HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/20/2002 - FIRST READING OF ORDINANCE NO. 119, 2002, AMENDING AGENDA ITEM SUMMARY ITEM NUMBER: 35
DATE: August 20, 2002
FORT COLLINS CITY COUNCIL Jim Hibbard/Bob Smith
STAFFn
arsha Hilmes-Robinson
SUBJECT:
First Reading of Ordinance No. 119, 2002, Amending Chapter 10 of the City Code Concerning
Floatable Materials in the Poudre River Floodplain.
RECOMMENDATION:
Staff recommends adoption of Option A of the Ordinance on First Reading; the Water Board
recommends adoption of Option B of the Ordinance on First Reading.
FINANCIAL IMPACT:
The financial impact will be different depending on the option (Option A or Option B) that is
adopted by Council. The Staff Option (Option A) would result in relaxation of this floodplain
regulation and will lessen the financial burden on existing property owners that otherwise would
have been required to spend money to clean up their property or in some cases find a new
location for their business because the entire business is related to floatable materials. The
so Water Board Option (Option B) would delay the financial impact of cleaning up the existing
floatable materials on their site. The Water Board Option (Option B) would not create any
additional financial impact beyond what is in the current Code language. Neither Option would
have a direct financial impact on the City.
EXECUTIVE SUMMARY:
In June of 2000, City Council adopted new floodplain restrictions for the Poudre River. One of
those restrictions, outlined in Section 10-61(6) of the City Code, deals with floatable materials.
As that Section currently stands, non-residential properties in the Poudre River floodplain,
floodway and product corridor on which floatable materials were located prior to July 1, 2000,
were allowed to continue storing floatable materials until the earlier of July 1, 2002, or any
change in use, construction of a new building, or the addition to or substantial improvement of
an existing structure on the property, before compliance with restriction was mandatory. This
Ordinance presents two alternatives for modifying this provision to reduce the burden of
compliance on affected businesses. The first alternative (Option A) eliminates the absolute
deadline previously imposed and the second alternative (Option B) extends it from July 1, 2002,
to July 1, 2005. An additional change is proposed that is included in both of the options
discussed above. This change would clarify that a substantial change in the quantity, type, or
character of floatable materials on an affected property which causes an increased risk of flood
damage triggers the obligation to comply.
DATE: ITEM NUMBER:
BACKGROUND:
In June of 2000, City Council adopted new floodplain restrictions for the Poudre River. One of
those restrictions, outlined in Section 10-61(6) of the City Code, deals with floatable materials.
Floatable materials are defined as:
Any material on a nonresidential property that is not secured in place or
completely enclosed in a structure, so that it could float off site during the
occurrence of a flood and potentially cause harm to downstream property owners,
or that could cause blockage of a culvert, bridge or other drainage facility. This
includes, without limitation, lumber, vehicles, boats, equipment, trash dumpsters,
tires, drums, or other containers, pieces of metal, plastic, or any other item or
material likely to float.
This provision set a date of July 1, 2002, by which all affected property owners were required to
have all existing floatable materials removed from the Poudre River 100-year floodplain,
floodway and product corridor. In the Fall of 2001, staff began an assessment of the impact of
the floatable materials restriction. The assessment report that was prepared is attached as
Attachment 1. Based on that assessment, staff prepared a recommendation to eliminate the date
by which existing floatable materials were required to be removed. This recommendation was
presented to the City's Water Board in March 2002. The Water Board recommended a different
option for changing the floatable materials restriction. Both options (Option A and Option B)
are presented for Council's consideration.
Properties Affected by the Floatable Materials Regulation
The floatable materials restriction only applies to non-residential properties in the Poudre River
100-year floodplain, floodway and product corridor. Based on a field reconnaissance in
November 2001 and review of 1999 aerial photographs, there are 28 properties that have a
significant amount of floatable materials, 8 properties that have some floatable materials, and 81
properties that have minimal or no floatable materials. Sixteen of these properties have material
in the product corridor.
There are several properties upon which the main use appears to be storage of floatable
materials. These properties include car and truck dealers, trucking companies, and junkyards.
Enforcement of the current restriction would likely preclude the existing use from continuing on
these properties and consequently would require these businesses to move to another location.
As a consequence of the restriction, at least four businesses would probably be required to
relocate to another location. Other properties that have a fairly large volume of floatable
materials located on them would be required to make a substantial change in operation (find a
place to store a high volume of materials inside an existing building, construct a new building to
store the materials, or stop storing materials on the site). The degree of financial and logistical
i
hardship associated with making these changes would vary from property to property.
I
DATE: August 20, 2002 3 ITEM NUMBER: 35
Proposed City Code Changes:
1. Eliminate or Extend the Set Date for Compliance
Floatable materials are a threat during flooding. However, the requirement that all
existing floatable materials be removed from the Poudre River floodplain, floodway, and
product corridor by July 1, 2002, will likely have a serious financial and logistical impact
on a number of businesses, thus creating a hardship for those property owners.
Therefore, the following options are available for Council's consideration:
• Staff Option (Option A) - Change City Code to remove the requirement that all-
existing floatable materials be removed prior to July 1, 2002. This change would
eliminate the specific date by which existing floatable materials would have to be
removed. The requirement would instead become applicable only in the event of a
change in use, construction of a new building, or construction of an addition or
substantial improvement to an existing structure on the property, and at that time
storage of floatable materials would no longer be permitted on the site.
Staff prefers this option for achieving the long-term goal of removing floatable
materials from the floodplain, floodway, and product corridor while balancing the
rights of the property owners. Over time, this approach would result in the gradual
removal of floatable materials from the floodplain, floodway, and product corridor.
There have been several success stories of properties that had a change to the
property and the existing floatable materials were removed. Generally, it is less
disruptive and burdensome to address the floatable materials issue at the time of a
change to the property than to require compliance by a specified date. This also
makes this restriction consistent with other parts of the floodplain provisions of the
City Code that trigger a property protection measure at the time of a change to the
property rather than upon a fixed date.
• Water Board Option (Option B) - The board recommended extending the deadline for
removal of floatable materials from July 1, 2002 to July 1, 2005, giving property
owners three more years to clean up their property. The board was concerned about
the increased flooding hazard created by floatable materials and believes there should
be a deadline for removing them.
2. Clarify the Effect of a Substantial Change in the Quantity Type or Character of
Floatable Material Stored on the Property.
Staff is also recommending that Section 10-61(6) be changed to clarify that a substantial
change in the quantity, type, or character of floatable materials on an affected property
which causes an increased risk of flood damage also triggers the requirement that the
existing floatable materials on a property be removed. This is included in both options
discussed above.
DATE: ITEM NUMBER:
Outreach Activities:
Boards and Commissions
In addition to the Water Board, staff reviewed the floatable materials issue with the Natural
Resources Advisory Board (NRAB). The majority of the NRAB members recommended
extending the deadline to clean up existing floatable materials an additional eight years, thus
requiring all existing materials to be removed from the floodplain, floodway and product
corridor by 2010. The majority of the NRAB felt this was would be enough time for existing
properties to find solutions to the floatable materials issue. Other members of the NRAB felt the
Water Board's recommendation was appropriate.
Property Owners
In May 2002, a mailing was sent to all non-residential property owners and renters in the Poudre
River floodplain, floodway and product corridor. This mailing included a letter, a sheet of
frequently asked questions, and a comment form (Attachment 2). This packet of information
explained the floatable materials issue, the staff and Water Board recommendations for changing
the regulation, and request for feedback. Attached is a summary of the feedback that was
received via the comment forms (Attachment 3). Staff also conducted several site visits and held
meetings with groups of property owners. Property owners voiced concern over the need for the
restriction and felt if the restriction was not modified many businesses would have to go out of
business. Some stated a concern that the restriction made their property of no value. Also,
concern was expressed that sites for relocation of affected businesses are not available under the
current Land Use Code.
Additional Outreach
In addition to the direct mailing to the property owners and renters, a press release (Attachment
4) was distributed and information was posted on the City's website (Attachment 5). The
comment form was available on the web site for anyone to fill out. A log of phone calls was
kept, including any comments regarding the proposed changes (Attachment 6). A presentation
was also made to the Chamber of Commerce on August 16, 2002.
Attachments:
Attachment I - Assessment Report
Attachment 2 - Mailing Information
Attachment 3 - Summary of Feedback via the Comment Forms
Attachment 4 - Press Release
Attachment 5 - Web Site Information
Attachment 6 - Log of Phone Calls and Comments
Attachment 7 - Letter from Otten, Johnson, Robinson, Neff& Ragonetti representing affected
property owners
Attachment 8 - Excerpt from March 28, 2002 Water Board minutes
ORDINANCE NO. 119, 2002
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 10 OF THE CITY CODE CONCERNING
FLOATABLE MATERIALS IN THE POUDRE RIVER FLOODPLAIN
WHEREAS,in July of 1997,the City of Fort Collins experienced a greater than five-hundred
year flood; and
WHEREAS, as a result of the flood, concerns were raised about the adequacy of the City's
existing floodplain regulations; and
WHEREAS, the City initiated a study to review its floodplain regulations as applied to its
stormwater basins, beginning with the Poudre River Floodplain; and
WHEREAS,afterthe completion of the Poudre River Floodplain Study and various outreach
and policy development efforts,City staff proposed new floodplain regulations for the Poudre River
Floodplain to the City Council, which regulations were enacted in June 2000 by the Council with
its adoption of Ordinance No. 71, 2000; and
WHEREAS, among the requirements established pursuant to Ordinance No. 71, 2000, was
a prohibition on the storage of any floatable material on nonresidential property located in the Poudre
. River Basin located in the floodplain, floodway or product corridor; and
WHEREAS,pursuant to Ordinance No.71,2000,nonresidential property on which floatable
materials had been stored prior to July 1, 2000, were allowed to continue to store those materials
until the earlier of July 1, 2002, a change in use on the property, or construction of a new structure
or addition or substantial improvement of any structure on such property; and
WHEREAS, since the adoption of Ordinance No.71, 2000, staff has monitored the impacts
and effects of the requirements imposed, and based on this information, has reevaluated the
prohibition on floatable materials and in order to reduce the burdens on existing businesses in the
Poudre River Basin, has recommended the modification of the same to eliminate the July 1, 2002,
deadline for compliance on all affected nonresidential properties, and to add a clarification that a
substantial change in the quantity, type, or character of floatable materials on an affected property
which causes an increased risk of flood damage also triggers the obligation to comply; and
WHEREAS, the Water Board considered staff's recommendation at its regular meeting of
March 28, 2002, and recommended that the date for compliance be set back to July 1, 2005, rather
than eliminated, and further recommended the addition of language clarifying that a substantial
change in the quantity,type,or character of floatable materials on an affected property which causes
an increased risk of flood damage triggers the obligation to comply; and
• 1
[OPTION A:] WHEREAS, based on its review and evaluation of the recommendations
before it,the City Council has determined to eliminate from the City Code the required July 1,2002.
date for compliance for nonresidential properties on which floatable materials were located prior to
July 1, 2000, and to add language clarifying that a substantial change in the quantity, type, or
character of floatable materials on an affected property which causes an increased risk of flood
damage triggers the obligation to comply.
[OPTION B:] WHEREAS, based on its review and evaluation of the recommendations
before it, the City Council has determined to set back the date for compliance for nonresidential
properties on which floatable materials were located prior to July 1,2000,to July 1,2005,and to add
language clarifying that a substantial change in the quantity,type,or character of floatable materials
on an affected property which causes an increased risk of flood damage triggers the obligation to
comply.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Section 10-61(6) of the Code of the City of Fort Collins is hereby amended to read
as follows:
OPTION A: (6) Floatable materials. No person shall temporarily or permanently store any
floatable material on nonresidential property that is located in the floodplain.
floodway or product corridor; provided, however, that nonresidential
properties in the floodplain, floodway or product corridor having floatable
materials stored on them prior to July 1, 2000, shall be permitted to continue
to have floatable materials stored on them until the emim of any of the
following events occur: fi lq i,2002,when there is any change in use of the
property; a substantial change in the quantity,type, or character of floatable
materials on an affected property which causes an increased risk of flood
damage; when a new structure is constructed on the property; or when there
is any addition to or substantial improvement of any existing structure on the
property. This paragraph (6) shall not, however, apply to operable motor
vehicles parked temporarily on property for the purpose of customer or
employee parking,or to a business's temporary outdoor display of inventory
during its usual hours of operation.
OPTION B: (6) Floatable materials. No person shall temporarily or permanently store any
floatable material on nonresidential property that is located in the floodplain,
floodway or product corridor; provided, however, that nonresidential
properties in the floodplain, floodway or product corridor having floatable
materials stored on them prior to July 1,2000,shall be permitted to continue
to have floatable materials stored on them until the earlier of: July 1, 20025;
or until,any o(ttie follavuingeyenm0ll bcur::whenthctis any change in use of
the property; a substantial change in the quantity, type, or character of
floatable materials on an affected property which causes an increased risk of
2
flood damage; Mien anew structure is constructed on the property; or when
there is any addition to or substantial improvement of any existing structure
on the property. This paragraph (6) shall not, however, apply to operable
motor vehicles parked temporarily on property for the purpose of customer
or employee parking, or to a business's temporary outdoor display of
inventory during its usual hours of operation.
Introduced and considered favorably on first reading and ordered published this 20th day of
August, A.D. 2002, and to be presented for final passage on the 3rd day of September, A.D. 2002.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading this 3rd day of September, A.D. 2002.
Mayor
ATTEST:
City Clerk
• 3
Attachment I
Page 1 of 8
. Review of Floatable Materials Floodplain Regulation
For the Poudre River
Background
In June of 2000, a new regulation, Section 10-61(6), was added to City Code that deals
with floatable materials within the Poudre River floodplain. Floatable materials are
defined as:
Any material on a nonresidential property that is not secured in place or
completely enclosed in a structure, so that it could float off site during the
occurrence of a flood and potentially cause harm to downstream property
owners, or that could cause blockage of a culvert, bridge or other drainage
facility. This includes, without limitation, lumber, vehicles, boats,
equipment, trash dumpsters, tires, drums, or other containers, pieces of
metal,plastic, or any other item or material likely to float.
One of the requirements of the regulation is that non-residential properties in the
floodplain, floodway, and product corridor that had floatable materials stored on them
prior to July 1, 2000, are allowed to continue to store those materials until July 1, 2002.
If, prior to July 1, 2002, there is a change in use, a new building is constructed on the site,
or there is an addition or substantial improvement to an existing structure on the property,
• then floatable materials will no longer be able to be stored on the site. It is now
approximately four months away from the July 1, 2002 date upon which properties that
had been "grandfathered" will no longer be able to continue to store floatable materials.
This paper provides an assessment of the properties affected by the floatable material
regulation and offers options for possible changes to the regulation, due to the hardship
that this regulation may impose.
Assessment
To assess the impact of this regulation, a drive-by field reconnaissance was conducted of
properties that are zoned commercial, are within the Poudre River floodplain, floodway,
or product corridor, and are within City limits. The City's 1999 aerial photography was
also used to assist in the analysis.
Based on the field reconnaissance on November 16, 2001 and review of the 1999 aerial
photography, there are 28 properties that have a significant amount of floatable materials
(Table 1), 8 that have some floatable materials (Table 2), and 81 that have no floatable
materials or minimal floatable materials (i.e. dumpsters). Sixteen of these properties have
material in the product corridor. Attachment A contains photos of some of the properties.
There are several properties where the main use appears to be for storage of floatable
materials. These properties include car and truck dealers, trucking companies, and
junkyards. The July 1, 2002 enforcement of the floatable material regulation would
t
Attachment 1
Page 2 of 8
likely remove the existing use from these properties and basically require these
businesses to move to another location. There are at least four businesses that would
probably need to relocate to another location. One of these businesses covers two
parcels. Other properties that have a fairly large volume of floatable materials would be
required to make a change in operation (find a place to store the materials inside an
existing building, construct a new building to store the materials, or stop storing materials
on the site). The degree of financial and logistical hardship associated with making these
changes would vary from property to property.
There is a large junkyard that covers two parcels is in the area that would only flood if
LeMay Avenue failed. Therefore, even though there is a very large amount of floatable
material on this site, the risk to floatable materials is very low.
Despite the fact that the majority of properties either have minimal or no floatable
materials, the City Code is very specific and does not allow any floatable materials.
Therefore, the minimal floatable materials would need to be cleaned up and the site
inspected. Dumpsters would be required to be anchored. Art Gallegos, of Gallegos
Sanitation, did say there would be a way to anchor the dumpsters if required. However,
enforcement of this regulation over the long term would be difficult.
Success Stories
One of the properties with a significant amount of floatable materials is the Alliance
Construction site at 301 E. Lincoln Avenue. This property is for sale and staff has talked
with the real estate agent about the floatable material issue. Staff has also spoken with
the potential buyer. As part of the contract for the sale of the property, the material in the
floodplain is to be removed by the July 1,2002 date. Another site, 101 E. Lincoln, has
already been cleaned up and no longer has any floatable materials on site because of the
change of use that took place on the property approximately a year ago.
Options
Floatable materials are a serious threat during flooding. However, the requirement that
all existing floatable materials be removed from the Poudre River floodplain, floodway,
and product corridor will likely have a serious financial and logistical impact on a
number of businesses, thus creating a hardship for those property owners. Therefore,the
following options are available:
1. Require all property owners to remove existing floatable materials prior to the July 1,
2002 date as established in Sec. 10-61(6) of City Code. Variances could be requested
on an individual basis from the Water Board.
If this option is selected, notification to property owners should take place as soon as
possible so there is time to clean-up the floatable materials on their sites before the
July 1, 2002 deadline or to request a variance.
2
Attachment I
Page 3 of 8
2. Because the product corridor is the most hazardous section of the floodplain, change
City Code to only require properties in the product corridor to remove floatable
materials by the July 1, 2002 date. The requirement would remain that if there is a
change in use, a new building is constructed on the site, or there was an addition or
substantial improvement to an existing structure on a property that is in the
floodplain, floodway or product corridor, then floatable materials would no longer be
able to be stored on the site. However, this would still probably remove the existing
use from at least two properties, thus requiring those businesses to relocate. There
would still be several businesses that would need to either build a building to store the
floatable materials, make room in existing buildings or move the floatable material
off-site.
If this option is selected, notification to property owners should take place as soon as
possible so there is time to clean-up the floatable materials on their sites before the
July 1, 2002 deadline or to request a variance.
3. Change City Code to remove the requirement that all existing floatable materials be
removed prior to July 1, 2002. If there is a change in use, a new building is
constructed on the site, or there is an addition or substantial improvement to an
existing structure on the property, then floatable materials would no longer be able to
be stored on the site. Over time, this would gradually remove floatable materials
from the floodplain, floodway, and product corridor.
Staff Recommendation
Staff recommends Option#3. There have been clear successes in removing floatable
materials from properties that have either undergone a change of use or when there is an
addition, substantial improvement, or construction of a new building. Therefore, staff
feels this will be the best option for achieving the long-term goal of removing floatable
materials from the floodplain, floodway, and product corridor while balancing the rights
of the property owners.
3
Attachment I
Page 4 of 8
TABLES
This information presented in the following tables is based on observations by City Staff
on November 16, 2001 and review of aerial photos from April 1999 and may not
accurately represent the current condition of the property.
Table 1. Non-residential parcels within the Poudre River floodplain, floodway, or
product corridor that contain a significant amount of floatable material. Properties
shaded in W have businesses that would likely have to relocate if the floatable materials
regulation is enforced.
PROPERTY IFLOATABLE MATERIAL DESCRIPTION PROPERTY IN
# PRODUCT
CORRIDOR
3 jAuto repair—numerous cars NO
4 Large street sweeping vehicles, metal, parked cars NO
overni ht
5 120 parked cars NO
6 Imany potted trees and shrubs, pallets YES
7 1300 Bunks of lumber, pallets, 4-5 trucks NO
ttEquipment rental with storage in fence. Lots of floatables. NO
Automotive repair- 20 cars YES
13 30-40 vehicles, 2 mobile homes, 15 roll off dumpsters, YES
14 mobile home, cars NO
15 15 large spools of cable, several vehicles, trailers, boat, 5- NO
55 gallon drums
16 5 U-haul trailers, several backhoes and bobcats NO
17 Many vehicles, camper tops NO
18 Pallets, large trucks, small amount of scrap metal, NO
dum sters
19 Numerous vehicles. NO
20 10 vehicles, trailers, dumpster YES
21 10 vehicles, camper, 5-55 gallon drums, other debris YES
22 Metal scraps and vehicles YES
23 Metal scrap yard, motor home YES
24 10 vehicles YES
25 Old gas station site, no floatable materials NO
26 Many large stacks of pallets and plastic shipping YES
crates,100s of 55 gallon drums plastic and metal
27 12 semi-trailers, large trucks, and house sitting on blocks NO
28 Trailers, construction materials, drums, pallets. YES
Planned to be removed, property being sold.
4
Attachment 1
Page 5 of 8
Table 2. Non-residential parcels within the Poudre River floodplain, floodway, or
product corridor that contain some floatable materials.
PROPERTY FLOATABLE MATERIAL DESCRIPTION PROPERTY IN
# PRODUCT
CORRIDOR
1 5 vehicles NO
2 5 trailers, 3 cars, 5-55 gallon drums with trash NO
3 10 - 55 gallon drums. The rest are out of the floodplain NO
4 Large marble slabs, head stones NO
5 5 dumpsters, 1 trailer, several fleet vehicles NO
6 Minor metal, tires, dumpster YES
7 3 vehicles and camper YES
8 3 vehicles YES
•
5
Attachment 1
Page 6 of 8
Attachment A — Photos of Sites containing Floatable Materials
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Photo 1. Junk yard that is in floodplain but is only at risk if LeMay Avenue fails.
Photo 2. Empty lot in the floodplain with numerous parked cars.
6
Attachment 1
Page 7 of 8
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,
Photo 3. Stacks of pallets, plastic containers, and metal and plastic drums most of which
are in the floodway and product corridor, with the rest being in the floodplain.
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"aya •. A.yam'.
Photo 4. Mobile homes, tractor-trailers, and cars stored in the floodplain.
7
Attachment 1
Page 8 of 8
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Photo 5. Automotive repair shop in the floodway and product corridor with numerous
vehicles parked on the site.
Photo 6. Trucking company in the floodway and product corridor showing trailers that
are stored on site.
8
Attachment 2
Utilities Page 1 of 4
Iight A power • stormwete? . wastewater • water ---
Cih of For: Collins
May 20, 2002
Dear Property Owner/Renter:
In June of 2000, City Council adopted new floodplain regulations for the Poudre River. One of those
regulations, Section 10-61(6), deals with floatable materials. We are requesting your feedback on
proposed changes to this regulation by Friday, June 14, 2002.
As the regulation stands. existing non-residential properties in the Poudre River floodplain, floodway and
product corridor are required to remove all floatable materials by July 1, 2002. Also, floatable materials
must be removed if there is a change in use, a new building is constructed, or an addition or substantial
improvement is made to an existing structure on the property prior to July 1, 2002.
Fort Collins Utilities is preparing to recommend eliminating the deadline for removing floatable
materials. If approved by City Council, existing floatable materials would be allowed to remain until there
is a change to the property. Staff believes this would be a more reasonable approach to balance the
concerns of existing property owners and the flooding hazard posed by floatable materials.
Staff presented this proposal to the City's Water Board in March. The board recommended extending the
deadline for removal of floatable materials from July 1, 2002 to July 1, 2005, giving property owners
three more years to clean up their property. The board was concerned about the increased flooding hazard
created by floatable materials and believes there should be a deadline for removing them.
Any changes to floodplain regulations must be adopted by the City Council. These proposals, along with
your feedback, will be presented to Council this summer. The issue is tentatively scheduled for Council's
July 16 meeting. Visit http://www.fcgov.com/council/to find out more.
Frequently asked questions and answers are enclosed for your review. Additional information, including
an assessment of the floatable materials regulation, is available on our Web site at _
www.fcgov.com/stormwater/floodplain-floatables.php, via mail, or at the Fort Collins Utilities office at
700 Wood St. We would be happy to schedule a site visit to discuss how this regulation affects your
property. If you have questions, want to schedule a site visit or provide comments, please call (970) 221-
6700 or return the comment sheet. You must include your name and address on the form in order for your
feedback to be considered.
We look forward to hearing from you by June 14.
Sincerely,
Bob Smith
Water Planning Manager
Attachment 2
Page 2 of 4
Frequently Asked Questions about Floatable Materials
Q. What is the definition of "floatable materials"?
A. Chapter 10 of City Code defines floatable materials as:
Any material on a nonresidential property that is not secured in place or completely enclosed
in a structure, so that it could float offsite during the occurrence of a flood and potentially
cause harm to downstream property owners, or that could cause blockage of a culvert, bridge
or other drainage facility. This includes, without limitation, lumber, vehicles, boats,
equipment, trash dumpsters, tires, drums, or other containers,pieces of metal,plastic, or any
other item or material likely to float.
Q. Why are floatable materials considered to be a flooding hazard?
A. Floatable materials can increase flooding if they get caught on a bridge or culvert and plug the
opening. If the water can't get through the bridge, it can back up and flow in unexpected directions.
Floatable materials also can damage downstream structures that get hit by the debris.
Q. How can I find out how much of my property is in the floodplain and therefore subject to the
floatable materials regulation?
A. The City's floodplain map is available on our Web site at www.fegov.com/storTnwater/floodplain-
maps.php. You can search for a property by address, parcel number or intersection. You may also call
Fort Collins Utilities at 221-6700 and ask for a floodplain determination. This regulation only applies
to the Poudre River 100-year floodplain.
Q. What does the word "change" mean in the phrase"when there is a change to the property?"
A. For floatable materials, "change"means: a change in use, a new structure is constructed, an addition is
made to an existing structure, or a substantial improvement is made to an existing structure (a
remodeling project of more than 50 percent of the value of the structure).
Q. What are the differences between the existing regulation,the staff recommendation and the
Water Board's recommendation?
A. The main difference is in the date that existing floatable materials must be removed from a property.
This table helps compare the options:
Floatable Materials
Options Existing floatable, When there is`a change to New Development
materialsthe property
Current Must be removed by Must be cleaned up when Not allowed
Regulation July 1, 2002 there is a change to the
_property
Water Board Must be removed by Must be cleaned up when Not allowed
'Recommendation July 1, 2005 there is a change to the
property
Staff No deadline for Must be cleaned up when Not allowed
Recommendation removing existing there is a change to the
floatable materials; they property
are " andfathered"
Attachment 2
Page 3 of 4
Q. Are there any other changes to the floodplain regulations being proposed at this time?
A. There are two clarifications related to the floatable materials regulation that are being proposed:
1. A change in ownership would also require existing floatable materials on a property to be cleaned
up. This would be in addition to a change in use, construction of a new building or addition, or a
substantial improvement to the property.
2. The terminology would be changed from "floatable material'to "unsecured material'to better
define the material that is of concern.
No other regulations are being changed at this time. Regulations for all floodplains other than the
Poudre River will be reviewed later this year.
Q. Who decides which proposal will be presented to City Council?
A. Both the staff and Water Board proposals will be presented to City Council, along with
your comments.
Q. Who makes the final decision about changes to this regulation?
A. City Council must adopt any changes to floodplain regulations. This issue is tentatively scheduled to
go to City Council July 16.
Q. What happens if City Council does not take action before July 1, 2002?
. A. Since this regulation is under review, it will not be enforced until City Council provides direction.
Q. How can I provide comments about the proposed regulation changes?
A. There are several ways to provide comments:
• Fill out a comment sheet on our Web site at www.fcgov.com/utilities.
• Mail the enclosed comment sheet back to Fort Collins Utilities, PO Box 580,
Fort Collins, CO 80522-0580.
• Fax the comment sheet Fort Collins Utilities at (970) 221-6619.
• Call (970) 221-6700 and talk with a staff member.
• Call (970) 221-6700 and schedule a site visit to discuss how this regulation relates
to your property.
• Tell City staff the best ways to contact you.
Attachment 2
Floatable Materials Comment Sheet Page 4 of 4
Please return this form to Fort Collins Utilities by Friday, June 14. You may fold and mail it to the
address on the back of this form, fax it to (970) 221-6619, or complete it on-line and e-mail it to
utilities@fcgov.com. Thanks!
1. Two options have been proposed for changing the floatable materials regulation for the Poudre River.
The current regulation requires that existing floatable must be cleaned up by July 1, 2002. Please mark
which option you prefer.
❑ Remove the deadline for cleaning up existing floatable materials.
❑ Change the deadline for cleaning up existing floatable materials from July 1, 2002
to July 1, 2005.
2. Please provide any additional comments about the floatable materials regulation.
3. Would you like a staff member to arrange a site visit to discuss how this regulation relates
to your property?
❑ Yes
❑ No
4. How would you prefer to be contacted?
5. Please provide the following information (you must include your name and address in order for your
feedback to be considered):
Name:
Address:
Phone:
E-mail address:
• s �
FLOATABLE MATERIALS COMMENT SHEET
...........
�.N John W.Rich
2001 Catkins Ct x Does this Include materials that have ben washed up against the NO
Ft Collings CO 80528 property?Trash? Phone:970 420-1873,E-Mail.SJRIOTTflAOL COM
Eva UesedK Venture Properties Ifthis Issue only applies to 100-yr floodplain what keeps the
8W Rumford CI x flo'satme from the fringe areas from doing the same?Let's NO Phone.970 266-0011
Ft Collins CO 80525 concentrate on minimizim the flood zones lobegin with
Keith Hess
900 E Lincoln x YES Phone 970 484-5344
Ft Collins CO 80524
Seen Maier
MFW Holdings x 232 E.Vim NO Phone:970 2214848 E-Mail:MACOTANC@AOL.COM
Ft Collins CO 80524
Your regulation would make it Impossible for our business to continue
Karen Morris operating It we couldn't have vehicles or durmsters on our property.
622 N.College x BusineW usually don't have a lot ot'junk"laying around,like some NO Phone:970 482-2741
Ft Collins.CO 80524 private residences and are again being singled out because
ante
Jamie Gabortau,Aggregate Industries
3605 S.Teller St x NO E-Mail:jamiegaboriau@aggregale.conn
Lakewood CO 80.235
Hank Hersh-Henry HershTnucking
202 E Vim St If Phone.970 482-3626 Would like to be contacted in person
Ft Collins CO 80524
Chadie Mesedian
700 N.College(Ft Collins Truck Sales) x If this doesn't pass,III be out of busimss YES(614102) Phone 970 490-1251
I'l Collins CO 80524
WHY WHY WHY are you taking over so much land and not allowing
Dawn Rumley the people who will ultimately pay for 9 to use it.I would rather have
1907 A Real Ct responsible development than irresponsible underdevelopment.What E-Mail:sunl7747@aol.com
F]Collins CO 80526 are you trying to save.I want open space.I want to use it,I clonft went
I to pay for something that I can't see or experffence)
Because of the flood In 1997,the city government has gone to far In
Jeffrey McClure crawling no-growth corridors along the cities rivers and streams using
308 S.Howes x ft guise of flood control.The city In the US has as stringent miss as NO E-Mail:jmop(Irmnm@cs.wm
Ft Collins CO 60621 Ft.Collins.I would like to see the ciffes rules return closer to the man
than the exception,
T.A.Tisthannimr
9843 Rist Canyon Rd x E-Mail:d7s@fdi.com
Bellme CO 80512
Kim SAdon-Ranch Way Feeds I would like the regulations,modified to allow vehicles to parked
416 Linden St x outside during that winter months Oct.tat thin March 30.Vehicles NO Phone:970 482-1662
Ft Culture CO 80524 would be stanni tractors&trailers&shah trucks
I agree with the proposed changes.Property owners should be held
Robert Miknis-Vecrso accountable for materials on their property and any polemist other
2330 E.Prospect If corulaquences stemming from them.Property owners are just too lazy NO Phone 970 221-1807 x326 E-Mail: .iknis@vecco com
Ft Collins CO 80525 to take responsibility.I would suggest a review of each property be
mandated It an Inspection completed.City&property owners could Iv
UZI �t
Then discuss floatable materials&drairmile. (D to
John Steininger I use my property In thas floodplain to store building materials.Since I
Sonopm Power&Light x cannot build any new structures on the property(became of flocciptain NO Prefers to be contacted by mail.Phone:970 481-3480
4605 E.CR 58 restrictions)I cannot store these inside.Let mat store these materials E-Mail:babbiff@bigfoot,mm
0 (D
Ft Collins CO 80524 as is until I sell the property. —h n
It's not proper for the City to enforce such a regulation on non-
Don Shields residential properties.What Is the difference between the potential
2416 W.Prospect Rd x damage caused by ficatables;from a residential vs.a non-residemal NO E-Mail:dons@wgarchitects com
Ft Collins CO W526 property?In addition,I feel that the current regulations are a taking by
the City without Just compensation.
..............
.......... :v ......
................- . :y%1
............... :Q .........
NAIAE
............
U
J.ff brakke
1625 Sharp Point Dr it does not make same for vehicles to be enclosed in a containment sh Phone:970 4076658
F1CollinCO80525 x
NO
James Hayes The Neenan Co.
2620 E.Prospect Rd By Phone 970 41956337 E-Mail:jim hayes@memn.com
Ft Collins,CO 80525 x YES
Gary Eastman- Ft Collins Nursery
2121 E.Mulberry Sea Letter By Phone:970 482-1984
Ft Collins CO 80524 x YES
Jamie DenBesten
108 E Vim All this regulation will do Is put myself and many others out of
Ft Collins CO 80524 x business. NO Phone.970 493-8059
Wayne K.Schrader Number three should be added.An existing business that deals In 65
Team Petroleum(103 E.Lincoln) gallon drums and tanks would be put out of business If regulation,are
320 N.College changed.Them should be grandfathered,Them Is no place for a Phone:970 484-1225
Ft Collins CO 80524 x business like this to relocate in Ft Collins, YES
Brad Watedand
Team Petroleum Our property Is fenced Iwwa will take further actions to reduce
105 E.Lincoln floatable materials stored outside.This regulation could in fact cripple Mobile Phone:970 567-1786 Office:970 482-2533
F1 Collins CO W524 x a company&put them out of business.I feel it is unreasonable. NO E-mail:teampetroteuml@aol.com
I have recently taken over the responsibillges of Augustine Anodize as
Augustine Anodize the general manager.I apologize for the late return.however.I was on
1411 E.Magnolia evactudion notice for the Hayman fire and the respones slipped Phone:970 4846986
Ft Collins CO 80524 through the cracks.I will continue,to review all data concerning
x floatable regdatlom and will roWde comments. NO
Charles Newcomb
4630 Vented Ln Would prefer grandfather-all stored materials outside would be Phone:970-226-6955
IFt Collins CO W525 x contained by chain link faros-were also in the county. YES E-mail:ccnrainbo.@msn,mt
nrt
rD PU
=3
0 (D
--h =
C+
Attachment 4
Utilities Page 1 of 2
li.hi s rower • stormwater • wastewater • Ovate;
FOR IMMEDIATE RELEASE
Citv of Fort Collins
May 24, 2002
Contact: Patty Bigner
Customer Connections Manager
Fort Collins Utilities
(970) 416-2432
Citizen Feedback Requested on Changes to Poudre River Fooatable Materials Floodalain Regulation
Fort Collins Utilities is requesting citizen feedback on proposed changes to the floatable materials
floodplain regulation for the Poudre River. The deadline for feedback is Friday, June 14.
According to the regulations approved by City Council in June of 2000, all floatable materials must
be removed from existing non-residential properties in the Poudre River floodplain, floodway and product
corridor by July 1, 2002 (Section 10-61(6)). Also, floatable materials must be removed if there is a change in
use, a new building is constructed, or an addition or substantial improvement is made to an existing structure
on the property prior to July 1.
Fort Collins Utilities is recommending the elimination of the deadline for removing floatable
materials. If approved by City Council, existing floatable materials would be allowed to remain until there is
a change to the property. Utilities staff believes this would be a more reasonable approach to balance the
concerns of existing property owners and the flooding hazard posed by floatable materials.
The Fort Collins Water Board has recommended extending the deadline for removal of floatable
materials from July 1, 2002 to July 1, 2005, giving property owners three more years to clean up their
property. The board was concerned about the increased flooding hazard created by floatable materials and
believes there should be a deadline for removing them.
MORE
Attachment 4
Page 2 of 2
Floatable Materials, 2-2-2-2-2
Any changes to floodplain regulations must be adopted by the City Council. These proposals, along
with citizen feedback. will be presented to Council this summer. The issue is tentatively scheduled for
Council's July 16 meeting. Visit http://www.fcgov.com/council to find out more.
No other changes to the floodplain regulations are being proposed at this time. Later this year, the
City will begin a comprehensive review of the floodplain regulations for all of the other basins.
Additional information, including an assessment of the floatable materials regulation and a comment
form, is available on the Utilities' Web site at www.fcgov.com/stormwater/floodplain-floatables.php, via
mail, or at the Fort Collins Utilities office at 700 Wood St. For more information, call (970) 221-6700, e-
mail utilities@fcgov.com, or return the comment sheet via the Web. Names and addresses must be included
on the form in order for feedback to be considered.
-30-
floatable material regulations - City of Fort Collins, Colorado Attachment 5
Page 1 of 4
eServices I form I council
departments
home > deDts > utilities > stormwater > floatable material regulations
search �—
Proposed Changes to the Floatable Material projects & Servik
Regulation For the Poudre River • Oak Street Outfz
Frequently Asked uestions I Comment Form. I Assessment Report • Flood Warning S
In June of 2000, City Council adopted new floodplain regulations for the Poudre General Informa
River. One of those regulations, Section 10-61(6), deals with floatable • Drainage Basins
materials. We are requesting citizen feedback on proposed changes to this • Floodplain_Manai
regulation by Friday, June 14, 2002. • Fees
As the regulation stands, existing non-residential properties in the Poudre River • Resource Links
floodplain, floodway and product corridor are required to remove all floatable • Household and E
materials by July 1, 2002. Also, floatable materials must be removed if there is Wastes
a change in use, a new building is constructed, or an addition or substantial . Contacting Us
improvement is made to an existing structure on the property prior to July 1,
2002.
Fort Collins Utilities is preparing This photo Illustrates what can happen when materials
• to recommend eliminating the float during a flood.
deadline for removing floatable
materials. If approved by City
Council, existing floatable
materials would be allowed to
remain until there is a change to
the property. Staff believes this
would balance property rights
and the flooding hazard posed
by floatable materials. An
assessment report about the
floatable materials regulation is
available in a PDF format for
download.
The College Avenue bridge at Spring Creek blocked
Staff presented this proposal to with debris the morning after the 1997 flood
the Fort Collins Water Board in
March. The board recommended extending the deadline for removal of floatable
materials from July 1, 2002 to July 1, 2005, giving property owners three more
years to clean up their property. The board was concerned about the increased
flooding hazard created by floatable materials and believes there should be a
deadline for removing them.
City Council must adopt any changes to floodplain regulations. These proposed
changes, along with citizen feedback, will be presented to Council this summer.
The issue is tentatively scheduled for Council's August 20 meeting.
Please complete a comment form to provide your input about these proposed
changes. Contact us if you have further questions on this issue.
http://fc,-ov.com/stormwater/floodplain-floatables.php 8/5/2002
floatable material faq - City of Fort Collins, Colorado A.ttachmeni: 5
Page 2 of 4
Yy4%4eYy6 a.
n
• 1 `• eservices I forms I council
fill
• departments
home > dents > utilities > stormwater > floatable material faq search �—
Frequently Asked Questions about Floatable Projects & Servii
Material • Oak Street_Outfz
Overview I Comment Form I Assessment Report • Flood Warning S
Q.
What is the definition of "floatable materials"? General Informa
• Drainage Basins
A. Chapter 10 of City Code defines floatable materials as: • Foodplain Manai
• Fees
Any material on a nonresidential property that is not secured in place or • Resource Links
completely enclosed in a structure, so that it could float off site during
the occurrence of a Flood and potentially cause harm to downstream • Household and E
property owners, or that could cause blockage of a culvert, bridge or Waste
other drainage facility. This includes, without limitation, lumber, vehicles, • contacting cQntacting Us
boats, equipment, trash dumpsters, tires, drums, or other containers,
pieces of metal, plastic, or any other item or material likely to float.
the water cant get tnrougn the Dnage, it can oacK up ana now in unexpectea airecrions. rioarai
materials also can damage downstream structures that get hit by the debris.
Q. How can I find out how much of my property is in the floodplain and therefore subject
floatable materials regulation?
A. The City's floodplain map is available on our Web site at www.fcqov.com/stormwater/floodplain.
maos.ohD. You can search for a property by address, parcel number or intersection. You may al
Collins Utilities at 221-6700 and ask for a floodplain determination. This regulation only applies
Poudre River 100-year floodplain.
Q. What does the word "change" mean in the phrase "when there is a change to the prof
A. For floatable materials, "change" means: a change in use, a new structure is constructed, an
made to an existing structure, or a substantial improvement is made to an existing structure (a
remodeling project of more than 50 percent of the value of the structure).
Q. What are the differences between the existing regulation, the staff recommendation a
Water Board's recommendation?
A. The main difference is in the date that existing floatable materials must be removed from a prol
table helps compare the options:
Floatable Materials
Existing floatable When there is a New
materials change to the Development
property
http://fcgov.com/stormwater/floatable-faq.php 8/5/2002
floatable material faq- City of Fort Collins, Colorado Attachment c
Page 3 of 4
Options Existing floatable When there is a New
materials change to the Development
property
Current Must be removed by Must be cleaned up Not allowed
Regulation July 1, 2002 when there is a
change to the
property
Water Board Must be removed by Must be cleaned up Not allowed
Recommendation July 1, 2005 when there is a
change to the
property
Staff No deadline for Must be cleaned up Not allowed
Recommendation removing existing I when there is a
floatable materials; change to the
they are property
"grandfathered"
Q. Are there any other changes to the floodplain regulations being proposed at this time..
A. There are two clarifications related to the floatable materials regulation that are being proposed
1. A change in ownership would also require existing floatable materials on a property to be cleane
would be in addition to a change in use, construction of a new building or addition, or a substan
improvement to the property.
2. The terminology would be changed from "floatable material" to "unsecured material' to better d
material that is of concern.
No other regulations are being changed at this time. Regulations for all floodplains other than tF
River will be reviewed later this year.
Q. Who decides which proposal will be presented to City Council?
A. Both the staff and Water Board proposals will be presented to City Council, along with your com
Q. Who makes the final decision about changes to this regulation?
A. City Council must adopt any changes to floodplain regulations. This issue is tentatively schedule
City Council July"16.
Q. What happens if City Council does not take action before July 1, 2002?
A. Since this regulation is under review, it will not be enforced until City Council provides direction.
Q. How can I provide comments about the proposed regulation changes?
A. There are several ways to provide comments:
o Fill out the on-line comment sheet.
o Call (970) 221-6700 and talk with a staff member.
c Call (970) 221-6700 and schedule a site visit to discuss how this regulation relates to you
o Tell City staff the best ways to contact you.
http://fcgov.com/stormwater/floatable-faq.php 8/5/2002
floatable comment form - City of Fort Collins, Colorado Attachment 5
Page 4 of 4
eServices I forms I council
—. gtm 9Wdepartments
I home > deots > utilities > stormwater > floatable comment form search r—
Floatable Material Comment Form Projects & Serviq
Overview I Frequently Asked Questions I Assessment Report • Oak Street Outfe
• Flood Warning S
Let us know what you think! General Informa
• Drainage Basins
Please complete this form and submit your comments on this Floodplan Manal
Important floodplain regulation issue.
• Fees
1. Two options have been proposed for changing the floatable materials • Resource Links
regulation for the Poudre River. The current regulation requires that existing • Household and E
floatable must be cleaned up by July 1, 2002. Please mark which option you Wastes
prefer. • Contacting Us
C Remove the deadline for cleaning up existing floatable materials.
L^ Change the deadline for cleaning up existing floatable materials from July 1,
2002 to July 1, 2005.
2. Please provide any additional comments about the floatable
materials regulation:
3. Would you like a staff member to arrange a site visit to discuss how this
regulation relates to your property?
C Yes
C No
4. How would you prefer to be contacted?
C By mall
C By e-mail
S. Please provide the following information (you must include your name and
address in order for your feedback to be considered):
Your Name:
Your Address:
Email Address: _— _
X;. > T
Su rntt C �
.. g �. .
http://fcgov.com/stormwater/floatable-comment.php 8/5/2002
Floatable Materials Public Contacts
FY 2002 - -- - --
How
Contacted?
Phone, Open
Name Address Date House,etc Type of Contact Project Staff Issues/Comments
Wanted clarifications. Was concerned that if regulation
was left as is,it would mean loss of his business. He
Gary Eastman Fort Collins Nursery 5/23/2002 phone floodplain Marsha plans to send comments.
Wanted to see if it might be possible to include as part
of the regulation the ability to store floatables(in
particular vehicles)on a site during the winter. He is
going to put this down as a suggestion on his comment
form. If this suggestion doesn't get incorporated into
the regulation,he will probably ask for a variance for his
Kim Zieden 101 E. Lincoln _ 5/24/2002 phone_- floodplain--- Marsha property.
Wanted to know how dumpsters are supposed to be
secured. Their property does not have any floatables
Lois-A-1 U Store It 1000 E. Lincoln 5/28/2002 hone floodplain Marsha except dumpster.
As a significant land owner, is concerned about the
Mark Sears City- Natural Resources 5/31/2002 phone - floodplain Marsha_ cleanup costs for materils that end up on City property.
Charlie Messerlian Ft. Collins Truck Sales 6/4/2002 site visit floodplain _ Marsha concerned about business.
- - - - --- -
Look at what materials are considered floatable.
Wanted map to show which part of his property is in
Gary Eastman Fort Collins Nurse 6/12/2002 site visit floodplain Marsha Poudre floodplain vs. Dry Creek_
Melvin Johnson 126 W Harvard Suite 2 6/20/2002 Meeting floodplain Bob Meeting was held with individuals#10 through#19.
Sean Mater 232 E.Vine Dr. 6/20/2002 Meeting floodplain Bob See below for comments raised during the meeting.
Jamie DenBeester 106 E.Vine Dr. 6/20/2002 Meeting floodplain Bob Property owners would like to seethe regulation be
Scott Nelson 1027 W. Horsffh,ste.200 6/20/2002 Meeting- g floodplain Bob removed from the code entirely and plan to participate
- - - - -
Mary Harnett _Lafarge West 6/20/2002 Mee_tin_0—_ floodplain _Bob_ _at the council meeting when this item is heard. They
also plan to contact city council members. They feel
Tom Jackson 720 W.W illox 6/20/2002 Meeting - floodplain Bob _ the code language is a takings and will fight it. The
Charlie Mesarlian 7_00 N.College 6/20/2002 Meeting floodplain Bob accuracy of the maps was also questioned conpared
Kim Szidon 101 E. Lincoln 6/20/2002 Meeting floodplain Bob to their property and Waste Management to the east.
Thomas Tisthammer 103 E.Vine 6/20/2002 Meeting floodplain Bob A couple will probably follow-up and review topo
Hank Hersh 202 E.Vine 6/20/2002 Meeting floodplain Bob mapping.
v n
The Board took a straw vote with 2 members supporting o 1+
Natural Resources the WB recommendation of a 3-year extension and 4 D n
Advisory_Board - 6/19/2002 study session - BS_MHR,.JH members supporting an 8-year extension.
Requested a copy of the mailing list for the properties 0
impacted by the Poudre River floatable materials code 1+
language. I advised him of the date change for council . rn
consideration from July 16th to August 201h. Due to the
public records act, I could only give him a list of names
Tom Jackson 720 W.Willox 6/20/2002 hone ifloodplain Bob and not addresses or phone numbers.
ATTACHMENT 7
OTTEN,cTOHNSON,AOBINSON,NEFF&RAGONETTI,P.C.
ATTORNEYS AND COUNSELORS AT LAW
950 SEVENTEENTH STREET DENVER
SUITE 1600 ASPEN
DENVER,COLORADO 60202 STEAMBOAT SPRINGS
KEIRSTIN K. BECK TELEPHONE 303-626-6400
DIRECT DIAL (303)575-7565 FAX 303-625-6525 BRUCE S.JOHNSON
KBECK®OJRNR.COM N .OTTENJOHNSON.COM (1946-2000)
August 13, 2002
VIA FACSIMILE AND U.S. MAIL
City of Fort Collins Mayor and City Council Members
300 LaPorte Avenue
Fort Collins, Colorado 80521
Re: Fort Collins Municipal Code Regulations Regarding Floatable Materials
Dear Mayor and Council Members:
This firm represents the following property owners affected by the above-
referenced matter: Hersh Enterprises, MFW Holdings, Ft. Collins Nursery, BMC West,
Ranchway Feeds, Ft. Fun, Team Petroleum, Schrader Oil, Division 7 Systems, Ft. Collins Truck
Sales, Rocky Mountain Automotive, and Vanworks (collectively, the "Property Owners"). The
Property Owners have been informed that the City Council will hold a public hearing on August
20, 2002 regarding a proposed amendment to Section 10-61(6) of the Fort Collins Municipal
Code (the "Floatable Materials Regulations"). This letter is intended to summarize the Property
Owners' general support for an amendment to the Floatable Materials Regulations and identify
their concerns with one aspect of the proposal.
The current version of the Floatable Materials Regulations states:
No person shall temporarily or permanently store any floatable
material on nonresidential property that is located in the floodplain,
floodway or product corridor; provided, however, that
nonresidential properties in the floodplain, floodway or product
corridor having floatable materials stored on them prior to July 1,
2000, shall be permitted to continue to have floatable materials
stored on them until the earlier of: July 1, 2002; when there is any
change in use of the property; when a new structure is constructed
on the property; or when there is any addition to or substantial
improvement of any existing structure on the property.
It is our understanding that as the Floatable Materials Regulations deadline to
remove all existing floatable materials loomed near, the City began to evaluate the effect of such
City of Fort Collins, Mayor and City Council Members
August 13, 2002
Page 2
a requirement on the applicable properties. The Property Owners are pleased that the City is
reevaluating the Floatable Materials Regulations because as currently drafted it threatens the
Property Owners' ability to operate their businesses. If the City were to enforce the current
Floatable Materials Regulations against the Property Owners, it would substantial impair their
reasonable investment backed expectations in violation of the Fifth Amendment of the
Constitution. Accordingly, the Property Owners welcome an amendment to the Floatable
Materials Regulations.
Based upon conversations with Bob Smith, Water Planning Manager for the City
of Fort Collins Utilities Department, the proposed amendment is intended to eliminate the
current deadline for removal of floatable material and allow property owners to retain existing
floatable materials on the applicable property under certain circumstances (the "Amendment").'
Pursuant to the Amendment, existing property uses which involved storage of floatable materials
prior to July 1, 2000 would not be subject to a deadline for removal of such floatable materials
unless there is a change in use of the property, an addition or substantial improvement, or
construction of a new building on the property, or a change in ownership of the property.
First and foremost, the Property Owners emphatically endorse the proposal to
eliminate the deadline for removal of floatable materials on property that stored such materials
prior to July 1, 2000. In essence, the Amendment would establish the use of applicable property
to store floatable materials as a nonconforming use if such use was commenced prior to July 1,
2000.2 Colorado courts uniformly recognize that "nonconforming uses are entitled to protection
under the law." Anderson v. Board of Adjustment, 931 P.2d 517, 519 (Colo. Ct. App. 1996).
Even though continuance of nonconforming uses is discouraged, they "receive constitutional
protection from unreasonable zoning regulations." Hartley v. City of Colorado Springs, 764 P.2d
1216, 1224 (Colo. 1988). It is unreasonable for zoning regulations to effect a forfeiture of the
value of a business owner's investment in his business, even though it is reasonable to regulate
the uses to which property may be put. ER., Hartley, 764 P.2d at 1224. In evaluating the
reasonableness of such regulations for terminating nonconforming uses, courts employ a
balancing test which compares the burden or loss suffered by the operator of the nonconforming
use to the public benefit obtained by the termination. See, e.g., Art Neon Co. v. City and County
of Denver, 488 F.2d 118, 121-22 (10t' Cir. 1973); 7250 Corp. v. Board of County Commr's, 799
P.2d 1216, 1224 (Colo. 1988). The Amendment goes a long way towards striking the necessary
balance between addressing the City's goals and policies regarding stormwater management and
protecting the Property Owners' property and proprietary interests, but one change is necessary
1 The Amendment was not available for our review as of the date of this letter.
2 The Land Development Code defines a nonconforming use as "a use which was lawful and conforming
under prior law on the day before the effective date of this Land Use Code or subsequent amendment
thereof. . ."
City of Fort Collins, Mayor and City Council Members
August 13, 2002
Page 3
to achieve that balance and avoid potential legal challenges. That change is the elimination of
change in ownership as an event that would eliminate nonconforming status.
The Amendment would eliminate the nonconforming status of eligible property if:
(i) there is a change in use of the property; (ii) an addition or substantial improvement to an
existing building, or construction of a new building on the property; or (iii) a change in
ownership of the property. The Property Owners agree that if a property changes its use from
one use to a different use, such as a change from a trucking company to a nursery, it is
appropriate that the nonconforming status of the property would be lost. Likewise, if the
property owner constructed an addition to or substantial modification of an existing building or a
new building, it is appropriate that the nonconforming status of the property would be lost. Both
scenarios are consistent with the City's current nonconforming use provisions in the Land
Development Code and are reasonable land use regulations.
The Property Owners, however, do not support the portion of the Amendment that
would eliminate the nonconforming status upon a change in property ownership. Such a
provision is not reasonable land use regulation. For example, if a property owner who has
operated an auto sales business for 20 years dies and leaves his son the business to operate, the
son would be prevented from continuing the operation of such business since a change of
ownership would occur by virtue of his father's death. Nor is the provision consistent with
Colorado common law on nonconforming uses, or the City's other regulations governing
nonconforming uses. "The right to continue a nonconforming use, once established and not
abandoned, is not confined to any one individual or corporation." Town of Lyons v. Bashor, 867
P.2d 159, 160 (Colo. App. 1993). Thus, we strongly suggest that the Amendment should not
eliminate the nonconforming status of eligible property due to a change in ownership.
In conclusion, the Property Owners support the Amendment, without the
inclusion of the change in ownership provision. We are confident that an amendment to the
Floatable Materials Regulations can satisfy both the City's need for new stormwater management
policies and the Property Owners' need to protect their property and proprietary interests. We
look forward to working with the City to reach a resolution to this matter in which both parties
will benefit.
Very truly yours,I��j
s6v
Keirstin K. Beck
for
OTTEN, JOHNSON, ROBINSON,
NEFF& RAGONETTI, P.C.
ATTACHMENT 8
Fort Collins Water Board Minutes PAGE 2
March 28, 2002
Tom Sanders questioned if there were any plans to accommodate a drought.
Gene stated this is the first year that NCWCD has had the capability to look carefully at trends
of inflows, storage, use, etc. He stated that the River District requested an additional 20,000
acre feet a year be released from Granby in the Spring and stated that after preliminary studies
the flow is not the limiting factor.
Gene gave a brief update on Horsetooth Reservoir, commenting that it was ahead of schedule
and that the Bureau wants to move up the schedule for filling it. He stated that there are two
views from the bureau regarding cutting off water seepage at the north dam. He stated that the
Bureau was considering stripping off the face of the dam and replacing it with a clay liner
rather than installing a concrete cutoff wall. He stated that the District preferred the latter
alternative.
Robert Ward mentioned that next week's Hydrology Days at CSU would include discussions of
various drought planning exercises as well as what types of droughts to expect.
�} Floatable Materials Floodplain Regulations
Marsha Hilmes-Robinson gave a brief overview of current floodplain regulations. She defined
"floatable materials" and stated that the Code states that all floatable materials within the
Poudre River floodplain need to be removed by July 1, 2002. She highlighted the primary
properties that would be affected.
She reported on two success stories, reporting that the following properties have complied with
and taken action to comply with the Code:
• 101 E. Lincoln Avenue
• 301 E. Lincoln Avenue
She explained that staff has looked at three options to address this regulation.
Option #1 Comply with the current Code
Option#2 Amend the Code to only require properties in the product corridor to comply
with the July 1, 2002 deadline to remove floatable materials
Option#3 Amend the Code to remove the requirement that all existing floatable materials
be removed prior to July 1, 2002
She stated that staff recommends Option#3. She stated that staff has identified 28 properties
that have a significant amount of floatable materials, and between 15-16 properties are located
in the product corridor. She explained that, while affected businesses have been annually
notified in writing of this regulation, they were not notified individually about floatables.
Marsha responded to questions from the Board and stated that changing ownership and
maintaining the same use of these properties would be grandfathered in, under Option #3. She
reported that the City has taken action to enforce floodplain violations, however, only on an
individual basis.
Fort Collins Water Board Minutes PAGE 3
March 28, 2002 .
Jim Hibbard clarified that car businesses would be the most drastically affected businesses.
David Frick expressed concerns regarding liability and safety issues.
In response to a question, Marsha stated that while most communities comply with FEMA
requirements, very few have addressed floatable materials. She spoke of how variance requests
would be done.
After a discussion it was the consensus of the Board that the City should make more of an
effort to inform affected businesses of the Code regulations.
Joe Bergquist made a motion to establish a 3-year deadline for compliance, during which time
the City would advise those affected in a very aggressive campaign. Robert Ward seconded the
motion.
Tom Sanders stated he felt that 3-years was too little time for those affected to comply. He
stated that he supported a 5-year deadline, stating that it would be a reasonable time for the
owners to comply with the Ordinance.
Bill Fisher spoke in support of staffs Option #3, stating he did not feel the regulation was fair
to those business owners, who have spent time and money setting up their businesses, unaware
of this requirement.
Marsha explained that currently properties are addressed when someone requests a change of
use, at which time they are advised of the Code requirement.
The vote on the previous motion to established a three-year moratorium with a strong campaign
to inform property owners was as follows: Nays: Tom Brown, Bill Fisher, and Rami Naddy.
Yeas: Robert, Joe, Ted, John, David Frick, David Lauer and Tom Sanders. The motion carried.
Marsha expressed concerns that a significant number of the businesses affected by the Code
regulations would not be able to remain in business or would have to substantially change their
manner of operation. She spoke of the difficulty in juggling safety vs. property rights issues.
David Frick suggested that the definition of floatable materials be further reviewed.
Fluoride Technical Study Group Update
Rami Naddy reported that the study group was reviewing technical documents and separating
reports. He reported the following being addressed in each report:
• legal concerns
• cost benefits
• efficacy of fluoridation
• risks
• public individual choice
• health risks
He stated that the progress is slow and that the study group will continue to look at the
remaining reports as well as the information provided by the public. He reported the study
group progress would be posted on the City of Fort Collins website.