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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 12/06/2011 - SECOND READING OF ORDINANCE NO. 162, 2011, AMENDINDATE: December 6, 2011 STAFF: Lindsay Ex AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 14 SUBJECT Second Reading of Ordinance No. 162, 2011, Amending the Land Use Code Related to the Point of Measurement for the Establishment of Buffer Zones for Streams. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 15, 2011, amends the Land Use Code, Section 3.4.1(E), that identifies where the buffer zone should begin regarding rivers, streams, and irrigation ditches. The proposed revision addresses the current requirement that this point of measurement be from “bankfull discharge.” Instead, the term “top of bank” is recommended as the most appropriate term for this point of measurement. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. Copy of First Reading Agenda Item Summary - November 15, 2011 (w/o attachments) COPY COPY COPY COPY ATTACHMENT 1 DATE: November 15, 2011 STAFF: Lindsay Ex AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 19 SUBJECT First Reading of Ordinance No. 162, 2011, Amending the Land Use Code Related to the Point of Measurement for the Establishment of Buffer Zones for Streams. EXECUTIVE SUMMARY This Ordinance will amend the Land Use Code, Section 3.4.1(E), that identifies where the buffer zone should begin regarding rivers, streams, and irrigation ditches. The proposed revision addresses the current requirement that this point of measurement be from “bankfull discharge.” Instead, the term “top of bank” is recommended as the most appropriate term for this point of measurement. BACKGROUND / DISCUSSION The Land Use Code was first adopted in March 1997. Subsequent revisions have been recommended on a regular basis to make changes, additions, deletions and clarifications that have been identified since the last update. The proposed changes are offered in order to resolve implementation issues and to continuously improve both the overall quality and “user-friendliness” of the Code. The bulk of the items were taken to the July 21, 2011 Planning and Zoning Board meeting. One item (Item 888) was deleted from consideration for further study. Item 888 regards Section 3.4.1(E) of the Land Use Code, which identifies where the buffer zone should begin in relation to rivers, streams, and irrigation ditches. Conflicting language appears in Section 3.4.1 of the Land Use Code. Section 3.4.1(D), subsection (e) requires data for the Ecological Characterization Study be collected on the following: “the bank, shoreline, and high water mark of any perennial stream or body of water on the site.” However, in Section 3.4.1(E), footnote 3(c) requires the following: “stream corridors, lakes, reservoirs, and irrigation ditches buffer zones will be measured from the level of bankfull discharge toward the boundary of such lot, tract or parcel of land.” During the annual Land Use Code change process, staff presented the Planning and Zoning Board with a recommendation to change the point of measurement for streams (where the buffer zone begins) from “bankfull discharge” to “top of bank.” During the July 21, 2011 meeting, the Board expressed concerns that this particular item would benefit from further analysis. The Board requested specific examples and pictures from the field that would help illustrate the concept being proposed. The overall intent of clarifying the standard is supported but questions about stream character and hydrology remain and should be addressed. Other concerns included the following: 1. Top of bank is not a clearly defined term that is widely accepted as an industry standard; 2. The term is arbitrary and requires you hire an expert, go out in the field with City staff, and argue your case as to where top of bank is; 3. It varies over time where streams may braid; 4. The term does not solve the problem; it may not be consistently applied; 5. Would like to see a term more consistent with floodplain mapping; 6. Top of bank is a more restrictive term than bankfull discharge; and 7. Buffer standards are a minimum, if top of bank were adopted, this would increase the overall area of the buffer requirements. COPY COPY COPY COPY November 15, 2011 -2- ITEM 19 To address these concerns, staff conducted research on the literature surrounding the best terms to use for this point of measurement, researched what other communities use, and conducted a focus group with various experts from the fields of engineering, hydrology, ecology, floodplain management, and planning to discuss what is the most appropriate term. Experts invited to the focus group included representatives from the private sector, public sector, nonprofit sector, CSU professors, and City staff. Based on this research, meetings with experts, and reviews of other municipal, state, and federal codes and recommendations, staff recommends the adoption of the term “top of bank” as an alternative to “bankfull discharge”, because it is the most readily identifiable and consistently applied term in the field. In addition, based on discussion with numerous experts, it is the most widely used term across the country for determining where buffers should begin on these types of waterbodies. Finally, based on the waterbodies within the municipality, all experts agreed this was the most appropriate term for Fort Collins’ streams, rivers, and irrigation ditches. At the October 20, 2011 Planning and Zoning Board meeting, each of these concerns was addressed in detail during a staff presentation, and a written response is including within the summary report for Item 888 (Attachment 1). Based on staff’s research and revised recommendation, this proposed change received unanimous approval from the Planning and Zoning Board. This revision also received general support from Council during the June 14, 2011 work session, where all of the proposed updates to the Land Use Code were presented. FINANCIAL / ECONOMIC IMPACTS A Land Use Code that is systemically updated is able to respond to changing trends and conditions. This continuous improvement provides for an adaptable regulatory environment yet remains predictable for all users and decision- makers. While there may be no direct financial and economic impacts in the typical fiscal sense, a dynamic Land Use Code creates a valid and credible legal framework that serves a vibrant local economy. ENVIRONMENTAL IMPACTS Proposed revision Item 888 would more holistically protect the stream and other moving waterbody resources within the community. “Top of bank” encompasses the entire stream resource, where bankfull discharge may not(as noted in the Planning and Zoning Board discussion). STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BOARD / COMMISSION RECOMMENDATION On July 21, 2011, the Planning and Zoning Board considered the proposed revisions to the Land Use Code. The Board separately discussed Item 888. While general agreement was reached that top of bank was more clear than bankfull discharge, the Board was concerned that the City was moving from good to better, but maybe not from good to best. The Board expressed concerns that this particular item would benefit from further analysis. Staff prepared this analysis for the October 20, 2011 Planning and Zoning Board hearing. During the October 20, 2011 Meeting, the Board voted 4 – 0 to recommend approval of this item. PUBLIC OUTREACH Staff conducted a focus group with various experts from the fields of engineering, hydrology, ecology, floodplain management, and planning to discuss what the most appropriate term is. Experts invited to the focus group included representatives from the private sector, public sector, CSU professors, and City staff. An additional, follow-up meeting with representatives from the Poudre Waterkeeper was also held to obtain their feedback (see Attachment 4). Public outreach also included the general notice that accompanies both of the Planning and Zoning Board public hearings. COPY COPY COPY COPY November 15, 2011 -3- ITEM 19 ATTACHMENTS 1. Summary report of Item 888 2. Planning and Zoning Board minutes, July 21, 2011 3. Planning and Zoning Board minutes, October 20, 2011 4. Poudre Waterkeeper Letter of Support ORDINANCE NO. 162, 2011 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE LAND USE CODE RELATED TO THE POINT OF MEASUREMENT FOR THE ESTABLISHMENT OF BUFFER ZONES FOR STREAMS WHEREAS, Section 3.4.1 of the Land Use Code contains, among other things, provisions regarding the establishment of the boundaries of natural habitats or features and of buffer zones for natural habitats or features; and WHEREAS, in its provisions relating to the establishment of these boundaries, Section 3.4.1 contains conflicting language regarding stream banks by, in one location, referring to “the bank” while in another location referring to “the level of bankfull discharge” as the point of measurement; and WHEREAS, in an effort to correct conflicting language, City staff has proposed that the term “top of bank” be used in both instances; and WHEREAS, after extensive public outreach and presentation to the Planning and Zoning Board, the staff has proposed and the Board has recommended that the term “top of bank” be defined in Article 5 of the Land Use Code and used uniformly in Section 3.4.1 of the Land Use Code for the purpose of describing a point of measurement in order to establish buffer zones adjacent to streams; and WHEREAS, the City Council further finds that the term “top of bank” is readily identifiable and consistently applied among experts in establishing protective riparian areas, and is the most widely used term for determining where buffers should begin adjacent to streams; and WHEREAS, the City Council has determined that it is in the best interests of the City that the term “top of bank” be included in the Land Use Code in replacement of the term “the bank” and “the level of bankfull discharge” as a suitable means to clarify previously conflicting language. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 3.4.1(D)(e) of the Land Use Code is hereby amended to read as follows: (D) Ecological Characterization and Natural Habitat or Feature Boundary Definition. The boundary of any natural habitat or feature shown on the Natural Habitats and Features Inventory Map is only approximate. The actual boundary of any area to be shown on a project development shall be proposed by the applicant and established by the Director through site evaluations and reconnaissance, and shall be based on the ecological characterization of the natural habitat or feature in conjunction with the map. (1) Ecological Characterization Study. If the development site contains, or is within five hundred (500) feet of, a natural habitat or feature, or if it is determined by the Director, upon information or from inspection, that the site likely includes areas with wildlife, plant life and/or other natural characteristics in need of protection, then the developer shall provide to the city an ecological characterization report prepared by a professional qualified in the areas of ecology, wildlife biology or other relevant discipline. The Director may waive any or all of the following elements of this requirement if the city already possesses adequate information required by this subsection to establish the buffer zone(s), as set forth in subsection (E) below, and the limits of development ("LOD"), as set forth in subsection (N) below. The ecological characterization study shall describe, without limitation, the following: . . . (e) the top of bank, shoreline and high water mark of any perennial stream or body of water on the site; . . . Section 2. That the footnotes contained in the Buffer Zone Table for Fort Collins Natural Habitats and Features in Section 3.4.1(E) are hereby amended to read as follows: . . . 3 Buffer zone table distances shall be measured in a straight line without regard to topography. Measurements will be made from the outer edge of the natural habitat or feature to the boundary of the lot, tract or parcel of land that defines and describes the development. . . . (c) Stream corridors, lakes, reservoirs and irrigation ditches buffer zones will be measured from the top of bank toward the boundary of such lot, tract or parcel of land. . . . Section 3. That Section 5.1.2 of the Land Use Code is hereby amended by the addition of a new definition “Top of bank” which reads in its entirety as follows: Top of bank shall mean the topographical break in slope between the bank and the surrounding terrain. When a break in slope cannot be found, the outer limits of riparian vegetation shall demark the top of bank. -2- Introduced, considered favorably on first reading, and ordered published this 15th day of November, A.D. 2011, and to be presented for final passage on the 6th day of December, A.D. 2011. _________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on the 6th day of December, A.D. 2011. _________________________________ Mayor ATTEST: _____________________________ City Clerk -3-