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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/19/2005 - CONSIDERATION AND APPROVAL OF THE REGULAR COUNCIL ITEM NUMBER: 15 AGENDA ITEM SUMMARY DATE: April 19, 2005 FORT COLLINS CITY COUNCIL STAFF: Wanda Krajicek SUBJECT Consideration and approval of the regular Council meeting minutes of February 15, March 1, and March 15, 2005, and the adjourned Council meeting minutes of March 8, 2005. February 15, 2005 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, February 15, 2005, 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: Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Councilmembers Absent: Bertschy. Staff Members Present: Atteberry, Krajicek, Roy. Citizen Participation Mayor Martinez stated each participant would have three minutes to speak. Jan Gulley,Gulley Greenhouse,spoke in opposition to the proposed southwest enclave annexation. She stated annexation would cost Gulley Greenhouse the following: stormwater costs $18,722 per year;electrical cost increases of 20%for 10 years amounting to$6,700 per year; City tax on gas and electric of 3.25% amounting to $6,000.13; property tax increases of at least $3,249 per year. She stated these costs would total over$34,694 per year, that employee wages might need to be frozen and that Gulley's full funding of medical insurance employee benefits could be affected. Audrey Waker stated Mayor Martinez had mentioned a police substation in the area of West Elizabeth and Constitution Avenue and that she lived at the corner of Constitution and Springfield. She stated she planned to sell her home and was offering it at the fair market value. Sandy Robbins spoke regarding the unique nature of the "miscellaneous (undeveloped) area" in which she lived that was part of the proposed southwest enclave annexation. She stated City regulations and governmental control would be burdensome for such areas. Mims Harris expressed concerns about the closing of the human rights office that would result from the repeal of the grocery tax. She urged voters to vote no on the ballot measure. Al Baccili, 520 Galaxy Court, spoke in support of the repeal of the sales tax on food and opposed the continuation of the vendor fee. Ray Czaplewski, 2012 Huntington Circle, spoke in opposition to the repeal of the grocery tax. He stated if the tax was repealed there would be impacts on code compliance and other quality of life services. Courtney Stevens, Director of Community Affairs for ASCSU, spoke in opposition to the "three- 496 February 15, 2005 unrelated" ordinance. She stated the ordinance was "unethical and discriminatory," outdated and discriminatory and should be removed from the books. Dr.Reginald Herrin,415 South Howes,spoke against repeal of the sales tax on groceries. He stated those with limited incomes were eligible for the sales tax rebate program. He stated Mark Brophy had sent a letter to the Finance Committee saying that it was illegal for the City to issue Certificates of Participation in the amount of$50 million for the police and other buildings and open space. He stated this was not illegal and did not violate TABOR because it was not a tax increase. He stated a police building would be needed as the City grew. He stated repealing the sales tax on food would impact services such as libraries, senior center, recreation, etc. He stated City employees had not had a pay increase in three years and that cutting wages and benefits further would not be fair. Jan Hampshire,County resident,spoke in opposition to the proposed southwest enclave annexation due to the costs. Leo Buccellato,2238 Iroquois Drive,Fort Collins,commented on the length of the last meeting and the adjournment of the meeting before the agenda was completed. He stated he waited for five hours to make a statement to the Council and that the item on which he had intended to speak was not heard. He asked the Council to complete its agendas. Rob Stansbury, 1301 Robertson Street, opposed the repeal of the grocery tax and stated quality of life services would be impacted by the repeal. John Cockson, 5108 Plateau Court, spoke against the proposed southwest enclave annexation and addressed the costs to the residents and to the City. He stated there would be REA "pass-on" charges to the area because it would be a forced annexation. Diggs Brown, District 3 Council candidate, spoke regarding his experiences in Afghanistan and stated he looked forward to working with everyone after the election. Citizen Participation Follow-up Mayor Martinez requested that staff follow-up on Mr.Cockson's statements about the REA pass-on charges. He stated it was sometimes impossible for the Council to complete the agenda and that meeting management was always a concern to the Council. He stated, in response to Mr. Baccili's comments,that the base tax rate was higher in those cities that did not have a food sales tax and that the Council had discussed the vendor fee many times. Councilmember Tharp stated in response to Mr.Baccili's comments that the City Council could not use money designated by the voters for open space for anything else. Councilmember Hamrick thanked those who spoke during Citizen Participation. Councilmember Roy stated the Campus West police substation was in the conceptual phase. 497 February 15, 2005 Agenda Review City Manager Atteberry stated there were minor wording changes and clarifications to item #14 Second Reading of Ordinance No. 015, 2005, Making Various Amendments to the Land Use Code. Councilmember Tharp withdrew item #21 First Reading of Ordinance No. 025, 2005 Amending Section 2-31 of the City Code Pertaining to Executive Sessions, Postponed to March 1, 2005 from the Consent Calendar. CONSENT CALENDAR 7. Consideration and approval of the regular Council meeting minutes of January 18 2005 8. Second Reading of Ordinance No. 009, 2005 Appropriating Prior Year Reserves in the Natural Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the 2005 Adomed City Budget. In 2004 the Natural Areas Fund was created to comply with accounting standards. Ordinance No. 55, 2004 reallocated funds from the Capital Projects Fund (a non-lapsing fund) into the Natural Areas Fund (a lapsing fund). The purpose of the previously appropriated funds remains the same;land conservation,construction of parking lots,fences and trails, restoration wildlife habitat and other natural areas program needs to benefit the citizens of Fort Collins. Ordinance No. 009, 2005, was unanimously adopted on First Reading on February 1, 2005. 9. Second Reading of Ordinance No. 010,2005, Appropriating Unanticipated Grant Revenue in the General Fund for the Natural Resources Radon Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Natural Resources Operating Budget to the Grant Project. This Ordinance, which was unanimously adopted on First Reading on February 1, 2005, appropriates$15,000 in Colorado Department of Public Health and Environment grant funds in the General Fund for the Radon Program. It also authorizes the transfer of$15,000 from the Natural Resources operating budget to the Grant Fund. The funds will be used to continue the radon education and testing program. 10. Second Reading of Ordinance No. 011, 2005, Appropriating Prior Year Reserves. City Council authorized expenditures in 2004 for various purposes. The authorized expenditures were not spent or could not be encumbered in 2004 because: • There was not sufficient time to complete bidding in 2004 and therefore, there was no known vendor or binding contract as required to expend or encumber the monies. 498 February 15, 2005 • The project for which the dollars were originally appropriated by Council could not be completed during 2004 and reappropriation of those dollars is necessary for completion of the project in 2005. • To carry on programs, services, and facility improvements in 2005 with unspent dollars previously appropriated in 2004. Because of the above circumstances,the unexpended and/or unencumbered monies lapsed into individual fund balances at the end of 2004. Monies reappropriated for each City fund by this Ordinance, which was unanimously adopted on First Reading on February 1, 2005, are as follows: General Fund $ 1,948,506 Cultural Services and Facilities Fund $ 587,329 Recreation Fund $ 115,258 Enterprise Funds Light and Power Fund $ 852,348 Storm Drainage Fund $ 202,050 Wastewater Fund $ 170,178 Water Fund $ 448,338 11. Second Reading of Ordinance No. 012, 2005, Appropriating Unanticipated Revenue in the Building Community Choices Capital Projects Fund-Mason Transvortation Corridor Trail Design- Spring Creek Trail North Project for Design of the Mason Transportation Corridor Trail North from the Spring Creek Trail and Connecting With the Colorado State University Campus. This Ordinance, which was unanimously adopted on First Reading on February 1, 2005, appropriates new grant funds from the Colorado Department of Transportation (CDOT), authorized by the adoption of Resolution 2005-005,into the Mason Transportation Corridor (MTC)Trail project's budget. This new grant from CDOT will fund the design of the MTC Trail north from the Spring Creek Trail to connect with the Colorado State University campus. In the future,the City will continue to pursue additional grant funding to cover the construction costs for this segment of the MTC Trail. This extension of the MTC Trail northward from the Spring Creek Trail is consistent with the adopted Master Plan for the Mason Transportation Corridor Project. 12. Second Reading of Ordinance No. 013, 2005, Appropriating Unanticipated Revenue in the CCa ital Projects Fund-Minor Streets Project to be used with Existing Apmonriations for the Design and Construction of the Lemay Avenue Southbound Right Turn Lane at Mulberry Street. This Ordinance, which was unanimously adopted on First Reading on February 1, 2005, appropriates grant funds received from Congestion Mitigation and Air Quality("CMAQ") 499 February 15, 2005 to install a right turn lane for southbound Lemay Avenue at Mulberry Street. 13. Second Reading of Ordinance No. 014, 2005,Appropriating Unanticipated Revenue in the Transit Fund to Support Alternative Modes of Transportation in the Transportation Demand Management Program. These funds were received from the North Front Range Transportation & Air Quality Council's Congestion Mitigation and Air Quality("CMAQ") grant program. This program is administered by the Colorado Department of Transportation. This funding will permit additional financial support of alternative modes in the SmartTripsTM program. Ordinance No. 014, 2005, was unanimously adopted on First Reading on February 1, 2005. 14. Second Reading of Ordinance No.015,2005,Making Various Amendments to the Land Use Code. On December 7,2004 during consideration of First Reading of the Fall 2004 Land Use Code revisions,and again on December 21 during Second Reading,Council voted to conditionally allow drive-in restaurants in the N-C zone,subject to the establishment of design standards. Since that time, staff has worked closely with a potential applicant, a local franchisee of a national chain restaurant, to craft a set of design standards. The design standards are intended to balance the permitting of the use with the desire to ensure neighborhood compatibility. The Planning and Zoning Board voted 6-0 at its January 20,2005 meeting to recommend approval of the design standards for drive-in restaurants in the N-C zone. City Council also approved specific Code amendments on December 21, 2004 that further restrict the minimum lot frontage requirements for buildings constructed side-by-side within the Neighborhood Conservation Medium Density(NCM)and Neighborhood Conservation Buffer(NCB) zone districts. Upon further review of these approved Code changes, it was determined that text changes suggested by staff at the hearing did not accurately capture the direction given by the Council. Therefore,staff is proposing revised language that will more accurately extend the limitation on "skinny houses" to all uses. Ordinance No. 015, 2005 was unanimously adopted on First Reading on February 1, 2005. 15. Second Reading of Ordinance No. 016, 2005, Desi ng ating the First Public School / First Catholic Church Building, 115 Riverside Avenue,Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. The owners of the property, Michael Braskich and Bianca Katz, are initiating this request for Fort Collins Landmark designation of the First Public School / First Catholic Church Building. This property is undisputably one of the most significant properties in Fort Collins,for its association with important events and individuals that have made a significant contribution to local history. Additionally,due to its association with the original settlement of Fort Collins, the property has a very high probability of yielding information, including artifacts, important to the history of Fort Collins. The building was specifically constructed 500 February 15, 2005 as the first public schoolhouse in Fort Collins,and predates the official establishment of the Fort Collins townsite. It is thus one of the oldest buildings in the city. Despite modifications to the building associated with its use as a private dwelling, the building retains sufficient integrity to convey its significance. The building was entered on the National Register of Historic Places in 1980, as a contributing element of the Laurel School Historic District. Due to its unique role in Fort Collins'history,the First Public School/First Catholic Church Building warrants the community's highest recognition, and should be designated individually as a Fort Collins Landmark. Ordinance No. 016, 2005, was unanimously adopted on First Reading on February 1, 2005. 16. Second Reading of Ordinance No. 017, 2005, Designating the Dukes/Dunlap Garage, 501 Stover Street Fort Collins,Colorado,as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. The Dukes/Dunlap property contains both a house and garage. At its December 8, 2004 meeting, the Landmark Preservation Commission found the house to be eligible for Landmark designation, and forwarded this recommendation to Council. On January 18, 2005, Council adopted Ordinance No. 003, 2005 on Second Reading, designating the Dukes/Dunlap House as a Fort Collins Landmark. The property owner, Mona Frayer, is requesting that the garage also be designated as a Landmark. At the Landmark Preservation Commission's January 12 meeting, Ms. Frayer provided detailed information on the history and architecture of the Dukes/Dunlap Garage. The Commission found that the garage is eligible for Landmark designation, and passed Resolution 3-2005,recommending this designation to Council. Qualifying under Standard 3, the Dukes/Dunlap Garage embodies the distinctive characteristics of a type, period, and method of construction, and contributes to the historical and architectural significance of both the Dukes/Dunlap property and of the Fort Collins community. Further,the Dukes/Dunlap Garage exhibits excellent integrity,retaining all seven qualities of location, design, setting, materials, workmanship, feeling, and association. Ordinance No. 017, 2005, was unanimously adopted on First Reading on February 1, 2005. 17. Second Reading of Ordinance No. 018,2005, Designating the Snook/Hale House and Two Garages, 220 South Sherwood Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. The owners of the property, Leroy and Marie Twarogowski, are initiating this request for Fort Collins Landmark designation of the Snook/Hale House and Two Garages. The Snook/Hale House is an excellent example of Craftsman architecture,with very good integrity. The two garages date to the period of significance and are eligible for designation under Standard 3. Both demonstrate good integrity, and contribute to the historical and architectural significance of the property. Ordinance No. 018, 2005, was unanimously adopted on First Reading on February 1, 2005. 18. Second Reading of Ordinance No. 022, 2005, Amending Section 25-49 of the City Code, 501 February 15, 2005 Increasing the Annual Income Limits for the Determination of Eligibility for the Sales Tax Rebate on Food to Fifty Percent of the Median Income. The City has included grocery food as part of the sales tax base since the inception of the tax in 1969. Tax on grocery food has been an integral part of the tax base,accounting for about $5,645,189 of$44.3 million of tax collected for the general government uses. This is 12.7% of the total tax collected. The City has operated a rebate program for sales tax paid on grocery food since the early 1980s. The program provides that households which meet the income level guidelines (now set at 30%of the area median income and updated annually) may apply for taxes paid in the prior year. Approximately 640 households qualify for the program. For each member of the eligible household, the City rebates $40. Ordinance No. 022,2005,which was unanimously adopted as amended on First Reading on February 1,2005, increases the annual income limits for the determination of eligibility for the sales tax rebate to fifty percent(50%)of the median income. This would vastly increase the number of households eligible for the program. The Ordinance also provides for rounding to the nearest $50 for household income eligibility and increases the maximum members in a household from four to eight. 19. First Reading of Ordinance No. 023, 2005, Appropriating Unanticipated Grant Revenue in the General Fund for the Latimer County Drug Task Force. The Larimer County Drug Task Force("Task Force")includes Fort Collins Police Services, Loveland Police Department, Latimer County Sheriff's Department, Drug Enforcement Administration, and the Colorado State University Police Department. Fort Collins Police Services applied to the Office of National Drug Control Policy on behalf of the Task Force for federal grant monies to help fund the investigation of illegal narcotics activities in Latimer County. The City has recently received notification of the grant award in the amount of$45,000. These funds will be used to help offset the overtime costs of each participating agency. This appropriation is not a request to identify new dollars for the Fort Collins Police Services 2005 budget. This action appropriates the $45,000 in new federal grant money. As the administrator of this grant, Fort Collins Police Services will assure participating agencies receive their share of the funds. 20. First Reading of Ordinance No. 024,2005,Amending Various Sections of the City Code to Define the Term "Growth Management Area" and to Replace the Existing References to "Fort Collins Urban Growth Area" with Said Term. This Ordinance adds to Chapter 1 of the City Code a definition of the term "Growth Management Area". The City Charter contains a definition of the term"Fort Collins Urban Growth Area" and the new "Growth Management Area" definition references and includes that Charter definition. The term "Growth Management Area" is the more commonly 502 February 15, 2005 accepted and currently used term and this change will update the Code accordingly. Also, there are two references in the City Code to the term"Fort Collins Urban Growth Area"and these references are revised to instead reference the newly added term,"Growth Management Area". 21. First Reading of Ordinance No. 025, 2005 Amending Section 2-31 of the City Code Pertaining to Executive Sessions, Postponed to March 1, 2005. This Ordinance would amend the provisions of the City Code pertaining to executive sessions to clarify that Council can provide direction to City staff or other persons during the course of an executive session with regard to the matters that are permissible for discussion in executive session. 22. Resolution 2005-010 Adopting the Recommendations of the Parks and Recreation Board Reearding Building Community Choices Disbursements. In 1997, voters approved a Building Community Choices Capital Improvement Program, dedicated towards funding Natural Areas and Parks Projects. The program is funded by a one-quarter cent sales and use tax, due to expire on December 31, 2005. The Building Community Choices program for Natural Areas and Parks projects included $576,692 in funding for improvements to community parks. The fund has a current balance of$429,257, all of which has been appropriated in prior years. In 2002,the City Council adopted Ordinance No.044,2002,appropriating proceeds totaling $50,000 from a Great Outdoors Colorado grant to be used with Building Community Choices — Community Park Improvements appropriations, totaling $260,000, to construct the following improvements: (1)Rolland Moore Park-tennis courts and parking improvements; (2) City Park- for a new basketball court; (3) Lee Martinez Park- sidewalk improvements. Improvements to the tennis courts at Rolland Moore Park and the sidewalk improvements at Lee Martinez Park have been completed. The new City Park basketball court and parking improvements at Rolland Moore Park will be developed in 2005. The four community parks (City, Edora, Lee Martinez, Rolland Moore) are without adequate sidewalks. Presently, people use grass areas and park streets for access to the park from surrounding neighborhoods. Sidewalks between many internal facilities at the parks are also lacking. Building sidewalks will improve safety and access to and through these parks. ADA accessibility is very limited and would be greatly improved by the new sidewalks as well. The total cost of sidewalk improvements is estimated to be $244,000. Funds will also be used to make improvements to the ball field lights at Rolland Moore Park and the west ball field at Edora Park. New visors will be added to the lights to reduce spillage and glare at the fields. The total cost of the light improvements is estimated to be $25,000. 503 February 15, 2005 23. Resolution 2005-011 Adopting the Recommendation of the Cultural Resources Board Reearding Fort Fund Disbursements. The guidelines for the Cultural Development and Programming and Tourism Programming accounts (Fort Fund) provide a three-tiered funding system. Organizations may apply for grants from these accounts to fund community events. Tier#1 was established as an annual programming fund for organizations whose primary purpose is to present three or more public events annually. These groups may apply for funding from Tier#1 each April. Tier #2 allows organizations that are not eligible for Tier #1 support to apply for funding of events that are not fund-raising in nature and do not generate more than $5,000 in proceeds after expenses. Tier#3 allows organizations that are not eligible for Tier#1 support to apply for funding of events that generate more than $5,000 in proceeds after expenses and are fund-raising in nature. Applications for support from Tier#2 and Tier#3 are accepted each January and June. Disbursements from funds in the City's Cultural Development and Programming and Tourism Programming accounts as shown on Exhibit "A" to the Resolution were recommended by the Cultural Resources Board at its regular meeting on January 27, 2005 for Tier#2 and Tier#3 applicants. 24. Resolution 2005-012 Approving Expenditures from the Art in Public Places Reserve Account in the Wastewater Utility Fund to Commission an Artist to Create Sculptural Elements for the Wetland Mitiaation Ponds behind the East Drake Water Treatment Facility. This Resolution would approve expenditures of$70,000 for design,fabrication,installation and contingency for a project to install sculptural works by Lynne Hull at the wetland mitigation ponds behind the East Drake Water Treatment Facility. 25. Resolution 2005-013 Finding Substantial Compliance and Initiating Annexation Proceedines for the Crawford Annexation. The Crawford Annexation is 30.04 acres in size. The site is located approximately one-half mile west of North College Avenue on the south side of Willox Lane. Contiguity with the existing municipal boundary is gained along the eastern boundary which is shared with the west property line of the Hickory Village Mobile Home Park. Contiguity is also gained along a portion of the southern boundary which is shared with the north property line of the City of Fort Collins Soft Gold Park. The recommended zoning is U-E, Urban Estate. This zoning complies with the Structure Plan Map. The proposed Resolution states that it is the City's intent to annex this property and directs that the published notice required by State law be given of the Council's hearing to consider the needed annexation ordinance. The hearing will be held at the time of First Reading of the annexation and zoning ordinances on April 19, 2005. Not less than 30 days prior, published notice is required by State law. 504 February 15, 2005 26. Resolution 2005-014 Authorizing the Initiation of Exclusion Proceedings in District Court Regarding the Exclusion of Previously Annexed Properties Within the Territory of the Poudre Valley Fire Protection District. This Resolution authorizes the City Attorney to file a petition in the Larimer County District Court to properly exclude previously annexed properties from the Poudre Valley Fire Protection District in accordance with state law and to allow for the provision of fire protection services to such properties by the Poudre Fire Authority. 27. Resolution 2004-015 Authorizing a Revocable Permit on Property Owned by the Cit} for Installation of an 8" Sanitary Sewer Line. Timberline Star Properties, LLC has requested a revocable permit for the installation of a City sanitary sewer line 8 inches in diameter on City Light and Power property. City staff has reviewed the plans and specifications for this improvement and has concluded that the improvement will not result in adverse impact to the City owned property. Timberline Star Properties, LLC will be responsible for acquiring all required easements from any affected adjacent property owner(s). Said sanitary sewer line shall, upon the completion of installation and acceptance by the City,be dedicated to the City for public use. At such time that Timberline Road is widened, the 8" sanitary sewer line will be within the Timberline Road right-of-way. 28. Resolution 2005-016 Making an Appointment to the Human Relations Commission. A vacancy currently exists on the Human Relations Commission due to the resignation of Jenny Lopez Filkins.Councilmembers Roy and Kastein reviewed the applications on file and conducted interviews.The Council interview team is recommending Paige Backlund Jarquin to fill the vacancy. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. 8. Second Reading of Ordinance No. 009, 2005 Appropriating Prior Year Reserves in the Natural Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the 2005 Adopted City Budd 9. Second Reading of Ordinance No. 010,2005, Appropriating Unanticipated Grant Revenue in the General Fund for the Natural Resources Radon Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Natural Resources Operating Budget to the Grant Project. 10. Second Reading of Ordinance No. 011, 2005, Appropriating Prior Year Reserves. 505 February 15, 2005 11. Second Reading of Ordinance No. 012,2005,Appropriating Unanticipated Revenue in the Building Community Choices Capital Projects Fund-Mason Transportation Corridor Trail Design-Spring Creek Trail North Project for Design of the Mason Transportation Corridor Trail North from the Spring Creek Trail and Connecting With the Colorado State University Campus. 12. Second Reading of Ordinance No. 013,2005,Appropriating Unanticipated Revenue in the Capital Projects Fund-Minor Streets Project to be used with Existing Appropriations for the Design and Construction of the Lemay Avenue Southbound Right Turn Lane at Mulberry Street. 13. Second Reading of Ordinance No. 014, 2005, Appropriating Unanticipated Revenue in the Transit Fund to Support Alternative Modes of Transportation in the Transportation Demand Management Program. 14. Second Reading of Ordinance No.015,2005,Making Various Amendments to the Land Use Code. 15. Second Reading of Ordinance No. 016, 2005, Designating the First Public School / First Catholic Church Building, 115 Riverside Avenue,Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chanter 14 of the City Code. 16. Second Reading_of Ordinance No. 017, 2005, Desi ng ating the Dukes/Dunlap Garage, 501 Stover Street Fort Collins,Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. 17. Second Reading of Ordinance No. 018,2005, Designating the Snook/Hale House and Two Garages 220 South Sherwood Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. 18. Second Reading of Ordinance No. 022, 2005, Amending Section 25-49 of the City Code, Increasing the Annual Income Limits for the Determination of Eli ig bility for the Sales Tax Rebate on Food to Fifty Percent of the Median Income. Ordinances on First Reading were read by title by City Clerk Krajicek. 19. First Reading of Ordinance No. 023, 2005, Appropriating Unanticipated Grant Revenue in the General Fund for the Larimer County Drug Task Force. 20. First Reading of Ordinance No. 024, 2005,Amending Various Sections of the City Code to Define the Term "Growth Management Area" and to Replace the Existing References to "Fort Collins Urban Growth Area" with Said Term. 21. First Reading of Ordinance No. 025, 2005 Amending Section 2-31 of the City Code Pertaining to Executive Sessions. 506 February 15, 2005 32. Items Relating to Nuisance Gatherings, Public Nuisance Amendments and Regal Registrations. A. First Reading of Ordinance No. 019, 2005, Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings. B. First Reading of Ordinance No.020,2005,Amending Chapter 20,Article VIII of the City Code Relating to Abatement of Public Nuisances. C. First Reading of Ordinance No. 021, 2005, Amending Article VI, Division 2 of the City Code Relating to Residential Rental Registration. 34. Items Relating to Out of City Utility Services. B. First Reading of Ordinance No. 026, 2005, Amending Chapter 7.5 and Chapter 26 of the City Code to Establish Requirements and Procedures for Utility Service Outside the Fort Collins Growth Management Area. Councilmember Weitkunat made a motion, seconded by Councilmember Tharp, to adopt and approve all items not withdrawn from the Consent Calendar. The vote on the motion was as follows: Yeas: Councilmembers Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED. Consent Calendar Follow-up Mayor Martinez requested that staff speak regarding one of the Consent Calendar items. City Manager Atteberry spoke regarding item #19 First Reading of Ordinance No. 023, 2005, Appropriating Unanticipated Grant Revenue in the General Fundfor the Larimer County Drug Task Force and the mission and efforts of the multijurisdictional task force. Councilmember Kastein commented regarding item #18 Second Reading of Ordinance No. 022, 2005, Amending Section 25-49 of the City Code, Increasing the Annual Income Limits for the Determination of Eligibility for the Sales Tax Rebate on Food to Fifty Percent of the Median Income. Councilmember Weitkunat spoke regarding item #23 Resolution 2005-011 Adopting the Recommendation of the Cultural Resources Board Regarding Fort Fund Disbursements. Councilmember Hamrick spoke regarding item#11 Second Reading of Ordinance No. 012, 2005, Appropriating Unanticipated Revenue in the Building Community Choices Capital Projects Fund- Mason Transportation Corridor Trail Design -Spring Creek Trail North Project for Design of the 507 February 15, 2005 Mason Transportation Corridor Trail North from the Spring Creek Trail and Connecting With the Colorado State University Campus. Councilmember Roy commented on item #18 Second Reading of Ordinance No. 022, 2005, Amending Section 25-49 of the City Code, Increasing the Annual Income Limits for the Determination of Eligibility for the Sales Tax Rebate on Food to Fifty Percent of the Median Income. Items Relating to Nuisance Gatherings, Public Nuisance Amendments and Rental Registrations The following is staff s memorandum on this item. "FINANCIAL IMPACT Within the Fort Collins city limits, there are approximately 10,500 rental units in boarding houses, and in single-family, two-family and multi family dwelling units up to and including four plexes. The total cost to administer the proposed rental registration program for the first two years is estimated at$459,000 which includes the following direct and indirect costs: Personnel $ 297,000 .3 Systems Analyst .5 Administrative Aide 1.0 Housing Inspector Hourly temporary staff Equipment and software $ 148,000 Enables online registration andpayment Miscellaneous,fees, postage. etc. 14.00 Total for first two years $459,000 EXECUTIVE SUMMARY A. First Reading of Ordinance No. 019, 2005, Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings. The Nuisance Gatherings provision creates a new misdemeanor criminal offense directed at social gatherings or parties that result in nuisance behaviors occurring on neighboring properties. These amendments would be in conjunction with continued efforts to more effectively and proactively enforce current nuisance laws, including loud parties, code compliance issues and the Public Nuisance Ordinance. B. First Reading of Ordinance No. 020, 2005, Amending Chapter 20, Article VIII of the City Code Relating to Abatement of Public Nuisances. 508 February 15, 2005 The Public Nuisance Ordinance(PNO)has proven to be an effective tool in reducing repeat violations at specific properties. These amendments are intended to improve current processes and strengthen the enforcement provisions of the ordinance. C. First Reading of OrdinanceNo. 021, 2005,AmendingArticleVI,Division2oftheCityCode Relating to Residential Rental Registration. The Residential Rental Registration Ordinance establishes procedures for identifying ALL rental units within the city limits of Fort Collins, excluding only multi family units larger than four plexes. The purpose of the Rental Registration Program is to identify rental units, educate all parties about Rental Housing Standards and other City codes, and increase the efficacy of nuisance code enforcement through a local contact and better information sharing. BACKGROUND City Council discussed these three ordinances at its study session on January 25, 2005 and directed staff to bring these forward for formal consideration by the Council with certain changes. These changes, as well as other staff-initiated changes, are shown in boldfaced type. Item A -Nuisance Gatherings This proposed ordinance will add another tool to more effectively and proactively address the nuisance behaviors resulting from such gatherings and enforce compliance against those hosting, participating or otherwise knowingly allowing such gatherings. The Nuisance Gatherings provision includes the following: a. Declares social gatherings of five or more people assembled for a social activity or special occasion that result in the occurrence of unlawful and harmful behavior and conditions on neighboring public or private property by person attending such gatherings to be a public nuisance; b. Requires participants in the nuisance gathering to cease and requires all persons not domiciled at the premises to immediately disperse; C. Provides a procedure by which the City can recover the costs of abating the nuisance such as overtime, equipment use or damage, overhead, medical expenses, etc for any city department employee (including Poudre Fire Authority) called to respond to and abate the nuisance party. The cost of abatement can be included as court-ordered restitution. It can also be collected as a separate assessment against theproperty ifthe property owner has been convicted of a violation of the ordinance. A variety of methods will be used to inform and educate stakeholders (property owners, property managers, tenants and neighbors) and all community members about this change to the Code. 509 February 15, 2005 Item B -Public Nuisance Ordinance Amendments The Code Compliance Case Manager responsible for the PNO notes that the majority of landlords and property managers are very willing to take action to avoid recurringproblems at theirproperty. Most problems are resolved after a I"violation notice. However, in some cases the owner and/or property manager is not responsive, even after a notice has been sent out about a 2nd or 3rd violation. The proposed changes are designed to give staff the flexibility to work effectively with responsive property owners and managers and to increase the potential sanctions of the PNO in those cases where responsible parties do not respond. The following summarizes the proposed amendments: a. Deletes the provision requiring posting ofnotice that a civil public nuisance action will be filed in 10 days; instead, requires that the posting on the property occur at the time the civil action is filed; b. Amends the provision requiring a 45-day waiting period after a second(or fourth)violation to apply only if the property owner or manager has actually filed an eviction proceeding after notice of the second(or fourth) violation. The purpose of this change is to ensure staff can work with those owners or managers who have instituted eviction proceedings, but still maintain the ability to pursue PNO action against those who do not respond to notices; C. Adds provisions clarifying when property managers are subject to the ordinance; d. Adds a provision allowing the city to send Public Nuisance Ordinance notices to any address known to the city through utility, registration or other records rather than be constrained only to records of the Larimer County Clerk and Recorder; e. Adds a provision stating that a plea or verdict of guilty to the underlying violation(s)proves the public nuisance, thereby alleviating the need to again prove the existence of the public nuisance in the PNO action; f. Adds a provision clarifying that a parry's abatement efforts taken only after the final notice of violation does not constitute a defense under the ordinance; g. Adds a provision allowing for stipulations between the City and any party to be accepted by the Court or Hearing Officer; h. Adds a provision allowing abatement orders to include a restriction on the number of occupants or guests or the types of activities on the premises, as 510 February 15, 2005 well as revocation or suspension of any license or permit pertaining to the use of the parcel. i. Offers for Council's consideration a provision (Option A)which authorizes an order prohibiting the rental of a parcel, but only if the owner of the property has failed to abide by a previous abatement order pertaining to the same parcel. Staff members will undertake a concerted effort to educate property owners and managers about these changes in the coming months via direct mail, stakeholder meetings, the media and other venues. Item C-Rental Registration The goal of the Residential Rental Registration program is to accomplish the following: a. Identify all rental units within the city limits of Fort Collins; b. Educate all parties about Rental Housing Standards and other City Code provisions; and C. Increase the efficacy of nuisance code enforcement through a local contact and better information sharing. Work is underway to develop a user-friendly registration system that is easily accessible and meets the needs ofall stakeholders. The initial registrationprocess will use methods such as mail-informs and registration "clinics" where staff will be on hand to assist with data entry and face-to face registration. Ultimately, users will be able to register and make payments totally independently using an online system. Project team members hope to have this capability ready no later than September 2005. Registration Information Required The following basic information will be asked of rental property owners at the time ofregistration: • Address of rental property • Name of and contact information for property owner • Name of and contact information for local agent • Acknowledgment of having read and understood the City Rental Housing Standards • Acknowledgment of having provided tenants the City Lease Addendum and accompanying brochure The information on the rental registration form, once completed, will be compiled into a database, a portion of which will be available to the public via an online search engine. Thus, a neighbor of a rental property could search the database by address to determine if the property is a registered rental and, if so, learn the contact information of the local agent and/or property owner. Tenant 511 February 15, 2005 names will not be held on file by the City or available to the general public. However, the lease addendum must be provided to the City by the property owner or local agent upon request of the City. Term and Fees Registration will be required on a biennial basis (every two years) or within 30 days after any change of ownership. The fee will be $65.00 per dwelling unit for the initial two-year registration period, with renewal required every two years. There is no charge for updating information (e.g. a new local contact is designated or owners address changes)as long as the update is accomplished within 30 days of the change. Property owners who do not comply with the registration requirement or registration updates after notice from the Director of Building and Zoning would be subject to the penalties imposed under Section 1-15 (up to $1,000 fine and/or six (6) months in jail). Prior to the end of the first two years of operation the registration program costs and fees will be reassessed. Staff anticipates that the ongoing costs will be lower once the system is up and running and the majority of property owners have registered their rental properties. Outreach, Education and Implementation Assuming Council wishes to move ahead with registration, staffinembers are preparing to conduct a thorough outreach and education campaign. The most basic tool will be that of a direct mailing to those properties where the County Assessor's records list an owner at an address different from the property. At the same time staff will conduct Registration "clinics" and use other outreach methods to reach property owners,property managers, tenants and others with an interest in this issue. The online self-registration program will not be fully functional in the beginning, however staff members are prepared to use mail-in,fax-in, workshops/clinics and other such methods to ensure that registration can be implemented as simply as possible. Current plans are to implement the Registration Program on April], 2005 with the goal ofreaching and registering as manyproperties as possible by August ], 2005, allowing for a 5-month "grace period". August ], 2005 will be the official start of each unit's registration term. After that date, properties that are not registered would be subject to penalties. All of the forms, instructions and links to applicable codes will be available on the City's website at fcgov.com/rental prior to the implementation of the Registration program." City Manager Atteberry stated this was a difficult issue and that there were no "perfect solutions." He stated this was an "emotional issue" for many people and that there were "strong perspectives on all sides of this issue." He stated there had been "unpredecented" and extensive discussion and analysis of these issues by the Council, staff and citizens. He stated staff would be presenting its best "professional recommendation" based on extensive research. 512 February 15, 2005 Tess Heffernan, City Manager's Office, presented background information regarding the agenda item. She stated direction had been received from the Council and that staff had prepared a residential rental registration ordinance, amendments to the Public Nuisance Ordinance, and provisions regarding nuisance gatherings. She stated the goals of the residential rental registration _ ordinance were to identify rental units within the City, increase the efficacy of nuisance code enforcement, and educate people about rental housing standards and other City codes. She stated the the rental registration program would include single-family,duplex,boarding house,three-plex and four-plex units (except those located in large multifamily complexes generally under one management). She stated the registration would be biennial, or within 30 days of change of ownership, and that there would be no charge for updating information. She stated the initial fee would cover start-up costs and would be$65 per unit(an average of$32.50 per year)and that after the first two years the fee would be about $40 per unit ($19-20 per year). She stated this would initially come to about$2.60 per month per rental unit and$1.58 per month per month ongoing. She stated the registration information would include address, name and contact information for the property owner and a local agent,an acknowledgement that the rental housing standards were read, and an acknowledgement that the lease addendum had been provided to the tenants. She stated the local agent would stand in for the owner for the purpose of accepting service and would also serve as a contact in the event of difficulty in locating or communicating with the owner. She stated the agent must live or have an office within a 75-mile radius of the Growth Management Area. She stated registration information would be stored in a central database,that information about the unit address and the designated contact person would be available on-line to the public, and that tenant names would not be kept on file by the City or made available to the public. She stated the goal would be to implement the program by April 1, to register all properties by August 1 and to have an on-line totally self-sustaining system by September. She stated the intent was to make the system user-friendly and allow on-line registrations. She stated outreach would begin immediately to tell people about the registration program. She stated the Public Nuisance Ordinance amendments would give staff the flexibility to work better with responsive property owners and to increase sanctions for unresponsive property owners. She stated two options were being presented to the Council regarding prohibiting the rental of a property: (1)an abatement order would not be allowed to prohibit the rental of a parcel,or(2)the abatement order would prohibit the rental of a parcel only if the owner had failed to abide by a previous order pertaining to that parcel. She stated the nuisance gathering provisions would create a new misdemeanor criminal offense for nuisance behaviors spilling over onto other properties, declare social gatherings of five or more people resulting in unlawful or harmful behavior on the neighboring property to be a public nuisance, and require the participants to cease and disperse. She stated the persons responsible for a nuisance gathering offense would be those who sponsor, conduct, host, invite or permit the nuisance gathering. She stated the owner could be held liable but only if they were on the property at the time and met that description of the "responsible person." She stated this provision would also establish a procedure that would allow the City to recover the cost of abating a nuisance. She stated the owner would not be responsible for abatement costs unless cited as a "responsible person." She stated at sentencing a mitigating factor would be that the "responsible person" tried to end the gathering and notified authorities. She stated there would be a study session on March 8 to talk about the economic study results and to review the framework established by Council direction i.e.,that the prohibition on no more than three unrelated persons would remain the general rule and would apply to single-family dwellings and/or zones and that higher occupancy limits would be considered based on a variance 513 February 15, 2005 or permit procedure. She stated a study session was scheduled for April 26 to look at a revised ordinance to be scheduled for Council consideration in May. Mayor Martinez stated there would be discussion about the "three unrelated" ordinance at a later date and that this would not be germaine to the discussion at this point. Councilmember Tharp suggested discussing the first two ordinances and then proceeding to discussion of the more complex rental registration issue. Councilmember Tharp made a motion, seconded by Councilmember Roy, to suspend the rules of procedure to separate the vote and discussion on the three ordinances. The vote on the motion was as follows:Yeas: Councilmembers Hamrick,Kastein,Martinez,Roy,Tharp and Weitkunat. Nays: None. THE MOTION CARRIED. Mayor Martinez stated citizen participation would be allowed first on Ordinances No.019 and 020, 2005 relating to nuisance gatherings and abatement of public nuisances. Leo Buccellato, 2238 Iroquios Drive, stated he was in favor of the two ordinances and would favor anything that could be done to address noise and nuisance problems. He stated his past complaints had resulted in some improvements in the City's response to problems in his neighborhood. He stated there were chronic nuisance problems for some rental properties and that some homeowners were selling out and leaving the City. He stated parties had "changed" with later start times and attitude changes. Carrie Gillis, 2213 Timber Creek Drive, stated asked that Council consider that renters were not always students but were "economically disadvantaged people" such as seniors and single parents. She stated there were existing ordinances that could be enforced to address nuisance problems. She asked the Council to use current information and data and noted that nuisance enforcement should apply to owner-occupied as well as renter-occupied housing. She stated using outdated information might result in the wrong decision being made. She expressed a concern that she could be faced with a criminal offense on her record because of the behavior of one of her 1,100 renters. Courtney Stevens,ASCSU Director of Community Affairs,concurred with the previous comments. She stated she previously had a concern that the nuisance gathering ordinance did allow an exemption for"people who called in on themselves." She stated many people having a party did not mean for it to get out of hand and that CSU advocated that people call the police if a party did get out of hand to protect themselves and others. She stated she favored the proposed revision to allow consideration of the mitigating factor for those who called the police. Erin Berkowitz, property owner and graduate student, urged the Council to keep the ordinances as they were. She stated the changes would unfairly target those who had responsible parties and would not address the problems. She stated she should not be held responsible for renting out her house to someone who had a party when she was not there. 514 February 15, 2005 Doug Hutchinson, 1315 Whedbee Street, stated the stronger Public Nuisance Ordinance had not solved the neighborhood problems resulting from a complex mixture of social, economic and cultural issues. He stated complex problems could not be resolved through a single action. He stated it was appropriate that Council was considering a two or three pronged approach but that some elements were still missing. He questioned whether there was adequate understanding of the problem and why the Public Nuisance Ordinance had failed. He stated the Council could be adding unnecessary and ineffective laws that would not address the problems. He stated there could be innovative approaches that would not necessarily involve new laws,such as closer cooperation with Colorado State University. He stated there must be some way to "measure success." Dave Doman, 1836 Wallenberg Drive, stated this was an "organic problem" and that it was a mistake to segregate the issues from the "three unrelated" issue. He stated this was a piecemeal approach. Mayor Martinez requested clarification regarding whether the Council wished to discuss and vote on the first two ordinances before moving onto the rental registration ordinance. The consensus was in favor of completing the discussion and vote on the first two ordinances before moving to the rental registration ordinance. Mayor Martinez noted that Mr. Doman brought up a good point that all of these issues were interrelated. Councilmember Kastein asked if an absentee owner would be responsible under the nuisance gathering ordinance if not present when the gathering took place. City Attorney Roy stated in order to be a "responsible person" convicted of an offense you must be an owner/occupant/tenant or otherwise have possessory control; sponsor, conduct or host the gathering; and knowingly permit it to become a public nuisance. Councilmember Kastein asked if a violation of this ordinance would count as an infraction of the Public Nuisance Ordinance. City Attorney Roy replied in the affirmative and stated this would depend on the timing of the offense and notices sent on previous violations. Councilmember Kastein asked if this ordinance would apply to a very large nuisance gathering such as a riot. City Attorney Roy replied in the affirmative. Councilmember Kastein asked who would be ticketed in that kind of case. Jim Szakmeister,Fort Collins Police Services, stated it would be the house to which the police were called or the house determined by the police to be the property from which the problem arose. He stated this house would be the one held primarily responsible. Councilmember Kastein asked if the "source of the problem" would therefore be held responsible. Szakmeister replied in the affirmative. Councilmember Kastein asked if only those who would receive tickets would be held responsible for the cost of cleanup. Szakmeister stated they would be responsible for the cost of abatement. 515 February 15, 2005 Councilmember Kastein asked if there was a riot,whether the goal would be to determine the origin and to issue a ticket and hold the source of the riot accountable for the costs. Szakmeister replied in the affirmative. Mayor Martinez asked if riot participants would also be held accountable. Szakmeister stated the police would go to the house that was the source of the incident and that the people living at that property would be cited. Mayor Martinez asked if riot participants could still be held accountable. City Attorney Roy replied in the negative and stated Council had expressed a concern that the owner not convicted of the offense might be held responsible for costs and that the definition of"responsible person"had been changed to be "any person convicted of a violation." He stated in order to be convicted of a violation you must have a possessory interest in the property, conduct the party and knowingly permit it to get out of hand. He stated this change was made in response to Council direction. Martinez Martinez stated there needed to be a change in the ordinance because those participating in riots should be held accountable for the costs of law enforcement. City Attorney Roy stated spreading the costs among a larger group i.e., holding the participants in a gathering responsible would mean that they must be convicted of something. He stated if someone was convicted in County Court of engaging in a riot that restitution against that individual could be possible. He stated riot participants would not be"off the hook"but that under this particular ordinance the costs would be assessed against those permitting the party to get out of control. He stated there might be separate violations (unreasonable noise, engaging in a riot, etc.) that would allow for the recovery of costs from other individuals. Mayor Martinez suggested that this ordinance should provide that the City could seek restitution from riot participants once they were convicted. City Attorney Roy stated to be convicted of this particular offense the person convicted would have to be the one hosting the party. Mayor Martinez stated the ordinance should be changed to require those participating in the riot to be held accountable. City Attorney Roy asked if the Mayor was suggesting that there be a local ordinance similar to the State provision prohibiting participation in a riot. Mayor Martinez replied in the negative and stated the ordinance should be changed to provide that the people who could be held responsible for the expense should include those participating in the riot and receiving a ticket. City Attorney Roy stated if an individual was convicted of a separate offense that there was a separate possibility of restitution through the court. He asked if the Mayor was indicating that cost recovery should be mandatory under those other types of offenses. Mayor Martinez stated cost recovery should be mandatory rather than at the discretion of the court. Councilmember Tharp stated she agreed with Mayor Martinez. Councilmember Weitkunat asked if there were tickets issued for the last inicident. Szakmeister stated tickets were issued after the riot after the area was secured. He stated the officers were 516 February 15, 2005 ordered to issue tickets at four specific"party houses" for noise violations. He stated this ordinance would cover a different aspect than the unreasonable noise ordinance and that if a party would get out of hand the people responsible for the party would be held ultimately responsible for what happened as it "flows out into the street." He stated this was an additional remedy. Councilmember Weitkunat asked if persons involved in the riot could be connected to the nuisance gathering and held responsible for part of the "restorative process." Teresa Ablao, City Attorney's Office, stated on some of the noise violations from the previous incident on which there were convictions, part of the fine was suspended on the condition of payment for cost of cleanup. She stated restitution was available though the courts on those individuals. City Attorney Roy stated there was an issue regarding whether the costs the City would try to recover were reasonably related to the kind of offense committed. He stated this ordinance would more clearly tie cleanup costs for a riot to a property that was the "catalyst" for the riot. He stated this ordinance would apply to a party that would have all kinds of disruptive behavior and that the costs associated with cleanup would be more clearly tied to this kind of offense. Mayor Martinez stated those arrested for participation in the riot should share in the cost of the riot. He clarified that this ordinance would apply to events with five or more people and would not be limited to large riots. Ablao stated the State law applied to events with three or more people. Mayor Martinez stated he could not support an ordinance that did not hold all riot participants who were arrested responsible. Councilmember Hamrick asked why the ordinance specified five people. Ablao stated it was necessary to define a "riot" and that staff looked not only at the State provision but provisions in other municipal jurisdictions that specified three to five people. Councilmember Hamrick asked about the "unlawful and harmful behavior" clause and how this would be proven. City Attorney Roy stated the ordinance enumerated the particular kinds of behaviors that would fall under the ordinance. Councilmember Tharp asked how the ordinance would deal with the concern expressed by the ASCSU representative about how persons could deal with a party they knew was getting out of control i.e., at what point would people need to call for assistance from the police and how that would be taken into consideration in determining responsibility. City Attorney Roy stated this would be a mitigating factor upon sentencing but not a specified factor relating to conviction. He stated the desire was to have people call the police but not be automatically relieved of responsibility if they did so. Councilmember Tharp asked for clarification that this would be looked at as a mitigating factor as part of the penalty process. City Attorney Roy replied in the affirmative. Councilmember Weitkunat asked about the provision relating to abatement of the public nuisance in Ordinance No. 20. She stated there was a statement in Section 20-113(c)that referenced a public nuisance as being any condition or use of any parcel within the City limits on which three or more 517 February 15, 2005 separate violations occur within a 12 month period, while (d)(1) referenced two or more separate violations of the same section in a six-month period. City Attorney Roy stated the provision relating to two or more was added recently. He stated there were two ways in which a determination could be made that a public nuisance existed: three separate violations within a year or five within two years,and the additional provision relating to two of the same kinds of violations within six month. He stated under that provision the City Manager could go through a hearing process to determine whether the court should be asked to determine the existence of a public nuisance. Councilmember Weitkunat asked about the nuisances that would be covered by the Public Nuisance Ordinance. Beth Sowder, Code Compliance, explained the types of nuisances covered. Councilmember Weitkunat asked for clarification that three nuisance violations could constitute a "public nuisance" based on the law. City Attorney Roy replied in the affirmative. Councilmember Weitkunat stated Ordinance No.20 would add language making it a civil matter as opposed to a criminal matter. Sowder stated it had always been a civil judgement under the Public Nuisance Ordinance. Councilmember Weitkunat stated the fourth WHEREAS clause in Ordinance No.20 stated"that the proposed amendments will improve current processes and allow for revocation of the ability to rent a property under certain circumstances." City Attorney Roy stated the last part of that clause would not be true if Council chose Option A and would need to be removed if that Option was chosen. Councilmember Weitkunat stated item 4 in Section 20-117 (abatement order) related to orders restricting the number of occupants and/or guests allowed on the premises and asked if this would constitute an"occupancy statement." City Attorney Roy stated this was an example of the kinds of orders a judge could enter to require a particular nuisance problem to be addressed. He stated this was not a blanket rule limiting occupancy except in the context of one of the kinds of orders that a judge might enter in a particular situation. Councilmember Weitkunat asked if this would allow a judge to determine the number of occupants, including family, in a building based on nuisance. City Attorney Roy replied in the affirmative. Councilmember Weitkunat expressed a concern about that language. She stated the fifth item dealt with the revocation or suspension and asked if this would be eliminated under Option A. City Attorney Roy stated paragraph 6 would allow the judge to enter all of the kinds of orders listed provided that no order would cause the property to be forfeited or prohibit the rental of a parcel. He stated Option B was that no order shall prohibit the rental of a parcel unless the owner had failed to abide by a previous order of abatement pertaining to the same parcel. Councilmember Weitkunat asked if this would be an abatement that would come with a declaration that a public nuisance existed. City Attorney Roy replied in the affirmative. 518 February 15, 2005 Councilmember Weitkunat asked if a public nuisance could exist based on three violations without remedy within a year or two within six months. City Attorney Roy stated it would be two of the same kind of violation within six months. Councilmember Tharp asked what other options were available when an owner had failed to abide by a previous order of abatement. City Attorney Roy stated the property owner could be held in contempt for failure to abide by an order of the court. Councilmember Tharp asked if that would be up to the Judge. City Attorney Roy replied in the affirmative and stated the Judge could try other orders. Councilmember Tharp stated there should be some way to deal with someone who refused to make any changes or improvement. City Attorney Roy stated the Judge's discretion would be limited if Option A was added and that Option B would allow the Judge some limited authority to prohibit the rental of a parcel if a previous order pertaining to the same parcel had been disobeyed. Councilmember Tharp asked if Option A would provide that the Judge would have to find some other way to deal with the problem. City Attorney Roy replied in the affirmative. Mayor Martinez asked if there was State public nuisance law that could be used. City Attorney Roy stated there was a State public nuisance law. Sowder stated would be handled through the District Attorney's Office rather than through the City. Mayor Martinez stated would be an alternative. City Attorney Roy stated the kinds of violations under the State law were generally felonies. Councilmember Kastein stated he did not like the Public Nuisance Ordinance when the responsibility for any and all Code violations from tenants could be transferred to the landlord. He referenced the paragraph that addressed any one of the parties pleading guilty (owner, property manager, occupant or tenant) and the use of that as an admission of guilt for all of them. He asked the City Attorney to address a potential alternative that the two had discussed. City Attorney Roy stated if there was direction that a change could be made to language in Section 20-114(c)in Section 3 of the ordinance that provided that if an owner, property manager, occupant or tenant had made a plea of guilty or no contest or had been found guilty of any of the violations then that plea or finding would be deemed to establish all of the elements of the separate violations in the Public Nuisance Ordinance. He stated he understood that Councilmember Kastein's objection was that an owner ultimately could be held accountable and have one or more of the separate violations established because of the entry of a plea of guilty by a tenant,when the tenant had not asserted all of the available defenses. He stated the rationale behind the provision was in most cases it seemed to be unreasonable to have to prove the case once beyond a reasonable doubt and then to have to prove it again under the Public Nuisance Ordinance. He stated he understood the concern about one party being responsible for the other's admission. He stated it would be possible to make this prima facie evidence of the occurrence of the violation,in which case it would be suffice unless contested. 519 February 15, 2005 Councilmember Roy asked about Attachment 1 (Lease Addendum and Acknowledgement Form) and how that related to this discussion. City Attorney Roy stated this form was a separate issue from the Public Nuisance Ordinance. He stated the underlying nuisance ordinances dealing with snow and ice removal,trash removal, lawnmowing and yard maintenance all individually held the owner of a property liable for that responsibility. He stated the addendum would inform the landlord and tenant of that fact. Councilmember Kastein asked if a rubbish violation would automatically be entered as a Public Nuisance Ordinance violation. Sowder stated the procedure with rubbish violations was to issue a notice of violation to the owner,property manager and tenant and that the Code allowed seven days to correct the problem. She stated citations were rarely issued because most people complied or abatement procedures were followed. Councilmember Hamrick made a motion, seconded by Councilmember Tharp,to adopt Ordinance No. 019, 2005 on First Reading. Councilmember Kastein stated the issue brought up by Mayor Martinez about riot participatants was a good point and asked how language could be incorporated. City Attorney Roy stated he believed that this would require a different ordinance. Mayor Martinez asked if this could be incorporated into this ordinance. City Attorney Roy stated he understood that the intent would be that those participating in the riot would also be assessed costs. He stated this ordinance in terms of the substantive offense did not speak to those participating in the riot. He stated there were separate violations that might occur and that mandatory cost recovery for participants would need to be set out in an ordinance adopted by the Council saying that if individuals were convicted of any of those separate offenses that costs would be imposed. Mayor Martinez stated he wanted this ordinance to speak to that. City Attorney Roy stated that could be done if the intent was to make it only in the context of hosting this kind of a gathering. He stated if the intent was to hold nuisance gathering participants responsible for costs any time, even if there was no riot situation, then there needed to be a separate ordinance. Mayor Martinez stated he would like to hold nuisance gathering participants responsible for costs. City Attorney Roy stated such language could be included in the ordinance on Second Reading. Mayor Martinez asked if the motion maker and second would consider it a friendly amendment to add language relating to making nuisance gathering participants responsible for costs. Councilmembers Hamrick and Tharp accepted this as a friendly amendment. The vote on the motion was as follows: Yeas: Councilmembers Hamrick,Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED. 520 February 15, 2005 Councilmember Tharp made a motion, seconded by Councilmember Hamrick,to adopt Ordinance No. 020, 2005 (Option A) on First Reading. Councilmember Kastein stated he would not support the ordinance until he had more information prior to Second Reading about allowing the owner to be exempt from the admission of guilt by the other parties involved i.e. the prima facie concept. City Attorney Roy asked if the intent was to incorporate that as a friendly amendment to the main motion. Councilmember Kastein offered a friendly amendment to direct staffto come forward with language on Second Reading consistent with the prima facie concept. Councilmembers Tharp and Hamrick accepted that as a friendly amendment. Councilmember Weitkunat stated she had a problem with restricting the number of occupants. She stated this would go too far and that she would not support the ordinance unless that provision was removed. Mayor Martinez asked if there would be some way to modify that language to address the concern. City Attorney Roy stated staff could look at ways to limit the application prior to Second Reading. He stated some of the task force members believed that the court should have that ability because it could be the number of occupants creating the problem in certain situations. He stated staff could look at ways to narrow the application of this provision. Ablao stated the language was intended to address issues when occupants had been convicted of a crime or were the cause of the nuisance problem. She stated the issue might not be the number of occupants but who the occupants were. Councilmember Weitkunat offered a friendly amendment to eliminate that language. She stated if there were"criminal aspects"that this was a different issue than the number of occupants and guests in a house. City Attorney Roy stated there was a provision that allowed the court to order certain persons to stay away from the premises and that this might cover the concern addressed by Ms. Ablao. Councilmember Tharp stated she would prefer that this be clarified before Second Reading rather than removing the language. Mayor Martinez asked about the intent of the language. City Attorney Roy stated in the context of a particular property this would be a "three unrelated" issue. He stated the intent was that if there was a problem property and the Judge felt that the problem stemmed from too many occupants that the judge could issue an order to cut down on the number of occupants to help alleviate the nuisance. He stated this would not be an across-the-board occupancy limit but was a site-by-site ability to restrict the number of occupants if the Judge decided that was the problem. Councilmember Tharp stated the Council was trying to deal with the "problem situation" and that if the Judge decided that the problem was in fact the number of occupants that this would be a reasonable way to deal with the issue. She stated she favored retaining the language. 521 February 15, 2005 Councilmember Weitkunat asked if the Judge had options. City Attorney Roy stated the Judge had options to limit the number of guests at a party,the hours when parties could be held,or the presence of alcohol on the premises. He stated removing the language as proposed would eliminate that one option. Councilmember Weitkunat stated she did not feel that the language relating to the number of occupants met the intent. She stated there were other options available to solve the problems and that the language relating to occupant numbers should be removed until the Council had dealt with other occupancy issues. Mayor Martinez asked what those other issues were. Councilmember Weitkunat stated this kind of restriction should be discussed at the time of discussion of the "three unrelated" ordinance. She stated this restriction opened up the possibility of"abuse." Mayor Martinez asked if the language relating to occupancy was removed whether the Judge could use that as an option. City Attorney Roy replied in the affirmative and stated this was an attempt to more clearly give the Judge the authority to use this as an option. He suggested that the Council clarify whether any of the kinds of orders available to the Judge would "go too far." Mayor Martinez stated the language could be removed and that the Judge would be left with the option to use such an order. He asked if there was any concern with the Judge using that option although it would not be specified in the ordinance. Councilmember Tharp stated she would like further information prior to Second Reading that would convince her that the Judge would still have that as an option. City Attorney Roy stated Subparagraph (C) under 20-117 stated: "Temporary or permanent abatement orders entered under this Article shall be narrowly tailored so as to address the particular kinds of separate violations that form the basis of the alleged public nuisance. Such orders may include. . . ." He stated specifiying an option would encourage the Judge to consider such option. Councilmember Tharp stated it was her intent that the Judge consider that option. City Attorney Roy stated examples were cited in the ordinance to suggest that they might be appropriate kinds of remedies. Councilmember Hamrick asked for clarification regarding Councilmember Weitkunat's concern. Councilmember Weitkunat stated she was concerned about the language relating to the number of occupants. City Attorney Roy stated the language could be limited to clarify that that kind of order could not entered to separate parties who were related. Councilmember Weitkunat questioned including the language at all when the judge had the authority already. She stated this language would make the ordinance"far more restrictive" and create"more 522 February 15, 2005 complicated laws than are necessary." She stated she would not support the ordinance if the language was included. Mayor Martinez asked if the City Attorney would be looking into revised language before Second Reading. City Attorney Roy stated he could look at that if that was Council's direction. The consensus was to ask the City Attorney to look at such a revision. Councilmember Tharp stated the Council was trying through these first two ordinances to respond to some of the questions raised by people who spoke about why the existing Public Nuisance Ordinance did not work. She stated the intent was to make the Public Nuisance Ordinance more enforceable and effective. Councilmember Hamrick stated the political process was not "an exact science." He stated when things were not working the Council could change things. Councilmember Weitkunat stated when more restrictive detail was added to the law that the process became more complicated and difficult to enforce. She stated the Judge already had the authority and that this did not need to be written into the law. Councilmember Roy stated these items were not being "rushed" forward. He stated the intent was to preserve neighborhoods. He stated he was hearing from people about how neighborhoods had changed and that people felt that they were being forced to move. He stated the issue was quality of life and the ability to invest and profit from making good business decisions and the ability to have a home. He stated the intent was to make the neighborhoods "the best they can be." Councilmember Kastein stated the question was what this ordinance would do to further that goal. He stated he did not support the Public Nuisance Ordinance when it was adopted and that he did not support working on revisions to the Public Nuisance Ordinance to make it a "stronger tool to use in the wrong way." He stated this was fundamentally the wrong tool. He stated he believed that responsibilities needed to be redefined and that the root of the problem needed to be addressed. He stated he would not support the motion. Mayor Martinez stated the Public Nuisance Ordinance had slowed down the process of dealing with behavioral issues. He stated the Judge already had the authority to deal with issues without having to wait for a number of violations within a specified time. He stated the hands of the judge were tied by the ordinance and that this ordinance wouild make the Public Nuisance Ordinance even more complex. The vote on the motion was as follows: Yeas: Councilmembers Hamrick, Roy and Tharp. Nays: Councilmembers Kastein, Martinez and Weitkunat. THE MOTION FAILED TO PASS. 523 February 15, 2005 Councilmember Hamrick asked if Councilmember Bertschy could request that the ordinance be brought back for consideration. City Attorney Roy stated under Council policy any ordinance could be brought forward at the request of three Councilmembers or the Leadership Planning Team. Mayor Martinez stated after the break citizen participation would be taken on Ordinance 21. (Secretary's Note: The Council took a recess at this point.) Mayor Martinez stated each participant would have three minutes to speak. The following individuals spoke in favor of the ordinance: Pete Seele, Rolland Moore West Neighborhood Steering Committee. John Hendrix, 3000 Tulane Drive, Thundermoor Neighborhood Organization. Kay Lindgren, 1513 Independence Road. Paul Anderson, Fort Collins resident. Ray Czaplewski, 2012 Huntington Circle. Lloyd Walker, 1756 Concord Drive. Doug Brobst, 1625 Independence Road. The following individuals spoke in opposition to the ordinance: Edward Pando, 4318 Shadowbrooke Court, speaking on behalf of his son Gabe. Don Butler, 1415 North College Avenue. Blair Trautwein, 1819 Lakeshore Circle. Courtney Stevens, ASCSU. Jim Ringenberg, local attorney, 2849 Hearthstone Drive. Arnold Drennen, 3412 Canadian Parkway. Chris Tickner, 2213 Timber Creek Drive. Rhonda Burrey, property manager. Carrie Gillis, Fort Collins resident. Brett Pavel, 517 Spring Canyon Court. Mark Lueker, 2637 Wapiti Road. Jim Schmidt, 2208 Stanford Road. Dolores Williams, 415 Mason Court. Nathan Winn, 2709 Rawahs Way. J. J. Hinville, landlord. Kevin Wilcox, 2114 Sweetwater Creek Drive. Dave Doman, 1836 Wallenberg Drive. Laurie Dufloth, 3910 Highlands West Drive. Jason Pifer, Prospect Lane. Robert Howe, Fort Collins Board of Realtors. Charles Clarke, 327 East Magnolia Street. Keven Westhuis, 2944 Telluride Court. 524 February 15, 2005 Rick Hausman, 822 Balsam Lane. Chance Parker, Fort Collins resident. Tim Norman, Fort Collins resident. Ken Crockett, 1700 Springfield Drive. Michelle Palero, Fort Collins resident. Beverly Hill, 3605 Mead Street. Mayor Martinez asked Ms. Gillis about her references to the 99¢ cost of registrations on the State website. Ms. Gillis stated the State of Colorado has business registrations through their website for 990 using a credit or debit card. She questioned why the City would set up an expensive database to handle registrations. Councilmember Hamrick asked how many people lived at the approximately 10,500 rental units. Felix Lee,Director of Building and Zoning, stated such information was not readily available. He stated an estimate could be an average of two residents per unit. City Manager Atteberry stated the number would be 2.3. Councilmember Hamrick stated figure seemed low. He stated renters were not necessarily students and asked if there was anything in the ordinance that would target students. City Attorney Roy replied in the negative. Councilmember Hamrick asked if this ordinance would change the"three unrelated"ordinance. City Attorney Roy replied in the negative. Councilmember Hamrick asked if this ordinance would make it easier to enforce the "three unrelated" ordinance. City Attorney Roy stated the ordinance would probably have a neutral effect on that enforcement. Councilmember Hamrick asked about Attachment 1 (Lease Addendum and Acknowledgement Form) and whether items 1 and 3 were redundant. City Attorney Roy stated those two items could be combined. Councilmember Hamrick asked if language in the ordinance would address health and safety issues such as basement egress and other codes and ordinances. Lee stated Fort Collins had a rental housing standard that addressed health and safety issues. Heffernan stated the rental registration form required the landlord to check a box saying that he or she had read and understood the City's rental housing standard and that a brochure would be provided to tenants. She stated the expectation was that more tenants would be aware of the laws and that there would be more complaints and requests for inspections. Councilmember Hamrick asked about the normal process for handling complaints under the rental housing standard. Lee stated the process depended on the severity of the issue. He stated the typical process was to make an on-site inspection after a complaint was received and issuance of an order to correct the violation. 525 February 15, 2005 Mayor Martinez asked if the insurance company would cancel coverage for a unit that did not have smoke alarms or proper egress. He stated it appeared that the City was acting in the role of the insurance company. He asked about the meaning of the language in Section 5-237 stating: "This Article is necessary to protect the health,safety and welfare of the people of the City by establishing minimum standards governing the facilities,utilities, occupancy, repair and maintenance of rental housing." Lee stated there were other provisions in the Code requring that the standard enforced must relate to a threat to life, health or safety of the occupants or the property. Mayor Martinez asked if the "repair and maintenance" required must be relevant to health and safety. City Attorney Roy replied in the affirmative. He stated requirement was in a separate Division within the same Article. Mayor Martinez asked about the language in Section 5-257 paragraph (a) stating: "Whenever necessary to make an inspection to enforce any of the provisions of this Article whenever the Director of Building and Zoning has reasonable cause to believe that there exists in a building or upon any premises any condition . . . . that the Director shall have recourse to every remedy provided by law to secure entry, including an inspection warrant issued by the Municipal Court or any other court pursuant to Rule 241." He asked about the wording relating to "reasonable" rather than "probable" cause and asked if there was a difference in the two. City Attorney Roy stated the reasonable cause standard did not apply to the warrant requirement. He stated "reasonable cause" gave the right of inspection and that if consent to inspection was denied that one of the options was to go to court. Ablao stated the "probable cause" standard applied to an inspection warrant. Mayor Martinez asked why the language in the ordinance would not say "probable cause" instead of "reasonable cause." Ablao stated "reasonable cause" allowed the inspector to request an inspection and consent to enter for an inspection,and that if this was refused the City could develop "probable cause" that there was a violation and to request a warrant from the court. Councilmember Kastein asked about the City's interest in being able to identify a local contact person or to serve notice and how efficient this program would be in addressing that interest. He noted that the agenda material indicated that the expectation was for a relatively high participation rate of about 70% for the first year and 90%ongoing. He noted that the agenda material indicated that over 13,000 violation notices were sent and that about 11% were returned because the owner was not at the address to which the notice was sent. He asked if that 11% would be the same that would be hard to get registered. Lee stated this would be a fairly accurate prediction. Heffernan stated there was no way to know for certain.. Councilmember Kastein asked about recovery of costs for violations and if there could be a "mandatory fee" attached to any kind of nuisance violation that would go toward enforcement or if it would always be at the discretion of the judge. He stated his concern was getting money for additional enforcement. Ablao stated that would be a surcharge. City Attorney Roy asked if the intent would be earmark the fee for certain purposes. 526 February 15, 2005 Councilmember Kastein asked a fee could be used more generally. City Attorney Roy stated the judge set the schedule of fines and fees and that it would be possible to earmark a portion of the fines collected for certain kinds of offenses and use that portion for particular purposes. Councilmember Kastein asked if that had been considered in the past. City Attorney Roy stated the fees collected went into the General Fund. Mayor Martinez expressed a concern that enforcement needed to be kept "neutral" and not tied to the budget. City Attorney Roy stated a portion of the fines for camera radar violations was earmarked under the Code. (Secretary's Note: The Council took a recess at this point.) Agenda Items #21 and #34 Postponed to March 1, 2005 Mayor Martinez suggested that Council consider postponing agenda item#34 relating to out of City utility service. Councilmember Weitkunat made a motion, seconded by Councilmember Kastein, to postpone agenda item#34 Items Relating to Out of City Utility Service and Pulled Consent agenda item#21 First Reading of Ordinance No. 025, 2005 Amending Section 2-31 of the City Code Pertaining to Executive Sessions to March 1, 2005. Councilmember Tharp stated item #21 could be dealt with quickly to allow staff to deal with the matter on a timely basis. She asked if there was a sense of urgency on that item. City Attorney Roy replied in the negative. Councilmember Roy stated he would not support the motion and had a concern about scheduling items on the agenda that would not be heard until later. The vote on the motion was as follows: Yeas: Councilmembers Hamrick,Kastein,Martinez,Tharp and Weitkunat. Nays: Councilmember Roy. THE MOTION CARRIED. Continuation of Agenda Item #32 (Rental Registration) Councilmember Weitkunat asked if the lease addendum was part of the ordinance. City Attorney Roy stated there was a reference to the addendum in paragraph 7 requiring the owner to provide it to all tenants. Councilmember Weitkunat asked about part 3 of the lease addendum relating to compliance with all applicable provisions of City and State law,noting that the City Code was over four inches thick 527 February 15, 2005 and that the State statutes were voluminous. City Attorney Roy stated most leases required the tenants to comply with the law and that this addendum would reinforce that requirement. Councilmember Weitkunat stated"all applicable" laws was very general wording. She stated there was a statement relating to fines for over occupancy in the same document and asked if the occupancy limits had been established. City Attorney Roy stated this related to the current definition in the Code relating to no more than "three unrelated" occupants. Councilmember Weitkunat stated the purpose (Section 5-237) set out in the ordinance referenced occupancy and other minimum standards and asked if those standards were all set out in the Code. City Attorney Roy replied in the affirmative. Councilmember Weitkunat asked if the ordinance should indicate where those standards would be found. City Attorney Roy stated a purpose statement was to establish the legislative intent of the enactment and that the details of the laws were in the various divisions of the Article. Councilmember Weitkunat questioned the reference to occupancy standards when the continuation of the "three unrelated" ordinance had not been decided. Mayor Martinez stated the language related to existing laws. Councilmember Weitkunat stated this would be another law that would use the questionable standard. Councilmember Roy asked how long the City had worked with stakeholders on this issue. Heffernan stated the stakeholders were brought together in the fall to discuss different options after a summer outreach process. She stated there were 1,300 individual contacts with people who filled out the survey or wrote letters to the Council. Councilmember Roy noted that there were 23,000 CSU students and asked what kinds of plans CSU had to work with the City to alleviate some of the strain on housing stock. City Manager Atteberry stated there were no definitive plans at this stage and that CSU was interested in partnering with the City to discuss student housing issues. He stated there had been an open dialogue with CSU and that he would characterize the conversations as an interest in partnering on this long term issue. Councilmember Roy asked if there was a lot more work to be done to partner with CSU. City Manager Atteberry replied in the affirmative and stated he believed that CSU leadership was poised for that partnership. He stated the work on this issue would take place over the coming decades. Councilmember Roy noted that there would be a cost of$65 to start the registration program for an individual property. He asked what the cost would be for maintaining the information once the database was created if there were no complaints on a property and if the property was not sold. He stated he would like to look at funding the program through the enforcement of violations and through the sale of property rather than an ongoing fee to maintain data that did not change. He stated he did not believe that it would cost$65 to maintain the data on a property if no changes had 528 February 15, 2005 to be made to that data. He stated the properties that had violations should help fund the program more fully. Lee stated it was a policy decision on how the program should be funded and that there was no mechanism at this point to allocate funds in this manner. Councilmember Roy stated he would like to see some more thought given to his suggestion prior to Second Reading. He stated there had been some references by the speakers about how easy it was to find landlords. He stated he had received information from Mr. Anderson giving an example of how difficult it was to locate a landlord. An unidentified woman stated this example was for a landlord that had five different mailing addresses, post office box listings and was not listed in the phone book. She stated weeks went by before the situation could actually be abated. Councilmember Roy stated the point was that it was often difficult to find the landlord. Mayor Martinez stated he would like a copy of the information referenced by Councilmember Roy to be provided to the entire Council. He asked if the agent would now have to live within 75 miles. Heffernan stated the requirement was that the agent must live or have an office within 75 miles. Mayor Martinez asked what would happen if the agent did not meet that requirement. Heffernan stated the agent would not be considered to be a local agent. Mayor Martinez asked if the intent was to make sure that the agent would be readily available for contact. Heffernan replied in the affirmative. Mayor Martinez asked what would happen if the agent could not be contacted. Heffernan stated the purpose of the local agent would be to expedite efficient service and to have someone who could respond to the situation. She stated if the agent could not be contacted that there would be difficulties in resolving the situation. Sowder stated the City would continue to locate the owner utilizing the utility database and other sources and would contact the tenant. Mayor Martinez noted that it would be difficult to issue a summons if the person could not be contacted. City Attorney Roy stated if the City became aware under Subsection(5)of Section 5-263 that a person had failed to follow the registration requirements, including registering a local agent, that a notice would be send and if the situation was not remedied within seven days it would constitute a violation. Mayor Martinez asked if the individual could then receive a summons if that person did not receive the notice for some reason. City Attorney Roy stated the notice requirement went further than for most violations of the Code i.e. this was one of the few provisions in the Code that required that a notice be given before a violation actually existed and a summons could be issued. He stated the failure to register someone as a local agent would be the violation. Mayor Martinez asked if a registered agent would be in violation if the City could not contact the agent for some reason. City Attorney Roy replied in the negative. 529 February 15, 2005 Councilmember Tharp stated some speakers believed that this ordinance did not address the health and safety issues. She asked the staff to indicate the provisions of the ordinance that related to health and safety issues. Lee stated the purpose as stated in the ordinance was"to protect the health, safety and welfare of the people by establishing minimum standards governing facilities, utilities, occupancy,repair and maintenance of rental housing to safeguard life or limb,health and properties of persons affected by or subject to the provisions of this Article, and the public welfare through regulation and control of the use, occupancy, location and maintenance of all rental housing within the City." Councilmember Tharp stated some speakers implied that this ordinance did not accomplish that purpose. She stated it was her understanding that the ordinance had two purposes: to create an accurate,up-to-date registry of rental units within the City to allow more effective enforcement with regard to behavioral issues and other health and safety issues relating to rentals. Lee stated those were the stated purposes. Councilmember Tharp stated those seemed to be viable reasons for having registration and that the ordinance addressed the two things that the Council asked the staff to address. She asked that staff respond to the repeated comments by speakers that the information was available on landlords. She asked how difficult it was to identify property owners without a rental database. Lee stated it was often difficult (about 25% of the time) to locate property owners for enforcement of the rental housing standards. Councilmember Tharp asked if it would be helpful to the staff to have a database that was up-to-date and included all the rentals. Lee replied in the affirmative. Mayor Martinez stated Ms.Gillis quoted a staff person as saying that most of the time the violations were taken care of and asked if this expensive process was needed. Sowder stated for the nuisance violations enforced by Code Compliance that 94%compliance was achieved after notification. She stated of the 13,542 notices sent last year that 4,495 (about 11%)were returned in the mail,requiring extra research and staff time and prolonging the time frame for correcting the problem. Mayor Martinez asked if some were located through the City utility database. Sowder stated about half were obtained through the utility database. Mayor Martinez asked if the utility database had adequate information to indicate whether someone was a renter,owner,or landlord. City Manager Atteberry stated such information was not available from the utility database. Mayor Martinez stated he had been notified when the utilities were turned off on property he owned. Councilmember Weitkunat stated for the property she owned when there was a turn-off notice she was notified because she was responsible for the utilities. She stated she believed that the Utility did know who owned the property. Mayor Martinez stated he believed that the data was available somewhere. 530 February 15, 2005 Councilmember Weitkunat stated she believed that the Utility did know who was responsible for the utilities. Heffernan stated a November memo from the Utility indicated that the Utility could only obtain such information if the owner contacted the Utility. She stated many property managers registered with the Utility because they wanted to receive such notifications. Mayor Martinez suggested looking into that further. City Manager Atteberry stated he would look into that and report back to the Council. Mayor Martinez stated information had been received regarding the software options. He stated Option A would cost$280,100 and asked how many violations there were in the last several years. Sowder stated in 2004 the City sent 542 first violation notices in response to the tickets on the property, 70 second violation notices, 5 third violation notices and one fourth violation notice. Mayor Martinez asked at what point people were taken to court. Sowder stated there were three hearings before the City Manager's Office settled by stipulation agreement and that there had not been any situations processed to the civil suit level. Mayor Martinez asked if the 542 first violation notices were all sent to property owners. Sowder stated she did not have that information. Mayor Martinez stated he would be interested in knowing how many property owners were represented in that figure. He stated without this $280,000 package that there were only three hearings and good compliance. Councilmember Tharp asked for clarification regarding the notices sent. Sowder stated the notices were sent to the available addresses and that tenants and property managers also received notices. Councilmember Tharp asked for clarification that when the notices that came back that notice was not served on the property owners because they never received it. Sowder stated there were three different notices for one violation i.e. owner,tenant and property manager. She stated she believed that there were no situations in which all three notices came back. Councilmember Tharp asked if staff was certain that at least someone would receive notice. Sowder stated she could not be sure and that when notices came back research was required to try to obtain better information. Mayor Martinez asked how many rental units there were. Lee stated there were about 10,000 four- plex and smaller rental units that were not part of an apartment complex. Mayor Martinez asked if it was true that over 13,000 notices were sent when there were 10,000 rental units. Sowder stated notices were sent to both owner-occupied and rental properties. She stated there was no way to distinguish between the two types of properties. Mayor Martinez stated it seemed to him that the City should not be talking about "rental registration" and should be talking about "problem registration" instead. 531 February 15, 2005 Councilmember Hamrick made a motion,seconded by Councilmember Roy,to adopt Ordinance No. 021, 2005 on First Reading. Councilmember Tharp stated rental registration might not be a perfect solution but that it would address health and safety issues and the need for a database to deal more effectively with Code violations and behavior problems. She stated she supported taking this "first step" and moving forward on the issue. Councilmember Roy thanked staff for its work on this issue. He stated he believed that the City Council should do what was best for citizens and families. He stated rentals were"businesses" that were "subsidized by the quality of life degradating in these neighborhoods" and renters coming in to pay rent"below market"when there were more occupants than allowed by the law. He stated the City spent 10 months working with stakeholders on this issue. He stated he would continue to work toward creating structures that were safe and sound and protecting families and neighborhoods. He stated he would support the motion. Councilmember Weitkunat stated this discussion dealt with a variety of issues. She questioned what problem the Council was trying to fix. She stated it appeared based on the figures presented by staff that this "problem" centered on three nuisances i.e. a half million dollar system was being set up to find 700 names and addresses. She stated the question was what problem the City was trying to fix at what cost. She stated she did not believe that this ordinance would contribute to "harmony" in neighborhoods. She stated she believed that the issue did not relate just to rental properties and that the ordinance was "discriminatory." She stated this would be a half million dollar"fix" that would not be what was needed. She stated this was the wrong answer to the wrong problem. She questioned looking at a half million dollar program in times of budget"crunch." She stated she did not believe that all sides "had been at the table" to discuss the issue. She stated many speakers (property owners) indicated that they were interested in working on neighborhood problems. She stated there were other choices available to address the problem through the courts and through enforcement. She stated the possibility of 'voluntary" work by property owners, renters and investors on the issue had been "glossed over." She stated this issue was "divisive" and that she would not support the motion. Councilmember Tharp stated this was a complex issue and that the City had been attempting to deal with it for at least several years. She stated significant improvements had been made in enforcing existing ordinances and that there had been "incremental" improvements in other ordinances. She squestioned whether the Council was "serious" about an attempt to "beef up" how the City could enforce existing nuisance ordinances. She stated rental registration program would be less than perfect but would provide a database for future discussions, would be an opportunity to educate tenants and landlords and would address health and safety issues. She stated this would be one step closer to dealing with the actual problem. She stated the City would continue to work toward realistic workable solutions to the outdated "three unrelated" ordinance. She stated some had said that this was"anti university"or"anti business" and that this was not the case. She stated if nothing was done the "core city" surrounding the university would become a "slum." She stated the most important factor was that people considered where they lived to be their "homes" and that when neighborhoods deteriorated home owners decided to sell. She stated the City needed its older 532 February 15, 2005 neighborhoods and that to "do nothing" was "unwise." She stated the Council would continue to work on related issues and needed to move ahead. Councilmember Kastein stated this was the "culmination" of a lengthy debate. He stated staff had "delivered"what was requested by the Council. He stated he did not believe that the$65 startup fee and$35 ongoing fee was too high or too intrusive. He stated the arguments that he found to be the most salient were that a rental is a"business"and that there was a need to protect families. He stated he was troubled by several things in the ordinance. He stated having a database readily accessible would allow people to "delineate"which homes were rentals or owner-occupied and that he did not believe that was the intent. He stated the issue was the need to address "behavior" and that this did not necessarily apply only to rentals. He stated there was a "climate of disrespect for the law" and that he believed that this was because the proper amount of enforcement had not been done in the past. He stated during the last budget cycle the three Councilmembers who opposed the Public Nuisance Ordinance were strong advocates of increasing the police force by two officers. He stated one of his main goals in advocating that was neighborhood work. He stated the rest of the Council defeated adding money to the budget for more officers. He stated in the last about $250,000 was allocated from the General Fund to affordable housing. He stated this was ad hoc money from reserves that could have been taken from the Affordable Housing Fund instead. He stated the money could have been used for enforcement. He stated the City needed to "beef up" the police force as the first step to address this issue. He stated this ordinance was another effort to try to address the fact that there was not enough enforcement. He stated he would continue to focus on the enforcement issue. He stated he did not believe that rental registration would be an efficient system and that the people who were currently hard to contact would be the same people who would be hard to register under the new system. He stated he would not support the ordinance. Councilmember Hamrick stated there was a problem with rentals in the community. He stated the City did not yet have a "good handle" on that problem. He stated the purpose of rental registration was to register all rentals within the community to find out the magnitude of the problem. He stated the goals of rental registration would be to increase the efficacy of nuisance code enforcement through accurate contact information, provide a local contact and better information sharing, and educate all parties about rental housing standards and other City codes. He stated the cost would be $33 per year for each unit. He stated he would support the ordinance. Mayor Martinez stated about 13,000 notices were sent out and that there were an estimated 10,500 rentals. He stated it was unclear how many rentals versus homeowners received notices. He stated some people could continue to"dodge the system." He stated this program would not be"financially smart"and would not be efficient. He stated this ordinance would give the appearance that the City was"targeting"and discriminating against university students. He stated this ordinance was divisive and that the Council should figure out what was"fair and balanced"for everyone in the community. He stated in the past staff had properly based actions on complaints. He questioned the high cost of the software. He stated this ordinance would cause bigger problems and that the economic impact was not clearly understood. He stated for this to work there would have to be community buy-in to address "problem neighbors" rather than just "problem rentals." He stated this would be more fair and equitable. He stated he still favored discussion of a Campus West police substation and 533 February 15, 2005 continuing discussions with CSU about the issues. He stated he could not support pouring a half million dollars into the problem to just "feel good" about doing something. The vote on the motion was as follows: Yeas: Councilmembers Hamrick, Roy and Tharp. Nays: Councilmembers Kastein, Martinez and Weitkunat. THE MOTION FAILED TO PASS. City Manager Atteberry asked for confirmation on the next steps. He stated on March 8 the economic study results on the "three unrelated" issue would be available for study session discussion. He stated the April 26 Study Session would focus on the "three unrelated" ordinance and that First Reading of an ordinance would be scheduled for May 3 and Second Reading would be scheduled for May 17. Meeting Continued Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to continue the meeting. The vote on the motion was as follows: Yeas: Councilmembers Hamrick, Kastein, Martinez, Roy, and Weitkunat. Nays: Councilmember Tharp. THE MOTION CARRIED. Resolution 2005-017 Making Findings of Fact and Conclusions Pertaining to the Appeal of the December 2, 2004, Determination of the Planning and Zoning Board Regarding the Feather Ride Project Development Plan #20-04A.Adopted. The following is staff s memorandum on this item. "EXECUTIVE SUMMARY At its February 1, 2005 hearing, the City Council overturned(4-3;Nays:Councilmembers Martinez, Tharp, and Weitkunat) the Planning and Zoning Board's denial of the Feather Ridge Project Development Plan and remanded one aspect of the appeal, a request for modification of the standardpertaining to the separation from residential areas contained in Section 3.8.27 of the Land Use Code, to the Planning and Zoning Boardfor reconsideration. The Planning and Zoning Board will consider the modification request at its February 17, 2005 public hearing. City Council overturned the Planning and Zoning Board's action based on its f nding that the Board failed to interpret and apply Section 3.8.27 (F) of the Land Use Code. As to that criterion, the Council found that vehicle access to the reception center would be provided directly from a public street. The remand to the Board would be limited to reconsideration of the request for a modification ofstandard to the separation requirements.Ifthe modification ofstandard is approved by the Board, the approval will constitute approval of the Project Development Plan and, if such 534 February 15, 2005 modification is denied by the Board, such denial will constitute denial of the Project Development Plan." City Attorney Roy explained that the purpose of the Resolution was to bring to closure the appeal proceedings and to ensure that the record accurately reflected Council's decisions and the reasons for that decision. He stated there had been some discussion about whether the Resolution did that. He reviewed the proposed Resolution and noted that Council had received a revised Resolution. He stated the Resolution stated the grounds for appeal were adequate and conformed to the requirements of the Code; that the Council found that the Board did not err by failing to conduct a fair hearing; that except with regard to a matter remanded to the Board that the Council found that the Board failed to properly interpret and apply the provisions of the Code with regard to a particular section of the Land Use Code dealing with direct access to an arterial street;that the Council overturned the Board's determination that the project did not have direct access to an arterial and instead found that it did;that the Council found that the plan otherwise complied with all of the performance standards in addition to the one that the Council found with regard to direct access, except for a standard which was the subject of an application for a modification;that the Council had remanded the matter of the modification to the Board for the sole purpose of reconsidering that request for a modification; that if the modification of standards was approved by the Board that such approval would constitute approval of the plan, and that conversely if the modification was denied by the Board that such denial would constitute a denial of the plan; and that if the request for modification was withdrawn that such withdrawal would result in approval of the plan. He stated the attorney for some of the parties-in-interest opposed to the appeal had filed a motion for reconsideration of the Council's decision and that the attorney for applicant had filed a response to that. He suggested that the parties-in-interest be allowed time to speak to both the request for reconsideration and the wording of the Resolution and that the Council then address the request to reconsider its decision and, if that was approved,to hear additional presentations and argument on the merits of the appeal,or,if it was denied, to discuss whether to adopt this Resolution as presently worded or as amended. Cameron Gloss, Director of Current Planning, stated for the record that staff did some follow-up upon the reconsideration/clarification request from the neighborhood's legal counsel regarding the zoning on the southerly 30 feet of the private drive accessing the development site. He stated the City zoning map was incorrect. He stated when the Hewlett-Packard campus was annexed into the City it was zoned I-Industrial and that upon adoption of the Harmony Corridor Plan the zoning that was applied was HC - Harmony Corridor. He stated when the zoning map was created at the time of adoption of City Plan that there was a transfer from the old engineering standard zoning map to one that administered through the GIS Department. He stated when the transfer occurred there was an error made so that the zoning line was incorrectly shown on the City zoning map. He stated his testimony at the appeal hearing had indicated that the southerly 30 feet was zoned HC and that this was correct. He stated the motion for reconsideration included a letter from the City Zoning Department confirming that the property was zoned R-L and that this was incorrect. City Attorney Roy suggested that when the parties addressed the Council that they be given an opportunity to say whether they believed that this was significant or not. 535 February 15, 2005 Councilmember Kastein asked why the Council must consider the motion for reconsideration. City Attorney Roy stated in the event of a court appeal of the Council's decisions that it was advisable to take a position as to whether the Council wanted to reconsider or not. Mayor Martinez invited parties-in-interest to speak and noted that new exhibits or evidence would not be received. He stated this was not a rehearing. Jim Martell, attorney representing the applicants (appellants), stated he was responding to the opponents' motion for reconsideration. He stated there was no provision in the Land Use Code or City ordinances allowing for a motion for reconsideration. He stated it should be denied on that grounds alone. He stated the opponents had raised the issue of the chain of title on acquisition of the 30 feet. He stated Julie Baker and Wendy Meyer currently owned the 30 feet. He stated the second issue raised by the opponents was that the right-of-way requirement of 60 feet would be dedicated to the City. He stated the subdivision plat would dedicate that right-of-way to the City to clear up this entire issue. He stated this further established that Ms. Baker and Ms. Meyer owned the 30 feet and were willing to dedicate it at some future time. He stated the road location was clearly presented to the Planning and Zoning Board and to the City Council as part of the appeal as was the need for the southerly 30 feet. He stated this 30 feet was clearly included within the Hewlett-Packard annexation and was clearly zoned I-Industrial. He stated when the zoning was changed the 30-foot strip was clearly made HC. He stated the Resolution as drafted stated what the City Council intended but that it might be helpful to make a clearer statement. He stated the Resolution should clearly state that the plan was approved and that the modification was remanded for Planning and Board reconsideration. He stated you could only modify something if it had been approved and that "implicit" in Council's motion was approval of the plan. He requested that the Resolution state that as well. Brad March, attorney representing the Woodland Park neighbors, stated the roadway was acquired in a transaction separately from the acquisition of this property. He stated it was a "separate piece of property." He stated the roadway would be located on apiece of property that everyone agreed was owned by the public and that it was not "direct." He stated this was not the same piece of property and that the drive area was on property owned by the City. He stated the 30 feet to the north was owned by Feather Ridge and that the southerly 30 feet where the driveway would be located was owned by the City. He stated in addition there was confusion about the zoning. He stated the Zoning Administrator on two different occassions advised the opponents that it was located in the RL zone. He stated this was indicative of the fact that this was a separate piece of property. He stated if the actual development was located in the Urban Estates zone and the driveway was located in a different zone that this was not "direct" because it was passing through another zone to get to the arterial as required. He requested some kind of clarification. He stated he understood that the Council wanted to remand the issues that were not before the Council to the Planning and Zoning Board to reconsider. He stated he understood that the Council felt that the issue that was before it was the issue related to direct access. He stated the motion was framed in such a way to remand the modification for reconsideration. He stated there were a number of other issues that the Council never took into account in conjunction with its consideration i.e. the buffering issue and fencing,and that these issues were not specifically looked at by the Planning and Zoning Board because the Board could not resolve the direct access issue. He stated the Council 536 February 15, 2005 and Planning and Zoning Board had not adequately looked at the buffering issue. He suggested that in order to approve the project there must be consideration of all of the various components of Section 3.8.27. He stated with regard to Section 3.8.27(D) relating to the 300 foot limit that the record was "extremely confusing." He stated the staff concluded that a modification was needed. He stated the neighborhood was asking that if the Council was going to remand the matter to the Board that it be remanded to look at all the questions (buffering, 300-foot limit)with the exception of the direct access issue, which had been resolved. Mayor Martinez asked Council whether there was a desire to reconsider. Councilmember Hamrick made a motion,seconded by Councilmember Roy,to grant the motion for reconsideration and clarification filed by Brad March. The vote on the motion was as follows:Yeas: Councilmember Roy. Nays: Councilmembers Hamrick, Kastein,Martinez, Tharp and Weitkunat. THE MOTION FAILED. City Attorney Roy stated Council needed to decide whether the matter was (1) being remanded to the Board as stated in the draft Resolution solely to consider the modification of standards with the finding that all of the other criteria had been met,and if that modification of standards was approved or withdrawn that the plan was approved, or (2) whether the matter was being remanded to the Board to not only look at the modification of standards but to also focus on the criteria which they did not look at because they denied the application for modification to determine whether the criteria had been met. He stated if the Council chose the first option that the finding was being made based upon the record and the staff recommendation and explanation that the criteria had been met. Deputy City Attorney Paul Eckman stated the Planning and Zoning Board denied it not only on the basis of it failing to have obtained approval of the two modifications and also on the basis of the other performance standards i.e.that there was no direct access. He stated the Board did look at the other performance standards and concluded that it failed the direct access standard. City Attorney Roy asked if the Board ever made a finding as to whether the other performance standards had been met. Eckman stated the denial was based upon lack of direct access and lack of approval of the modifications that were requested. City Attorney Roy stated the question for the Council was whether there was enough information in the record to find that the other criteria had been met, in which case it would hinge on the modification of standards, or whether the Council wanted the Board to look again at the other criteria besides direct access and the modification. Councilmember Kastein stated the Council approved a motion that defined"direct"and determined that the project did meet that standard. 537 February 15, 2005 Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to adopt Resolution 2005-017 as drafted. Councilmember Tharp asked about the meaning of the language in the Resolution stating: "If the request for a modification standard is withdrawn . . . ." She asked how the modification could be withdrawn unless the building would be moved. Gloss stated the project could conceivably go forward with the second phase of the development relating to the larger of the two proposed buildings and not use the existing farmhouse for a small scale event center. He stated the farmhouse could in that scenario be used as a residence or office or some other type of use. Eckman stated it might not comply if used as a residence because it would be too close to the new event center. He stated the building could potentially be moved or demolished. Councilmember Hamrick stated this was appealed to the Council on specific criteria but not all inclusive criteria. He stated Mr.March's memo indicated that the Planning and Zoning Board never made findings that the other 11 performance standards. He stated remanding to the Board on the basis of these two criteria and not having the Board look at the other criteria would limit the Board's discussion. Councilmember Weitkunat stated the assumption was that the appellants pulled out the two criteria with which the project did not comply. She stated it appeared that the other criteria were not part of the problem. She stated she believed that other criteria were addressed by the Planning and Zoning Board. She stated an appeal was always on specifics and that the Council needed to determine if what came forward in the appeal had been addressed. City Attorney Roy stated when the Planning and Zoning Board approved a development it typically did not make findings with regard to each of the applicable criteria. Gloss stated the staff did an analysis based on the development's compliance with use and design standards and made a recommendation to the Board. He stated the Board then typically adopted this as findings of fact. Councilmember Kastein asked if the Planning and Zoning Board pulled the two items with which they were dissatisfied (direct access and modification of standards for the buffer) and that it was typical that the Board did not specifically indicate that it was satisfied with the rest. Eckman stated there were two modifications at the time of Board review including the sidewalk, which was withdrawn. He stated the Board did not address each individual performance standard and that this was usually not done. He stated if the Board decided to approve a plan that it made a general finding that the plan complied with all applicable criteria of the Land Use Code. He stated if the Board decided to deny a plan that it cited the criteria which had not been met by section number. Councilmember Kastein asked for clarification that in case the Board cited the two criteria relating to direct access and the buffer as the reason for denial. Gloss replied in the affirmative. Councilmember Tharp asked if the Council could assume that the other criteria were not in question. Gloss stated this was a reasonable assumption based on the record. City Attorney Roy stated the Council had the prerogative to find that the standards were met and that the plan was approved if the modification of standard was approved,or to ask the Board to take a look at particular standards. 538 February 15, 2005 Councilmember Hamrick stated he would not support the motion and did not want to assume that the Board had no other issues with the project. He stated the Board focused on the major issues and might have other less visible issues with the project. He stated he would like the Board take another look at the project. Councilmember Weitkunat stated the Board heard this matter and that the Council needed to address what came forward on appeal. She stated there were two issues on the appeal and that the whole matter should not be reopened. She stated the Council resolved one of the issues and was asking the Board to look at the other area. Mayor Martinez stated the Council was the"final judge" on this matter and that the expectation was that Council make a decision. The vote on the motion was as follows: Yeas: Councilmembers Kastein, Martinez, Tharp and Weitkunat. Nays: Councilmembers Hamrick and Roy. THE MOTION CARRIED. Adjournment The meeting adjourned at 11:55 p.m. Mayor ATTEST: City Clerk 539 March 1, 2005 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 1, 2005, 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 Weitkunat. Staff Members Present: Attebeny, Krajicek, Roy. Citizen Participation Mayor Martinez stated each participant would have two minutes to speak. Courtney Stevens, ASCSU Director of Community Affairs, spoke regarding the findings of the economic study relating to the"three unrelated"ordinance and stated the ordinance was economic class based discrimination. She urged the Council to reject the idea of making a violation of the ordinance a civil infraction and to find another feasible alternative relating to occupancy rates. Greg Snyder, 619 Bear Creek Drive, spoke regarding boards and commissions terms and staffing. He stated Randy Fisher had indicated that he had spent 16 years on boards and commissions. He noted that the population of Fort Collins exceeded 120,000 and that it was not fair to have one person serving on various boards and commissions for that long. He stated this"stifled"the ability of the rest of the population to serve and have their opinions and input heard. He stated there was no shortage of qualified people to serve on boards and commissions and that people would apply if they knew they had a fair opportunity to be selected to serve. He stated when there was a "revolving door" for term-limited board members to move to other boards or commissions. He stated this made the term limit a"moot point." He stated there should be a"buffer period" such as four years before a person leaving a board or commission could be appointed to another. Mary Robertson, 1824 Lakeview Drive, spoke in opposition to the repeal of the grocery tax. Bob Fitskie spoke in favor of removing fluoride from the water supply. Mike Powers,607 Warren Landing,spoke against repeal of the grocery tax and urged people to vote no on the April ballot issue. Victoria Loran, 2207 Wakefield Drive, asked for clarification of Council's intent regarding small business owners. She stated she owned and operated a small,growing manufacturing business and that the City imposed many regulations on nearly every aspect of her operation. She stated City Council recently refused to register rental properties and was considering lifting all restrictions on the number of people that a business(a landlord)could pack into a rental. She stated it appeared that the Council was revising the uses allowed in low density single-family residential neighborhoods. 540 March 1, 2005 She stated"business was business" and that rental businesses were making a profit at the expense of quality of life. She stated rentals should be required to meet the same requirements as other businesses. Paul Anderson expressed disappointment in Council's 3-3 vote relating to rental registration. He stated the economic study indicated that failure to enforce the "three unrelated" ordinance was costing homeowners tens of thousands of dollars and was artificially driving up the price of homes. He stated landlords should be held accountable. Blair Trautwein, 1819 Lakeshore Circle,supported the extension of the street maintenance program sales tax and urged voters to vote in favor of the ballot measure. Ray Czaplewski,2012 Huntington Circle,thanked Mayor Martinez for his initiative on the Campus West area police substation. He stated there were "core problems" putting single-family neighborhoods at risk relating to failure to enforce the"three unrelated"ordinance. He stated there was a"black market" in rentals in single-family neighborhoods. Kelly Ohlson, 2040 Bennington Circle, urged all voters to vote against repeal of the grocery sales tax. He stated this repeal would"take a chainsaw"to the issue of budget cuts and would harm this community and the municipal organization. Bruce Heath, 4920 Crest Road, Brookwood Estates, opposed the southwest enclave annexation. Ann Marie Merline, 405 North Grant Street, opposed the repeal of the grocery tax because of the potential impact on quality of life. She urged voters to vote against ballot measure 1. Lori Brunswick, Rolland Moore West Neighborhood, commented regarding the economic and market study relating to the"three unrelated"ordinance. She stated the study showed that 71% of households in violation of the ordinance were occupied by college students (an estimated 1,070 rental units with 5,003 renters). She stated over 14,750 households lived near violators of the ordinance,affecting over 36,000 people,and that disruptive parties affected over 6,490 people. She stated approximately two-thirds of violators occupied single-family homes. She stated violations of the "three unrelated" ordinance devalued other property values. Steve Musiel, 5846 South College Avenue,liquor store owner,spoke in opposition to the southwest enclave annexation. Edmund Robison, 3632 Crescent Drive, opposed the southwest enclave annexation. Al Baccili, 520 Galaxy Court,supported repeal of the grocery sales tax and opposed the vendor fee. He asked that the voters support repeal of the tax. Doug Brobst, 1625 Independence Road, spoke regarding the"greed" shown by property managers and landlords in opposing the rental registration program that would have cost them about $2 per month. He stated "distortion" of the issue had taken place and that the rental business was "big 541 March 1, 2005 business" in Fort Collins. He stated the proponents of rental registration wanted to hold irresponsible landlords accountable. He stated residential and family neighborhoods did not consider the issue to be "dead" and asked that the new Council take a leadership role on the issue. Ed Robert, 1923 Linden Ridge Drive, asked the Council to look carefully at funding of essential services and "nice to have" services. He stated the maintenance of streets (ballot issue 3) was an essential service and that there needed to be consistent funding of that service. He supported the ballot measure and urged the Council to look at permanent funding for streets. Wayne Anderson, Fossil Creek Drive resident, opposed the southwest enclave annexation. Matt Fries,Chairperson for the Committee on Transportation Solutions,urged voters to vote yes on ballot issue 3. He stated this was continuation of an existing sales tax to fund maintenance for existing streets, bike lanes and sidewalks. Dr. Bud Heron urged voters to vote against ballot issue 1 (the food sales tax repeal). He noted that the sales tax rebate program had been changed to benefit more low income people. Wes Reitz,Fort Collins resident, expressed concern regarding the"three unrelated"ordinance. He stated the ordinance discriminated against students who did not violate City nuisance ordinances. Agenda Review City Manager Atteberry stated a revision relating to mitigating factors had been made to item #8 Second Reading of Ordinance No. 019, 2005,Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings. CONSENT CALENDAR 7. Consideration and approval of the regular Council meeting minutes of February 1, 2005. 8. Second Reading of Ordinance No.019,2005,Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings. The Nuisance Gatherings provision creates a new misdemeanor criminal offense directed at social gatherings or parties that result in nuisance behaviors occurring on neighboring properties. These amendments would be in conjunction with continued efforts to more effectively and proactively enforce current nuisance laws, including loud parties, code compliance issues and the Public Nuisance Ordinance. Ordinance No. 019, 2005, was adopted 6-0 (Councilmember Bertschy was absent)on First Reading on February 15, 2005. The motion included direction to incorporate on Second Reading an amendment regarding party guest responsibility for costs of abatement. Staff has drafted a separate Ordinance(see Item #16) to specifically address that issue. 9. Second Reading of Ordinance No. 023, 2005,Appropriating Unanticipated Grant Revenue 542 March 1, 2005 in the General Fund for the Larimer County Drug Task Force. The Latimer County Drug Task Force("Task Force")includes Fort Collins Police Services, Loveland Police Department, Larimer County Sheriffs Department, Drug Enforcement Administration, and the Colorado State University Police Department. Fort Collins Police Services applied to the Office of National Drug Control Policy on behalf of the Task Force for federal grant monies to help fund the investigation of illegal narcotics activities in Latimer County. The City has recently received notification of the grant award in the amount of$45,000. These funds will be used to help offset the overtime costs of each participating agency. This appropriation is not a request to identify new dollars for the Fort Collins Police Services 2005 budget. This action appropriates the $45,000 in new federal grant money. As the administrator of this grant, Fort Collins Police Services will assure participating agencies receive their share of the funds.Ordinance No.023,2005,was adopted 6-0(Councilmember Bertschy was absent) on First Reading on February 15, 2005. 10. Second Reading of Ordinance No. 024,2005,Amending Various Sections of the City Code to Define the Term "Growth Management Area" and to Replace the Existing;References to "Fort Collins Urban Growth Area" with Said Term. This Ordinance, which was adopted 6-0 (Councilmember Bertschy was absent) on First Reading on February 15, 2005, adds to Chapter 1 of the City Code a definition of the term "Growth Management Area". The City Charter contains a definition of the term "Fort Collins Urban Growth Area"and the new"Growth Management Area"definition references and includes that Charter definition. The term "Growth Management Area" is the more commonly accepted and currently used term and this change will update the Code accordingly. Also,there are two references in the City Code to the term"Fort Collins Urban Growth Area" and these references are revised to instead reference the newly added term, "Growth Management Area". 11. First Reading of Ordinance No.027,2005,Appropriating Bond Proceeds in the Water Fund. A $4,150,781.22 non-interest bearing bond was issued to the City of Fort Collins Water Utility Enterprise to acquire from the North Poudre Irrigation Company(NPIC)the property and rights it owns that were necessary to proceed with the permitting and development of the Halligan Reservoir Enlargement Project, however, no appropriation was done at that time. The transfer and sale of the property to the City of Fort Collins closed on January 22, 2004. Because the debt consists of a non-interest bearing bond,the value of the investment in the property is calculated at the net present value of the payment streams required in the bond obligation, which results in an appropriation for $2,476,446.24 in constructive bond proceeds. The City will commit to the annual payments, which includes the principal and the interest as imputed, for the next 27 years. A payment schedule is attached. The Water Utility will pay the debt primarily from development fees paid to the City. 543 March 1, 2005 This Ordinance appropriates the constructive bond proceeds to the Halligan Project, 12. First Reading of Ordinance No. 028, 2005, Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin. The Spring Creek Stormwater Basin Master Plan identified several capital projects to reduce the risk of flooding in the Spring Creek Basin. A$2,697,188 State of Colorado Division of Emergency Management("CDEM")Grant has been awarded to the City for the construction of some of the stormwater projects in the Spring Creek Basin. The projects to be constructed with the grant include expansion of the Taft Hill, Rolland Moore and Southern Railroad Detention Ponds and the stabilization of the Burlington Northern Railroad embankment. The performance period for the grant is December 16, 2004 through December 31, 2006. This new grant was made available from the CDEM through an agreement with the Federal Emergency Management Agency for Pre-Disaster Mitigation ("PDM")projects. The Fort Collins projects were selected through a nationwide competitive process and may be the first in the nation to be awarded the PDM grant for a capital project. The Ordinance appropriates the grant proceeds to the Spring Creek PDM Capital Project. 13. First Reading of Ordinance No.029,2005,Amending Chapter 15 of the City Code Relating to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires. Chapter 15, Article XIV of the City Code defines various terms used in that Article which pertain to the licensing of"outdoor vendors." This Ordinance would establish a distinction between outdoor vendors and "downtown plan area concessionaires." Staff recommends adoption of the Ordinance, as it was the original intent to differentiate between the two different operations when the Outdoor Vendor Ordinance was revised in 1994. The amendment to the Code would reflect what the working procedure has been since1994. 14. First Reading of Ordinance No. 030, 2005, Amending the Land Use Code by Adding "Resource Recovery" Use to the Public Open Lands (P-O-L) Zoning District. This Ordinance would amend the Land Use Code to add"Resource Recovery"to the P-O-L zoning district. Resource recovery is defined as: "The process of obtaining materials or energy,particularly from solid waste" Resource recovery complements existing uses in the Land Use Code related to waste diversion,including recycling and composting facilities,but permits additional alternatives to landfilling. In the short-term, adding Resource Recovery to the P-O-L district will allow the Natural Resources Department (NRD)to lease existing facilities at the Resource Recovery Farm to 544 March 1, 2005 Frontline Bioenergy for experimental research in extracting hydrogen from biomass (specifically chipped tree branches). The 150-acre Resource Recovery Farm (RRF) is located just south of East Prospect Road at I-25. Staff recommends that"resource recovery"be added to the Land Use Code as an allowable use subject to administrative review. 15. First Reading of Ordinance No. 031, 2005, Amending Various Sections of the Fort Collins Traffic Code. At the time of the adoption of the Traffic Code,it was the understanding of staff and Council that the Traffic Code would most likely be subject to future amendments, not only for the purpose of clarification and correction of errors,but also for the purpose of ensuring that the Traffic Code remains consistent with State traffic laws. The proposed amendments will: • Renumber the speeding in a construction and school zones sections for placement in the speeding section of the Traffic Code, a more logical placement for these provisions; and • Renumber the funeral procession provision for placement in a more appropriate section of the Traffic Code; and • Provide a definition for "street rod" consistent with State statute. Staff will submit the changes to Colorado Department of Transportation (CDOT) for approval. As these amendments are not substantive, it is anticipated that CDOT will approve. 16. First Reading of Ordinance No.033,2005,Authorizing the Conveyance of a Non-Exclusive Easement to LaFarge West, Inc. Over. Across and Under a Portion of the Poudre Trail. The City has constructed the Poudre Trail east and west of Taft Hill Road. The latest segment was constructed west of Overland Trail on a strip of land that was donated by LaFarge West, Inc. LaFarge still owns land abutting both sides of the Trail. The property on both sides is being used for water storage and LaFarge has a need to connect between the ponds on both sides of the trail. LaFarge is requesting easements for underground pipe installation to convey water in 3 locations on the City-owned property. Each easement will be 85 feet by 100 feet. City staff has reviewed the request and has no objections to the requested easements. 17. First Reading of Ordinance No. 034, 2005,Authorizing the Lease of City-Owned Property at 3829 East Prospect Road, Fort Collins. Colorado, to Frontline Bioengm. Vacant buildings suitable for industrial uses are located on the Resource Recovery Farm property (RRF), which was transferred from Utilities to the Natural Areas program for use 545 March 1, 2005 as open space in 2003. Frontline BioEnergy, which is working to develop innovative technology and integrate systems that convert biological waste materials (biomass) into useful energy products such as hydrogen through thermal or microbial processes, is interested in using certain of the buildings at RRF. Frontline BioEnergy offers proven research methods, design and manufacturing expertise, and system integration. In furtherance of the City Council adopted policy of encouraging development of and implementing hydrogen-related projects in Fort Collins, and funds have been budgeted for Utilities' use for hydrogen fuels projects. Utilities has proposed to use a portion of those funds to assist Frontline BioEnergy in acquiring this lease space from the Natural Areas program for the start-up of its operations. The lease would include the following: both levels of the office, consisting of 2,106.88 square feet, 2,450.09 square foot section of the shop, and an outside area on which the tenant would construct a temporary open front pole shed, together with a small amount of parking area. 18. First Reading of Ordinance No 035,2005,Authorizing the Conveyance of a Non-exclusive Easement Interest to North Weld County Water District for an Existing Waterline Across the Vehicle Storage BuildingPropertv. The Vehicle Storage Building Property is located at 701 Wood Street. There is an existing North Weld County Water District waterline across the property that was installed in the 1960s without recorded documentation that City staff or North Weld County Water District Staff can locate. The line was in place at the time the City acquired the property, and City staff likely knew of the existence of the waterline, as it continues across a number of other properties owned by the City. Both parties acknowledge that an easement document defining and providing notice of the waterline easement needs to be executed and recorded. 19. Resolution 2005-019 Authorizing a Revocable Permit for a Period of Five Years on Property Owned by the City for the Purpose of Seeding and Irrigating a Future Park Site. With the intention of providing a future neighborhood park within the recently approved Trail Head development (the "Development"), the City purchased Tract H (the "License Area") from Trail Head Inc. (the "Developer"). This proposed License will allow the Developer, at the Developer's expense, to install an irrigation system and seed the License Area in grass which will be a blend approved by the City. This "greening" of the future park will be done to coincide with the Developer's construction of the Development. In addition,the Developer will be responsible for the cost of the maintenance of the irrigation system, regular mowing of the grass and the cost of sufficient water to irrigate the License Area during the term of the License. Providing this green space will offer an immediate benefit to the property owners as development occurs and delays the City's obligation for park maintenance for five years. The City's Park Planning and Development staff will meet with the neighbors to develop a 546 March 1, 2005 plan for the park as the year 2010 approaches. The City purchased this 4 acre neighborhood park site in February, 2005. 20. Resolution 2004-020 Supporting City Participation in the Mark of Distinction for Character Development through Youth Sports. In 2001,the City of Fort Collins adopted Resolution 2001-117 naming Fort Collins as a City of Character. Recognizing that good character is the principal foundation for personal, family and organizational success,the City has joined Character Fort Collins in its effort to facilitate the development of good character throughout the community. An area that has generated specific attention is that of youth sports programs. Organized youth sports programs are one of the greatest resources available for instilling valuable life skills in youngsters. Unfortunately, the climate surrounding some of today's programs has become less than ideal. In an effort to further develop good character in youth sports, Character Fort Collins, Colorado State University, Poudre School District, Healthier Communities Coalition of Larimer County and the City of Fort Collins are partnering to develop a "Mark of Distinction" program. Organized youth sports teams, including recreational, club and interscholastic, will be eligible to receive the "Mark of Distinction" based on criteria to be established by the partner organizations. The criteria will promote character development and ethical behavior of athletes, coaches, parents, fans and team administrators. This Resolution confirms the City's participation in this partnership and encourages youth sports and interscholastic teams and their administrative organizations to pursue the"Mark of Distinction." ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. 8. Second Reading of Ordinance No.019,2005,Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings. 9. Second Reading of Ordinance No. 023,2005,Appropriating Unanticipated Grant Revenue in the General Fund for the Larimer County Drug Task Force. 10. Second Reading of Ordinance No. 024,2005,Amending Various Sections of the City Code to Define the Term "Growth Management Area" and to Replace the Existing References to "Fort Collins Urban Growth Area" with Said Term. Ordinances on First Reading were read by title by City Clerk Krajicek. 11. First Reading of Ordinance No.027,2005,Appropriating Bond Proceeds in the Water Fund. 547 March 1, 2005 12. First Reading of Ordinance No. 028, 2005, Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin. 13. First Reading of Ordinance No.029,2005,Amending Chapter 15 of the City Code Relating to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires. 14. First Reading of Ordinance No. 030, 2005, Amending the Land Use Code by Adding "Resource Recovery"Use to the Public Open Lands (P-O-L) Zoning District. 15. First Reading of Ordinance No. 031, 2005, Amending Various Sections of the Fort Collins Traffic Code. 16. First Reading of Ordinance No 033.2005,Authorizing the Conveyance of a Non-Exclusive Easement to LaFarge West, Inc. Over. Across and Under a Portion of the Poudre Trail. 17. First Reading of Ordinance No. 034, 2005, Authorizing the Lease of City-Owned Property at 3829 East Prospect Road, Fort Collins, Colorado, to Frontline Bioengwy. 18. First Reading of Ordinance No.035,2005,Authorizing the Conveyance of a Non-exclusive Easement Interest to North Weld County Water District for an Existing Waterline Across the Vehicle Storage Building Property. 24B. First Reading of Ordinance No. 026, 2005, Amending Chapter 7.5 and Chapter 26 of the City Code to Establish Requirements and Procedures for Utility Service Outside the Fort Collins Growth Management Area. 25A. First Reading of Ordinance No 025, 2005, Amending Section 2-31 of the City Code of the so as to Clarify That City Council Can Provide Direction to City Staff or Other Persons During to Executive Sessions. 25B. First Reading of Ordinance No. 036, 2005, Amending Section 2-33(b) of the City Code so as to Eliminate City Council's Ability to Go off the Record During Attorney-Client Communications that Occur in Executive Session. 26. First Reading of Ordinance No. 037, 2005, Repealing and Reenacting Article II of Chapter 10 of the City Code Regarding Flood Hazard Areas. 27. First Reading of Ordinance No.032,2005,Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General Penalty for City Code Violations and Traffic Infractions. Councilmember Weitkunat made a motion, seconded by Councilmember Bertschy, to adopt and approve all items on the Consent Calendar. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. 548 March 1, 2005 THE MOTION CARRIED. Consent Calendar Follow-up Mayor Martinez asked that staff present clarifications to item#13 First Reading of Ordinance No. 029, 2005, Amending Chapter 15 of the City Code Relating to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires before Second Reading. At the request of Mayor Martinez, City Manager Atteberry commented regarding item #20 Resolution 2004-020 Supporting City Participation in the Mark of Distinction for Character Development through Youth Sports. Councilmember Tharp spoke regarding item #12 First Reading of Ordinance No. 028, 2005, Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin and item #I I First Reading of Ordinance No. 027, 2005, Appropriating Bond Proceeds in the Water Fund. Councilmember Hamrick commented regarding item#14 First Reading of Ordinance No. 030, 2005, Amending the Land Use Code by Adding "Resource Recovery"Use to the Public Open Lands(P-O- L) Zoning District. Councilmember Roy requested additional information regarding item #12 First Reading of Ordinance No. 028, 2005, Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin. Bob Smith, Stormwater Planning Manager, spoke regarding the funding opportunity and work that would be done on Spring Creek ahead of schedule with the grant money. Councilmember Kastein commented regarding item#8 Second Reading of Ordinance No. 019,2005, Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings. Staff Reports City Manager Atteberry reported on the Lincoln Center's new on-line ticket sales program. He also reported on the partnership among CSU, the Neighborhood Resources Office and Channel 27 to produce a video to welcome new students and inform them of community standards and policies. Councilmember Tharp asked when the economic study on the "three unrelated" ordinance would be scheduled for Council discussion. City Manager Atteberry stated the Study Session the"three unrelated" ordinance and the results of the economic study was scheduled on March 8. Councilmember Reports Councilmember Bertschy reported that Chip Steiner and two members of the DDA visited Chatauqua in New York and that the DDA was working on development of a cultural district concept for the downtown that would encompass the arts community as well as performing arts 549 March 1, 2005 venues. He stated the DDA was also investigating enterprise zone status. He also reported that Mayor Martinez chaired a meeting attended by City and CSU representatives to begin the planning process for"unruly gatherings" and spring parties. He stated there would be another meeting in a month. Mayor Martinez stated the intent was to be in the "preventive and proactive" mode to prevent problems from occurring. Councilmember Tharp reported on the status of the Airport 20-year study/plan update. She stated the review group was encouraging the consultant to look at land expansion to ensure adequate space for a growing Airport. She stated the direction to the consultant was that the runway should not expand to the north due to encroachment on a conservation easement. She also reported on I-25 EIS review group discussions about data and options for expansion of I-25. Councilmember Hamrick spoke regarding the impacts of airport expansion on southeast Fort Collins. He stated he would be looking at any possible negative impacts on the residents in that area. Councilmember Weitkunat reported on a Colorado Municipal League seminar on legislative issues. Items Relating to Out of City Utility Service,Adopted The following is staff s memorandum on this item. "EXECUTIVE SUMMARY A. Resolution 2005-018 Regarding Utility Service in the Laporte Area. B. First Reading of Ordinance No. 026, 2005, Amending Chapter 7.5 and Chapter 26 of the City Code to Establish Requirements and Procedures for Utility Service Outside the Fort Collins Growth Management Area. At the December 14, 2004, City Council Study Session, Council discussed the extension of City wastewater service near Laporte. Council agreed with the staff recommendation for Option 4: City provides wastewater treatment through a new wastewater district.Resolution 2005-018 establishes policyfor this service and directs staffto cooperate with various entities that are pursuingformation of a special district in the Laporte area. The agreement between the City and the special district will be presented to Council for final approval. The Resolution also provides direction regarding the resolution of outstanding issues related to an outdated wastewater service agreement with Laporte Water and Sanitation District. Chapter 26 of City Code outlines a process in which water or wastewater service can be provided outside city limits if certain conditions are met. City Plan Policy GM-5.1 discourages extension of utilities outside the City's Growth Management Area ("GMA') unless the extension is consistent 550 March 1, 2005 with City Plan and has a community benefit. Ordinance No. 026, 2005 will clarify this ambiguity and require that the areas to be served outside the GMA must be approved by City Council. BACKGROUND The City of Fort Collins has provided utility service to parts of the Laporte area for many years. Water service to the area began in the 1920s and wastewater service in the early 1970s. The City owns the water system in Laporte and operates and maintains the wastewater collection system under an agreement with the Laporte Water and Sanitation District. In January 2004, Larimer County adopted the Laporte Area Plan. The Laporte area is an unincorporated area outside city limits and outside the GMA (see attached context map). Portions ofthe Laporte Area Plan include approximately 2000 dwelling units shown to develop at urban level densities (i.e. 2-4 and 4-6 units per acre). These densities will necessitate service from a public sewer system. The City has since received two formal requestsfor utility service in this area and several informal inquiries about wastewater service. In the past, requests for utility service have been processed in accordance with City Code Article X which generally says that if certain conditions are met,service will be provided. In contrast, City Plan discourages extension of utilities outside the GMA unless there is a community benefit. Staffis seeking clarification andpolicy direction regarding extension of sewer service in the Laporte area. In the Laporte Water/Sewer Services Policy Report prepared by City staff, options for wastewater collection and treatment for the area included in the Laporte Area Plan include: • septic systems (rural-type low densities only) • community/subdivision sewer systems • new sanitation district(s) • Boxelder Sanitation District • City service Staffbelieves it is importantfor the City to provide wastewater service to reduce the potential of new wastewater treatment facilities upstream from Fort Collins and to protect water quality in the Poudre River. The Policy Report identified the following policy options for providing that service. Option 1: Maintain existing process for out-of-city service requests by reviewing requests on a case-by-case basis. Option 2: Continue service only in the existing service area (Laporte Water and Sanitation District) but not allow extensions to other areas outside the GMA. Option 3: Provide future service directly to new development within a limited area as defined by the Laporte Area Plan. Option 4: Provide treatment only through a new district in a limited area as defined by the 551 March 1, 2005 Laporte Area Plan. Pros and cons of these options were reviewed at the December 14, 2004, Council study session. During the review of the Laporte Area Plan and the study of the City's policy options, City staff also assessed impacts of Laporte area development on several other City services including transportation,parks and library. The reason that these services were studied and not others was that much of the funding for these services is provided through development impact fees and not sales taxes. In addition, other services will be funded by impact fees that are in place and will be collected from new developments in the Laporte area. It is important to note that these impacts on City services are likely to occur whether or not the City provides wastewater service. These impacts were estimated to be: • Transportation: Potential 4 to 6% increase on major streets in area ($400-600/unit) • Library: Currently 30% usage by Laporte residents ($260-606/unit) • Parks: Potential 2 to 3% increase in usage ($435-669/unit) Staffs recommendation is that the City provide wastewater treatment through a new district(Option 4 above) with the following conditions: • The property to be served by the City's wastewater treatment services must be within the defined area shown on Exhibit A. • The development served must be consistent with the Laporte Area Plan as adopted by Larimer County. • The development must be consistent with Chapter 26 of City Code — Utility Service Outside City Limits. • The wastewater treatment service agreement must provide for collection on non-utility fees as discussed above. In the event that efforts to form a special district are not successful, staff has recommended that the City pursue Option 3: Provide future service directly to new development within a limited area as defined by the Laporte Area Plan. This item has been presented to the Planning and Zoning Board and the Water Board. At the Planning and Zoning Board meeting on November 18, 2004, the Board voted(5-1) to support the staffrecommendation,and the Water Board voted unanimously to support the staffrecommendation at its meeting on December 2, 2004. Information regarding those Board meetings is attached. The major emphasis of the study completed on the Laporte area has been wastewater, however, as noted at the study session, the City currently supplies water to portions of Laporte within the Laporte Water and Sanitation District. Under prior agreements with the District, the City will 552 March 1, 2005 continue water service to this area and infrll development that may occur. Most of the proposed development within the Laporte Area Plan will obtain water from the West Fort Collins Water District. Since the Council study session on December 14th,property owners east of Laporte have continued to research and move forward with the formation of a special district. Developers of The Grove subdivision have recently hired an engineer and an attorney to prepare the documents needed to proceed with the formation of a special district. The property owners currently involved in the discussions and planningfor this district include Charles Meserlian, Chris Kaul,John Stegner,John Donaldson, Bernard Henrie, Earl Komer and LaFarge. Since it is the City's desire to provide wastewater treatment and thereby avoid wastewater discharges upstream from Fort Collins, it is to the City's advantage to cooperate with these parties by providing information that will be needed for the preparation of these documents. Other than this cooperation, the City will incur no expense in the process to form the district. The proposed district boundary is consistent with the higher density areas shown in the Laporte Area Plan approved by Larimer County. Resolution 2005-018 establishes policy for this service and provides direction for the City Manager to work with various entities that are pursuing formation of a special district in the Laporte area. Any agreements negotiated with special district(s) will be present to Council for final approval. In addition, City staff has continued its efforts to resolve outstanding issues related to a 1970 agreement between the City and Laporte Water and Sanitation District for wastewater service in that area. The Resolution authorizes City Manager to negotiate with the Laporte Water and Sanitation District on a new agreement or the dissolution of the District. As noted above, City Code and City Plan are somewhat inconsistent in regard to the extension of utilities outside the GMA. Ordinance No.026, 2005 amends Chapter 26 of City Code to differentiate between the requirementsfor outside-City and outside-GMA utility service requests and will require that the areas to be served outside the GMA be approved by City Council. In addition, the ordinance amends Chapter 7.5 of City Code to allow the City Manager to establish and collect special surcharges as a condition of obtaining utility service outside the GMA. " City Manager Atteberry introduced the agenda item. Roger Buffington,Utilities Services,stated this issue was presented at the December 14,2004 Study Session. He stated the purpose of the agenda item was to finalize policy direction on utility service outside the Growth Management Area, in particular the area northwest of Fort Collins. He stated the City currently provided utility service to portions of the Laporte area. He stated water service began in the 1920's and sewer service began in the early 1970's. He stated the City owned the water system in Laporte and that both water and sewer service were provided by the City under agreements with the Laporte Water and Sanitation District. He stated in January 2004 Larimer County approved the Laporte Area Plan establishing land use in the area in and around the unincorporated community of Laporte. He stated portions of the plan included residential and commercial development with densities that would require a centralized sewer system. He stated the City had received two formal requests and several informal inquiries for utility service.He stated the City received calls regarding the availability of sewer service in those areas where septic systems 553 March 1, 2005 did not work well during wet periods. He stated the West Fort Collins Water District would provide water service to most of the new development in the Laporte area. He presented visual information relating to the relationship between the Laporte Area Plan,the Laporte Water and Sanitation District and the City of Fort Collins Growth Management Area. He stated the areas needing centralized sewer included the existing core area of Laporte, the area to the east along County Road 54G and south along Taft Hill Road, as well as two small areas on the south edge of Laporte bordering the Laporte Water and Sanitation District boundary. He stated there were two City policies applying to out-of-City utility service: (1) City Code Section 26-651 outlining the process for consideration of requests for service on a case-by-case basis, and(2) City Plan,which discouraged the extension of utilities outside of the Growth Management Area unless there was a community benefit. He stated the two policies were in conflict and that this was the reason staff was seeking policy direction from the City Council. He stated the wastewater options for the proposed development outlined in the Laporte Area Plan were that septic systems for those low density development areas,subdivision systems, a new sanitation district or districts,Boxelder Sanitation District service,or service by the City. He stated the City had identified four policy options: Option 1 -maintain the existing process of reviewing requests on a case-by-case basis; Option 2 - continue service to the existing Laporte Water and Sanitation District but not allow service to other areas outside the Growth Management Area, which would likely result in treatment facilities and discharges upstream of Fort Collins; Option 3-provide service directly to new development in a limited area defined by the Laporte Area Plan; and Option 4 -provide treatment only through a new district to a limited area outlined by the Laporte Area Plan. He stated City staff felt that it was important to avoid future wastewater discharges upstream from Fort Collins which would affect the water quality in the Poudre River. He stated City staff was recommending that Option 4 be adopted with the following conditions: utility service would be provided only within the higher density residential and commercial development shown in the Laporte Area Plan; development projects would be consistent with the Laporte Area Plan; service would be subject to all applicable ordinances and regulations; and the utility service agreement would provide for the collection on non-utility fees. He stated in the event a new district was not formed staff recommended that the City proceed with Option 3. He stated the City identified other potential impacts on the City and proposed collecting non-utility fees for transportation,parks and library. He stated these fees were estimated to be in the range of$1,100 to $1,800 per dwelling unit. He stated the City had a contractual obligation to provide water and sewer service within the Laporte Water and Sanitation District boundaries. He stated under the staff recommendation the City would provide wastewater treatment for areas outside of the Laporte Water and Sanitation District boundaries. He stated the West Fort Collins Water District currently served portions of the western and northern portions of Laporte and would likely serve a majority of the new development in the Laporte area. He stated a Resolution and an Ordinance were being presented for Council consideration. He stated Resolution 2005-018 would establish policy for wastewater service in the Laporte area, would authorize the City Manager to work with property owners on a special district and to negotiate a service agreement,would authorize the City Manager to work with the Laporte Water and Sanitation District on a new agreement or dissolution of that district, would require final approval by City Council of any new service agreements, and would authorize the City Manager to develop a schedule of non-utility charges. He stated Ordinance No. 026,2005 would amend the City Code to differentiate between outside City and outside GMA utility service requests, would require City Council approval of utility service outside of the GMA, and would provide for non-utility surcharges when utility service was extended outside of the GMA. 554 March 1, 2005 Tim O'Hara, 1929 West County Road 56,chairman of the Laporte Area Planning Advisory Council, stated the Laporte Area Plan was based on the sewer service. He stated the original agreement with the City was that the sewer service could be extended north with development paying the costs. He stated there were failing septic systems in the Farview Subdivision and raw sewage being discharged into irrigation canals. He stated if City service was provided that this would also avoid the problem of treatment facilities upstream putting effluent into the river. Mayor Martinez stated the Water Board voted unanimously to recommend approval of Option 4 but expressed concerns that the non-utility fees might cause developers to look for less costly options that might result in other treatment plants being constructed northwest of the City. He asked for clarification about the non-utility fees. Timothy Wilder, CPES, stated non-utility fees being considered were street oversizing, community parkland and library fees. He stated those fees were not currently collected in unincorporated Larimer County. He stated staff believed that there was an impact on these services by the new development. He presented a comparison of fees for the County and the City and the proposed fees for the Laporte area. He stated staff believed that the fees would be fair and would be tailored to the impacts that Fort Collins would experience with the additional development in Laporte. Mayor Martinez asked if the extra fees would cause the developers to look at alternatives. Wilder stated there had been numerous discussions about whether the fees would discourage connection to City sewer services. He stated staff believed that costs needed to be offset. Mayor Martinez asked if the City had inquired of the developers as to whether they had the same concern as expressed by the Water Board. Wilder stated the City had heard indirectly from the developers. He stated the Water Board had mixed reaction to the proposal and did not feel strongly enough to take a position on the matter. Mayor Martinez asked about how the City had heard from the developers. Wilder stated Utility Services had met with developers and that concern about the fees had been expressed at that meeting. Mayor Martinez asked if the developers indicated that they would be looking at another alternative. Buffington stated the developers indicated a concern about the amount of the fees and an interest in weighing other options. He stated the developers appeared to be interested in working with the City and would be concerned if the fees were too high. Mayor Martinez asked if the Water Board's concern was legitimate. Buffington replied in the affirmative. Councilmember Roy stated the Water Board's letter stated: "The Board felt that the concept of collecting non-utility fees as a condition of providing utility service was not within their purview and chose to remain silent on that item." Mayor Martinez stated the Water Board's letter went on to say that the Board had concern that collection of the non-utility fees might cause developers to look for less costly options which might 555 March 1, 2005 result in other treatment plants being constructed northwest of the City. He asked what the probability would be of that happening. Councilmember Tharp asked if the costs with the non-utility fees were reasonable compared to the other providers. Buffington stated the best option for the developers would be construction and development of their own treatment facilities. He stated the cost for such facilities was unknown. He stated the other option would be the Boxelder Sanitation District and that this would require a costly lift station and force main to transport wastewater more than three miles to that system. Councilmember Tharp asked if staff had estimated the cost for connection to the Boxelder system. She stated negotiation of fees was difficult unless the City had some idea what the alternatives would cost the developers. Buffington stated those types of cost estimates had not been done. He stated the current City wastewater plant investment fees for a single-family residence was slightly over $1,000 and that Boxelder's fees were in excess of $4,000. He stated there would be an additional cost for Boxelder to connect Laporte to its system. Councilmember Tharp asked for clarification that Boxelder's fees would be approximately four times the City's fees. Buffington replied in the affirmative. Councilmember Tharp stated that kind of information was helpful. Mayor Martinez stated he did not want the City to price itself out of the market. Councilmember Tharp stated the City's fees may be quite reasonable even with the non-utility fees added. City Manager Atteberry suggested that staff obtain the comparative information for other alternatives prior to Second Reading. He stated his concern was that this development would have an impact on the services of the City. Councilmember Kastein stated the City should cover fees to cover costs while being competitive. He stated the goal should be to provide a needed service at a price that covers the City costs. He asked for clarification regarding the recommendation to pursue Option 4, with Option 3 to be pursued if Option 4 could not be done. He asked if the same fees would be applied under both options and whether Council approval of the recommendation would give approval for Option 4 and would not give staff direction to pursue Option 3. Wilder stated the same fees would be applied under both options. Buffington stated he understood that the Resolution would give authority to staff to proceed with Option 3 if the district did not form under Option 4. Councilmember Kastein asked in what form the service agreements would be brought to Council i.e. on an individual case-by-case basis or as a whole. Carrie Daggett, Assistant City Attorney, stated Section 3 of the Resolution provided for wastewater service on an individual basis if the district approach did not proceed. She stated the Resolution provided that the Council would approve agreements with districts or other entities for providing service. She stated individual agreements were done with individual property owners by way of out-of-City service agreements and that those individual agreements would not be required to be brought to the Council for approval. 556 March 1, 2005 Councilmember Kastein asked if the City was "creating a lot of work" for itself i.e., were the negotiations going to be detailed. City Manager Atteberry stated the intent of the district was to minimize the individual negotiations and to prevent piecemeal case-by-case work. Wilder stated this would allow consideration of service on a case-by-case basis in those areas that could not be served by the district. Councilmember Kastein favored going ahead with Option 4 and having the matter come back to Council if that option did not occur. Councilmember Tharp asked if Councilmember Kastein wanted to change the direction that was given to staff at the study session to go ahead with Option 4 and then to move to Option 3 if that did not work. Councilmember Kastein stated since the study session he had learned that the approach for a district was a"one size fits all"and that Council would not have a large part in the negotiations. He stated Option 3 could be a lot of work for Council and staff. Mike Smith,Utilities General Manager,stated there were several areas for which it was doubtful a district would ever be formed. He stated Option 3 would be needed to serve those areas. He stated even if the district formed that Option 3 would still be needed for part of the area. Councilmember Roy stated Council asked who the agreement would be with i.e.,was there ground work done on how the two different entities would be created to work out the agreement. Buffington stated the responsibility for forming the district would be with the developers or property owners who wanted to use that as a means of obtaining wastewater service. He stated the process for formation of a district was included in the State statutes. He stated one developer had hired an engineer and attorney to work on formation of the district and had conducted discussions with other property owners interested in having their land included in the district. He stated there would be an election by the property owners within the proposed district regarding the formation of the district. Councilmember Roy asked what the total cost to the City to provide the service would be under Option 4. Buffington stated at the present time the City's treatment facilities had capacity for the additional load. He stated there would be a need to expand the treatment facilities in the future. He stated wastewater plant investment fees would be collected as the area grows to be used toward the cost of those improvements. He stated the City would be collecting revenue on a monthly basis for the waste discharged to the City's system. Councilmember Weitkunat asked if changes could be made to the estimated impact fees adopted by Resolution if there were recalculations that indicated a need for adjustment. Wilder stated the surcharges were identified in the Ordinance as well. He stated the fees were estimated and were as close as possible to cover the impact. He stated additional work was needed on some of the fees. Daggett stated Section 6 of the Resolution directed the City Manager to establish a schedule of fees and charge those fees in connection with the service in the Laporte area. She stated the Council could add a condition to Section 6 to direct the City Manager to do that if the Code section authorizing the City Manager to establish those fees was enacted. She stated this would allow the Resolution to go forward while leaving the fees question for Second Reading of the Ordinance. City 557 March 1, 2005 Attorney Roy stated another alternative would be to adopt the Resolution at the same time as Second Reading of the Ordinance. Wilder stated under the Resolution the City Manager would be authorized to work on negotiations within the identified service area on a district basis or on an individual case-by-case basis. He stated individual reviews would be required only outside of the identified service area. Councilmember Weitkunat asked if the staff recommendation supported the Laporte Area Plan. Wilder replied in the affirmative. Councilmember Hamrick asked what the incentive would be for the formation of a special district in Laporte. Buffington stated the formation of the district would allow opportunity for financing of necessary improvements associated with the development of the area. He stated the district would offer a financing mechanism to pay for some of those improvements. Councilmember Hamrick asked if that mechanism would offer a better cost than what was offered by Fort Collins. Buffington stated the improvements financed would be the local wastewater collection system and drainage improvements to serve the development. He stated the City would not be involved with any funding or financing. Councilmember Hamrick asked if the City tested the water quality along that stretch of the Poudre River. Smith stated information could be provided to Council before Second Reading. Councilmember Bertschy made a motion, seconded by Councilmember Tharp,to adopt Resolution 2005-018, Councilmember Tharp stated she wanted to move ahead with this because it would address water quality issues of interest to the City. She stated it appeared that even when the fees were included that the City would be in a competitive position. She stated the City needed to cover its costs and that this was a reasonable approach. She stated she wanted to see the comparative figures prior to Second Reading to make sure that it was to Laporte's advantage to go with the City's established system because the costs would be reasonable even with the fees. Councilmember Roy stated it appeared that Laporte could not form the district until November. He stated one driving force was the assumption that the water quality upstream was already becoming a problem due to leaking septic systems. He stated it would be helpful to know if there was testing data to substantiate that assumption. He stated it was important to remember that the City was not in the business of subsidizing growth outside of Fort Collins with taxpayer dollars. Mayor Martinez stated he was concerned that if the fees were too high that the developers could use another source and still impact the City with the new growth without paying any impact fees. Councilmember Roy stated he did not want to see any subsidy i.e.,the City should recover its costs. Councilmember Kastein stated he would support the motion. He stated the City would be providing a service to an area that needed it, that the area was adjacent to the GMA, and that an existing 558 March 1, 2005 wastewater facility would be used. He stated this would save dollars for everyone. Councilmember Tharp stated this would give the City control over the processing of waste so that there would be no other plants upstream. She stated it was important from the health and community benefit perspective that the City process the waste from this development. She stated this was the City's motivation to even look at this issue. Councilmember Weitkunat stated she would support the motion. She stated the City owned and operated the Laporte water system and that this had been an ongoing obligation for many years. She stated this was a cooperative venture that would have costs and benefits. She stated this would benefit everyone. Councilmember Roy stated he would support the motion. He stated the City was the right entity to be working with Laporte to maintain the City's water quality. Mayor Martinez stated he supported the motion with the caution to ensure that the City did not charge too much. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED. Councilmember Bertschy made a motion,seconded by Councilmember Kastein,to adopt Ordinance No. 026, 2005 on First Reading. 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 took a recess at this point.) Items Relating to Section 2-31 and 2-33 of the City Code Pertaining to Executive Sessions: Ordinance No. 025, 2005 Adopted as Amended on First Reading; Ordinance No. 036, 2005 Failed to Pass on First Reading The following is staff's memorandum on this item. "EXECUTIVE SUMMARY A. First Reading of Ordinance No. 025, 2005, Amending Section 2-31 of the City Code of the so as to Clarify That City Council Can Provide Direction to City Staff or Other Persons During to Executive Sessions. 559 March 1, 2005 This Ordinance amends Section 2-31 of the City Code pertaining to executive sessions to clam that Council can provide direction to City staff or other persons during the course of an executive session with regard to the matters that are permissible for discussion in executive session. B. First Reading of Ordinance No. 036, 2005, Amending Section 2-33(b) of the City Code so as to Eliminate City Council's Ability to Go off the Record During Attorney-Client Communications that Occur in Executive Session. This Ordinance amends Section 2-33 of the City Code so as to eliminate the ability of the Council to go off the record during an executive session to discuss matters that are subject to the attorney-client privilege. BACKGROUND Item A Both the City Code and the Colorado Revised Statutes contain provisions pertaining to open meetings, and both sets of regulations limit the kinds of matters that may be discussed by the City Council in executive session. The open meetings provisions of the City Code, which are contained in Section 2-31 of the Code, are based on the provisions of Article 2, Section 11 of the City Charter. This Charter provision authorizes executive sessionsfor thefollowingpurposes: discussingpersonnelmatters;consulting with attorneys representing the City regarding specific legal questions including litigation or potential litigation; considering water and real property acquisitions and sales; and considering certain electric utility matters. Both the State law and the City Code prohibit Council from taking any final legislative action in executive session, although the state and local regulations differ in that Section 24-6-402.4(e)of the Colorado Revised Statutes specifically permits local public bodies to determine positions relative to matters that may be subject to negotiations and to develop strategies for negotiations and to instruct negotiators, while the provisions of the City Code are less specific in that regard. Ordinance No. 025, 2005 would amend Section 2-31 of the City Code so as to clarify that the City Council may give direction to City staff in executive session with regard to matters that are permissible for executive session discussion, and that providing such direction does not run afoul of the prohibition against taking final legislative action in executive session. Item B Ordinance No. 036, 2005 would amend Section 2-33 of the Code to eliminate the ability of the City Council to go off the record during an executive session to discuss matters that are subject to the attorney client privilege. At present, Section 2-33, like the companion provisions of the state open meetings law, requires that executive sessions be recorded and that the recording be preserved for at least 90 days, so that a person who believes that the Council engaged in substantial discussions of matters not enumerated in Section 2-31 or that the Council took final legislative action in 560 March 1, 2005 executive session, may apply to the district court for an order authorizing the offending portion of the executive session discussion to be released to the public. However, both the City Code and the state lawpermit the Council to go off the record in executive session duringportions ofan executive session that constitute privileged attorney-client communications. Ordinance No. 036, 2005 would eliminate the Council's ability to go off the record in executive session during privileged attorney-client communications. This would mean that the substance of attorney-client communications, like other discussions held in executive session, would be available for judicial, in camera review if there was a challenge to the propriety of the discussion. The purpose of the attorney-client privilege is to facilitate candor in the exchange of information and advice between the attorneys for the City and the officers and employees of the City, so that the legal advice and recommendations provided to the City can take into account all salient facts and so that the municipal clients can be fully informed and advised about the potential risks and consequences ofparticular courses of action. The City Attorney recommends retaining Council's ability to determine, on a case-by-case basis, whether going off the record for attorney-client communications is advisable to better ensure the candor and confidentiality of such communications. " City Manager Atteberry introduced the agenda item. City Attorney Roy stated two ordinances relating to Executive Sessions were offered for Council consideration. He stated the first would clarify that in Executive Sessions it was permissible for Council to give direction to City staff, and that the second would eliminate the Council's ability to go off the record during attorney-client communications that occur in Executive Session. He stated in his opinion the local law relating to Executive Sessions superseded the State law and that he believed this to be a matter purely of local concern. He stated one of the proposed ordinances would bring the local law closer to the State law and that the other would make the local law more different than the State law. He stated both the State and local law prohibited taking formal action or final legislative action in Executive Session. He stated the State law had a provision indicating that it was permissible in Executive Session to determine positions relative to matters that may be subject to negotiation,developing strategy for negotiations and instructing negotiators. He stated the City did not have any provision along those lines because the purposes of an Executive Session were limited to those specified in the Charter. He stated the purpose of the first ordinance was to specify that the Council must stay with the appointed topics (personnel,real property or water rights acquisition or sale,and legal advice)but that it would be allowed to bring those discussions to closure by providing direction to City staff. He stated the second ordinance related to discussions during Executive Session relating to attorney-client communications. He stated the State and local laws were nearly identical in that both provided that those kinds of discussions in Executive Session need not be tape recorded in order to ensure that attorney-client communications would remain confidential. He stated this required the Council when in Executive Session to make a decision regarding whether or not to go off the record for such discussions. He stated the proposed ordinance would eliminate the Council's ability to go off the record. 561 March 1, 2005 Councilmember Tharp asked if the two ordinances would be dealt with separately. She stated she believed that the first ordinance was clearer. Councilmember Tharp made a motion,seconded by Councilmember Weitkunat,to adopt Ordinance No. 025, 2005 on First Reading. Councilmember Tharp stated she wanted to put this on the table to allow the ordinance to be discussed separately. She stated giving direction to staff,even on issues that were clearly within the scope of an Executive Session, was "close to voting" and that was not allowed. She asked for clarification regarding how giving direction to staff was not "voting on the issue." City Attorney Roy stated the local ordinance prohibited taking final legislative action rather than taking formal action. He stated"final legislative action" consisted of a motion, a second and a vote. He stated it would not be difficult to"stop short of that." He stated the State language was offset by other State language that allowed giving instruction to people in Executive Session. He stated he believed that it would be a good idea to have similar language in the local ordinance to allow the Council to give direction to staff during Executive Session. He stated to bring a meaningful discussion to closure it was necessary for staff to understand the direction. He stated giving direction to staff"stopped comfortably short" of taking final legislative action. Councilmember Tharp stated many issues dealt with in Executive Session would eventually come to the floor for a formal action,while direction to staff might not come to a public discussion. City Attorney Roy stated the issue was whether it was appropriate in an open government to discuss matters that may never become public. He stated one example might be discussions of litigation strategy. He stated as City Attorney he would make recommendations in Executive Session about the advisability of settling or litigating a case, strengths and weaknesses of the case, potential consequences or damages and that he would hope to have direction from the Council on how to handle the case. He stated if Council direction was given publically,even after the fact,that it could be damaging to the City's financial and legal interests because the way in which litigation was handled was "extremely sensitive." Councilmember Tharp stated she had concerns relating to giving direction to staff with regard to other non-litigation aspects of government. City Manager Atteberry stated another example could be direction to staff on the top price to be paid for the acquisition of real property. He stated the appropriation could come back to Council but that the amount the City would have been willing to pay would not necessarily become public. Councilmember Tharp stated the action taken would eventually become public. She stated some other matters may never become public at any point. City Manager Atteberry stated another example could be in a situation where the City Manager needed to present a personnel matter for discussion and that this would never become public. City Attorney Roy stated it was important to note that the local law was much more restrictive than the State law in terms of the kinds of things that could be discussed in Executive Session. He stated this proposed change did not expand the categories of things that could be discussed in Executive Session. He stated it would add the ability to give direction to staff at the conclusion of those discussions. 562 March 1, 2005 Councilmember Kastein asked if the phrase "final legislative action" was in the local or the State law. City Attorney Roy stated it was in the local law. Councilmember Kastein asked for clarification that if Council did not make a motion and vote that it would be stopping short of taking "final legislative action." City Attorney Roy replied in the affirmative. Councilmember Kastein asked why the City Attorney took that position. City Attorney Roy stated under the Charter the Council could act in any of three ways—by Ordinance,Resolution or motion. He stated all three required a motion, second and vote. Councilmember Kastein asked if"final legislative action"was defined in the local law as described by the City Attorney. City Attorney Roy stated it was clear when the Charter and Code were looked at together. Councilmember Kastein stated he had always felt comfortable in Executive Sessions with whatever method was used to give direction. He questioned why those methods had to stop short of actually voting and asked why a vote would be considered to be "final legislative action"when the matter had to come before the Council at a public meeting. City Attorney Roy stated there was a possibility that someone might contend that the City was governed by the State law, which provided that in Executive Session the Council may not adopt a position. Councilmember Kastein asked how direction could be given in Executive Session. City Attorney Roy stated the State law about not adopting a position was offset by another provision in the State law which provided that the Council could instruct negotiators. He stated the intent was to guard against the eventuality that someone might argue that the City was governed by State law and that informal voting was adopting a position. He stated he wanted to clarify the local provision and include something similar to the State law that would say that giving direction to City staff was not adopting a position, taking formal action, or taking final legislative action. Councilmember Kastein asked what would constitute"giving direction." City Attorney Roy stated the staff would"glean"direction by listening to a discussion among Councilmembers and avoiding any kind of formal voting. Councilmember Kastein asked if it would be permitted for each Councilmember to indicate"yes" or"no." City Attorney Roy stated there were various interpretations about the meaning of the State law and how it would interact with local law. Councilmember Kastein stated"giving direction"might be too vague and that it would be helpful to spell out what that was and what it was not. Mayor Martinez stated the direction that was given to staff in Executive Session was on existing policy that had already been decided and discussed in public. City Attorney Roy stated the direction would be only in the context of those topics that were permissible for Executive Session discussion. He stated he was suggesting adding language to the Code section as follows: " . . . and providing 563 March 1, 2005 direction to City staff or other persons with regard to such matters." He asked if Councilmember Kastein's suggestion was to define how it would be permissible to give direction. Councilmember Bertschy stated he felt comfortable with the way opinions were individually expressed at Executive Sessions to develop consensus or direction to staff. He stated the new Council would be given guidance by the City Attorney on how Executive Sessions should proceed. Mayor Martinez stated direction was often given in Executive Session to bring forward an ordinance or resolution for a public discussion and vote. Councilmember Weitkunat stated the matters discussed in Executive Session were limited to specific topics. She stated such matters could not be discussed without giving direction to staff. She stated such direction would not have the"force of law"but would establish a course of action. She stated this was not the action taken but the direction to take to come to the resolution of a matter. Councilmember Tharp stated if direction was given to staff on a matter that would never come to public action that the Council would be "conducting business" away from the "public eye." She stated the ordinance would allow the Council to give direction to staff on issues in some cases when that direction would never be on the public record. Councilmember Hamrick stated the Council needed to be very restrictive on why it would go into Executive Sessions. He stated he felt comfortable with providing direction to staff on those specific, narrow issues that could be discussed in Executive Session. He stated the Council had clarified the specific criteria that would allow the Council to go into Executive Session. He stated he was comfortable with what was being proposed by staff. Councilmember Kastein stated the majority appeared to agree that it was alright to provide direction in Executive Sessions. He stated he would even support giving direction by way of a "clear cut vote." He stated the direction given in Executive Session determined the particular path to be taken toward a particular goal that would eventually become a legislative action before the Council. He stated he did not want an ordinance to be created that would provide that the Council could continue to do things as they have always been done. He stated he wanted to be able to define "giving direction" for the benefit of the next Council. Mayor Martinez stated every time the Council adjourned into Executive Session the rules and guidelines were read and that at the end of every Executive Session the Councilmembers were asked if anyone believed that the discussion had gone outside of the scope of the permissible discussion. Councilmember Kastein stated he believed that "giving direction" needed to be defined. Mayor Martinez asked if Councilmember Kastein wanted to add another rule to the list that was read at every Executive Session. Councilmember Kastein stated he just wanted a definition of"direction." 564 March 1, 2005 Mayor Martinez stated giving "direction"was not making a final decision. Councilmember Kastein asked who would give the "direction" to staff. Mayor Martinez stated the Council would arrive at a consensus. Councilmember Kastein asked how a "consensus" would be determined. He stated he would like to see spelled out how direction was to be determined i.e.what the limits were on how direction was determined. City Attorney Roy stated it might be helpful to have some flexibility in how direction could be given. He stated the language could state that direction was determined through "individual expressions of opinion, to City staff or other persons." City Attorney Roy asked if Councilmember Tharp would accept that language as a friendly amendment. Councilmembers Tharp and Weitkunat accepted that as a friendly amendment. Councilmember Tharp stated she did not believe that Executive Session were ever misused and that she believed that the Council dealt with issues that were allowed by law. She stated she wanted to make sure that the Council did not make"final government decisions in private." She stated she had no problem with giving direction in Executive Session when that direction would lead to a final decision made in public. She stated she had a concern when the direction was on issues that would not become public. Councilmember Hamrick stated he would support the motion. He stated he would like to go into Executive Session only when it was necessary. He stated he would support the motion because certain items must be held in confidence. Councilmember Roy stated he appreciated Councilmember Kastein's clarification regarding how direction was given. He stated it was important that local government was as "transparent" as possible. He stated he would support the motion. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy and Weitkunat. Nays: Councilmember Tharp. THE MOTION CARRIED. City Attorney Roy stated both the State and local law required that there be some record kept of Executive Sessions even though they were confidential. He stated if someone had reason to believe that the Council "strayed" from the topics that were permissible for an Executive Session, or took final legislative action, that person could apply to a court, and the court would have the authority to make public that portion of the record which would reflect the departure from the topic or the taking of final legislative action. He stated there was an exception in both the State law and the local law for attorney-client communications. He stated the issue was whether to keep that exception in the local law in the same way that it existed in the State law. 565 March 1, 2005 Councilmember Kastein asked about language in the sixth WHEREAS clause giving the following reason: ". . . so that a record will be maintained of such discussions in the event that judicial review of the discussions is requested by a party who is concerned that the discussion may have been improper." He stated this was the key for making a change. He asked what the risk would be. City Attorney Roy stated there was a need to balance "transparency" of government with "confidentiality" of attorney-client communications, and whether that kind of communication warrants an extra level of protection. He stated historically the courts had protected the attorney- client privilege. He stated one of the jobs of an attorney was to point out the potential consequences of what was said and done. He stated a comment made in"good faith"could result in a substantial judgment against the individual making the comment, even though the comment was made in an environment in which the person felt"safe to be candid." He stated there were two purposes for the confidentiality of attorney-client communications: (1)to keep confidential remarks that were made in a context other than litigation so that they were not taken out of context of blown out of proportion in litigation, and (2) so as to create an environment where both attorney and client felt absolutely confident that what was said would be confidential so that both could be candid. Councilmember Kastein asked if the intent was to balance the need to safeguard against the Council straying from the permissible topics by having a record of the Executive Session and the risk of comments made in the context of the attorney-client communications being used against the City. City Attorney Roy replied in the affirmative. He stated he was suggesting that the Council stay with the same balance that was struck by the legislature by not eliminating the ability to go off the record in all situations. Mayor Martinez stated the"policing"should be done by all Councilmembers and staff to ensure that discussions stayed on track. City Attorney Roy stated there was an"anomaly"in the State law. He stated the State law provided that either a tape recording or written minutes could be kept,and that if there were written minutes the Mayor must certify that the topic stayed within bounds and the attorney must certify that the matters that were off the record were exclusively those that were attorney-client communications. He stated the obligation of certification did not exist with the tape recorded session. He stated a provision could be added to the Code to require that kind of certification if that would increase the"comfort level." Councilmember Tharp made a motion, seconded by Councilmember Hamrick,to adopt Ordinance No. 036, 2005 on First Reading. Councilmember Tharp stated she had brought this matter forward because she objected to going off the record for attorney-client privilege not because she believed that the Council misused it. She stated the problem was if anyone questioned what was done in an Executive Session that there would be no way to verify that the Executive Session was done appropriately. She stated the Judge's responsibility in reviewing a tape was to determine whether the Council's discussions in Executive Session would fall under attorney-client privilege and that nobody else would get to hear the tape. She stated it was "reassuring" to have something to refer back to besides a"blank tape." Councilmember Bertschy stated the Council would have the option of staying on the record and that the Council chose that option in many instances. He stated in times of serious litigation the Council 566 March 1, 2005 needed to have an opportunity for the attorney or special counsel to be "completely candid." He stated there was a need for the ability to go off the record and receive complete, open and candid advice from legal counsel. Councilmember Weitkunat stated Council did have the option to stay on the record and that this ordinance would not give the Council the option to go off the record. She stated the issue was attorney-client privilege, which was a"sensitive" privilege. She stated she would not support the motion. Mayor Martinez stated it was necessary to have trust between the attorney and the client to ensure candid conversations. He stated anyone could speak up if they felt that there was a"bad Executive Session that violated the law." He stated he believed that this ordinance was"fixing something that was not broken." Councilmember Roy stated he would support the motion. He stated the Council represented the community and that it was important to work toward the goal of"transparency in government." He stated he did not believe that the Council abused Executive Sessions. He stated the ability to have the recorded proceedings available was part of the Council's job. Councilmember Kastein stated he did not believe that "sensitive conversations" should be made "transparent" for the public. He asked if recordings of Executive Sessions existed solely so that a Judge could determine if the Council strayed from the topic. City Attorney Roy replied in the affirmative and stated the other reason was to allow the Judge to determine if the Council took final legislative action in Executive Session. Councilmember Kastein asked if the tapes would otherwise become public. City Attorney Roy replied in the negative. Councilmember Kastein stated this would not make the discussion transparent except to a judge. City Attorney Roy replied in the affirmative and stated the Judge would have the ability to release that portion of the tape relating to the portion of the Executive Session for which the Judge believed the Council "strayed" from the permissible topic. Mayor Martinez stated this would be "cut and paste" and taking part of the conversation out of context. Councilmember Kastein asked if the City Attorney had a concern about a portion of the tape being made public and possibly the content being used against the City. City Attorney Roy stated was part of his concern. Councilmember Hamrick stated he would support the motion. He asked how long the tapes were retained. City Attorney Roy replied that the tapes were kept for 90 days. Councilmember Hamrick asked if someone would have a limited time frame to take the matter to court. City Attorney Roy replied in the affirmative. 567 March 1, 2005 Councilmember Hamrick stated the Council did not intentionally go into Executive Session to violate any law and that the Council was held to a"higher standard." He stated taping the attorney- client communications told the public that the Council had"nothing to hide." He stated he did not see a risk in tape recording the conversations. Councilmember Weitkunat stated when the Council was sued the Councilmembers were sued as individuals rather than the people the Councilmembers represented. She stated she viewed it as her privilege as a Councilmember to receive privileged attorney-client communications in Executive Session. She stated she did not believe that such communications needed to be made public. Councilmember Tharp stated she would support the motion. She stated all Executive Sessions were taped and that the only time a tape was not available was when the City Attorney advised the Council that a portion of the discussion was attorney-client privileged material. She stated in those instances there would be no record of what was said. She stated taping such communications was a safeguard and that she trusted the Council not to do anything that should not be done in Executive Session. She stated she trusted the Judge to review the material and say that the Council had not done anything that was not legal. She stated if there was no tape there would be no way to clarify what had been done. Councilmember Kastein stated he would not support the motion. He stated when the Council was in Executive Session that recording attorney-client communications could put the City at risk if a Judge decided to release a portion of the recording for public inspection. Mayor Martinez stated he would not support the motion because attorney-client communications should be"frank and honest"rather than guarded. The vote on the motion was as follows: Yeas: Councilmembers Hamrick, Roy and Tharp. Nays: Councilmembers Bertschy, Kastein, Martinez and Weitkunat. THE MOTION FAILED. Ordinance No. 037, 2005, Repealing and Reenacting Article II of Chapter 10 of the City Code Regarding Flood Hazard Areas,Adopted on First Readine The following is staff s memorandum on this item. "FINANCIAL IMPACT Adoption of the Ordinance will have no impact on the City Budget, but will decrease the discount on premiums paid by citizens for the 356 flood insurance policies in the city by 5%or community wide by $9,256. 568 March 1, 2005 EXECUTIVE SUMMARY The proposed ordinance modifies the City Code to ref ect changes to the f oodplain regulations that balance risk with regulation for foodplains citywide, excluding the Poudre River(oodplain. Regulations for the foodway (areas of the highest risk) are more restrictive than for areas in the (oodplain fringe and moderate risk areas. Regulations are more restrictive for new development and less restrictive for existing development. Residential development has more restrictive regulations than non-residential development. Areas of the lowest food hazard, moderate risk foodplains, are not subject to any restrictions. Other changes to the Code include the incorporation of restrictions for erosion buffer zones, which have previously been addressed in stormwater master plans. Revisions were also made to bring the Code into compliance with current FEMA criteria. To make the City Code more user friendly and easier to understand, the entire Flood Hazard article (Article II) was rewritten and more details were added to clarify specific types of development activities and the applicable (oodplain requirements. The section regarding the Poudre River f oodplain has no policy changes but was changed to be in the same format. Public outreach was completed during the formulation of the(oodplain regulation changes which included mailings, open houses, boards and commissions review and newspaper articles. City Council discussed this item at its January 13, 2004, and February 8, 2005, study sessions. BACKGROUND The City of Fort Collins has participated in the National Flood Insurance Program since 1979, which enables property owners to purchase f ood insurance through this federal program. Part of that participation includes the City's enforcement of(oodplain regulations on existing and new development in the various foodplains across the city. Undeveloped properties located in a (oodplain are allowed to develop as long as they comply with the floodplain regulations. The Fort Collins Utilities is charged with the administration of these regulations. The purpose of the enforcement of the regulations is to reduce the potential for loss of life and damage to properties located in or near these f oodplain. Periodically the City has revised or updated these f oodplain regulations. Floodplain regulations were first adopted in the city in the mid 1970's for the Poudre River. In 1979 the City of Fort Collins entered the National Flood Insurance Program based on updated (oodplain regulationsfor the Poudre River,and newly adopted(oodplain regulations for the Spring Creek, and Dry Creek basins. Between 1979 and 2001 enforcement off oodplain regulation was expanded to other basins within the City as the master plans for those basins were adopted. FEMA basin foodplains have now been established in the Poudre River, Spring Creek, Dry Creek, Cooper Slough and Boxelder Creek basins. In the FEMA basins there are minimum standards set by FEMA that must be met in order to participate in the National Flood Insurance Program. However, FEMA encourages and supports communities that go beyond the minimum FEMA regulations to add new or stricter requirements in both FEMA and locally designated foodplains. 569 March 1, 2005 Several of the floodplains in the city have not been submitted to or approved by FEMA. In these floodplains the City has the option to establish floodplain criteria less restrictive than the FEMA minimum. City basin floodplains are located in the Old Town, West Vine,McClellands/Mail Creek, Canal Importation, Foothills and Fossil Creek basins. After the 1997 flood, questions were raised concerning the adequacy of the City's floodplain regulations. City Council directed City staff to review the floodplains across the city and make recommendations on changes. In 2000, the floodplain regulations for the Poudre River were reviewed and changes to the regulations were adopted. Regulations for the other basins were to be reviewed as the City remapped the 100 yearfloodplains during the development of the basin master plans using the updated rainfall standard. In 2001, the Canal Importation Basin Master Plan and floodplain were adopted by City Council. Floodplain regulations were initially adopted for both existing and new development. However, several months later, City Council suspended regulations for platted and existing development on an interim basis until the citywide review could be completed. However, City Council retained the requirement that new development and critical facilities in that basin continue to comply with the floodplain regulations as contained in City Code. At that time, staff was instructed to review the City's floodplain regulations for all basins other than the Poudre River with the goal of balancing risk with regulation. In September of 2001, the Utilities General Manager was given the authority to remap the floodplains using the higher rainfall standard. The new mapping was completed in 2002 and 2003. On January 13, 2004, City Council held a study session on the proposed floodplain regulation revisions. Staff received the following input: • Council agreed with staff's approach of balancing risk with regulation. • Most Councilmembers did not have comments on specific regulations. There was one concern about allowing critical facilities in the moderate risk zone, i.e. 500-year floodplain or 100-year sheet flow areas with an average depth of]-foot. • There was general support for making the changes although they will change the community flood insurance rating from a class 4 CRS rating to a class 5. • Two members of the Council expressed concern about proposed regulations less strict than FEMA minimums, while others felt it was appropriate. During that discussion, City Council asked for the following additional information: • What impact do floodplain regulations have on property values? The City's Real Estate Services Department performed an audit ofhome sales in four areas of the city. That audit compared home sales outside of the floodplain with comparable homes sold in the floodplain. The results of this analysis found that there was no discernable difference in sale price compared to those in the floodplain and those outside the floodplain. However, in some cases those in the floodplain did have a higher sales price than those outside of the floodplain. 570 March 1, 2005 • What is the probability of a 500-year event over the life of a 30 year mortgage? There is a 5.8% chance that there will be a 500-year food over a 30-year mortgage on a home. There is a 26% chance of a 100-year event over that same period. • Provide an example of a typical 500 year floodplain map. A map showing an example of a 500-year floodplain was presented at the February 8, 2005 study session. On February 8, 2005, City Council held a study session on the proposed foodplain regulation revisions. The following key discussion points were provided by Council: • Council still agreed with staffs approach of balancing risk with regulation. • There were no changes to specific regulations. Two Council members had concern with allowing certain types (gas stations, schools and health care facilities) of critical facilities in the moderate risk foodplain. Another Council member supported the staff recommendation and indicated a willingness to consider more restrictive regulations on some types of critical facilities and less restrictive regulations on others. • There was general consensus that it is acceptable to change from a class 4 CRS rating to a class 5, however, some expressed concern that the criticalfacility regulation in the moderate risk floodplain would cause the class to change. During that discussion, City Council asked for additional information in the following areas: • Number of critical facilities in the moderate risk foodplain. Schools— 3 Gas Stations—2 Utility Facility— 1 Emergency Response Facility—I (City Hall ) Hazardous Material Storage— I • An evaluation of the risk to certain types of critical facilities Flows in the moderate riskfloodplain are the shallowest and slowest compared to the other foodplain. These types of flows can generally be tt•aversed by vehicles and pedestrians and are not likely to cause structural damage or large amounts of floating debris. See the attached February 15, 2005 staff memorandum to Council. Floodplain Maps and Property Statistics A map ofthe revised citywide floodplains is attached. The floodplains on this map are the maximum extent of the existing(FEMA)mapping and the new City mapping. The 100 year floodways (areas ofgreatest risk with high depths and velocities) are shown in dark blue. The 100-year flood fringe is shown in light blue. The moderate risk areas, shown in green, are either the existing FEMA 500- 571 March 1, 2005 year floodplain in the Poudre River basin or areas of sheet flow in the 100 year floodplain in the other basins. The 500-year floodplain will not be mapped in basins other than the Poudre River. Citywide statistics for the 100-year floodplain are shown in the following table. Flood lain Statistics Floodway Flood Frin e Moderate Risk Area acres 1900 1200 500 Number of Structures 700 1500 900 Revised mapping has been submitted to FEMA for the basins that have FEMA basin floodplains, except for Dry Creek, which will be submitted after the completion of the Dry Creek Flood Control Project. This will result in only one regulatory mapper basin. Floodplain maps are also revised after each capital improvement project to reflect areas that are no longer in a mapped floodplain. Since 1997, over 900 structures were removed from the floodplain in the Old Town basin due to the construction ofstormwater capital projects. Proposed Floodplain Regulations As staff began review of the floodplain regulations, the purpose of floodplain regulations as contained in Chapter 10 of the City Code was reviewed and paraphrased into the following statement of purpose. "Strive to promote public safety, raise awareness offlooding risks, and reduce public and private losses from floods through enforcement offloodplain criteria that balance risk with regulation. " To carry out this purpose, three underlying themes were identified: 1. Floodwav vs. Flood Fringe Map a floodway (areas of greatest depths and highest velocity) in all of the City's floodplains where practical. This allows the higher risk areas to be distinguished from the floodplain areas of lower risk. Staffis recommending stricter regulations in the higher risk floodway areas and less restrictive regulations in the remaining 100 year floodplain. 2. New Development vs. Existing Development It is important not to create future problems that will place more people at risk and require those in the future to spend money fixing new problems. On the other hand, there are many existing homes and businesses currently in floodplains where owners have normal expectations of being able to remodel, repair and add to their structures. Staff is recommending stricter regulations for new development and less strict regulations for existing structures. 3. Residential Development vs. Non-Residential Development From a health and human safety perspective, residential structures represent a higher risk 572 March 1, 2005 than commercial structures. Staff is recommending stricter regulations for residential development and less strict regulations for commercial development. Compared to the City's current regulations, some of the proposed regulations are more restrictive, while others are less restrictive. The attachedfloodplain regulation matrix identifies the proposed regulation changes..It is color coded to show which changes are more restrictive, less restrictive, or remain the same when compared to existing regulations. This matrix also compares the proposed regulations to the FEMA minimum requirements. To help illustrate these regulations with less complexity, the attached "Proposed Floodplain Regulations Quick Guide"was prepared. Key Changes to Floodway Areas More Restrictive than Current Regulations • New residential structures would not be allowed. Currently they are allowed if they show no-rise. • New residential additions would not be allowed. Currently they are allowed if they show no-rise. • Basements in non-residential new structures and additions would not be allowed. Currently they are allowed if floodproofed. Less Restrictive than Current Regulations • Substantial Improvement time period changed from the life of the structure to 1-year. • Freeboard requirement changedfrom 18-inches to 6-inches on substantial improvements and non-residential additions. • Utilities General Manager can waive floodplain regulations in a City basin foodplain if a capital project is under construction. Currently, completion of the project is required. • Sub-grade crawl spaces would be allowed per new FEMA guidelines. Currently sub- grade crawl spaces are not allowed. Key Changes to Floodplain Fringe Areas More Restrictive than Current Regulations • New mobile homes or modular offices would not be allowed except in existing parks or as a replacement for an existing mobile home or modular office. Currently the development of new mobile home and modular offices parks are allowed. Less Restrictive than Current Regulations • Substantial Improvement time period changed from the life of the structure to 1-year. • Improvements on a floor above the flood elevation would not count toward the substantial improvement amount(50%of current market value)for structures in a City basin floodplain. Currently all improvements in the structure count toward the 573 March 1, 2005 substantial improvement amount. • Freeboard requirement would be changed from 18-inches to 6-inches on substantial improvements and additions. • Utilities General Manager would be able to waivefloodplain regulations in a City basin floodplain ifa capital project is under construction. Currently, completion oftheproject is required. • Sub-grade crawl spaces would be allowed per new FEMA guidelines. Currently sub- grade crawl spaces are not allowed. Key Changes to Moderate Risk Foodplain Areas Less Restrictive than Current Regulations • Allow new critical facilities in the 500 year floodplain and in the 100-year sheet flow areas of less than ]-foot. Currently new critical facilities are not allowed in the moderate risk areas. • New structures or additions in the 100-year sheet flow areas do not have to be elevated or floodproofed. Currently they are required to be protected. Code Language Changes in Erosion Buffer Zones Erosion bufferzones, identified in the Stormwater Master Plan, are areas along certain streams that need regulation due to the tendency of the stream to change its alignment. Previously requirements for erosion buffer zones were administered with the basin master plan. To consolidate like regulations into a common area, the regulations for erosion buffer zones are being added to the floodplain provisions of Article II. The majority oferosion buffer zones are along Fossil Creek and Boxelder Creek. Other Changes There are some minor "housekeeping"items that are included in the proposed code. These items are needed to make City Code to be compatible with currentFEMA terminology and interpretations. To make the City Code more user friendly and easier to understand, Article II of Chapter 10 of the City Code was rewritten and more language was added to clam specific types of development activities in the floodplain and their applicable floodplain requirements. The Poudre River floodplain regulations were rewritten in order to provide a consistent format and make the Code easier to understand and use. There are no policy or regulatory changes to the provisions of the Poudre River floodplain regulations. Proposed Regulations below FEMA Minimums In the past, the City basin floodplain have been regulated the same as the FEMA basin floodplain with some criteria above the FEMA minimum. However, in the proposed regulations for the City basin floodplain, two of the criteria are less restrictive than the FEMA minimum. These are: 574 March 1, 2005 1. Improvements on a floor above the flood elevation would not count toward the substantial improvement amount (50%of current market value). 2. The Utilities General Manager would be able to waive floodplain regulations once a stormwater capital project is under construction that will remove the structurefrom the floodplain. Effectively, this means that City basin floodplains would be regulated at a lower level than FEMA floodplains on the above two criteria. Community Rating System and Flood Insurance Considerations Fort Collins currently has one ofthe highest rated stormwater management programs in the country based on the FEMA Community Rating System (CRS). The CRS is a voluntary incentive program that encourages communities to go beyond FEMA minimum requirements for floodplain management. Based on a rating of numerous stormwater management activities (public outreach, higher regulatory standards, drainage system maintenance, flood warning, etc.) residents and businesses of a community receive a discount on their flood insurance premiums. Fort Collins currently has a Class 4 rating (on a scale of I to 10 with I being the best) which results in a 30% discount on flood insurance premiums. All structures in Fort Collins are eligibleforflood insurance regardless ofwhether they are located in a floodplain or not. Lenders must require flood insurance for any structure in a FEMA basin floodplain. Lenders may require flood insurance for structures in City basin floodplains or areas not even mapped in a floodplain, although this is not a common practice. The cost of flood insurance depends on many variables including amount ofcoverage, deductibles, type ofstructure, and how high the structure is elevated above the flood level. As of November 2004, there are 356 flood insurance policies in Fort Collins. Of the 356 policies, 72%are residential and 28%are non-residential. Changes in regulations as proposed would result in Fort Collins moving from Class 4 to Class 5. This will result in the City's discount rate dropping to 25%. The impact of this change is shown in the following table. Impact of CRS Class Change on Annual Flood Insurance Premiums Average Annual Average Annual Community Wide Premium Before Percent Premium After Annual Premium CRS Class Discount Discount Discount Cost 5 (proposed) 548 25% 407 $144,892 4 current 548 30% 381 $135,636 Difference 5% 26 $9,256 Fort Collins obtained the Class 4 rating in 2000, having had a Class 6 rating since 1995. As of October 2004, there were 1,006 communities nationwide participating in the CRS program. The following graph shows the distribution of communities by CRS class: 575 March 1, 2005 National Flood Insurance Program CRS Communities by Class 500 -- — 450 407 m 400 350 321 1,006 Communites E 300 66%of NFIP Polices u250 a 196 e 200 150 100 53 c 50 26 2 1 0 Class 9 Class 8 Class 7 Class 6 Class 5 Class 4 Class 2 The City recently received a $2.7 million Pre-Disaster Mitigation (PDM) grant from FEMA for capital projects on Spring Creek. Although our CRS rating was not used as a rating factor in this application, staffhas learned a community's CRSrating will be used as afactor in evaluatingfuture PDMgrant applications. How much weight is given the CRS rating and effect of the proposed CRS class change on future grant applications is unknown. There are two specific regulations staff is proposing to become less restrictive that will effectively result in Fort Collins moving to a Class 5. If Council wants to maintain the Class 4 rating, the following regulations would have to be adopted in lieu of the staff recommendation: • allow no new critical facilities in the moderate risk areas, and • require the time period for calculation ofsubstantial improvement be cumulative for 10 years (instead of 1 year as proposed) in the FEMA foodplains. Public Outreach The process of informingproperty owners in the City's 12 stormwater basins ofupcoming changes to both the master plan and foodplain regulations began in early 2002 and continued until late 2003. A variety ofcommunication tools such as customer mailings, web pages,press releases and media interviews, public meetings and open houses, and outreach to both internal and external groups potentially affected were used. In 2002, customers most affected by f oodplain boundaries and proposed regulations were identified as the primary focus of initial outreach. Because a significant number of those within the mapped foodplains are Lorimer County residents, City and County staff collaborated on public outreach. These customers received a packet that included comprehensive information about: 576 March 1, 2005 • floodplain mapping, • the review process for foodplain regulations, and • the impacts on property mapped within the foodplain. Each property owner/renter also received: • an individualized foodplain map showing their property relative to the floodplain, • a food history for his or her basin, and • property protection information. Eight public open houses were held to provide an opportunity for customers and staff to discuss the information included in the mailings as well as the master planning process. Customers received mailed invitations and open houses were advertised in the Fort Collins Coloradoan and North Forty News. At the same time, web pages were developed on the Utilities Web site to provide additional information. Over 4,000 packets were mailed, and 250 people attended the 8 open houses held during the year. In 2003, public outreach was expanded to include all property owners and renters in the City's stormwater drainage basins, not just those within the mapped foodplain. At a kickoff open house held in February, property owners and renters were invited to learn more about the City's stormwater drainage basins, foodplain and regulations, safety and food protections, and the regional weather patterns that can result in flash flooding. Following the kickoff, nine additional public open houses were held. Information presented at the open houses consisted of basin-specific information as well as information about the citywide planning process, including: • flooding histories for each basin, • maps showing identified basin problems, • maps showing proposed solutions, • proposed floodplain regulations, • stormwater project funding, and • the process for adoption of master planning and floodplain regulations. Over 62,000 pieces of mail were sent, including informational packets, basin-wide kickoff invitations, open house invitations and letters to 24 community organizations. Publicity for the outreach campaign included media releases and briefings, and advertising in local media. The nine open houses were attended by 470 people. Of the 24 community organizations contacted, seven asked for presentations or more information. Presentations were made to six City boards and commissions, including the Water Board, the Natural Resources Advisory Board, the Planning and Zoning Board, the Affordable Housing Board, Landmark Preservation Board and Parks and Recreation Board. The Water Board and the Planning and Zoning Board recommend adoption of the recommended changes. The consensus of the Affordable Housing Board was that the approach was reasonable and agreed with the proposed 577 March 1, 2005 changes. The Natural Resources Advisory Board, the Parks and Recreation Board and the Landmark Preservation Commission elected not to provide a formal recommendation. Their comments were included in the summary of comments however. Comment forms were available at the open houses and on the Utilities Web site. Thirty-three comment forms were submitted. Although most ofthose who attended open houses did not comment formally on either the proposed masterplan orfloodplain regulations, almost everyone got a chance to express their views to staff. Comments received on floodplain issues can generally be summarized as follows: • questions about the rainfall standard, never seen that much water, even in 1997, • agreed with the themes used to balance risk with regulation, • questions about the accuracy of the mapping, offered data for review, • regulations have a financial impact on property owners, • regulations are too strict, • regulations are not strict enough, • would like different regulations in each basin, • properties in floodplain pay for flood insurance in addition to stormwater rates, and • they benefitted from remapping and would like the City to submit to FEMA as soon as possible. " City Manager Atteberry introduced the agenda item. Jim Hibbard,Utility Services, stated staff was presenting recommendations relating to revisions to floodplain regulations for all floodplains within the City, with the exception of the Poudre River. He stated a floodplain regulation review was requested by City Council in 2001 when the floodplains were growing larger due to the increase in the rainfall standard. He stated the proposed revisions were reviewed with Council at study sessions in 2004 and 2005 and that a total re-write of Chapter 10 of the Code was being done. He presented visual information regarding the floodway area,the flood fringe,the 100-year floodplain and the moderate risk zone with sheet flow of depths less than one foot. He stated there were 1,900 acres of property and 700 structures in the floodway, 1,200 acres of land and 1,500 structures in the flood fringe,and 500 acres and 900 structures in the moderate risk zone. He stated the number of structures in the floodplain was continually revised downward as capital improvements were finished. He stated the goal was to arrive at a balance between the level of risk and the level of regulation. He stated the philosophy was to review the regulations to allow more restrictive regulations in the floodway (the highest risk zone) and less restrictive regulations in the flood fringe; more restrictive for new development and less restrictive for existing structures; and more restrictive for residential and less restrictive for nonresidential. He stated staff was proposing three regulations that would be more restrictive: no new residential buildings or additions in the floodway, no new mobile home parks in the flood fringe, and no new basements on nonresidential buildings in the floodway. He stated four general requirements were being recommended to be less restrictive: to reduce the freeboard for existing structures,reduce the requirements for substantial improvements, allow the General Manager to waive regulations in certain situations, and remove the prohibition against critical facilities in the moderate risk zone. 578 March 1, 2005 He stated language would be added to the Code relating to erosion buffer limits. He stated a net result of the changes would be to reduce the community rating system classification from Class 4 to Class 5,which would mean that customers who had flood insurance would enjoy a 25%discount on their flood insurance premiums. He stated there had been substantial public outreach over a period of two years, that six boards and commissions had heard presentations, and that formal recommendations had been received from the Water Board and the Planning and Zoning Board in favor of adoption of the staff recommendation. He stated at the previous Study Session there appeared to be some interest in further information on the moderate risk areas and eliminating the prohibition against critical facilities. He stated in the moderate risk areas the water depths and velocities would be low (one foot or less in depth). He stated because of that the risk of structural damage would be low and the risk of hazardous material spill would be very low. He stated Poudre Fire Authority requirements for underground and aboveground storage tanks made it unlikely that in a 100-year storm any gasoline or hazardous material would escape from a filling station, especially in the moderate risk area. He stated the risk of loss of life would be small because water depths and velocities would be such that vehicles could drive through or people could walk through. He stated staff believed that it would be acceptable to eliminate the prohibition against critical facilities in the moderate risk zone because even during a 100-year flood there would be mitigating circumstances that would make the overall risk very small. Councilmember Roy stated he would like more information on the dangers for filling stations and hazardous waste that might be under the sheet of water. Hibbard stated the Poudre Fire Authority's regulations for filling stations required placement of vents at least 12 feet in the air, 0-ring protection of fill points, and overfill protection devices to keep any gasoline from coming out. He stated it would be unlikely that any submerged gasoline product could escape from a filling station. Ron Gonzales,Poudre Fire Authority Assistant Fire Marshal,stated PFA supervised the installation and removal of every fuel tank within the jurisdiction. He presented visual information showing an illustration of the mechanics of an underground fuel storage tank's vapor recovery,venting and fuel lines. Councilmember Roy asked if these systems worked in every case during the Spring Creek flood. Gonzales replied in the affirmative. Councilmember Kastein made a motion, seconded by Councilmember Tharp, to adopt Ordinance No. 037, 2005 on First Reading. Councilmember Kastein commented on the good work by the staff and the apparent consensus on the issue. Councilmember Tharp stated this matter had been discussed thoroughly at the Study Session and that all of the questions had been answered. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED. 579 March 1, 2005 Ordinance No. 032, 2005, Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General Penalty for City Code Violations and Traffic Infractions. Adopted on First Readine The following is staffs memorandum on this item. "EXECUTIVE SUMMARY This Ordinance clarifies when restitution can be ordered as a condition of sentencing for violations of the Municipal Code. BACKGROUND This proposed ordinance will clam when the Municipal Judge can and should order restitution as part of sentencing when persons are convicted of misdemeanor Code violations and traffic infractions. Currently, there are no restitution guidelines, and defendants and victims should know when restitution can reasonably be expected through Municipal Court. Given the staffing requirements for effective enforcement of the payment of restitution, the City is unable to efficiently enforce restitution in traffic matters. The state criminal justice system has a more effective method of requiring restitution and enforcing payment of the restitution, and is therefore a more appropriate forum for collecting restitution in those kinds of cases. As to non- traffic misdemeanor or Code offenses, staff recommends that restitution be ordered for the victim, but only as to direct, out-of-pocket costs. The City itself can incur substantial costs as a result of violations of the Code and staff believes individuals found to be violating the Code should be responsible for any extraordinary monetary costs incurred as a result of such violations. This is especially true where special expertise is required to deal with a violation, or when extraordinary or non-traditional methods of enforcement are required. " City Manager Attebeny introduced the agenda item. City Attorney Roy stated this was a"restitution"ordinance with three pieces. He stated the nuisance gathering ordinance allowed for the recovery of costs by the City from persons hosting a gathering that turned into unruly behavior on adjacent properties or a riot. He stated he had received direction to bring forward to Council an ordinance that would allow the recovery of costs from the partygoers as well as the host in that kind of situation. He stated the ordinance would provide that any person convicted of violating certain provisions of the Code dealing with nuisance violations and miscellaneous offenses would have to pay restitution. He stated the other provisions of the ordinance related to the circumstances under which third parties other than the City could recover restitution and that one paragraph dealt with traffic offenses and specified that restitution through Municipal Court would not be available to victims of traffic infractions or misdemeanors and would be left to the civil courts. He stated the third part of the ordinance also dealt with restitution to victims of non-traffic offenses such as assaults, criminal mischief, etc. He stated restitution could 580 March 1, 2005 be recovered in those situations only for direct, out-of-pocket costs incurred by the victim. Councilmember Weitkunat asked for clarification regarding the provisions relating to traffic infractions. City Attorney Roy stated restitution would not be recoverable through the Municipal Court and that the victim would need to rely upon insurance or the civil courts. Councilmember Weitkunat asked why that provision would need to be included in the Code. City Attorney Roy stated there were two separate kinds of traffic offenses (traffic infractions and traffic misdemeanors). He stated there would be no restitution for any kind of a traffic offense. Councilmember Weitkunat asked about the language relating to the General Penalty. City Attorney Roy stated part of the Code was not being changed and explained the discretionary imposition of fines or jail sentence. Councilmember Tharp asked if it was within the prerogative of the Council to tell the judge to do something as opposed to simply allowing the Judge to do something. City Attorney Roy replied in the affirmative. He stated he had received direction from the Leadership Team to make it mandatory for restitution to be awarded in riot situations and that the Council would have the authority to require the judge to impose costs. He stated the Judge would have the discretion regarding how to apportion the costs when there were multiple defendants involved in the same criminal episode. Councilmember Bertschy made a motion,seconded by Councilmember Hamrick,to adopt Ordinance No. 032, 2005 on First Reading. Councilmember Kastein stated the City Attorney had brought this ordinance to Council as directed and that there had been little time to review the proposed ordinance. City Attorney Roy stated the only matter that had not had much discussion was the issue of no restitution for traffic offenses. Councilmember Bertschy stated this ordinance was timely because of the possibility of events during the spring. He stated this "would send a message as well as a bill" for the expenses that would be incurred by the extraordinary work that would have to be done by the City to deal with such events. Mayor Martinez agreed with Councilmember Bertschy's comments. 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 Tharp stated she wanted to know if Councilmembers would consider an extension of the Enterprise Zone. She stated the Housing Authority could benefit from such an extension. She stated such an extension would require adoption of a Resolution that would be forwarded to the 581 March 1, 2005 County and eventually to the State. She stated this would give the Housing Authority some flexibility and tax credit benefit and could perhaps be used by other businesses. Councilmembers Bertschy and Weitkunat and Mayor Martinez stated they were interested in having such a Resolution brought forward. Councilmember Tharp asked for staff information relating to the impact of chronic wasting disease on the water supply. Councilmember Roy stated Dennis Hogue from the North College Business Association recently contacted Councilmembers for direction on the Urban Renewal Authority. He asked for an update on the matter. City Manager Atteberry stated Mr. Hogue was requesting that the Urban Renewal Authority and setting up the citizen committee be a higher priority for the staff. He stated he had responded to Mr. Hogue reiterating that staff and the Council viewed this as a high priority. He stated he would request that staff prepare information indicating milestones. Executive Session Authorized Councilmember Bertschy made a motion, seconded by Councilmember Roy, to adjourn into Executive Session under Section 2-31(1)(3) of the City Code for the purpose of considering a possible real property acquisition by the City. 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 9:35 p.m. and reconvened following the Executive Session at 10:10 p.m.) Adjournment Councilmember Bertschy made a motion,seconded by Councilmember Roy,to adjourn the meeting to 6:00 p.m. on March 8, 2005 for the Council to consider any business that come before the Council. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: Councilmember Hamrick. THE MOTION CARRIED. The meeting adjourned at 10:10 p.m. Mayor ATTEST: City Clerk 582 March 8, 2005 COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Council-Manager Form of Government Adjourned Meeting- 6:00 p.m. An adjourned meeting of the Council of the City of Fort Collins was held on Tuesday, March 8, 2005, 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, Roy, Tharp, and Weitkunat. Councilmembers Absent: Martinez Staff Members Present: D. Jones, Krajicek, Roy. Executive Session Authorized Councilmember Hamrick made a motion, seconded by Councilmember Roy, to go into Executive Session under Subsection 2-3 1(a)(1)(a) of the City Code for the purpose of considering personnel matters. Yeas: Councilmembers Kastein, Roy, Tharp, Weitkunat, Bertschy, and Hamrick. Nays: None. THE MOTION CARRIED. Adjournment The meeting adjourned at 6:30 p.m. Mayor ATTEST: City Clerk 583 March 15, 2005 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 15,2005, 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, Kastein, Martinez and Tharp. Councilmembers Absent: Hamrick, Roy and Weitkunat. Staff Members Present: Jones, Krajicek, Roy. Citizen Participation Gary Thomas,757 Cherokee Drive,spoke in support of ballot issue 3 relating to continuation of the sales tax to fund street maintenance. Mayor Martinez noted that this item was scheduled later on the agenda. Vicki Lutz, Crossroads Safehouse, spoke regarding the impact of the food sales tax repeal (ballot issue 1) on Crossroads Safehouse programs. Bob Fitskie spoke against fluoridation of the water supply. JoAnn Malara, Kel-Mar strip small business owner, opposed the Southwest Enclave Annexation. Ray Czaplewski, 2012 Huntington Circle, stated Poudre School District statistics showed that Bauder Elementary School had 600 students in 2004 and was predicted to have 350 students next year, and that Blevins Elementary School had 800 students in 2004 and was expected to have 350 students in 2009. He stated young families were moving to the southeast, where new elementary schools were becoming overcrowded. He stated Poudre School District was facing contentious school boundary changes and school busing. He stated there was a"black market' in off-campus housing that made westside neighborhoods less appealing to young families. He stated enforcement of the"three unrelated" ordinance would make older neighborhoods more appealing to families. Robert Stansbury, 1301 Robertson Street, spoke in favor of a new police services building and opposed repeal of the grocery tax. Charlene Hayes, Kel-Mar strip business owner, opposed the Southwest Enclave Annexation. John Coxson opposed the Southwest Enclave Annexation. 1 March 15, 2005 Steve Musiel, 5846 South College Avenue, Kel-Mar strip business owner, spoke against the Southwest Enclave Annexation and the City's new plan to delay annexing the residential areas and proceeding with annexation of the businesses. Al Baccili, 520 Galaxy Court, opposed the Southwest Enclave Annexation and asked the voters to vote in favor of repealing the food sales tax. B. J. Ferrero, Kel-Mar strip business owner, spoke in opposition to the Southwest Enclave Annexation strip. Reginald (Bud) Heron, 415 South Howes, urged voters to vote against ballot issue 1 (repeal of the food sales tax). David Neals, Shields and Horsetooth area resident, opposed fluoridation of the water supply. Citizen Participation Follow-up Mayor Martinez stated the previous and current City Councils had supported a police building because of the growing need. He stated other cities that did not have a food sales tax had a higher base tax than Fort Collins. Councilmember Kastein stated the Council had discussed the Southwest Enclave Annexation at a study session and that the financial information for the residential and commercial portions were combined. He requested financial information relating to the Kel-Mar strip and stated the City was looking at what the City would gain and what it would cost the City to annex that strip. He commented on the finances of the City and stated the City was required by the Charter to propose a balance budget. He stated expenses by law must match revenues and that some expenditures could be delayed if there was insufficient revenue. Councilmember Tharp commented on the REA costs for the Southwest Enclave Annexation and noted that the Council had asked staff to explore whether those costs could be absorbed by the entire City rather than by the people being annexed. She stated much work needed to be done on the annexation before the City was ready to move ahead on it. She also commented on the shifts in population from the older part of the City to the south. She stated the Council was attempting to address the issue by trying to preserve neighborhoods for families. Councilmember Bertschy stated he believed that the City needed to work more closely with Poudre School District on neighborhood issues and shared services. He also urged voters to defeat the repeal of the food sales tax. Agenda Review Deputy City Manager Jones stated there was a minor modification to item#13 Second Reading of Ordinance No. 032, 2005, Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General Penalty for City Code Violations and Traffic Infractions and that item#30 2 March 15, 2005 Resolution 2005-028 Amending the Growth Management (GMA) Boundary to Include the Fossil Creek Cooperative Planning Area (CPA) also had a change to the title of the Resolution. City Attorney Roy read the changes to Ordinance No. 032, 2005 into the record. Councilmember Tharp withdrew item #22 Resolution 2005-025 Appointing Arbitrators to the Collective Bargaining Panel Pursuant to Section 2-624 ofthe City Code from the Consent Calendar. CONSENT CALENDAR 7. Second Reading of Ordinance No. 026, 2005 Amending Chapter 7.5 and Chanter 26 of the City Code to Establish Requirements and Procedures for Utility Service Outside the Fort Collins Growth Management Area. Chapter 26 of City Code outlines a process in which water or wastewater service can be provided outside city limits if certain conditions are met. City Plan Policy GM-5.1 discourages extension of utilities outside the City's Growth Management Area ("GMA") unless the extension is consistent with City Plan and has a community benefit. Ordinance No. 026, 2005, which was unanimously adopted on First Reading on March 1, 2005, will clarify this ambiguity and require that the areas to be served outside the GMA must be approved by City Council. 8. Second Reading of Ordinance No. 027, 2005, Appropriating Bond Proceeds in the Water Fund. A $4,150,781.22 non-interest bearing bond was issued to the City of Fort Collins Water Utility Enterprise to acquire from the North Poudre Irrigation Company(NPIC)the property and rights it owns that were necessary to proceed with the permitting and development of the Halligan Reservoir Enlargement Project, however, no appropriation was done at that time. The transfer and sale of the property to the City of Fort Collins closed on January 22, 2004. Because the debt consists of a non-interest bearing bond,the value of the investment in the property is calculated at the net present value of the payment streams required in the bond obligation, which results in an appropriation for $2,476,446.24 in constructive bond proceeds. The City will commit to the annual payments, which includes the principal and the interest as imputed, for the next 27 years. The Water Utility will pay the debt primarily from development fees paid to the City. This Ordinance, which was unanimously adopted on First Reading on March 1, 2005, appropriates the constructive bond proceeds to the Halligan Project. 9. Second Reading of Ordinance No. 028 2005 Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin The Spring Creek Stormwater Basin Master Plan identified several capital projects to reduce the risk of flooding in the Spring Creek Basin. A $2,697,188 State of Colorado Division of 3 March 15, 2005 Emergency Management("CDEM")Grant has been awarded to the City for the construction of some of the stormwater projects in the Spring Creek Basin. The projects to be constructed with the grant include expansion of the Taft Hill, Rolland Moore and Southern Railroad Detention Ponds and the stabilization of the Burlington Northern Railroad embankment. The performance period for the grant is December 16, 2004 through December 31, 2006. This new grant was made available from the CDEM through an agreement with the Federal Emergency Management Agency for Pre-Disaster Mitigation ("PDM")projects. The Fort Collins prof ects were selected through a nationwide competitive process and maybe the first in the nation to be awarded the PDM grant for a capital project. The Ordinance, which was unanimously adopted on First Reading on March 1, 2005, appropriates the grant proceeds to the Spring Creek PDM Capital Project. 10. Second Reading of Ordinance No 029, 2005 Amending Chapter 15 of the City Code Relatins to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires. Chapter 15, Article XIV of the City Code defines various terms used in that Article which pertain to the licensing of"outdoor vendors." This Ordinance, which was unanimously adopted on First Reading on March 1,2005,would establish a distinction between outdoor vendors and "downtown plan area concessionaires." Staff recommends adoption of the Ordinance,as it was the original intent to differentiate between the two different operations when the Outdoor Vendor Ordinance was revised in 1994. The amendment to the Code would reflect what the working procedure has been since1994. 11. Second Readine of Ordinance No. 030, 2005, Amending the Land Use Code by Adding "Resource Recovery"Use to the Public Open Lands (P-O-L) Zoning District This Ordinance,which was unanimously adopted on First Reading on March 1,2005,would amend the Land Use Code to add "Resource Recovery" to the P-O-L zoning district. Resource recovery is defined as: "The process of obtaining materials or energy, particularly from solid waste". Resource recovery complements existing uses in the Land Use Code related to waste diversion, including recycling and composting facilities,but permits additional alternatives to landfilling. In the short-term, adding Resource Recovery to the P-O-L district will allow the Natural Resources Department(NRD) to lease existing facilities at the Resource Recovery Farm to Frontline Bioenergy for experimental research in extracting hydrogen from biomass (specifically chipped tree branches). The 150-acre Resource Recovery Farm (RRF) is located just south of East Prospect Road at I-25. 4 March 15, 2005 12. Second Reading Of Ordinance No.031,2005 Amending Various Sections of the Fort Collins Traffic Code. At the time of the adoption of the Traffic Code,it was the understanding of staff and Council that the Traffic Code would most likely be subject to future amendments, not only for the purpose of clarification and correction of errors,but also for the purpose of ensuring that the Traffic Code remains consistent with State traffic laws. The proposed amendments will: • Renumber the speeding in a construction and school zones sections for placement in the speeding section of the Traffic Code, a more logical placement for these provisions; and • Renumber the funeral procession provision for placement in a more appropriate section of the Traffic Code; and • Provide a definition for "street rod" consistent with State statute. Staff submitted the changes to Colorado Department of Transportation(CDOT)for approval. CDOT has approved the ordinance changes as written. Ordinance No. 031, 2005 was unanimously adopted on First Reading on March 1, 2005. 13. Second Reading of Ordinance No. 032, 2005, Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General Penalty for City Code Violations and Traffic Infractions. This Ordinance, which was unanimously adopted on First Reading on March 1, 2005, clarifies when restitution can be ordered as a condition of sentencing for violations of the Municipal Code. 14. Second Reading of Ordinance No. 033, 2005, Authorizing the Conveyance of a Non- Exclusive Easement to LaFarge West,Inc. Over.Across and Under a Portion of the Poudre Trail. The City has constructed the Poudre Trail east and west of Taft Hill Road. The latest segment was constructed west of Overland Trail on a strip of land that was donated by LaFarge West, Inc. LaFarge still owns land abutting both sides of the Trail. The property on both sides is being used for water storage and LaFarge has a need to connect between the ponds on both sides of the trail. LaFarge is requesting easements for underground pipe installation to convey water in 3 locations on the City-owned property. Each easement will be 85 feet by 100 feet. City staff has reviewed the request and has no objections to the requested easements. Ordinance No. 033,2005,was unanimously adopted on First Reading on March 1, 2005. 5 March 15, 2005 15. Second Reading of Ordinance No.034,2005,Authorizing the Lease of City-Owned Property at 3829 East Prospect Road, Fort Collins. Colorado. to Frontline Bioenergy_ Vacant buildings suitable for industrial uses are located on the Resource Recovery Farm property(RRF), which was transferred from Utilities to the Natural Areas program for use as open space in 2003. Frontline BioEnergy, which is working to develop innovative technology and integrate systems that convert biological waste materials (biomass) into useful energy products such as hydrogen through thermal or microbial processes, is interested in using certain of the buildings at RRF. Frontline BioEnergy offers proven research methods, design and manufacturing expertise, and system integration. In furtherance of the City Council adopted policy of encouraging development of and implementing hydrogen-related projects in Fort Collins, and funds have been budgeted for Utilities' use for hydrogen fuels projects. Utilities has proposed to use a portion of those funds to assist Frontline BioEnergy in acquiring this lease space from the Natural Areas program for the start-up of its operations. The lease would include the following: both levels of the office, consisting of 2,106.88 square feet, 2,450.09 square foot section of the shop, and an outside area on which the tenant would construct a temporary open front pole shed, together with a small amount of parking area. Ordinance No. 034, 2005, was unanimously adopted on First Reading on March 1, 2005. 16. Second Reading of Ordinance No. 035, 2005, Authorizing the Conveyance of a Non- exclusive Easement Interest to North Weld County Water District for an Existing Waterline Across the Vehicle Storage Building Property. The Vehicle Storage Building Property is located at 701 Wood Street. There is an existing North Weld County Water District waterline across the property that was installed in the 1960s without recorded documentation that City staff or North Weld County Water District Staff can locate. The line was in place at the time the City acquired the property, and City staff likely knew of the existence of the waterline, as it continues across a number of other properties owned by the City. Both parties acknowledge that an easement document defining and providing notice of the waterline easement needs to be executed and recorded. Ordinance No. 035, 2005, was unanimously adopted on First Reading on March 1, 2005. 17. Second Reading of Ordinance No. 037, 2005 Repealing and Reenacting Article II of Chapter 10 of the City Code Regarding Flood Hazard Areas This Ordinance, which was unanimously adopted on First Reading on March 1, 2005, modifies the City Code to reflect changes to the floodplain regulations that balance risk with regulation for floodplains citywide,excluding the Poudre River floodplain. Regulations for the floodway (areas of the highest risk) are more restrictive than for areas in the floodplain fringe and moderate risk areas. Regulations are more restrictive for new development and 6 March 15, 2005 less restrictive for existing development. Residential development has more restrictive regulations than non-residential development. Areas of the lowest flood hazard, moderate risk floodplains, are not subject to any restrictions. Other changes to the Code include the incorporation of restrictions for erosion buffer zones, which have previously been addressed in stormwater master plans. Revisions were also made to bring the Code into compliance with current FEMA criteria. To make the City Code more user friendly and easier to understand,the entire Flood Hazard article(Article II)was rewritten and more details were added to clarify specific types of development activities and the applicable floodplain requirements. The section regarding the Poudre River floodplain has no policy changes but was changed to be in the same format. Public outreach was completed during the formulation of the floodplain regulation changes which included mailings, open houses, boards and commissions review and newspaper articles.City Council discussed this item at its January 13,2004,and February 8,2005,study sessions. 18. Items Related to Grant Funding for a Compressed Natural Gas Backup Compressor at the Transfort Alternative Fueline Station. A. Resolution 2005-021 Authorizing the Execution of an Intergovernmental Agreement with the Colorado Department of Transportation for the Construction and Installation of a Compressed Natural Gas Backup Compressor at the Transfort Alternative Fueling Station. B. First Reading of Ordinance No.038,2005,Appropriating Unanticipated Revenue in the Equipment Fund and Authorizing the Transfer of Existing Appropriations in the Equipment Fund for Construction and Installation of a Compressed Natural Gas Backup Compressor at the Transfort Alternative Fueling Station. These actions are necessary to move forward with the installation of a backup Compressed Natural Gas facility which will provide additional fast fueling capability and a redundancy system in the event of a main compressor malfunction. This system will be critical in Transfort's fueling capability, as Transfort continues to acquire additional Natural Gas buses. 19. Resolution 2005-022 Establishing Rental Rates and Delivery Charges for the City's aw Water for the 2005 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 24,2005 meeting. The proposed rate for each type of water 7 March 15, 2005 is based on several factors including market conditions and assessments charged by irrigation companies. 20. Resolution 2005-023 Authorizing the One-Year Extension of a Lease of the City Ditch on City-owned Property at 2005 North Overland Trail in Larimer County.Colorado to Larimer County Canal No. 2 Irrigating Company. This Resolution authorizes the extension of a lease to Larimer County Canal No.2 Irrigating Company of the City Ditch on the City's old Water Works Property at 2005 North Overland Trail Road. Although the original 1906 lease provided for an automatic renewal of the lease for an additional 99-year term at the Ditch Company's option, the Council's authorization at the time only authorized the lease for the initial 99 years. Pending resolution of this matter for the long term, an extension for one year will allow the continued use of the City Ditch for irrigation flows on the same terms as have been in place for the past 99 years, and will avoid disruption of the right to run those irrigation flows in the City Ditch for the 2005 irrigation season. 21. Resolution 2005-024 Extendine the Term of the Ad Hoc Compensation and Benefits Committee. The Committee has recommended that the Council extend its existence in order to allow the City Manager to communicate with City employees regarding the Committee's recommendations. The extension would be through April 26, 2005. 22. Resolution 2005-025 Appointing Arbitrators to the Collective Bar ag ining Panel Pursuant to Section 2-624 of the City Code. Citizen-Initiated Ordinance No. 1, 2004, which was approved by City voters in April of 2004, created Section 2-624 of the City Code which provides for the establishment of a permanent panel of arbitrators whose role will be to hear requests for binding arbitration. This Resolution establishes the panel of arbitrators. 23. Resolution 2005-026 Filline a Vacancy on the Economic Vitality and Sustainability Panel On September 21, 2004 City Council adopted Resolution 2004-113 and endorsed the establishment of an Economic Vitality and Sustainability Panel which shall: (a) serve as a forum for the continued discussion of economic vitality and sustainability issues;(b)provide information and advice to City Council, the City Manager and the Economic Advisor on a regular basis;©provide guidance in the creation and implementation of a formal action plan; (d) facilitate partnerships that lend organizational support for the implementation of economic vitality and sustainability partnership strategies;and(e)report to City Council,on an annual basis, progress achieved towards improving the economic vitality and sustainability of the Fort Collins community. Resolution 2005-026 appoints Gary Amato as a member of the Economic Vitality and 8 March 15, 2005 Sustainability Panel. Mr. Amato replaces former member Hank Gardner, who was forced to resign his position due to schedule conflicts. 24. Routine Easements. A. Easement from construction and maintenance of public utilities from Mulhge,LLC, to install a 3 phase switch cabinet and padmount transformer to underground the overhead electric system, located at 1412 East Mulberry. Monetary consideration: $1500. B. Easement dedication from FC Timberline Development,LLC,for a new screen wall at 4502 John F. Kennedy Parkway. Monetary consideration: $0. C. Sidewalk easement from The Landings Community Association, Inc., located on Tract D, Whaler's Cove, Second Replat. Monetary consideration: $500. ***END CONSENT' Ordinances on Second Reading were read by title by City Clerk Krajicek. 7. Second Reading of Ordinance No. 026, 2005, Amending Chanter 7.5 and Chapter 26 of the City Code to Establish Requirements and Procedures for Utility Service Outside the Fort Collins Growth Management Area. 8. Second Reading of Ordinance No. 027, 2005 Appropriating Bond Proceeds in the Water Fund. 9. Second Reading of Ordinance No. 028 2005 Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin 10. Second Reading of Ordinance No. 029, 2005, Amending Chanter 15 of the City Code Relating to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires. 11. Second Reading of Ordinance No. 030, 2005 Amending the Land Use Code by Adding "Resource Recovery"Use to the Public Open Lands (P-O-L) Zoning District 12. Second Reading of Ordinance No.031,2005 Amending Various Sections of the Fort Collins Traffic Code. 13. Second Reading of Ordinance No. 032, 2005 Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General Penalty for City Code Violations and Traffic Infractions. 14. Second Reading of Ordinance No. 033 2005 Authorizing the Conveyance of a Non- 9 March 15, 2005 Exclusive Easement to LaFarge West, Inc Over.Across and Under a Portion of the Poudre Trail. 15. Second Reading of Ordinance No.034.2005,Authorizing the Lease of City-Owned Property at 3829 East Prospect Road, Fort Collins. Colorado, to Frontline Bioenergv 16. Second Reading of Ordinance No. 035, 2005, Authorizing the Conveyance of a Non- exclusive Easement Interest to North Weld County Water District for an Existing Waterline Across the Vehicle Storage Building Property. 17. Second Reading of Ordinance No. 037, 2005 Repealing and Reenacting Article II of Chanter 10 of the City Code Regarding Flood Hazard Areas 28. Second Reading of Ordinance No. 025, 2005 Amending Section 2-31 of the City Code so as to Clarify That City Council Can Provide Direction to City Staff or Other Persons During Executive Sessions. Adopted on Second Reading Ordinances on First Reading were read by title by City Clerk Krajicek. 18B. First Reading of Ordinance No. 038 2005 Appropriating Unanticipated Revenue in the Equipment Fund and Authorizing the Transfer of Existing Appropriations in the Equipment Fund for Construction and Installation of a Compressed Natural Gas Backup Compressor at the Transfort Alternative Fuelin¢ Station Councilmember Bertschy made a motion, seconded by Councilmember Kastein, to adopt and approve all items not withdrawn from the Consent Calendar. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez and Tharp. Nays: None. THE MOTION CARRIED Consent Calendar Follow-up Councilmember Tharp asked about the need for a one year extension of the lease set forth in item #20 Resolution 2005-023 Authorizing the One-Year Extension of a Lease of the City Ditch on City- owned Property at 2005 North Overland Trail in Larimer County, Colorado to Larimer County Canal No. 2 Irrigating Company. Mike Smith, Utilities General Manager, stated the City had not been monitoring a number of 99 year leases and that rather than rushing the renegotiations staff was recommending the one-year extension to allow time to give the matter more thorough consideration. Councilmember Reports Councilmember Tharp reported on the Annual Report of the Housing Authority and summarized affordable housing efforts serving approximately 1,500 families through various programs, noting that about 86%of those families had incomes in the 30%AMI range of less than $20,000 per year. She stated the City administered Section 8 vouchers to help people pay their rent and that the 10 March 15, 2005 Housing Authority administered$5.4 million in housing assistance payments to local landlords on behalf of participating families. She stated this money therefore went into the general economy. She noted that there was also a long waiting list for housing assistance. Councilmember Kastein reported on the North Front Range Transportation Air Quality Planning Council discussions relating to the idea of putting together another transportation plan in the next three years that would be corridor-specific rather than project-specific. Mayor Martinez reported that Fort Collins had received the Take Pride in America award. Ordinance No. 025, 2005, Amending Section 2-31 of the City Code so as to Clarify That City Council Can Provide Direction to City Staff or Other Persons During Executive Sessions.Adopted on Second Reading The following is staff s memorandum on this item. "EXECUTIVE SUMMARY This Ordinance, which was adopted as amended 6-1 (Nays: Councilmember Tharp) on First Reading, amends Section 2-31 of the City Code pertaining to executive sessions to clarify that Council can provide direction to City staff or other persons during the course of an executive session with regard to the matters that are permissible for discussion in executive session. " Deputy City Manager Jones introduced the agenda item and stated this was on the discussion agenda because it was not a unanimous decision on First Reading. Councilmember Bertschy made a motion,seconded by Councilmember Kastein,to adopt Ordinance No. 025, 2005 on Second Reading. Councilmember Tharp stated she would vote against the motion and that she had concerns about the use of the Executive Session. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein and Martinez. Nays: Councilmember Tharp. THE MOTION CARRIED. 11 March 15, 2005 Resolution 2005-027 Expressing City Council's Support of the April 5, 2005 Ballot Measure to Renew the City's Street Maintenance Sales and Use Tax for Ten (10) Additional Years Adopted The following is staff s memorandum on this item. "FINANCIAL IMPACT The renewal ofthe Street Maintenance Program sales and use tax would provide approximately$5.5 million per yearfor the program. This funding, in addition to the projected$2.6 million in General Fund funding, will provide a 'full funding" level for the Street Maintenance Program. Since a portion of the Building Community Choices revenue from the "Transportation"quarter cent was earmarked for other transportation capital projects, renewal of the tax with all the revenue dedicated to Street Maintenance will lower the need for some of the one-time General Fund resources previously committed to street maintenance. EXECUTIVE SUMMARY On February 1, 2005, City Council placed a renewal ofthe City's Street Maintenance sales and use tax on the April 5, 2005 City election ballot. The current 114 cent sales tax has been in place since voters approved it in 1997. The tax is set to expire December 31, 2005. By seeking voter approval of the tax extension, uninterrupted funding of the program can be assured. Ballot Issue No. 3 asks for voter approval to extend the tax for 10 years, with a term running from January 1, 2006 through December 31, 2015. The Street Maintenance Program provides fundingfor the repair and renovation ofthe City's street system. All 475 miles ofcity streets are covered by the program including arterials, collectors and residential streets. Theprogram covers major maintenance andpreventative maintenance ofstreets including repairs, renovations and reconstruction when necessary. Maintenance is also performed on curbs, gutters, bridges, sidewalks,parkways, shoulders and medians. The purpose of this resolution is to express City Council's support of Ballot Issue No. 3. Renewal ofthe sales tax is a key component ofthe City's financial stability and the City's ability to maintain a high quality, efficient transportation system. BACKGROUND Two Building Community Choices capital sales taxes are set to expire December 31, 2005. The "Streets and Transportation Projects" package funded the Street Maintenance and Overlay Program, the Annual Pedestrian Improvement Program, Phases 1 and 2 of the Mason Transportation Corridor, and improvements to the North College Corridor. The "Community Enhancements" package has funded a variety of other projects including road expansions, recreation programs and land acquisition forfuture Cityprojects. While both taxes are set to expire this year, Council directed staff to seek renewal of the Street Maintenance Program at the April election and defer the "Community Enhancements"renewal until the November 2005 election. 12 March 15, 2005 The Street Maintenance Program The Street Maintenance Program provides fundingfor the repair and renovation of the City's street system. All 475 miles ofcity streets are covered by the program including arterials, collectors and residential streets. Theprogram covers major maintenance andpreventative maintenance ofstreets including repairs, renovations and reconstruction when necessary. Maintenance is also performed on curbs, gutters, bridges, sidewalks,parkways, shoulders and medians. The program has been in existence since 1989 when it was funded through the Choices 95 Capital Improvement Program. Prior to that time, the City's street maintenance efforts received minimal funding and streets were in poor condition. With the funding of the Street Maintenance Program and the renewal of the funding stream through the Building Community Choices program, the City has been able to meet its goal of an average pavement condition rating of 75—a "Good"rating. (See attachment ]) Accomplishments of the program have included.• • 263 miles ofstreets have been maintained since 1989; • The average pavement condition rating has been raised to 75; • Aggressive rehabilitation of arterial streets has been undertaken; • The Hot-in-Place asphalt recycling process was introduced in 2000, increasing cost effectiveness and minimizing inconvenience for citizens; and • Preventive maintenance such as slurry seals and overlays have increased. Program Funding The Street Maintenance Program is currently funded from four sources. A substantial portion of the program funding, $3.7 million(49%), is provided by the Building Community Choices Program. In 2005, the General Fund will provide $1.6 million in ongoing funds and$2.2 million in on-time funding for the program. An additional$128,000 from street cut fees was provided in 2004. These fees are assessed to contractors and other builders who cut into City streets as part ofa construction project. The overall budget of$7.5 million is considered to be a full funding level for the program. (See Attachment 2) If the Street Maintenance Program is renewed by voters, $5.5 million of dedicated revenue,plus a projected$2.3 million ofgeneral fund support in 2006 will provide a total of approximately $7.8 million per year for street maintenance. Though specificfundingfigures would not be known until the 2006-07 budget is adopted, General Fund support for the program will still be required after the dedicated revenue source is approved by voters. Ongoing funding for the Street Maintenance Program is a high priority for several reasons. It continues to be one of the City's most basic, core services with excellent past performance. It is a cost effective program because maintaining averagepavement condition rating of 75 saves the City money. By providing preventative maintenance to streets, repairs can be made when inexpensive processes can be used, rather than waiting until more expensive and disruptive major maintenance or replacement is required. With limited alternative funding sources for this maintenance, this 13 March 15, 2005 program and its funding source are critical to maintaining the overall condition of the City's street system. A Dedicated Funding Source By continuing this dedicated funding source, separate from the General Fund, the City can accomplish several goals. First, by maintaining the program as a dedicated sales tax funded program,funds cannot be diverted to other uses. This ensures that the program remains funded and preventative maintenance will not be deferred. A second benefit of a dedicated sales tax is that 30 - 40% of sales tax revenue is generated from non-city residents that use our street system. Byplacing aportion ofthe burdenfor maintaining our streets on visitors, workers who commute into Fort Collins and shoppers from neighboring communities, the sales tax provides an equitable funding source. For these reasons, the City Manager recommends that Council adopt this Resolution supporting the passage of Ballot Issue No. 3 at the April 5, 2005 City election. " Deputy City Manager Jones introduced the agenda item. She stated the street maintenance and repair program included 475 miles of City streets and that maintenance was scheduled so that streets would be kept in good condition. She stated repairs were less expensive if streets were not allowed to deteriorate. She stated a dedicated quarter cent sales tax had been in place since 1989 and would expire in December. She stated Council placed a measure on the April ballot to renew the sales tax. She stated there was no other ready source of revenue for street maintenance. She stated the quarter cent tax would generate $5.5 million. She stated a dedicated tax could only be used for the designated street maintenance purposes. She stated 30-40% of the revenues would come from nonresidents who used City streets. She stated TABOR required the measure to be described as a tax increase even though it was renewal of an existing tax that had been in place for 14 years. She stated the tax would be a quarter cent on purchases except for groceries or prescription drugs. She stated the cost to citizens would be 25¢ for each $100 purchase. She stated the tax would be extended for another 10 years. She stated the proposed Resolution would highlight for voters the importance of funding the program and would express Council's support for the renewal of the tax and would ask voters to support ballot measure 3. Gary Thomas, 757 Cherokee Drive, spoke in support of the Resolution and stated there would be no actual increase in taxes since this would be an extension of a current tax. He noted that all of the candidates for Mayor and City Council except for one had endorsed the Resolution. He urged the Council to adopt the Resolution and voters to vote in favor of the ballot measure. Al Baccili,520 Galaxy Court,stated he believed that 10 years was too long for the tax extension and that five years would be more appropriate. David May,Executive Director of the Fort Collins Chamber of Commerce, spoke in support of the Resolution and the adoption of the extension of the sales tax for 10 years. 14 March 15, 2005 Councilmember Tharp made a motion, seconded by Councilmember Bertschy,to adopt Resolution 2005-027. Councilmember Bertschy stated this was an opportunity to extend a successful tax and that the Downtown Development Authority had also adopted a Resolution expressing support for ballot measure 3. He stated this tax allowed City streets to be kept in excellent condition compared with other communities. He stated this also saved the City money in the long run for capital expenses. Councilmember Kastein stated the Council had already supported this measure by placing it on the ballot. He stated the Resolution would make that Council support clear. He stated the sales tax extension would support the City's infrastructure and would help protect one of the City's major investments in a cost effective way. Councilmember Tharp stated she supported the extension of the tax for street maintenance. She stated this would address street maintenance and noted that there were still other significant long term transportation funding needs. Mayor Martinez stated he would support the Resolution. He stated the City needed to work on long term funding options so that a tax was not needed for this and other basic services. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez and Tharp. Nays: None. THE MOTION CARRIED. Resolution 2005-028 Amending the Growth Management Area (GMA) Boundary to Include the Fossil Creek Cooperative Planning Area (CPA).Adopted The following is staffs memorandum on this item. "EXECUTIVE SUMMARY This is a request to amend the Fort Collins Growth Management Area (GMA)boundary to include the Fossil Creek Cooperative Planning Area (CPA), an area of approximately 2.25 square miles. The CPA was identified as a location for a possible amendment to the GMA boundary in the recently adopted update to City Plan (May 2004) and City Structure Plan map. If approved by the City Council, the boundary amendment will be forwarded to the Board of Commissioners of Larimer County for approval as amendment to the Intergovernmental Agreement for the Fort Collins GMA. BACKGROUND City Plan Policy GM-1.2 indicates that GMA boundary amendments will only be considered in conjunction with comprehensive updates to City Plan. In the update just completed, three potential 15 March 15, 2005 GMA boundary amendments (the Fossil Creek CPA, the Wildflower Area, and the CSU Foothills Campus) are to be considered by the City prior to the next update. This is a request to amend the Fort Collins Growth Management Area (GMA) boundary to include the Fossil Creek Cooperative Planning Area (CPA), an area of approximately 2 andl/4 square miles. Fossil Creek CPA History In March 1998, the City of Fort Collins and Larimer County concluded a joint planning effort with the adoption of the Fossil Creek Reservoir Area Plan. The Plan was adopted as an element of City Plan, the City's Comprehensive Plan. The Plan contained the following chapters/topics: 1. land use framework 2. transportation 3. natural areas and open lands 4. parks schools, and other community facilities 5. implementation Regarding the Growth Management Area (GMA) boundary, the Plan's implementation called for two significant actions: (1) amendment of the GMA boundary to include all land north of Fossil Creek Reservoir and west ofI-25, and(2) establishment of the Fossil Creek Cooperative Planning Area (CPA) as a future GMA boundary amendment area. The GMA boundary amendment to include all land north of Fossil Creek Reservoir and west ofI-25 was approved by both the City and County in 1999 and contained approximately 5 square miles, not counting the area covered by Fossil Creek Reservoir. An additional2.5 square miles was included in the CPA. The objective of the CPA was to preserve opportunities to expand the supply of buildable land for urban purposes within the city through eventual annexation. In 1999, a series of Intergovernmental Agreements involving the Cities of Fort Collins and Loveland, the Town of Windsor, and Larimer County formally extended the GMA boundary to include the area north of Fossil Creek Reservoir and west of I-25 and established the CPA. Some key components to these agreements were the establishment of future annexation areas. Fort Collins agreed not to annex east ofI-25, Windsor agreed not to annex west of I-25, and Loveland agreed not to annex north of County Road 30. All parties agreed to recognize the Fossil Creek CPA as being a logical extension of the Fort Collins GMA boundary and leading to eventual annexation of the area into Fort Collins. Since the establishment of the IGAs between the City, the surrounding communities, and Lorimer County, there has been increased development pressure on the properties adjacent to the I-25/SH 392/Carpenter Road interchange. Also, staff understands that the South Fort Collins Sanitation District may eventually sell for development a 160 acre parcel directly south of their wastewater treatment plant on the south side of Carpenter Road. The area south of Carpenter Road is located in the County's AP, Airport Zoning District. This district could allow uses which would be incompatible with the Community Separator designation on the Structure Plan. North of Carpenter Road, adjacent to I-25, County zoning is a mix ofzones, including theC, Commercial andT, Touristzones, and the Rl,Residential district. The area is, thus, primed for development. No formal applications have been made, but both the City and County 16 March 15, 2005 planning staffs believe that it is a matter ofjust a short time before someone submits a development application to the County. This adds a sense of urgency to expanding the GMA and annexing the area if the City of Fort Collins wants to have more control over these development plans along a major entry corridor into the city. GMA Amendment Criteria Policy GM-1.2 of City Plan also establishes a set of criteria to be considered in reviewing proposed GMA amendments. These criteria are presented below along with a staff analysis addressing each criterion. The proposed amendment is consistent with community goals, principles, and policies as expressed in City Plan. The initial version of City Plan (1997)contained the policy basis for establishing CPAs. The Fossil Creek Reservoir Area Plan's Policy FC-1-6 established the conceptfor this CPA as an area beyond the GMA which could conceivably be annexed into Fort Collins. One key principle for the CPA was to avoid "annexation wars" between Fort Collins and the other surrounding communities. Staff believes adding the Fossil Creek CPA into the GMA boundary would complete the fulfillment of policies and intergovernmental agreements initiated in the Fossil Creek Reservoir Area Plan. The CPA is designated for a mix of commercial, rural lands, public open lands, and community separators on the City's Structure Plan. Inclusion of the area in the GMA and its eventual annexation will provide the City with much greater assurance that City Plan's vision for the area is successful. The proposed amendment has a positive net fiscal benefit to the community. Staff is convinced that it is just a matter time before commercial development occurs adjacent to the I-251SH 392/Carpenter Road interchange. Since development will likely be "urban" in nature, Lorimer County staff has indicated they would like the area to develop inside ofa city's jurisdiction. Therefore, staff believes the main issue becomes not one of "if' development occurs, but one of "when, where, and how" such development takes place, either in Fort Collins, or in Windsor or Loveland. Amending the GMA boundary to include the CPA at this time would solidify the City's claim to and control ofthe area as initially established in the Fossil Creek Reservoir Area Plan and subsequent intergovernmental agreements. The Structure Plan's land use designations for the Fossil Creek CPA include approximately 40 acres ofEmployment District and approximately 90 acres of Commercial Corridor District adjacent to I-25. These areas would be zoned E, Employment, and C, Commercial, respectively upon annexation into the City. The balance of the area contains City and County open space/parks and a portion of the Fort Collins-Loveland Community Separator. The privately-owned properties in the separator would be placed into the RR District upon annexation. The publicly owned properties would be placed into the POL, Public Open Lands District upon annexation. Annexation of this area into the City would allow the City to apply its street standards, including 17 March 15, 2005 right-of-way dedications, as well as collecting the full range of City impact fees. Staff does not have exact figures, but intuitively would expect the approximately 40 acres of Employment District and approximately 90 acres of Commercial Corridor District to generate impact fees and tax revenues to more than adequately cover the costs of necessary public services and facilities to those employment and commercial uses and the very low density residential development that is likely to happen in the CPA. Included in the City services to be provided to the area after annexation are police and road maintenance services. Water and wastewater utilities will be provided by the Loveland-Fort Collins Water District and the South Fort Collins Sanitation District respectively. The Police Department has a standard that indicates 400 housing units generate the need for an additional police officer. Assuming all of the parcels designated as Rural Lands and Community Separator available for residential development in the CPA develop as residential clusters with a density of 1 unit per 2.29 acres, the area would produce about 160 units, or about the need for.4 of a police officer. Certain commercial uses, such as bars, create a higher demand for police services than other commercial uses. While the future commercial and employment uses will add to the need for additional police services, stafffinds they would not be of the types that would create the high demands for those services. Therefore, staff concludes the CPA GMA boundary amendment would have a positive net fiscal benefit to the community. The proposed amendment is necessary to accommodate an activity that cannot be reasonably accommodated on lands within the existing GMA boundary. There are five entry corridors into Fort Collins from I-25. From north to south they are: Mountain Vista Drive, Mulberry Street, Prospect Road, Harmony Road, and Carpenter Road. The Structure Plan designates three of them for commercial development: Mulberry, Prospect, and Carpenter. One is almost fully developed (Mulberry), leaving two (Prospect and Carpenter) remaining available for future commercial development. The I-25 Subarea Plan, an element of City Plan, identifies the Prospect interchange as an "activity center"which will be encouraged to develop with a mix of uses, including residential. While Prospect will also likely be the location for some highway oriented commercial development, outside of Mulberry, the community does not have an area that can offer location attributes to serve the regional retail market and traveling public on I- 25. Thus, staff recommends the CPA area should be added to the GMA to provide for certain types ofcommercial uses that cannot be accommodate,norperhaps should not be accommodated, in other parts of the GMA. The land proposed for inclusion in the GMA contains environmental resources or hazard constraints that make it unsuitable for its proposed use. The properties immediately surrounding Fossil Creek Reservoir are a very important environmental resource for the community. Maintaining a separation of the Fort Collins and Loveland urban areas is also a very high priority ofthe two communities and the County. The City and County have acquired, or otherwise preserved, a significant portion of the open space and natural areas within the CPA. Additional public purchases/preservations are likely in the future. There are also some important wetlands that will remain privately owned,for example, on the west end of the horse farm 18 March 15, 2005 property on the southwest corner of the I-25 interchange. One reason for amending the GMA boundary for the CPA is to set the stage for eventual annexation ofproperty into Fort Collins. This would allow the City to apply to the remaining privately owned properties its specific environmentalprotection development regulations contained in the Land Use Code. Development will eventually happen in the CPA. Applying City regulations will protect the natural environment. There are no specific environmental or hazard constraints that would prohibit development of the area. The proposed amendment would result in a logical change to the GMA. Factors to be included in making this determination will include, but not be limited to, the following: The proposed amendment would allow for the logical, incremental extension of urban services. Water service is available throughout the CPA from the Loveland-Fort Collins Water District, and sanitary sewer service is available from the South Fort Collins Sanitation District. In fact, the sanitation district's wastewater treatment plant is located within the CPA adjacent to Fossil Creek Reservoir. The current I-251SH 392/Carpenter Road interchange has serious capacity problems; staff is not sure how the lack of capacity at the interchange would affect the County's review of future development proposals in and around the interchange. This is a significant issue for Windsor, which has annexed all properties located east of the interchange and has permitted commercial development in the area. The updates to City Plan and the Master Transportation Plan contain Policy T-1.9 that indicates that the City of Fort Collins will encourage partnerships among CDOT, the Federal Highway Administration, and private interests to improve existing interchanges (the policy does not commit the City to financially participate). Windsor is aggressively exploring ways to convince the North Front Range MPO and the Colorado Department of Highways (CDOT) to elevate the "Windsor interchange"in capital improvement program rankings for funding. CDOT is also exploring with the City and County the transfer of Carpenter Road as a Regionally Significant Corridor to the State system which may help elevate the State and regionally priority of needed improvements to both the roadway and the interchange. Carpenter Road is designated as a future 6-lane arterial on the City's Master Street Plan, but is built to 2-lane County road standards. If annexed, development along Carpenter Road will be required dedicate additional right-of-way, improve the street, and pay impact fees for additional widening. The proposed amendment would offer a desirable new "edge"to the community. As anticipated in the Fossil Creek Reservoir Area Plan's implementation strategies, extending the GMA to include the CPA would create a desirable edge to the community. The existing boundary to be extended is contiguous to existing developed areas of the City of Fort Collins. The proposed amendment would contribute to the compact urban form of the city. The Fossil Creek CPA is contiguous to existing development in the city limits, according to Section 3.7.2 Contiguity of the City's Land Use Code. According to Section 3.7.2, contiguity to existing 19 March 15, 2005 development is not affected by publicly owned open space or a lake/reservoir. The CPA is thus adjacent to developments, such as Westchase, located north of Fossil Creek Reservoir. IGA Amendments In 1980, the City ofFort Collins andLarimer County entered into an Intergovernmental Agreement (IGA)for the Fort Collins Urban Growth Area (UGA). The agreement established a united, cooperative planning effort towards development goals and policies for the effective management of development in the Fort Collins urban area. The last time the IGA was amended occurred in November 2000. Asa result of the proposed GMA boundary amendment the following change to the agreement need to be made. 1. The proposed boundary amendment will require updating the map (Exhibit I in the IGA)showing the new GMA boundary as per the Fossil Creek CPA amendment. In order to become an official amendment to the IGA the boundary change must be approved by both the City Council and the Lorimer County Board of Commissioners. FINDINGS OF FACT/CONCLUSION Regarding the potential GMA Boundary amendment, staff makes the following finding offact and conclusion: A. The Fossil Creek CPA GMA boundary amendment is needed in orderfor the City to comply with the policies and expectations set out in the Fossil Creek Reservoir Area Plan and intergovernmental agreements with Loveland, Windsor, and the County. STAFF RECOMMENDATION Staff recommends approval of the Fossil Creek Cooperative Planning Area (CPA) Growth Management Area (GMA) boundary amendment. If approved by the City Council, the boundary amendment will be forwarded to the Board of Commissioners of Larimer County for approval as amendment to the Intergovernmental Agreement for the Fort Collins GMA. PLANNING AND ZONING BOARD RECOMMENDATION At its regular monthly meeting on June 17, 2004, the Planning and Zoning Board voted 5-0 to recommend approval of the Fossil Creek CPA GMA boundary amendment. A copy of the Board's minutes is attached. During public input at the June 17 meeting, two property owners within the Fossil Creek CPA indicated their properties were divided by the GMA boundary as proposed by staff. In one case(the Van Cleave property), the proposed GMA boundary divided the ownership into a 35+ acre (in) portion and a 5 acre(out)portion;while in the other case(the Lemaster, Wortley,Skogan property), the proposed GMA boundary divided the ownership into a 40 acre(in)portion and an 80 acre(out) 20 March 15, 2005 portion. It was not the intent of the staft's proposed GMA boundary to divide properties under single ownership. The Planning and Zoning Board's recommendation is to include the 5 acres, along with the balance of 35+ acres, of the Van Cleave property within the GMA boundary and to exclude the 40 acres, along with the balance of80 acres, ofthe Lemaster, Wortley, Skogan property from the GMA boundary amendment. Staff supports the Board's recommendation. Property Owner Opposition The property owners within the Fossil Creek CPA appear entrenched in their position that they do not want to be included in the GMA and eventually annexed into Fort Collins. These property- owners apparently believe they wouldfare better with their developmentplans if they were to annex into anotherjurisdiction, with Loveland or Windsor being the obvious options. Staffhas learned that some owners, even as recent as last month, contacted Loveland regardingpotential annexation and they have approached Larimer County to see what the County's position would be about such annexation in relationship to the IGA which indicates the Fossil Creek CPA should be annexed into Fort Collins. We also know that Loveland and Windsor are interested, but at this point, have been willing to honor the intergovernmental agreement, at least while it is still in effect. From the landowner's perspective, annexation into Fort Collins wouldprovide them no benefits and would only make development of their properties more difficult. Their opposition is based on the following issues and concerns: • City Land Use Code Natural Area/Wet Land Set Back Requirements The owners believe the City's LUC requirements are unreasonable, especially regarding some wet lands that were caused by inadequate drainage systems that were put in place when roads were constructed(i.e., culverts were installed that were too small to allow water pass through eventually leading to back ups that created a "wet land') versus natural wet lands that are part of a stream corridor. There is also the belief that the ability to propose modifications to City standards is too limited and/or the mitigation requirements are too strict and expensive. The owners were told the City's Natural Resources Department was going to investigate and analyze wet lands to see if certain differentiations were warranted and possibly make changes to the standards within the LUC. However, the project is not on an immediate work plan for the Department. The property-owners apparently believe they would fare better with their development plans if they were to annex into another jurisdiction. • City's policy not to financially participate in needed I-25 interchange improvements The Carpenter Road and State Highway 392 interchange on I-25 needs to be upgraded. Without a new interchange, further development at the intersection is severely limited if not outright 21 March 15, 2005 prohibited. The City's policy not to participate financially in any interstate interchange improvement is of concern to the owners, but perhaps of greater concern is the City's possible opposition to the establishment of other potential funding mechanisms, such as a special improvement or metro districts, the use of tax increment financing, etc. The property-owners apparently believe they would fare better with their development plans if they were to annex into another jurisdiction. • Fear that annexation would not be a step toward development but a step towards delaying development Again, the property-owners apparently believe they would fare better with their development plans if they were to annex into another jurisdiction. The owners fear that annexation into Fort Collins would only place their properties under what they perceive as the City's "no growth"philosophy. • Questions on the timing and the need to complete the amendment in the immediate future The owners are concerned about the timing of the amendment and the apparent City rush to complete it before the April2005 election. The owners want more time to discuss their issues and concerns. Ofcourse, the requested delay could be a ruse to allow the owners to have more time to work with other jurisdictions about annexation and convince Larimer County to abandon the IGA requirement for annexation into Fort Collins. Larimer Countv's Position Based on a joint study session City staffconducted with the Larimer County Planning Commission and the Larimer County Board of Commissioners, the County has some questions and issues regarding the GMA boundary expansion. There is support for the eventual annexation into Fort Collins of the properties immediately adjacent to the I--25 interchange since that is the area most likely to be urbanized with higher intensity commercial uses and need urban services. The balance of the CPA is designated as Rural Development on the Structure Plan and is part of the Fort Collins-Loveland community separator. The County strongly questioned the need to amend the GMA boundary to include these rural areas. The County asked why the City believes it can do a better job with rural development andprotecting the open space corridor and community separator than the County. It must be noted that the GMA boundary amendment is not something the City can do unilaterally as the Larimer County must also approve the amendment. " Deputy City Manager Jones introduced the agenda item. City Attorney Roy noted that the new title of the Resolution clarified that it would not actually amend the GMA boundary and would authorize the execution of an amendment to the IGA with Larimer County to that effect,and then if that IGA amendment occurred a formal amendment to the Structure Plan would be presented for Council consideration. He stated the title of the Resolution 22 March 15, 2005 was being amended to more accurately reflect what it would accomplish. Ken Waido,Chief Planner,stated the Fossil Creek Reservoir Area Plan was adopted in March 1998 by the City and County after a two-year planning process to do a subarea plan for the area south of Harmony,north of the reservoir and west ofI-25. He stated the Growth Management Area boundary was amended to include about 5%z square miles that were previously outside of the GMA boundary, and that a cooperative planning area was created for a possible future amendment to the GMA boundary. He stated in June 1999 there was an intergovernmental agreement between the Cities of Fort Collins and Loveland, Town of Windsor and Latimer County that formally recognized the cooperative planning area as a future expansion of the Fort Collins GMA. He stated in May 2004 the City Council adopted an update to City Plan and the CPA boundary was shown as a potential expansion area for the GMA boundary and that staff subsequently began the process to make the GMA boundary amendment. He stated a related intergovernmental agreement between Latimer County and City of Loveland that was signed in January 2004 provided that Loveland would not annex into a growth management boundary or a cooperative planning area of another municipality that had a formal intergovernmental agreement with Latimer County. He stated the City of Fort Collins did have such an intergovernmental agreement with Latimer County for the cooperative planning area. He stated the Loveland/Larimer County agreement also provided that Loveland would not annex north of County Road 30. He stated the purpose of the agenda item was to implement the Fossil Creek Reservoir Area Plan and City Plan and the policies in those plans, to help implement the plan for the region between Fort Collins and Loveland known as the Fort Collins-Loveland Corridor Area,to help implement the I-25 Regional Corridor Plan,to comply with the series of intergovernmental agreements between various governmental entities,to add additional protection to the area north of the Fort Collins-Loveland airport,to help manage future development and also to help manage critical natural resources around Fossil Creek Reservoir. He stated when the City Plan update was adopted in May 2004,a policy was put into place relating to an established criteria that should be used for Growth Management Area boundary amendments. He stated staff believed that the GMA boundary amendment complied with the goals, principles and policies of City Plan;that there would be a positive net fiscal benefit due to the potential future land uses in the area,which included about 90 acres of commercial development and 40 acres of employment ground and plans for lower density residential development;that it was necessary to accommodate activity in the Growth Management Area because it would add additional property for commercial and employment expansion;that there were some environmental resources that were of concern but that there would be nothing to disallow the GMA boundary change; and that this would be a logical change and would help form an "edge" and was contiguous. He presented visual information regarding the boundary as depicted in the Fossil Creek Reservoir Area Plan and the City Plan Structure Plan. He stated the eastern boundary was I-25,the southern boundary was the half section line between County Road 32 (Carpenter Road) and County Road 30 (the northern edge of the Loveland Growth Management Area boundary). He stated the Town of Windsor had annexed property on the east side of this area. He stated because the preliminary boundary divided properties staff recommended to the Planning and Zoning Board taking out an area that was the northern part of the Eagle Ranch Estates Subdivision. He stated another option was to include the entire subdivision in the GMA and that staff instead recommended to remove the entire subdivision from the GMA. He stated staff also recommended that a 40 acre tract attached to a larger parcel to the south be excluded from the GMA and that a small parcel of about five acres be added to the GMA 23 March 15, 2005 to allow that property associated with other Employment ground to become part of the GMA. He stated the Planning and Zoning Board was recommending the GMA boundary amendment as outlined above on a 5-0 vote and that staff supported the Board recommendation. Jeff Couch, Team Engineering, 346A Shallow Pond Drive, representing 100% of the property owners affected by the proposed GMA expansion, opposed the inclusion of those properties within the GMA boundary. He stated such inclusion would not be appropriate given the plans for that area. He stated the City was not currently in compliance with its intergovernmental agreements. He read the following from one of the corridor plans:"Private property rights are important. Both the United States and Colorado Constitutions prohibit governments from taking private property without just compensation. Actions taken to implement or carry out the purpose of this plan will be consistent with the Constitutional rights of all property owners, taxpayers and citizens of Larimer County." He stated the City did not have a zoning designation that would allow the property owners to complete what had been begun in Larimer County. He stated the property owners would like to keep the current zoning. He stated most of the property was in the AP zone, which was a unique, flexible County zone that would allow a mix of industrial and commercial uses that would support the airport use. He stated this ability would be lost if the properties were included in the Fort Collins GMA and ultimately in a future Fort Collins annexation area. He stated one of the reasons for the intergovernmental agreement was to coordinate infrastructure in the area and that one of the biggest needs was transportation. He stated at the Study Session it became clear that the City of Fort Collins would not participate financially in the interchange replacement and that this would probably be done with some kind of private/public partnership. He stated CDOT did not have the replacement interchange on its schedule for the next 20 years. He stated if the interchange was to be replaced that there would be a need for private and public money. He stated this interchange was one of the most critical transportation needs in northern Colorado. He stated the property owners believed that the intergovernmental agreements anticipated that the communities would work toward the zoning designation and the completion of infrastructure and that the feedback from the City was indicating that this was not the case. He stated the property owners also believed that Fort Collins provided no services in that area and questioned why the City would want to"take"that area. He noted that County Road 32 had been turned over to the State,that the parallel road system would be a County system, and the City had indicated that it would not participate financially in the interchange. He stated the City provided no services and "had no say" in the transportation in the area. He stated CPES Director Greg Byrne had indicated that the City"provided planning services"in the area. He stated this was not a service that helped the property owners "promote and ultimately develop the projects." He stated there needed to be a "community of interest." He stated there was no zoning that would allow the property owners to approximate the County's AP zone and that any City zoning would be more restrictive; that the setbacks along the I-25 corridor would be more restrictive; that the environmental impacts would be more restrictive;and that there would be a"taking of property rights." He stated the property owners did have a"community of interest"with Loveland and had discussed eventual annexation to Loveland. He stated the parallel roadway system would eventually extend into Centerra and the AP zone was intended to support the airport. He stated the connection would put the properties within one mile of fire and police services currently at the airport. He stated Loveland recognized the interchange as its north entryway into the community and that Loveland was very interested in improving that interchange. John Barnett, John Barnett and Associates, 3200 Greenwood Court, stated he represented Steve 24 March 15, 2005 Prado, the owner of the first property at the southwest corner of County Road 32 (Carpenter Road)/State Highway 392 and I-25, and Pat Dwyer. He stated on behalf of Mr. Dwyer, that his group purchased property on the northwest corner of I-25 and Highway 392 in 1973 and that they wanted the ability to continue with their investment and development plans. He stated they believed that they would lose that ability if Fort Collins added this property to the Growth Management Area. He stated on behalf of Mr.Prado that the 1-25/Highway 392 interchange needed to be improved and that Windsor needed an "effective partner" on the west side to address the burdens created by Windsor, Fort Collins and Loveland growth. He stated CDOT had estimated a cost of$28 million to improve the interchange and that this was a "mid range project." He stated the first phase (relocation of the east frontage road)was done by Windsor and that the second phase was relocation of the west frontage road. He stated there were verbal commitments from all landowners along the west side of I-25 to provide right-of-way to that if"appropriate projects" could get approval. He stated this would be a public/private partnership. He stated the third phase would be relocation of the west ramps of I-25, and that the final phase would be replacement of the crossing structure. He stated each of the preliminary phases would improve the traffic situation and that no development could happen in that area until those improvements happened. He stated Fort Collins had a "tremendous role"in creating the traffic problems over the years and that the City should have a role in interchange development. He stated Mr. Prado's land was split between residential and commercial and that it was vital that there be adequate"value"and"tax revenue as well as developer revenue"created. He stated the"planning was flawed on this site." He stated having the area broken up between employment commercial and residential would not work. He stated a major wetland was on Mr. Prado's property and that it was split by the dividing line between commercial and residential. He stated this was the location where CDOT would like to see the relocated frontage road. He stated the Fort Collins wetlands policies would create a "nightmare" for this area. He stated Section 404 of the Clean Water Act should govern and that there should be"trust, efficiency and predictability" in the approval process. He stated this would work as a public/private partnership. He stated Mr. Waido indicated that the expansion of the Growth Management Area would implement a plan, and that it did not. He stated "plans were implemented by developers building neighborhoods and commercial facilities and businesses." Curt Briggoner, 7301 Southwest Frontage Road, commercial property owner, stated the private property owners in the area were concerned with the impact on property values and how hard the City would be to deal with on developing the land around the exit system to the"potential value." He stated the property was zoned commercial and that he wanted to do some commercial development. He stated some Councilmembers had indicated at past meetings that they wanted to keep the area as open space and"would make it hard" on anyone wanting to develop the property by creating large setbacks from the lake and wetlands. Mr. Barnett requested additional time to speak. Mayor Martinez stated he would allow another two minutes. Mr. Barnett stated"perception or reality of an anti-business agenda would preclude the creation of effective public/private partnerships that would lead to the improvement of the interchange." He stated an"open space agenda"was not appropriate for planning this particular area. He stated Mr. 25 March 15, 2005 Prado wanted to make the point that if any municipality would agree to what was being requested through a binding annexation agreement, he would be willing to annex. He stated at this point he would"adamantly oppose"expansion of the Growth Management Area in this area. He stated one of the concerns was that there were three Fort Collins interchanges and that the only one ever approved by Fort Collins was the one for Anheuser-Busch over 20 years ago. He stated Loveland and Windsor were working on intergovernmental agreements to manage their shared I-25 corridor and, if those agreements were approved, they would share revenue and would set standards for planning and development. He stated this was a more appropriate approach than a"unilateral land grab." He urged the Council to reject this Resolution and stated the County Commissioners would receive the same request. He stated one use for intergovernmental agreements was to create a condition wherein there could be "cooperative development." He stated everyone was interested in "quality development" in the area and that the property owners were looking for an "effective public partner." Mayor Martinez asked for a staff response to the comment that there might be some kind of violation of the intergovernmental agreements. Waido stated this particular amendment was consistent with the intergovernmental agreement that was signed by Loveland,Windsor, Fort Collins and Larimer County in 1999. Mayor Martinez asked if legal staff agreed with that statement. City Attorney Roy stated he had nothing to add at this point. He stated it was his understanding that the proposed amendment was consistent with the agreements and that he would have to review the tape regarding any alleged breaches and prepare a response for Council. Mayor Martinez asked what the zoning would be if the property was annexed to the City. Waido presented visual information regarding areas shown on the Structure Plan to be zoned upon annexation C-Commercial, E-Employment, or a larger lot residential zone than the Urban Estates zone (currently being established). He stated some parcels in the area had been purchased by the City and/or County for open space and conservation easements. He presented visual information regarding the current County zoning of AP-Airport and stated the City's zoning would be more restrictive than the County's zoning. He stated the City's position was that some commercial and industrial uses allowed in the County's AP zone would be inconsistent with the open space separator corridor between Fort Collins and Loveland. He stated the area adjacent to 1-25 was in a variety of County zones and that most of that land had been designated to be in the C-Commercial zone. Mayor Martinez asked if the open space would expand further. Waido stated he did not know if the City or County natural areas programs were in any negotiations for the purchase of additional land. Greg Byrne, CPES Director, stated the Corridor Plan jointly adopted by the City with the County and Loveland set out many subareas in the area between the two communities. He stated the intent was to reduce the intensity of development in that area,primarily through the County's transfer of development units program, and also through the purchase of conservation easements. He stated the City had spent about$2 million in open space and natural areas funding in this area in pursuance of that plan and Council policy to create a separator between the two communities. He stated the City had put about$1 million into a new regional park on the south side of the reservoir,bought the surface rights to Fossil Creek Reservoir and removed the boating club that was there,and purchased 26 March 15, 2005 additional land around Duck Lake and conservation easements. He stated the City had been very active in that area in implementing the Corridor Plan. Mayor Martinez asked if there were plans to expand the open space in that area. Byrne stated if the City encountered property owners who were willing to reduce the intensity of development that the City would cooperate with the County in buying some of the development rights. He stated there was no intent on the part of either jurisdiction to eliminate the development potential and that the intent was to zone in conformance with the adopted plan. Councilmember Tharp asked if annexation of any of the property was being discussed at this point. City Attorney Roy replied in the negative. Councilmember Tharp asked under what circumstances annexation would take place. Waido stated the intergovernmental agreement with Latimer County provided that properties that were contiguous to the Fort Collins City limits would be required to annex and that the County would not accept development applications for properties that could annex. He stated Fossil Creek Reservoir had contiguity and that the City had talked with the County about annexing the regional park to provide contiguity to other properties south of County Road 32. He stated the County placed a strong emphasis on City annexation of properties that were within the Growth Management Area. Councilmember Tharp asked if Mr. Prado's property at the corner of Highway 392 and I-25 was currently zoned for commercial. Waido stated the property was zoned Commercial, Tourist or Business in the County. Councilmember Tharp asked if that property would be Employment or Commercial after annexation to the City. Waido stated this particular property would be Commercial. Joe Frank, Director of Advance Planning,stated efforts were made to match existing County zoning to City zoning as much as possible i.e. County Commercial would be made City Commercial. Councilmember Tharp asked if that would pose any particular hardship for the property or would change the potential use of the property. Byme stated Mr. Prado also owned or controlled some property to the west of the Commercial property that was indicated for residential development and would like to see the Commercial designation expanded to the west. Councilmember Tharp asked if that kind of zoning change would be dealt with when there was a development plan. Byrne stated if the Structure Plan was adopted that this would provide a policy basis for guiding a future zoning decision. He stated staff acknowledged that Mr. Prado had two issues: adequate commercial land to do large scale commercial development and adequate tax base to support the interchange. He stated Mr. Prado was invited to bring back an alternative plan and that he did not do that. He stated Mr. Prado instead sent a letter to the City saying that he opposed the expansion of the Growth Management Area. He stated the City then indicated to Mr.Prado that the City wanted to see the boundary issue between the commercial and large lot residential dealt with appropriately. He stated the City was not able to continue those conversations with Mr.Prado. Councilmember Tharp stated she would also like to address the "perception issue" relating to the 27 March 15, 2005 City's plans for the areas and stated the"perception may not match reality." She stated she would like to focus on the implementation of the intergovernmental agreement that allowed the City to include this section in the Growth Management Area and leave the annexation issues to be dealt with when specific development plans would come forward. Byrne stated much of the testimony heard by the Council was specific to development proposals and that Councilmember Tharp correctly noted that this was not what was before the Council for consideration. Councilmember Kastein asked if there was any visual information that showed this area relative to Fort Collins, Windsor and Loveland. Waido stated Windsor had annexed everything east of I-25 and that Loveland's Growth Management Area boundary was on County Road 30 and west to the foothills. Councilmember Kastein asked for visual information showing Highway 392. Waido stated it was Carpenter Road. Councilmember Kastein asked about the City-owned natural areas. Waido stated some areas had been purchased by the City and that the regional park was purchased by the City and County. He stated there was a conservation easement that was an open area. Councilmember Kastein asked if any designation of open lands would be accomplished through conservation easements, purchase of land or transfer of development units. Byrne replied in the affirmative and stated the City did not intend to try to remove the development rights from the Commercial or Employment ground. He stated the Corridor Plan called for that property to be developed in commercial or mixed use. Councilmember Kastein asked if that property was at the interchange. Byrne replied in the affirmative. Councilmember Kastein asked if the contention was over the County's AP zoning which encompassed the entire area. Waido replied in the affirmative. Byrne stated much of the area had already developed residentially in large lots under the AP zoning. Waido stated the zone would permit a series of nonresidential uses and that all would need to go through the County's special review process because they were not permitted uses by right. Councilmember Kastein asked the County zoning could overlay lands owned by the City as open space. Waido stated the County zoning preceded the acquisition of the land by the City and that upon annexation the City-owned open lands would be placed in the Public Open Lands zoning district. Councilmember Kastein asked if Loveland could place property owned by the City in its GMA. Byrne stated Loveland could theoretically include City property in its GMA but that the City would not petition for annexation of that property to Loveland. He stated staff had talked with Larimer County about the potential for the County to petition for annexation of the regional park to Fort Collins and that the County indicated an interest in seeing that happen. 28 March 15, 2005 Councilmember Kastein asked for clarification about the County zoning of land purchased by the City for open space. Byrne stated the underlying County AP zoning would remain in place even though the City had purchased the property and put it to a different use. He stated the County had chosen not to pursue the implementation of the open space preservation portion of the Corridor Plan through rezoning or downzoning of property. He stated the County had chosen to pursue that through the transfer of development units program while leaving the zoning in place. He stated if the property was annexed into the City that it would be zoned in conformance with the designation in those plans. Councilmember Kastein asked about the criteria for the Growth Management Area amendment that related to whether the proposed amendment was necessary to accommodate an activity that could not be reasonably accommodated on lands within the existing GMA boundary. He stated the argument was made that there were five entryways into the City and that the Carpenter Road/Highway 392 interchange was unique in that it had more development potential than some of the other interchanges. Waido stated this was correct from the commercial perspective. He stated the Prospect Road interchange also had significant adjacent commercial ground and that the Mountain Vista Drive interchange was zoned either Industrial or Employment. He stated one of the conditions of the I-25 Subarea Plan was that secondary commercial uses would not be allowed within a quarter mile of I-25 in the Employment and Industrial zones. He stated the commercial uses were earmarked for the activity center along Prospect Road and that Mulberry Street was already developed. He stated the Highway 392 interchange did provide additional land for uses that would be limited in other parts of the City. Councilmember Kastein asked if the interchange activity center was viewed as important to the City and if this was in line with what some of the landowners wanted to see in the area. He asked if the primary contention was the interchange and the City's unwillingness to participate financially,even though the City had indicated that it would consider special improvement districts. Waido stated the City Plan and Master Transportation Plan provided that the policy of the City with regard to interchange improvements was that the role of the City would be to encourage partnerships between a variety of interests including CDOT,the Federal Highway Administration and private interests to build or improve interchanges. He stated the item of contention was the statement in the plan that the policy does not permit the City to financially participate in interchange improvements. He stated it was a Council decision regarding whether the City would participate in some way. Mayor Martinez asked for clarification of the policy. Waido stated it was a Council decision regarding whether to participate. Councilmember Kastein asked if the zoning could wait if the Growth Management Area expansion was approved. Waido stated Council could provide direction to that effect. He stated the proposed zoning was the land use pattern adopted by the Council less than a year ago with the update to City Plan. He stated staff would need some direction from Council about changing the land use pattern. Frank stated the Council could also entertain changes to the Structure Plan at the time of annexation and development based on new information or a development plan. Paul Eckman, Deputy City Attorney,stated when the Structure Plan Map was amended that it would have to show the proposed land uses and that this would serve as the foundation for future zoning upon annexation. Byrne 29 March 15, 2005 stated if the Council wanted to"signal flexibility"in the City's discussions with the County that this would help in the discussions with the County. Councilmember Bertschy asked about the transfer of development units (TDU) program. Waido stated much of the area showed a higher residential density than was currently allowed under County zoning and that to achieve the planned residential densities the property owner or developer had to seek additional units elsewhere. Councilmember Bertschy asked if transfer of development units had occurred. Waido stated many transfers of development units had occurred and that there were still undeveloped properties and some properties within the corridor that could potentially send their units to areas north of the reservoir. Councilmember Bertschy stated those were"property rights." Byrne replied in the affirmative and stated the transferred development units were paid for in the open market and that the City accepted the density and agreed to provide the services. He stated the development potential in the area from which the units were transferred was either eliminated or reduced in perpetuity. Councilmember Bertschy stated the Resolution was indicating that the City would move forward to work out a new intergovernmental agreement rather than actually expanding the Growth Management Area. He asked what the process would be to move in that direction. Waido stated the GMA expansion would require approval by the City Council and Larimer County Commissioners. He stated once approval was received staff would accomplish the necessary technical changes to the documents to make the formal GMA boundary change. He stated at this staff was requesting permission for the Mayor to sign the amended intergovernmental agreement and that the County would hold a hearing on the matter within several months. He stated Council would be asked to approve an amendment to City Plan to change the official Growth Management Area boundary for the Structure Plan. Councilmember Bertschy asked about the intergovernmental agreement with Loveland which provided that Loveland would not expand beyond County Road 30. Byrne stated Loveland could not expand beyond that point without violating their intergovernmental agreements with Fort Collins and Larimer County. He stated the Loveland-Fort Collins agreement had another four to five years to run and that the Loveland-Larimer County agreement went until 2014. Councilmember Bertschy asked if there was a similar agreement with Windsor. Byrne stated the Fort Collins-Windsor agreement provided that Fort Collins would not annex east of the Interstate and that Windsor would not annex west of the Interstate. He stated Windsor was party to a four-way agreement with Fort Collins, Loveland and Larimer County relating to the cooperative planning area. Frank stated the Windsor-Larimer County agreement provided that Windsor would not annex into other Growth Management Areas or the cooperative planning area. Mayor Martinez asked Mr.Barnett if Loveland had indicated that it planned to expand into that area and had made promises relating to that development. Mr.Barnett stated Loveland had not made any promises at this point. 30 March 15, 2005 Mayor Martinez asked Mr. Barnett if Loveland had given any "hint" on this. Mr. Barnett stated there had been conversations with the City of Loveland and that Loveland should answer that question themselves. He stated he was not certain that Loveland was"fully cognizant"of the latest agreement that had been signed. (Secretary's Note: The Council took a recess at this point.) Mayor Martinez asked if staff had any conversations with Mr. Barnett about Loveland's intentions. Waido stated it was his understanding that the property owners were currently engaged in a study and cost/benefit analysis of what the properties could potentially generate in terms of tax revenues and what the properties would require in terms of services. He stated the property owners would be submitting that to the City of Loveland. He noted that he had not confirmed whether the City of Loveland was receptive to receiving that type of report. Councilmember Tharp suggested asking Loveland what its involvement had been on this matter. She asked about the purpose of the "cooperative planning area." Waido stated the cooperative planning area was set aside as a potential future expansion of a Growth Management Area. He stated the 1999 agreement between the four parties identified the Fossil Creek cooperative planning area as a logical extension of the Fort Collins Growth Management Area. Councilmember Tharp asked which areas of the potential expansion area were already developed, developable or committed for open space. Waido presented visual information showing the areas acquired or reserved as open space, developable areas, and developed areas. Mayor Martinez asked if this area could be declared by a jurisdiction to be a"blighted area"under the current law. Waido replied in the affirmative. Councilmember Bertschy made a motion, seconded by Councilmember Tharp,to adopt Resolution 2005-028. Councilmember Kastein offered a friendly amendment to include language regarding an understanding that in subsequent negotiations with the County and landowners there may be modifications to the Exhibit. He stated his intent related to the permitted uses rather than the size of the GMA to provide some latitude and a"bargaining chip" in negotiations. Councilmember Tharp asked staff to respond to Councilmember Kastein's suggestion. Byrne stated it could be helpful to have some flexibility in discussions with the County over what the exact boundaries of some zoning districts would be. Councilmember Tharp stated would be acceptable if that was Councilmember Kastein's intent. City Attorney Roy requested clarification of the friendly amendment. Councilmember Kastein stated the friendly amendment might not be needed. He stated the intent was to allow latitude in discussions with the County. City Attorney Roy asked if the intent was that the boundary itself to be flexible. 31 March 15, 2005 Councilmember Bertschy asked if Exhibit A was intended to show detail. Waido stated the intent was not to show detailed land use patterns but to show the boundary change. Councilmember Bertschy stated he did not believe that the friendly amendment was needed. City Attorney Roy stated he did not believe that it was needed. Frank stated Council consensus appeared to be that the details would still be up for discussion and that staff understood the direction. Councilmember Kastein withdrew the offer of a friendly amendment. He stated the City had a responsibility to expand the GMA to include this area because Fort Collins was in closest proximity and had the "best planning resources." He stated the City "needed to be part of this" and that this would further work that had already been done. He stated the City was working to cooperate with the State and other cities and hoped to change perceptions about the City being anti-development. Councilmember Bertschy stated it was important that the City uphold its part in existing intergovernmental agreements. Councilmember Tharp stated the City should move ahead with this because it matched the IGA, it was a logical expansion of the GMA,the City had made a major investment in the separator concept in that area, and Highway 392 was a major entryway into the City. Mayor Martinez favored moving ahead with this and stated this was a logical step. He stated the City had worked hard on the development review process and would continue to do so. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez and Tharp. Nays: None. THE MOTION CARRIED. Resolution 2005-025 Appointing Arbitrators to the Collective Bargaining Panel Pursuant to Section 2-624 of the City Code Adopted The following is staff's memorandum on this item. "EXECUTIVE SUMMARY Citizen-Initiated Ordinance No. 1, 2004, which was approved by City voters in April of 2004, created Section 2-624 of the City Code which provides for the establishment of a permanent panel of arbitrators whose role will be to hear requests for binding arbitration. This Resolution establishes the panel of arbitrators. 32 March 15, 2005 BACKGROUND City Council submitted Citizen-Initiated Ordinance No. 1, 2004 Relating to Collective Bargaining for Police Employees to the electorate on August 10, 2004, at which time voters approved the ballot measure. In accordance with the Ordinance, petitions were distributed among bargaining unit members to nominate a representative. The Fraternal Order ofPolice(FOP)Lodge No. 3 received a sufficient number ofnominations, and a subsequent secret ballot ofbargaining unit members was conducted by the American Arbitration Association. The FOP was elected to serve as the sole representative of the bargaining unit. Section 2-624 of the City Code provides that the City Council will establish a permanent panel of arbitrators whose role will be to hear requestsfor binding arbitration. This Resolution establishes the panel of arbitrators. If the City and the FOP are unable to reach an agreement on the terms of a collective bargaining contract, an arbitrator from the panel will be selected to resolve the impasse. The process ofselecting an arbitrator from the panel is described in detail in section 2- 624 of the City Code. " Councilmember Tharp stated she withdrew this item from the Consent Calendar because the information provided to the Council provided the names of people without providing information about qualifications or the selection process. She stated a memo had been provided indicating how the Request for Proposals solicited applications from interested and qualified arbitrators. She stated the initial information asked Council to "rubber stamp" what had been done by staff without any explanation. She stated with the additional information that had been provided she could support adoption of the Resolution. Councilmember Bertschy made a motion, seconded by Councilmember Tharp,to adopt Resolution 2005-025. Mayor Martinez thanked staff for the hard work on putting this together. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez and Tharp. Nays: None. THE MOTION CARRIED. Other Business Councilmember Kastein stated the Legislative Review Committee's agenda indicated that there would be a discussion about RTA legislation. He pointed out that the RTA legislation was being refined to add some limits and some oversight from CDOT. 33 March 15, 2005 Adjournment Councilmember Bertschy made a motion, seconded by Councilmember Kastein, to adjourn the meeting to 6:00 p.m. on Wednesday, April 6, 2005. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez and Tharp. Nays: None. THE MOTION CARRIED The meeting adjourned at 8:30 p.m. Mayor ATTEST: City Clerk 34