councilmember Hamrick stated he would not support the motion. He stated there were health and safety implications for private club employees. He stated the Ordinance would be a step backwards and that it would create loopholes. Councilmember Bertschy stated he preferred that the smoking ordinance not be amended until it had been in place for a year. He stated he would also prefer to include non-profits in the definition of private clubs. He stated he would not support the Ordinance. Councilmember Weitkunat stated private clubs were a legitimate part of American life. She stated they served a purpose and were not open to the public. She stated this Ordinance would in no way negate the application of the City's smoking ordinance to public areas. She stated the Ordinance could be reviewed if problems arose. Councilmember Roy stated this Ordinance would skew the concept of a "level playing field." He expressed a concern that downtown establishments could turn into private clubs that would allow smoking. Councilmember Kastein stated he would support the Ordinance. He pointed out that a license requirement was being added, that a fee would be required for members, and that there was a requirement for a ventilation system to separate private clubs from other businesses. 109 March 16, 2004 Mayor Martinez stated any as yet unknown problems with the Ordinance could be fixed later. He stated the Ordinance would only apply to private clubs, and that privacy was a freedom. The vote on the motion was as follows: Yeas: Councilmembers Kastein, Martinez, Tharp and Weitkunat. Nays: Councilmembers Bertschy, Hamrick and Roy. THE MOTION CARRIED Items Relating to the Adrian Annexation and Zoning,Adopted. The following is staff s memorandum on this item. "EXECUTIVE SUMMARY A. Resolution 2004-043 Setting Forth Findings of Fact and Determinations Regarding the Adrian Annexation. B. First Reading of Ordinance No. 051, 2004, Annexing Property Known as the Adrian Annexation. C. First Reading of Ordinance No. 052, 2004, Amending the Zoning Map and Classifying for Zoning Purposes the Property Included in the Adrian Annexation. This is a request to annex and zone 2.18 acres located at the southeast corner West Vine Drive and Impala Drive. The property is north of LaPorte Avenue, west of North Taft Hill Road, and east of North Overland Trail. It is currently being used as an existing single-family residence (with house and horse barn) and is in the FA — Farming Zoning District in Larimer County. The requested zoning in the City of Fort Collins is LMN—Low Density Mixed-Use Neighborhood. Stafis recommending that this property be included in the Residential Neighborhood Sign District. A map amendment will not be necessary toplace thisproperty on the Residential Neighborhood Sign District Map. I10 March 16, 2004 APPLICANT: M. Torgerson Architects clo Mikal Torgerson 223 North College Avenue Fort Collins, CO 80524 OWNER: John and Julie Adrian 2333 West Vine Drive Fort Collins, CO 80521 BACKGROUND The applicant, M. Torgerson Architects, on behalf of the property owners, John and Julie Adrian, has submitted a written petition requesting annexation of2.18 acres located at the southeast corner of West Vine Drive and Impala Drive. The property is north of LaPorte Avenue, west of North Taft Hill Road, and east of North Overland Trail. It is currently being used as an existing single-family residence (with house and horse barn). The requested zoning for this annexation is LMN— Low Density Mixed-Use Neighborhood. The surrounding properties are zoned LMN-Low Density Mixed Use Neighborhood in the City to the north, FA —Farming in Larimer County to the east, FA — Farming in Larimer County to the west, and FA —Farming in Larimer County to the south. This is a 100%voluntary annexation. The property is located within the Fort Collins Urban Growth Area. According to policies and agreements between the City of Fort Collins and Larimer County contained in the Intergovernmental Agreement for the Fort Collins Urban Growth Area, the City will agree to consider annexation ofproperty in the UGA when the property is eligible for annexation according to State law. This property gains the required 116 contiguity to existing city limits from a common boundary with the Irish Second Annexation (December, 2000) to the north. The surrounding zoning and land uses are as follows: N: LMN in the City; existing West Vine Drive FA in Larimer County; existing single-family residential E: FA in Larimer County; existing single-family residential S.• FA in Larimer County; existing single-family residential W.- FA in Larimer County; existing single-family residential The requested zoning for this annexation is the LMN— Low Density Mixed-Use Neighborhood Zoning District. There are numerous uses permitted in this District, subject to either administrative review or review by the Planning and Zoning Board. The City's adopted Structure Plan, a part of the Comprehensive Plan, suggests that a Low Density Mixed-Use Neighborhood is appropriate in this location. ill March 16, 2004 Staffis recommending that this property be included in the Residential Neighborhood Sign District, which was established for the purpose of regulating signs for non-residential uses in certain geographical areas of the City which may be particularly affected by such signs because of their predominantly residential use and character. A map amendment will not be necessary to place this property on the Residential Neighborhood Sign District Map. Findings: 1. The annexation of this area is consistent with the policies and agreements between Larimer County and the City of Fort Collins contained in the Intergovernmental Agreement for the Fort Collins Urban Growth Area. 2. The area meets the eligibility requirements included in State law to qualify for a voluntary annexation to the City ofFort Collins. 3. On February 3, 2004, the City Council approved a resolution that accepted the annexation petition and determined that the petition was in compliance with State law. The resolution also initiated the annexation process for the property by establishing the date, time and place when a public hearing would be held regarding the readings of the Ordinances annexing and zoning the area. 4. The requested LMN — Low Density Mixed-Use Neighborhood Zoning District is in conformance with the policies of the City's Comprehensive Plan. STAFF RECOMMENDATION: Staff recommends approval of the annexation and requested zoning of LMN-Low Density Mixed- Use Neighborhood. Staffis recommending that this property be included in the Residential Neighborhood Sign District. A map amendment will not be necessary to place this property on the Residential Neighborhood Sign District Map. PLANNING AND ZONING BOARD RECOMMENDATION: The Planning and Zoning Board, at its regular monthly meeting of February 19, 2004, voted 6-0 to recommend approval ofthe annexation. The Board voted 5-1 (Torgerson withdrawn)to recommend that the property be placed in the RL -Low Density Residential Zoning District. The Planning and Zoning Board voted 6-0(Torgerson withdrawn) to recommend that this property be included in the Residential Neighborhood Sign District. " 112 March 16, 2004 City Manager Fischbach introduced the agenda item. Steve Olt, City Planner, presented background information regarding the agenda item. He stated this was a voluntary annexation and zoning for a 2.2 acre property at the southeast comer of West Vine Drive and North Impala Drive. He presented visual information regarding the site and its contiguity to the Irish 2nd Annexation. He stated the requested zoning was L-M-N Low Density Mixed Use Neighborhood and that this was consistent with the City's adopted Structure Plan. He presented visual information regarding the surrounding properties and County subdivisions. He stated the Planning and Zoning recommended R-L Low Density Residential zoning to make it more consistent with the residential development in the area. He stated staff was recommending L-M-N zoning. Mayor Martinez stated each audience participant would have three minutes to speak. Ray Velasquez, 500 Irish Drive, spoke in opposition to the zoning. He stated the two-story buildings would cut off views of the foothills and that traffic would be a problem for the school. He stated his subdivision had covenants prohibiting two-story buildings and that the proposed density was objectionable. He stated more than 115 people had signed a petition and more than 90 letters had been submitted in objection to the zoning. David Dennis, 400 North Impala Drive, stated the L-M-N zoning was intended to allow multiple unit apartment buildings. He stated this would be the only development of this type between Laporte-Taft-Overland Trail-Vine which was primarily farmland or had been developed as single- family residences. He stated apartment buildings would add noise pollution, light pollution,traffic problems, and wear and tear on three privately maintained streets. He stated the addition of apartments to the area would devalue existing homes. He asked the Council to reject the L-M-N zoning. Dr. Stephen Schafer,601 North Impala Drive,stated he represented an entire subdivision. He asked that Council zone the Adrian Annexation U-E Urban Estates or R-L Low Density Residential. He stated properties north of the site would be zoned U-E. He stated a petition had already been signed by 115 people and that he had another 35 signatures on the petition. He stated Division 3.5.1 of the Land Use Code referred to architectural character, building size, height, roof lines. He stated U-E or R-L zoning for the property would ensure that the Land Use Code could be followed. He stated L-M-N zoning would go against the City Code by allowing something to be built that was not in character with the surrounding neighborhood. He stated the area lacked infrastructure and that stormwater runoff from the site would be a problem for existing properties. He stated retention ponds were not allowed according to Section 3.8.18(1)(D)(6) of the Land Use Code and that there was not enough slope on this property to effectively build a detention pond. He stated traffic safety was a serious issue and that a traffic study had not been done for this area. He stated streets in the Green Acres Subdivision were privately maintained and that traffic from this project would be an unfair burden. He requested U-E or R-L zoning. 113 March 16, 2004 Sandy Knox, 2309 West Vine Drive, stated her property adjoined the Adrian property. She spoke in opposition to L-M-N zoning and in favor of U-E zoning. She stated the L-M-N zoning was not compatible and in harmony with existing surrounding neighborhoods, that it would allow 8-12 dwelling units per acre which would mean multi-story units on small lots, that less than 5%of the homes within a 1,000 foot radius were two-story homes, that excessive building on the Adrian property would negatively affect the water table and aquifer that filled her well, that high density building would cause storm water issues on surrounding properties, that the size of lots to the south and west were all one-third acre, and that the City Structure Plan suggested that U-E zoning would be appropriate for all land for more than a mile to the north. She stated U-E zoning was the correct and only possible zoning for the Adrian property. Charles Harrison, 516 North Impala Drive, spoke in opposition to L-M-N zoning for the Adrian property. He stated high density development was not in character with the neighborhood and that it would place stress on available facilities in the neighborhood. Troy Jones, M. Torgerson Architects, representing the applicant, stated this was for zoning of an annexation and that many of the issues brought up by the neighborhood were development review issues that would be discussed after the City had jurisdiction over the property. He stated the issue to be decided was the appropriate zone district for the annexation. He stated the Green Acres Subdivision included eight duplexes on Irish Drive and that those duplexes would be nonconforming if they were annexed into the City with R-L zoning. He stated the duplexes would be allowed in the L-M-N zone. He stated L-M-N zoning was consistent with the Green Acres Subdivision. He stated since the creation of the L-M-N zone district in 1997 that there had been no developments reviewed and approved under the R-L zone district. Ron Winston, 528 North Impala Drive, asked those opposed to the zoning to stand up. John Adrian, 2332 West Vine Drive, property owner, stated his family had a vested interest in the community. He stated they looked at several factors in their decision to move forward with this project. He stated L-M-N zoning fit the surrounding neighborhood and that there were 15 duplexes within a two-block radius of the property. He stated it was untrue that the neighborhood contained only single-family homes. He stated some of the petition circulators were playing on the fears of others. He stated fears of flooding were unwarranted because the developer would be required to work with the City to abate flooding issues. He stated the petitioners were attempting to "whip up neighborhood hysteria." Julie Adrian,2332 West Vine Drive,stated her family did not believe that the contention was related to density, traffic or flooding but was actually an anti-development sentiment that was "gaining momentum with misinformation and contradiction." She stated the Council had an opportunity to provide desperately needed affordable housing. She stated the in-fill project fell in line with City Plan and requested that the Council move forward with L-M-N zoning. 114 March 16, 2004 Ann Rockisnick, 2318 Plains Court, spoke in opposition to L-M-N zoning because of storm water that would flow through her backyard and bring more mosquitos. Sharon Stockton,613 North Impala Drive,stated she opposed L-M-N zoning and asked that Council approve either R-L or U-E zoning. She stated the neighborhood was older and mostly developed and that diversification in dwellings would be inappropriate because there would be no future development. She asked that Council follow the Planning and Zoning Board recommendation. Fred Winkler, 624 Irish Drive, stated he opposed the denser zoning because he wanted to maintain the rural atmosphere in his neighborhood. Shelly Neth, 529 North Impala Drive, asked that Council not vote for the L-M-N zoning because the density was too high for the existing neighborhood. She stated the duplexes on Irish Drive looked just like ranch style homes and were in character with the neighborhood. She expressed a concern that the higher density would increase traffic and contribute to potholes. She stated there were concerns regarding where the runoff from this development would go. She stated two-story buildings would be out of character with the neighborhood. Mikal Torgerson, Mikal Torgerson Architects, 223 North College Avenue, representing the applicants,stated the applicant was sensitive to the points made by the neighborhood and would like to design the development to be sensitive to those concerns. He stated he had offered to meet with the neighborhood and that the neighborhood had not expressed an interest in meeting. He stated it was anticipated that a neighborhood meeting would be scheduled as this project proceeded through the PDP process. He stated the applicant was not proposing multi-family architecture and was proposing single-family detached architecture. He stated the L-M-N zone allowed 0-8 units per acre and that the proposal was for an affordable housing project. He stated L-M-N zoning was not inconsistent with the neighborhood because this site was surrounded by L-M-N. He stated R-L zoning had never been used for a redevelopable property in the past. He asked that the Council support staff's recommendation for L-M-N zoning. He stated the applicant was not seeking the maximum density allowed. He stated the proposed site was not part of an existing subdivision and was a metes and bounds subdivision. He stated the existing developable lands that had been annexed to the City had been given L-M-N zoning. He stated this was an affordable housing project and that a lower density would not support this as an affordable housing project. He noted that affordable housing was a defined goal for the City Council. Mayor Martinez asked if this was an enclave. City Manager Fischbach replied in the negative and stated it was a voluntary annexation. Olt stated this was 100% voluntary by the property owner. Mayor Martinez noted that he received calls asking the City to fix potholes on these privately maintained streets. City Manager Fischbach stated the roads were not in the City and were private roads. 115 March 16, 2004 Mayor Martinez asked if the City would have control over those roads after this property annexed. City Manager Fischbach replied in the negative. Mayor Martinez asked if this development would add more water flow to damage the road. City Manager Fischbach stated those were development review questions. Mayor Martinez asked if mitigation would be required if problems with runoff were identified. City Manager Fischbach replied in the affirmative. Mayor Martinez asked how many units per acre were in the existing neighborhood. Olt described the densities in the surrounding areas which he estimated would range from two to five units per acre. Mayor Martinez asked what density the L-M-N zone would allow. Olt stated L-M-N allowed five dwelling units per net acre and up to eight dwelling units per gross acre. He stated an affordable housing project could be as high as 12 dwelling units per acre. He stated the property was less than 20 acres in size and was in the City's defined in-fill area and therefore had no minimum density requirement. Mayor Martinez asked Mr. Torgerson if he agreed with Mr. Olt's statement. Mr. Torgerson stated there was no minimum density and that the applicant was not proposing the maximum density. Mayor Martinez asked what the Planning and Zoning Board recommendation was on this zoning. Olt stated staff s recommendation to the Board was for L-M-N zoning and that the majority of the Board voted to recommend R-L zoning. Mayor Martinez asked why staff recommended L-M-N zoning. Olt stated L-M-N zoning was supported by the principles and policies of City Plan and the Structure Plan. He stated L-M-N would allow a range of densities and housing types in a more creative manner. He stated staff determined that the L-M-N zoning requested by the applicant would be the most appropriate zoning. Mayor Martinez asked what the economic gain would be to the City for annexing this property. Cameron Gloss, Director of Current Planning, stated a financial analysis was not done for this voluntary annexation. Mayor Martinez asked why the property would be annexed. Gloss stated the City annexed properties within the Growth Management Area as they become eligible. Mayor Martinez asked if this property was in the Urban Growth Area. Gloss replied in the affirmative. 116 March 16, 2004 Councilmember Roy thanked those who contacted him about this annexation and noted that he had been unable to talk freely about the issues because it was to be considered by the Council. He asked if there was a "revolving door policy with City employees" and noted that former City employee Troy Jones was now representing a developer as a private citizen and asked if there were any City policies that would prevent such "improprieties" from occurring. City Manager Fischbach stated in his view this was not an "impropriety." Councilmember Roy stated he did not agree with the City Manager's statement. Councilmember Bertschy asked about the maximum number of units allowed in the R-L for this property. Olt stated the R-L zone did not provide for a minimum or maximum number of dwelling units per acre. He stated there was a requirement for a minimum 6,000 square foot lot. He stated the developable property was approximately 1.7 acres and that street right-of-way would be required to put lots on the property. He stated an estimated 8-10 single-family dwelling units would be permitted on the developable land under the R-L zoning. Councilmember Bertschy stated the Planning and Zoning Board minutes reflected that R-L zoning was for existing neighborhoods and that this was an existing neighborhood. He asked for information relating to the recommendation of the Board. Olt stated the majority of the Board(5-1) voted to recommend R-L zoning. He stated the Board discussed the appropriate zoning for the property given the surrounding existing single-family neighborhoods. He stated this property and several other larger properties were not part of the subdivision. He stated the Board felt that this property was part of the existing neighborhood and that R-L zoning would be appropriate. Councilmember Bertschy stated there was a density bonus for affordable housing in the L-M-N zone and asked if that was also the case for R-L. Olt stated there was no density bonus for affordable housing in the R-L zone. Councilmember Kastein stated compatibility of the development with its surroundings, traffic and stormwater issues would be dealt with in the development review. He asked if the decision before Council was whether the zone matched the Structure Plan. Olt replied in the affirmative. Councilmember Kastein stated the staff indicated in the summary that the Structure Plan map adopted in 1997 stated the property was designated as low density mixed use residential. He stated staff had indicated that L-M-N matched the Structure Plan and asked if R-L would also fit within low density mixed use. Olt stated it did and noted that there had been lengthy discussions by staff regarding this issue. He stated R-L and L-M-N would both fit within the low density mixed use residential designation on the Structure Plan. He presented visual information showing the zoning in the surrounding areas. He stated if Council determined that R-L zoning was preferable that an amendment to the Structure Plan would not be required. 117 March 16, 2004 Councilmember Kastein asked if the process in the case of both zoning designations fitting the Structure Plan would be for staff to review the annexation petition and to recommend the zoning requested by the applicant as long as it would work. He asked if staff considered other criteria in recommending L-M-N. Gloss stated the R-L zone was for existing subdivisions and that L-M-N was for emerging new neighborhoods. He stated this was where staff made the distinction between the two zoning districts. Councilmember Kastein asked why R-L was better for existing subdivisions. Gloss stated existing subdivisions were designated with R-L zoning in the Structure Plan and that surrounding undeveloped or lower intensity properties with substantial development potential were designated L-M-N. ("Secretary's Note: The Council took a brief recess at this point.) Councilmember Weitkunat asked about the density for R-L and L-M-N and the rationale for staff s recommendation for L-M-N. Olt stated the purpose statement for the L-M-N zoning district was set out in the Land Use Code and that staff focused on the issue that new development on this site would satisfy the statement that the main purpose of the L-M-N District was"to meet a wide range of needs of everyday living in neighborhoods and include a variety of housing choices that invite walking to gathering places, services and conveniences that are fully integrated into the larger community by a pattern of streets, blocks and linkages." Councilmember Weitkunat asked for confirmation that this was City approved policy for L-M-N. Olt replied in the affirmative. Councilmember Weitkunat stated L-M-N was intended to allow a variety of housing and choices. She stated there were schools in the immediate area. She asked about the purpose statement of the R-L zone. Olt stated the R-L District was"designated and intended for predominantly single-family residential areas located throughout the City which were existing at the time of adoption of this Land Use Code." Councilmember Weitkunat asked that the fact that this was land without housing meant that R-L would not be appropriate. Olt stated this was a small farm property that included one single-family residence and horses. He stated the staff s determination was that it would be more appropriately zoned L-M-N for a variety of housing. He stated the density would depend on the nature of the development proposal and could at the lower end of the density range be consistent with the existing residential neighborhood. He stated this would be new development on large unsubdivided and unplatted properties. Councilmember Weitkunat asked if the Structure Plan included a preponderance of L-M-N zoning in this area. Olt replied in the affirmative and stated a significant number of R-L properties in the area were placed within the L-M-N designation. 118 March 16, 2004 Councilmember Weitkunat asked if the R-L or the L-M-N zones would preclude any two-story or higher housing or structures. Gloss stated the R-L and the U-E zones both had a maximum height of 28 feet, which would be a two-story house, and that the L-M-N zone would allow up to 2'h stories. Councilmember Weitkunat asked for clarification that R-L zoning would not preclude two-story buildings. Olt replied in the affirmative. Councilmember Hamrick asked if the Council had ever modified the Structure Plan. Olt stated there had been amendments to the Structure Plan. He stated he could not recall the Council deviating from the Structure Plan during the course of zoning an annexation. Gloss stated there had been no variations from the Structure Plan designation with regard to zoning applied to property during the last three years. He stated no Structure Plan amendment was being requested in connection with this agenda item. He stated regardless of the zoning designation as R-L or L-M-N the Structure Plan would not need to be amended. Councilmember Hamrick asked if there was any guarantee of affordable housing with this at the current time. Gloss stated would be part of the development review application. Councilmember Hamrick asked when the affordable housing bonus would apply. Gloss stated a determination of eligibility would be made at the time of development application. Councilmember Hamrick asked about other differences between L-M-N and R-L. Gloss stated there were differences in height and setback requirements. Councilmember Hamrick asked about deficiencies in the area in storm drainage and infrastructure. He asked who would pay to bring the area up to City standards after annexation. Gloss stated there was an Adequate Public Facilities Ordinance that would apply to public facilities including storm drainage and transportation improvements. He stated an analysis would be done to determine the levels of impacts that would be caused by the development, whether the current facilities were inadequate,and whether some type of mitigation would be required. He stated street oversizing fees were collected for major arterial streets and that stormwater fees would be collected as development occurred. He stated ongoing stormwater fees were collected from property owners after annexation. Councilmember Hamrick asked who would pay for mitigation if a development caused stormwater problems for the surrounding area. Basil Hamdan, Stormwater Utility, stated a development application had not been received because this was at the annexation stage. He stated it was known that there were stormwater problems in the area. He stated the City's standards and criteria would be applied when a development application was received. He stated those standards and criteria provided that there would be no adverse impact allowed on neighboring properties. He stated any necessary regional improvements would be paid for by fees collected from the taxpayers in general. 119 March 16, 2004 Councilmember Hamrick asked if Mr. Jones worked on this issue when he was a City employee. Gloss replied in the negative and stated for the record that Mr.Jones was a member of the American Institute of Certified Planners, which had a code of ethics that provided that when a planner left public service to work in the private sector that the planner could not work on a project with which the planner had been associated for at least one year. He stated Mr. Jones did not work on the annexation proposal in any way and did not work on any proposals for any immediately abutting properties. He stated from the staff perspective there was no ethics conflict based upon the adopted AICP code of ethics. Councilmember Tharpstated there was no proposal at this point for an kind of housing. Olt stated P P P Y g staff could not accept a development proposal while the property was in the annexation and zoning process. Councilmember Tharp stated there appeared to be no problems with the annexation itself because it met the City's criteria for voluntary annexation. She asked if there could be as many as 12 units per acre if the project met the affordable housing criteria. Olt replied in the affirmative. Councilmember Tharp asked if that meant that there could be 24 units on the two-acre site. Olt stated the annexation was 2.2 acres and that would include the required right-of-way for North Impala Drive. He stated there would be about 1.7 acres of developable land that could yield 20 dwelling units as affordable housing. Councilmember Tharp asked if there would be 8-10 units under R-L zoning. Olt stated there would be 6,000 square foot lots including right-of-way and that a well planned project could contain 8-10 single-family lots. Councilmember Tharp asked if the 8-10 lots would be more compatible with the existing neighborhood. Olt stated single-family lots of that nature would be consistent with portions of the existing subdivisions to the west and east of this site. Councilmember Tharp asked if the 20 units would be significantly denser. Olt replied in the affirmative. Councilmember Bertschy made a motion, seconded by Councilmember Tharp,to adopt Resolution 2004-043. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED Councilmember Tharp made a motion, seconded by Councilmember Hamrick, to adopt Ordinance No. 051, 2004 on First Reading. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. 120 March 16, 2004 THE MOTION CARRIED Councilmember Roy made a motion,seconded by Councilmember Hamrick,to adopt Ordinance No. 052, 2004 on First Reading with R-L zoning. Councilmember Kastein stated the staff recommendation was for L-M-N zoning. Councilmember Hamrick asked if the motion should include any other language to zone the property R-L. City Attorney Roy stated the motion was sufficient. Mayor Martinez asked how the change to R-L zoning would change the applicant's project. Mr. Torgerson stated the R-L zone would make the project a slightly lower density than the surrounding neighbors. He stated this would place the affordability aspect of the project in jeopardy. He stated if the property was zoned L-M-N that it would be a 100% affordable project. Mayor Martinez asked for staffs response to Mr. Torgerson's statement. Greg Byme, CPES Director, stated the zoning of property was in effect the acceptance of a range of uses that would be permitted in the zoning district. He stated if properties changed hands or projects failed that there might be another development proposal that would be consistent with the zoning district. He urged the Council to consider the entire range of uses when a property was zoned. Councilmember Tharp noted that the Council was not being asked to approve a development plan that would involve affordable housing at this point. She stated the zoning would simply determine the maximum number of units that would be allowed and that the issue at this point was whether to zone L-M-N or R-L. City Manager Fischbach stated L-M-N zoning would provide a potential for an affordable housing project and that there would not be any potential for such a project under R-L zoning. Councilmember Kastein noted that he had the same comments as Councilmember Tharp. Councilmember Weitkunat stated the zoning would limit the possibilities for development. Councilmember Roy stated he was in no way impugning Mr. Jones' professionalism or good name with his previous comments. He stated the City needed to avoid the appearance of conflict of interest. He commented that the project developer was sitting with staff at this meeting and that"set the stage for incongruity." He stated his question to Mr. Jones was intended to ask if this organization was avoiding the issue of conflict of interest. Councilmember Weitkunat stated she would not support the motion because she believed that R-L zoning was inappropriate and not in line with City Plan. She stated L-M-N was not high density and was a means by which neighborhoods could evolve and bring a variety of housing and affordable housing opportunities to the City. She stated the number of units allowed on a property directly 121 March 16, 2004 correlated with affordability and that a lower density(R-L)would negate the possibility of having affordable housing. She stated there were often "fears" in County areas as annexations occurred. She stated it would make sense to have housing near the existing schools. She stated the Vine Drive neighborhoods would evolve and change as annexation and in-fill projects occurred. She stated the Structure Plan indicated that this property would be L-M-N and that L-M-N zoning would be more appropriate. Councilmember Tharp stated the City also had a commitment to keeping areas compatible with surrounding neighborhoods as annexation took place. She stated for that reason she would be supporting R-L zoning. Councilmember Hamrick stated he would support the motion and that he believed that R-L zoning was appropriate because of the character of the areas to the east, south and west of the property. He stated the Planning and Zoning Board recommended R-L zoning by a 5-1 vote. He stated neighborhoods should have a"latent vote" in this type of issue. Councilmember Kastein stated he would not support the motion. He stated there were two sides to the issue and that the property owner rights as well. He stated the intent of zoning was to ensure that compatible zoning districts occurred next to each other. He stated either the R-L or L-M-N zone would work in this case. He stated L-M-N zoning would allow the possibility of affordable housing. He stated the development review process was one of the"toughest'in Northern Colorado and that process would make sure that any development would be compatible with the neighborhood and that it would not negatively impact traffic, stormwater drainage, etc. He stated there were checks and balances in place. zoning h h w persuaded the Councilmember Bertschy stated he would support R L on ng and that e as pers by recommendation of the Planning and Zoning Board. Mayor Martinez asked for confirmation that R-L zoning would preclude affordable housing. Olt stated there were incentives in the L-M-N zone for affordable housing and that the issue was whether a development proposal that would qualify as an affordable housing project under the AM] requirements could be built in an economically feasible manner. City Manager Fischbach stated there was no affordable housing incentive under R-L zoning as there would be under L-M-N zoning. Mayor Martinez asked for more information regarding the incentive. Gloss stated there was a density bonus in the L-M-N zone that would allow up to 12 units per acre if the project was affordable housing. The vote on the motion was as follows:Yeas Councilmembers Bertschy,Hamrick,Roy and Tharp. Nays: Councilmembers Kastein, Martinez and Weitkunat. THE MOTION CARRIED 122 March 16, 2004 Resolution 2004-044 Appointing the Members of a Human Relations Commission Task Force,Adopted. The following is staffs memorandum on this item. "EXECUTIVE SUMMARY On March 2, 2004 the City Council adopted Resolution 2004-037 which provided direction to the Human Relation Commission (HRC) as a result of a January Study Session. At the January 27 Study Session, the HRC suggested that City Council consider a draft Human Rights Protection ordinance. Per Resolution 2004-037, the City Council asked the Human Relations Commission to establish a citizen task force(Task Force)to review certain issues raised in the draft Human Rights Protection ordinance and provide to the Council any recommendations related to such issues. The Task Force is to include cross functional community stake holders, including representatives from Police Services, the Northern Colorado Multicultural Corporation, the City of Fort Collins Human Rights Office, Colorado State University, and other community organizations. The Human Relations Commission meets on March 11 and, as a result of that meeting, will submit names to be approved by the City Council as members of the HRC Task Force. An updated AIS containing the names proposed by the HRC will be emailed to Council on Friday, March 12 and available in hard copy Tuesday evening). City Council has the option ofadding any individuals to the list ofnominees suggested by the HRC. " City Manager Fischbach introduced the agenda item. Diane Jones, Deputy City Manager,presented background information regarding the agenda item. She stated the task force would review the issues raised in the draft human rights protection ordinance that was suggested by the Human Relations Commission. She stated the HRC had prepared a list of names of 14 individuals recommended for appointment to the task force. She stated the City Council had the option of adding any individuals to that list of nominees. Councilmember Tharp made a motion, seconded by Councilmember Hamrick,to adopt Resolution 2004-044 with insertion of the names recommended by the Human Relations Commission. Thevote on the motion was as follows: Yeas: Councilmembers Bertschy,Hamrick,Kastein,Martinez,Roy, Tharp and Weitkunat. Nays: None. 123 March 16, 2004 THE MOTION CARRIED Ordinance No. 045, 2004 Amending Chapter 26, Article III, Division 4 of the City Code Relating to User Rates and Charges for Water. Adopted on Second Reading. The following is staff s memorandum on this item. "EXECUTIVE SUMMARY The previous water rate for single family and duplex customers was the 5-tiered rate implemented in January 2003 during the drought. The rate sent a very strong price signal to customers to conserve water since the more a customer used, the higher the cost per gallon. Since it was implemented customers have had many concerns about the high price per gallon in the upper tiers. In response to these concerns Council reviewed alternative rate structures at its December 9, 2003 study session. Rate options considered included modifications to the tiered rate and the water budget rate. Council continued to address water rate options at the February 3, 2004 Council meeting and after lengthy discussion adopted Resolution 2004-018. After the February 3, 2004, Council meeting, the City Manager was directed to prepare a modified tiered water rate ordinance for single family and duplex customers for the March Z, 2004 Council meeting. This Ordinance, which was adopted 4-3 (Councilmembers Kastein, Martinez and Weitkunat opposed)on First Reading on March 2, 2004, amends Chapter 26,Article III, Division 4 of the City Code. " City Manager Fischbach introduced the agenda item. Doug Hutchinson, 1315 Whedbee, spoke in opposition to the tiered rate structure. He stated the City's water supply was currently enough for the entire year and that there would be additional water from the Poudre River even if this was a dry year. He stated the City did not have the ability to store all of the available water and that the excess water would flow down the Poudre River. He stated the citizens had done a remarkable job of conserving water over the last 10 years and had voluntarily reduced their per capita water consumption by 17% for 1990-2001. He stated in 2002 citizens cut back water consumption even further prior to the implementation of tiered water rates. He stated the water conservation ethic was due to education efforts, personal efforts and better personal awareness of water consumption due to the installation of water meters. He stated this water 124 March 16, 2004 conservation was achieved without Council"practicing social engineering through punitive pricing." He asked that Council set aside tiered water rates this year and noted that they could quickly be implemented if needed in future years. Bill Hanson, Red Feather Lakes, spoke in favor of a water budgeting rate plan. He stated such a plan would be simpler than the tiered rate structure. Councilmember Kastein asked if excess water that could not be used or stored would be running down the Poudre River. Mike Smith, Utilities General Manager, stated the City would have excess water and that the flow down the Poudre River would depend on the run-off. He stated at this time the run-off appeared to be below normal. He stated some excess water would be stored for next year. Mayor Martinez asked for confirmation that there was enough water for 2004 and 2005. Smith replied in the affirmative. Councilmember Hamrick asked if enough money needed to be charged for water to recover operating costs. Smith replied in the affirmative. Councilmember Hamrick made a motion, seconded by Councilmember Tharp,to adopt Ordinance No. 045, 2004 on Second Reading. Councilmember Kastein asked Councilmember Hamrick for a further explanation of the point of his last question. Councilmember Hamrick stated there was a presentation about the excess water and that the point was that the water rates needed to be high enough to recoup operational costs. Councilmember Kastein stated operational costs could be recouped through any rate structure. Councilmember Hamrick agreed with that statement. Mayor Martinez asked for confirmation that operational costs could be recouped under the old water rate structure. Smith replied in the affirmative and stated operational costs could be recouped under any rate structure. Councilmember Roy stated it was difficult to know how much water would be needed in the future in a semi-arid region. He noted that severe droughts could impact the community significantly. He stated there would be less expense to build storage projects if more water could be saved through conservation. 125 March 16, 2004 Councilmember Tharp stated there were good arguments for the flat rate and also for the tiered rate. She stated the issue would undoubtedly be revisited in the future. Councilmember Weitkunat stated she believed that the flat rate would be preferable and that she would not support the motion. She stated the citizens of Fort Collins had worked to conserve water and that she did not support imposing a tiered rate to get them to conserve more. She stated education worked and that the community would conserve when necessary. Councilmember Kastein stated he would not support the motion. He stated it made sense to conserve but that it did not make sense for the City to be at the "bare requirement" for water. He stated storage projects should not be planned around minimum consumption of water and that there should be a margin for drought years. He stated supply should be"slightly ahead of demand." Councilmember Hamrick stated he would support the motion. He stated he appreciated the discussions that had taken place regarding how to deal with water waste. He stated the intent was to reduce the per capita usage of water so that there would be less need to invest in storage structures to meet peak needs. He stated much of the City's utility infrastructure was scaled to peak demand. He stated lowering the per capita demand would lower the peak demand and that this would benefit the citizens in the long term. Mayor Martinez stated the citizens had demonstrated that they knew how to conserve water even before tiered pricing. He stated it would be more fair to do away with tiered pricing when the City was not in a drought. The vote on the motion was as follows:Yeas: Councilmembers Bertschy,Hamrick,Roy and Tharp. Nays: Councilmembers Kastein, Martinez and Weitkunat. THE MOTION CARRIED Ordinance No. 050, 2004 Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary for the Construction of Public Improvements in Connection with the Stormwater Utility Drainage Outfall for the North Tributary System and the Street Oversizine Zieeler Road Realignment Project,Adopted on First Reading. The following is staff s memorandum on this item. "FINANCIAL IMPACT The acquisition costs will be covered by the Ridgen Farm Development, even if condemnation is required. A letter of credit in the amount of$60,000 will be posted by the developer to guarantee 126 March 16, 2004 funding. If condemnation is required, these funds will be appropriated into the Street Oversizing Fund. EXECUTIVE SUMMARY A stormwater drainage easement is required for the North Tributary outfall across property east of CR 9 owned by Ed McDowell. The North Tributary Stormwater pipe drains areas of existing Parkwood,Parkwood East, and Meadows East neighborhoods.Installation ofthis storm waterpipe across Timberline Road was done in 1999, and currentlyfloodsproperty owned by the Rigden Farm Development before spilling into the Fossil Creek Reservoir Inlet Ditch(FCRID), overtopping CR 13 and draining into the Poudre River. The developer for Rigden Farm Sixth Filing is planning development of this flood affected property and has proposed a siphon structure to carry 100 year storm flows under the FCRID ditch and CR 9 and into an open channel to the Poudre River. As is standard practice, the Stormwater Utility has been working with the developer to design and construct these regional drainage improvements. The Street Oversizing Program has also been working with the developer to obtain the right of way necessary to construct Ziegler Road from Drake to Horsetooth on a new alignment west of the FCRID. This new alignment will meet minor arterial standards and eliminate the current substandard roadway with narrow one lane bridges. The developers of Rigden Farm Sixth Filing and the Sidehill development require the drainage easement before the developments are able to proceed. The Rigden Farm developer has been negotiating with the McDowells for over two years without success. Staff has tried to,facilitate the negotiations of the property owners for the last four months, however no measurable progress has been made. The negotiations are amicable and staff continues to work with all parties and is hopeful that the acquisition will occur by agreement. In accordance with Resolution 2001-40, the Rigden Farm developers have requested the City exercise its eminent domain powers for the acquisition of the necessary drainage easement and Ziegler Road right-of-way. Staffanalysis ofthe guidelinesfor requesting this action are asfollows: There is a sufcientpublicpurpose tojustify the acquisition by eminent domain. The drainage easement is necessary for a regional stormwater facility outfall. The roadway right-of-way is necessaryfor the construction ofa City arterial road. Both easements will be dedicated to the City. 127 March 16, 2004 It is clear that the eminent domain proceedings are not being commenced primarily to advance a private interest or private use. These will be City facilities serving existing neighborhoods as well as future development. The developer has, to the maximum extent possible, redesigned the project to alleviate or minimize the need for the proposed easement or right-of-way. The developer has worked in conjunction with the City on the design of these facilities and has agreed to allow the realignment of Zeigler Road to occur entirely on their property. All reasonable offers have been made to obtain the easements and/or rights-of-way by private agreement and those efforts have been unsuccessful. Rigden Farms has been negotiating with the current owner for over two years and has not been successful. The improvements for which the easements or right-of-way are needed will be utilized by more than one person,partnership or other entity and are necessary to connect the proposed development with existing infrastructure, such as transportation, water, sewer, or other utilities. The proposed drainage improvements are needed by Ridgen Farm Sixth Filing and Sidehill developments as well as existing neighborhoods. The transportation improvements will alleviate a substandard roadway where two fatalities have occurred, make an important arterial roadway connection, and remove two single lane bridges. The developer has entered into an agreement with the City, satisfactory inform and substance to the City Manager and the City Attorney, that sets forth the parties' respective rights and obligations related to the eminent domain proceedings, including, without limitation, a provision obligating the developer to pay all costs oftheproperty acquisition, including all City costs related to saidproceedings. The Rigden Farm developer will post a letter of credit in the amount of$60,000.00 to guarantee the payment ofall costs should the City begin condemnation proceedings. The discretion to determine whether the criteria have been met rests solely with City Council. Staff believes acquisition ofthese easements and rights ofway benefit the City at large and would require acquisition in the near future even without the development projects. This authorization will allow the City to begin condemnation proceedings if the continuing negotiations are not successful. All property owners and their attorneys understand that the City is taking this action and that staff will continue the current good faith negotiations to acquire the property without condemnation proceedings. " 128 March 16, 2004 City Manager Fischbach stated staff was available to answer any questions. Councilmember Hamrick asked if a map of the area was available. Basil Hamdan, Stormwater Utility, presented visual information as an orientation to the site, the proposed improvements and the North Tributary Basin. Councilmember Hamrick asked if this agenda item related to two possible condemnation actions relating to the road and the tributary system. Hamdan stated the two condemnations related to the drainage outfall and roadway slope easements and right-of-way. Councilmember Hamrick asked how Ziegler Road would cross the ditch to the south. Matt Baker, Street Oversizing Coordinator, stated the roadway would not cross the ditch and would stay on the west side of the ditch. Councilmember Hamrick asked if the condemnations were dependent on each other. Hamdan stated staff tried to work collaboratively among the City departments whenever possible and that an effort was made to consolidate efforts by bringing the two condemnations to the Council at the same time. Councilmember Hamrick noted that the City had been in negotiations with the property owner for four months and asked what the"sticking point'was in the negotiations. Baker stated negotiations were continuing and that many points had been resolved. He stated to stay on schedule with the roadway project it was necessary to proceed with authorizing eminent domain proceedings in the event they became necessary. Councilmember Hamrick asked about the strategy and purpose of condemnation at this point before all negotiations bad been exhausted. Baker stated the eminent domain process was lengthy (6-9 months) and that continued delay would mean that the roadway project would miss the next construction season. He stated there were traffic and stormwater issues that needed to be resolved quickly. He stated it was time to conclude the negotiations and proceed with the project. Councilmember Hamrick asked LaFarge would be moving out of that area at some point. Baker stated the LaFarge lease expired in April of 2005. Councilmember Hamrick asked if LaFarge planned to renew the lease. Baker stated he was not aware of any plans for LaFarge to renew the lease. He stated some reclamation work would be required. He stated the McDowells were contemplating some development of the property in the next few years. Councilmember Roy asked about language in the agenda material and Ordinance relating to public and private interests in the condemnation. He stated he believed that there were conflicting paragraphs. Roy stated Council had been hesitant to exercise the power of eminent domain at the request of a particular developer because of fears that would be construed as an abuse of the power. 129 March 16, 2004 He stated a condemnation must be necessary in the public interest and serve a public purpose. He stated if the catalyst for the condemnation was a particular development that the developer should be prepared to pay the cost of the condemnation proceeding. He stated was a provision of the agreement. He stated in order to satisfy the public purpose requirement that the Council would need to look at the project to determine whether it would be of larger benefit to the community and not just of benefit to the developer. He stated the developer was anxious to move ahead and must consequently be willing to pay the cost of doing that. He stated a condemnation could not be done solely for private benefit and that the primary benefit must be to the public at large. Councilmember Bertschy made a motion, seconded by Councilmember Weitkunat, to adopt Ordinance No. 050, 2004 on First Reading. Councilmember Hamrick stated he pulled this item from the Consent Calendar because he had an issue with pursuing condemnation when negotiations were still taking place. He stated condemnation could be perceived as a way to force the property owner's hand in the negotiations. City Attorney Roy stated negotiations of two weeks had been considered to be sufficient in terms of satisfying the statutory requirements. He stated when there were months or years of negotiations that he did not believe that it was"heavy handed"to decide because of time constraints of a project that it was time to move into the condemnation process. He stated Council authorization of the condemnation process did not put an end to the negotiation and that it could accelerate the process so that parties would come together on the negotiations. He stated it was often necessary to start these processes because of project deadlines,windows of opportunity and costs hinging upon being ready to go when time or circumstances permitted. He stated it could cost the City a lot of money to wait too long. Councilmember Tharp stated she had a concern regarding how much of this was serving the public good and how much would benefit development. She expressed a concern with using eminent domain to the benefit of a developer. Hamdan stated the North Tributary Basin was a major outfall for the City's drainage system. He stated established neighborhoods and future developments would be served by the basin. He stated the City had already built stormwater infrastructure along Drake Road and that negotiations had taken place over two years for the required stormwater easement that would serve a large area of the City. He stated in his opinion that the easement would provide a public benefit. Councilmember Roy expressed a concern that "competing financial interests"were at work in this matter. He stated this condemnation appeared to be government "giving a gentle push" to help private entities arrive at an understanding. He stated this was an"imperfect method"to help decide a private property rights issue. He stated he believed that the "market" should govern in this issue rather than having the City put its "weight" behind resolving the issue. He stated he would not support the Ordinance. 130 March 16, 2004 Councilmember Bertschy stated he would support the motion. He spoke regarding past eminent domain actions that allowed the City to proceed with projects that were of benefit to the City. He stated with this project a current"bottleneck"would be resolved and that this would provide public benefit. He stated the drainage easement was necessary to help resolve stormwater issues and that this would also provide public benefit. He stated the City was doing everything possible to negotiate and that eminent domain was sometimes necessary. He stated he felt that condemnation was totally appropriate in this situation. Councilmember Weitkunat stated she did not have any concerns with proceeding with eminent domain. She stated the Rigden Farm developers requested that the City exercise eminent domain and that all parties were involved in the discussions. She stated eminent domain may not have to proceed. She stated this project would be needed even if this specific development did not proceed. She stated she felt that this was indicative of the public necessity of proceeding with eminent domain. Mayor Martinez stated there were no concerns expressed with a non-routine condemnation on the Paragon Trail. He stated it was routine for the City to exercise eminent domain for this type of project and that he would support the motion. The vote on the motion was as follows:Yeas: Councilmembers Bertschy,Kastein,Martinez,Tharp and Weitkunat. Nays: Councilmembers Hamrick and Roy. THE MOTION CARRIED Resolution 2004-041 Establishing Rental Rates and Delivery Charges for the City's Raw Water for the 2004 Season, Adopted. The following is staff s memorandum on this item. "FINANCIAL IMPACT The revenue from the City's delivery of raw water is expected to be approximately $200,000 for 2004. EXECUTIVE SUMMARY This Resolution approves rates for the rental and use of the City's raw water supplies. The Water Utility uses these rates to assess charges for agricultural use,for various contractual raw water obligations andfor raw water deliveries to other City departments. Each yearprior to the irrigation 131 March 16, 2004 season, the City's Water Board("the Board') makes a recommendation to the Council regarding the raw water charges. The Board discussed the proposed rental rates and charges at its February 26, 2004 meeting. The proposed rate for each type of water is based on several factors including market conditions and assessments charged by irrigation companies. BACKGROUND The City is a shareholder in several local irrigation companies. Part of the water available from these companies is typically used to meet raw water obligations of the City. To the extent there is surplus raw water, it can be rented to others for their use. Due to the lingering effects of the drought and the uncertainty regarding this year's runoff, the first priority will be to maximize the amount of water to be carried over into 2005. The Water Utility uses its annual rates set by City Council for the purpose of charging for the rental of water to agricultural users,for delivery to meet various contractual raw water obligations and to assess charges to other City departments that use raw water. The water rates are separated into two categories. The first category includes only those sources for which an active rental market exists. The second category includes sources with a limited rental market or which are used primarily to irrigate Cityfacilities (parks, golf courses, etc.). With the exception ofwaterfrom the Colorado Big Thompson Project(CBT), Joe Wright Reservoir and Reusable Effluent, water cannot be rented from one irrigation company system into another. Therefore,for most systems the rental market is limited to individuals under that ditch system and the price is largely dependent upon the supply and demand within each irrigation system. This results in considerable variation in prices per acre-foot among the various supply sources. Active Rental Market The sources with active rental markets include the Colorado Big Thompson Project (CRT), North Poudre Irrigation Company (NPIC), Water Supply and Storage Company (WSSC) and the City's reusable sources (primarily Joe Wright Reservoir or reusable effluent). For these sources the proposed rental rates are based on expected rental market conditions. Last winter and early spring (2003) the drought appeared to be intensifying and CBT water was actively movingfrom the agricultural sector to the municipal sector at prices of$400.00 per acre foot. Due to the March blizzard and subsequent wet weather, the CBT quota was raised from a record low of 30% to 50%for the 2003 water year. Much of this water was unused in 2003 and remains in the CBT system for use in 2004. With a minimum 2004 quota of 50%, there will likely be some CBT water available for rental to the agricultural sector this summer. Staff recommends that agricultural rentals of CBT water be made at the rate of$30.00 per acrefoot and rentals to the 132 March 16, 2004 municipal or industrial sector beset at$45 per acre foot to reflect the higher assessments charged to municipal and industrial shareholders. Each share of North Poudre Irrigation Company is typically split into an "early agricultural" component, a "seasonal agricultural" component and a "multiple use" component. The "agricultural"components can only be used for agricultural purposes on land served by the NPIC system and therefore will be made availablefor rent to those under the NPIC system. It is proposed that the "early agricultural" rate be set at $15 per acre foot to reflect its limited use, and the "seasonal agricultural"rate beset at$27peracrefoot. The "multiple use"portion ofeach NPIC share will be available for the City's use but not all of it will likely be needed. Staff proposes that the rental rate be set at $32 per acre foot. The City typically makes its Water Supply and Storage Company shares available to irrigators under the WSSC system. This has historically been a very active rental market and the rental price of WSSC water is expected to be about$3,000 per share this year. With the recent drought and the State's increased scrutiny of well depletions, the City has seen an increased demand for its reusable sources to satisfy state requirements for substitute supply plans and augmentation plans. The City also has a few ongoing obligations for reusable water,primarily for City facilities. The City's primary reusable sources are Joe Wright Reservoir water and reusable efJluentfrom the City's Water Reclamation Facilities. It is proposed that the rental price for these limited sources be $400 per acre-foot in 2004. Limited Rental Market The second category of rentals this year is for those with a limited rental market. This category includes the Pleasant Valley and Lake Canal Company (PV&L) shares and the other "Southside Ditches" shares. There are few agricultural renters that remain in the areas irrigated by these irrigation companies. These shares are used primarily on City facilities, such as parks and golf courses, or by other entities that have turned over raw water or otherwise met the City's raw water requirements for their properties. The objective of the Utility for this latter group of users is to recover the costs associated with delivering this water. It is proposed that the charges for these users be set at a rate that is 20%above the assessments charged to the City by the various irrigation companies. For example, the assessment rate for PV&L water has been set at $150 per share. Based on this method, the charges would be set at$150 x 1.2 = $180 per share. For renters that have not satisfied the City's raw water requirements, staff is proposing that the rental rates be set to reflect a price of about $20 per acre-foot. Because the Pleasant Valley Pipeline will be available starting in 2004, the use of the City's Southside ditches will be of more value to the City than in the past. Based on an estimated dry year yield, the price per share was determined for each type of water. For example, it is estimated that PV&L shares will produce 25 acre-feet; therefore, the rental price would be $20 x 25 = $500 per share. 133 March 16, 2004 For several companies, the difference between the above two methods of calculating the raw water rates is significantly different. For example, the Arthur Irrigation Company has a very low assessment resulting in a low price for those having satisfied the City's raw water requirements. When based on the yield, the price is much higher but is in line with the prices for the other southside ditches. At its February 26, 2004 meeting, the Board unanimously recommended that the following rates,for raw water be adopted: Type of Water Proposed 2004 Rental Rates/Charges (1) RWR Not Satis iedRWR Satis ied Active Rental Market NCWCD Water (CBT) -Agricultural $ 3 0.00/ac ft n/a NCWCD Water (CRT)—Muni. &Ind. $ 45.00/ac ft n/a North Poudre Irrigation Co. —Early Ag Use $ 15.00 lac-ft n/a North Poudre Irrigation Co. —Seasonal Ag Use $ 2 7.00 lac-ft n/a North Poudre Irrigation Co. —Multiple Use $ 32.00 lac-ft n/a Water Supply and Storage Co. $3,000.00/share n/a Reusable Sources $ 400.00/ac ft n/a Limited Rental Market Arthur Irrigation Co. $ 60.00/share $ 9.60/share Larimer County Canal No. 2 $ 450.00/share $ 360.00/share New Mercer Ditch Co. $ 450.00/share $ 360.00/share Pleasant Valley &Lake Canal Co. $ 500.00/share $ 180.00/share Warren Lake Reservoir Co. $ 300.00/share $ 180.00/share Sherwood Res. Co. $ 10.00/share $ 8.40/share Sherwood Irrigation Co. $ 480.00/share $ 480.00/share Notes: (1) Rates maybe adjusted to reflect the remaining yield or the prevalent market price of the water stock being rented. City of Fort Collins Water Assessments Source 2001 2002 2003 2004 Active Rental Market CBT(NCWCD, $/unit) 18.52 19.44 20.30 20.70 North Poudre Irrigation Co. ($/sh) 60.00 65.00 85.00 20.00 134 March 16, 2004 Water Supply & Storage Co. ($/sh) 950.00 950.00 950.00 950.00 Reusable Sources ($/ac ft) n/a n/a n/a n/a Limited Rental Market Arthur Irrigation Co. ($/sh) 10.00 11.50 26.00 8.00 Larimer County Canal#2 ($/sh) 400.00 300.00 200.00 300.00 New Mercer($/sh) 200.00 200.00 200.00 300.00 Pleasant Valley &Lake Canal($/sh) 150.00 120.00 150.00 150.00 Warren Lake ($/sh) 0.00 100.00 300.00 150.00 Sherwood Reservoir ($/sh) 4.00 4.00 7.00 7.00 Sherwood Irrigation ($/sh) 400.00 400.00 400.00 400.00 Water Rental Rates Source 2001 2002 2003 2004 Active Rental Market CBTAgricultural($/ac ft) 21.00 25.00 400.00 30.00 CBTMunicipal/Industrial ($/ac ft) 35.00 38.00 400.00 45.00 NPIC Early Agricultural ($/ac ft) 12.00 15.00 n/a 15.00 NPIC Seasonal Agricultural($/ac ft) 22.00 25.00 n/a 27.00 NPIC Multiple Use ($/ac ft) 27.00 30.00 n/a 32.00 Water Supply &Storage Co. ($/sh) 2,600.00 2,800.00 2,900.00 3,000.00 Reusable Sources ($/ac ft) 75.00 100.00 750.00 400.00 Limited Rental Market(RWR Not Satisfied) Arthur Irrigation Co. ($/sh) 17.00 20.00 35.00 60.00 Larimer County Canal#2 ($/sh) 450.00 300.00 300.00 450.00 New Mercer($/sh) 250.00 250.00 250.00 450.00 Pleasant Valley &Lake Canal($/sh) 200.00 200.00 250.00 500.00 Warren Lake ($/sh) 140.00 150.00 350.00 300.00 Sherwood Reservoir ($/sh) 6.00 6.00 10.00 10.00 Sherwood Irrigation ($/sh) 450.00 450.00 450.00 480.00 Limited Rental Market(RWR Satisfied) Arthur Irrigation Co. ($/sh) n/a n/a n/a 9.60 Larimer County Canal#2 ($/sh) n/a n/a n/a 360.00 New Mercer ($/sh) n/a n/a n/a 360.00 Pleasant Valley &Lake Canal($/sh) n/a n/a n/a 180.00 Warren Lake ($/sh) n/a n/a n/a 180.00 Sherwood Reservoir ($/sh) n/a n/a n/a 8.40 Sherwood Irrigation ($/sh) n/a n/a n/a 480.00 135 March 16, 2004 Notes: (1) Rates may be adjusted to reflect the remaining yield or the prevalent market price of the water stock being rented. (2) Rental charges are based on approximately$201ac ft for those who have not satisfied the City's raw water requirements. Chargesfor those who have satisfied the City's raw water requirements are set at 120%of the assessments charged by that company. " City Manager Fischbach introduced the agenda item. Councilmember Tharp stated the variation in water rates from year to year was confusing. She asked for a brief staff presentation regarding the extreme variations. Dennis Bode,Water Resources Manager, stated the City generally had some raw water available to rent to other users. He stated each source of raw water was different with regard to the yield per share, the number of shareholders in the company, and the number of potential renters. He stated the City established a category for the active rental market that would have a rate that would be consistent with the market price. He stated the market price varied depending on raw water shortages and the continuing drought. He stated the rental price was based on the history of rental prices and staff's determination of the market price. He stated there was also a category for the limited rental market that would have a rate that would recover the costs to the City of delivering the water. He stated a primary cost to the City was the assessment charged by the irrigation company. He stated 20% was added to cover administrative costs. He stated there was variability in rates because the irrigation companies had variable assessments due to special projects. Councilmember Tharp noted that there were large variations from last year to this year. She asked if there was a way to avoid high rental costs in dry years and "giving it away"the next year. Bode stated the primary market with a high rate($400/acre foot)last year was CBT water. He stated was primarily because water was flowing from agricultural users to municipal users. He stated the high rate occurred when the CBT quota was expected to be 30%. He stated most municipalities were able to carry over water from last year and were not expected to be in the market for to rent agricultural water. He stated the flow this year would be from municipalities to agricultural users and that the market rate would be about $30/acre foot. Councilmember Tharp asked how the City could avoid being placed in a situation of having to rent water at a high rate such as $400/acre foot. City Manager Fischbach stated additional water storage was part of the answer. He stated if the City had additional storage that it would not have needed to rent the 3,000 acre-feet of water last year. Bode stated the City could have a water shortage in dry years if there was not enough storage capacity to carry water over from wet years. Councilmember Hamrick asked if there was a formula used to arrive at the rental rates. Bode stated staff looked at the historic per share yield of the irrigation companies and also looked at the rental market in making determinations. He stated prices fluctuated rapidly as conditions changed. 136 March 16, 2004 Councilmember Hamrick asked for an explanation of the "market." Bode stated the market was the average rate for farmer to farmer or City to farmer. He stated there was an informal network for those who worked within the water rental market. Councilmember Tharp made a motion,seconded by Councilmember Roy,to adopt Resolution 2004-041. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED Other Business Resolution 2004-045 Endorsing the City's Participation in a Two-Year Tenant-Based Pilot Rental Assistance Program,Adopted. The following is staff s memorandum on this item. "EXECUTIVE SUMMARY The Colorado Division ofHousing (DOH) has approached the City and the Fort Collins Housing Authority regarding a tenant based, rental assistance, two-year pilot program. DOH has a new director and it is focusing on responding quickly to local market conditions. DOH has identified three communities with unique needs due to the economy. Colorado Springs, the Denver Metro area, and Fort Collins/Loveland are currently facing double digit rental market vacancy rates, financially challenged low-income affordable housing projects, demand exceeding capacity in homeless shelters, and large waiting lists for deep subsidy programs like Section 8 vouchers. The State Housing Board has responded by committing$2.8 million ofDOH money to those three communities - $465,000 for Fort Collins/Loveland for a two-year, stop-gap, rental assistance program that would target between 35 and 70 families earning 0-30% of Area Median Income, workingfamilies in shelters, homeless individuals and families, those on Section 8 waiting lists, and other local preferences to be defined. The funding will provide rental assistance, security deposit assistance, case management for self-sufficiency and project administration. The goal is to begin this program right now. The economy has created a greater burden on extremely low-income families. HUD economists do not foresee the market changing until mid- 2006. As this program will only be for two years,participants will be required to sign contracts specifying that the assistance will not continue past that point. The will also be required to artici ate in goal P P Y 4 P P 137 March 16, 2004 setting and intensive case management in order to help them become more self-sufficient. As a family becomes more self-sufficient and its income increases, the amount ofsubsidy will decrease, thus freeing up subsidy for another family. That is why we cannot determine the exact number of families that can be served at this time. DOH is asking for a local contribution of$305,000. Using roughly a 70130 split between Fort Collins and Loveland, that equates to a$214,072 contribution from Fort Collins. With a firm local commitment, DOH will commit to 100%for the first six months funding. Subsequent six-month periods would be 75%, 50%, and 50%. Target Population and Cost of the Program Target extremely low income (working families, homeless and Section 8 wait list) with case management— 35 TBRA Cost is divided into 4 six-month increments DOH City Pays 100% offirst six months $169,333 $ 16,476 Pays 75%next six months $127,000 $ 46,110 Pays 50%next six months $ 84,666 $ 75,743 Pay 50%next six months $ 84,666 $ 75,743 TOTAL $465,665 $214,072 DOH would like the program to start immediately since this is a stopgap,pilot program in response to current needs. DOH is willing to look at case management and discounted rents as a portion of the local contribution. They have stated that they will look at "reasonable proposals" regarding the split between cash and in-kind contribution. The Fort Collins Housing Authority and Housing Authority of the City ofLoveland are working on in-kind possibilities. The cash match, over the two-yearpilot is estimated to be between an estimated$150,000 and$214,072 The Fort Collins Housing Authority is unable to provide cash match because the limited reserves it has are restricted to the federal programs they support. City staff are exploring options for the cash match—the Affordable Housing Trust fund balance; General Fund reserves; or some combination. 138 March 16, 2004 With Council approval of Resolution 2004-045, the staff will continue to work with the DOH to determine the specific split between cash and in-kind local contribution. Once that is determined, a recommendation for the source of cash will be presented to City Council. City Manager Fischbach stated the Colorado Division of Housing had approached the City and the Fort Collins Housing Authority regarding a two-year pilot program for tenant-based rental assistance. He stated the State had committed $2.8 million to meet the needs of people in need of housing in Colorado. He stated $465,000 had been earmarked for the Fort Collins/Loveland area. He stated this would be a two-year stopgap rental assistance program that would target between 35 and 70 low income families earning zero to 30% AMI. He stated the program would also include case management intended to have the families off of the deep subsidies within the two years of the program. He stated the State was asking the Cities of Fort Collins and Loveland for$305,000 and that the City's subsidy would be$214,072. He stated with a firm local commitment the State would release the first six months of funds. He stated the Resolution would make that commitment. He stated the City was negotiating with the State regarding the actual in-kind match and that the assumption was that the in-kind match would be roughly$65,000 over the two years of the program. He stated approximately $150,000 in cash would come from the City. He stated the Housing Authority was not in a position to match the grant due to federal requirements for the expenditure of their funds. He stated the Council had the ability to make the match from City reserves if the Council chose to take this action. He stated an appropriation ordinance would be brought back to the Council when the exact local match was determined. Mayor Martinez asked where the money would come from for the match. City Manager Fischbach stated the money could come from different places, including the Affordable Housing Trust Fund. He stated fund had a balance of about $1.7 million. He stated some people favored using City reserves and that a number of options could be presented for Council consideration. He stated the $150,000 would be spread over two years. Councilmember Tharp stated she was glad to see the City moving ahead on this because it would help some"desperate families." She stated there was money in the Affordable Housing Trust Fund but that the City's contribution to affordable housing had decreased in recent years. She stated she would like to see the City commit some of its reserves for this program. She asked for clarification regarding what the Affordable Housing Trust Fund was to be used for and stated she would like to see some of this one-time money come from City reserves. City Manager Fischbach stated the Affordable Housing Trust Fund was set aside for production and land bank. He stated the land bank was at zero due to budget cuts and that "production" meant subsidies for building of affordable housing. Councilmember Tharp stated she would prefer not to cut into the dollars for affordable housing production. She stated she preferred to see this emergency help taken from City reserves. City Manager Fischbach stated staff would take that argument into account when preparing the appropriation ordinance. 139 March 16, 2004 Councilmember Tharp made a motion,seconded by Councilmember Roy,to adopt Resolution 2004- 045. Councilmember Roy asked if Loveland was going to make a commitment to participate in this program. City Manager Fischbach stated Loveland would probably use Housing Authority funds. Councilmember Roy stated he felt that this was the"rainy day"for use of some of the reserve funds to help families facing homelessness with a "hand up." Councilmember Bertschy suggested looking at the use of CDBG reprogrammed funds. Councilmember Kastein stated he would support the motion. He stated he would prefer not to use any reserve funds except those already allocated for affordable housing. He stated the $150,000 would leverage $465,000 and that would be an appropriate use for affordable housing funds. He commented that there were other problems to dealt with in the future, including benefits costs. Councilmember Hamrick stated he would support the Resolution and that he would like to see several options regarding where the funds would come from. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED Other Business Councilmember Roy asked if there was a Comcast public access channel or plans for a studio. City Manager Fischbach stated Comcast was renovating the existing mobile van that was in use as a studio. He stated he would check on the progress of the renovation. Councilmember Roy asked for confirmation that the City paid $26 of the $36 for employees to use the parking garage. City Manager Fischbach replied in the affirmative. Councilmember Roy asked if there was any cash benefit for employees who biked or walked to work. City Manager Fischbach stated there was a cash benefit for using the parking garage. Councilmember Roy stated the City should continue to look at filling the garage from the fourth floor down instead of the second floor up in order to make it more conducive to citizens wanting to use the downtown. City Manager Fischbach stated he had made a note of that because he questioned whether the garage on Remington referenced in Citizen Participation had that many City and County employees parking there. 140 March 16, 2004 Councilmember Roy requested information regarding what other cities do with regard to a separation of time for City employees who go into private practice. Councilmember Hamrick commented on an article about"unusually speedy approval"for a recent development project. City Manger Fischbach stated the primary reason for quick approval was the change in 90-day engineering rules. He stated the City had cut the development review time in half through self-imposed deadlines. Councilmember Hamrick asked if the quality of the submittal made any difference in the turn around time for reviews. City Manager Fischbach stated he would check on that. Councilmember Hamrick stated he would send an e-mail with questions regarding the Zucker report recommendations on the Natural Resources Advisory Board and Air Quality Board. Councilmember Weitkunat stated she was disturbed by the"political speech'that was given under Citizen Participation and asked if the City had any kind of policy on such speeches in election season. City Attorney Roy replied in the negative. Councilmember Weitkunat asked if the Council had discretion regarding whether Citizen Participation should be relevant to City issues. City Attorney Roy stated he would take a look at the issue. Councilmember Kastein asked about the powers of the Landmark Preservation Commission relating to the Rule issue. He stated he was interested in what it would take to make a change to prevent people from being locked into a specific use on their property. City Attorney Roy stated the Landmark Preservation Commission ultimately did not have the ability to halt a demolition or a relocation. He stated there were Land Use Code provisions relating to development on sites that had historic structures. He stated staff was looking at the relationship between the Land Use Code process and the Code process. He stated staff would be making a recommendation on how the codes could be improved. Mayor Martinez stated the Rules understood that they could not appeal unless they had a fully approved plan. City Attorney Roy stated this was not clear in the Code. He stated staff would be having further discussions with the Rules. He stated the Landmark Preservation Commission was one of the boards under Chapter 2 of the Code whose final decisions could be appealed to the City Council. He stated the issue was whether the determination made after the preliminary hearing was a"final decision"that was appealable. He stated staff needed to communicate to the Rules that the determination made after the preliminary hearing was appealable. Councilmember Bertschy asked for clarification that the Landmark Preservation Commission could not stop a demolition. City Attorney Roy stated this could happen through the LPC process after the property owner went through the second hearing. He stated the Council could choose to stop 141 March 16, 2004 the proposal by an involuntary designation of the property as a historic landmark. He stated the Land Use Code had a separate provision that any development with a historic structure on-site or eligible for designation must accommodate that structure in the development. He stated he was of the opinion that a proposal to relocate could go through the first stage of the LPC process, could be appealed to the Council and the Council could uphold or overturn the LPC determination and allow the relocation to occur. He stated it that case the relocation would not be considered a form of "development" that would be subject to the LUC requirements. Councilmember Kastein asked for further information relating to the letter submitted by the Rules. City Attorney Roy stated the LUC process could be utilized through the preliminary hearing and that the matter could be appealed to the Council. Councilmember Kastein asked if staff would be responding to the letter from the Rules. City Attorney Roy replied in the affirmative. Executive Session Authorized Councilmember Bertschy made a motion, seconded by Councilmember Roy, to adjourn into Executive Session pursuant to Sections 2-31(a)(2) and(3) of the City Code to discuss the possible acquisition of real property and to consult with the attorneys for the City with regard to related legal issues. The vote on the motion was as follows:Yeas: Councilmembers Bertschy,Hamrick,Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED ("'Secretary's Note:The Council adjourned into Executive Session at approximately 10:15 p.m.and reconvened following the Executive Session at 11:00 p.m.) Adjournment The meeting adjourned at 11:00 p.m. Mayor ATTEST: City Clerk 142