HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 11/15/2011 - FIRST READING OF ORDINANCE NO. 162, 2011, AMENDINGDATE: 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.
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.
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
Item 888 – Amend 3.4.1 (D) – Ecological Characterization Study and
Establishment of Buffer Zones – to clarify the point of measurements for
streams
Problem Statement
Conflicting language appears in Section 3.4.1 of the Land Use Code. In Section
3.4.1(D), subsection (e) requires data for the Ecological Characterization Study be
collected on “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 that “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.”
Section 1.7.2 of the Land Use Code provides guidance for resolving internal conflicts in
the code. As bank (or top of bank) is both the more specific and more stringent of the
two terms, top of bank is a more appropriate term for use in determining the point of
measurement from which to begin the establishment of the Natural Habitat Buffer Zone.
In addition, the use of the term bankfull discharge is inappropriate for irrigation ditches,
as they are unlikely to have bankfull, or channel-forming, discharge. Finally, the term
“top of bank” is more consistently applied in the field than “bankfull discharge” and has
been identified in Plan Fort Collins as the way to measure the buffer along the Poudre
River (see Policy ENV 24.3 – Provide Natural Area Protection Buffers, which states “the
buffer should be a minimum of three hundred (300) feet wide, beginning at the outer
limits of the river bank or areas of riparian vegetation”).
Proposed Solution
The proposed solution is to remove the term “bankfull discharge” from Section 3.4.1(E)
of the Land Use Code and instead use the term “top of bank.” In section 3.4.1(D) the
term “bank” will be expanded for consistency to also say “top of bank.” Finally, a
definition for “top of bank” will be added to Article 5.1.2 of the Land Use Code.
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.” While general
agreement was reached that top of bank was more clear than bankfull discharge, the
Board was concerned that we were moving from good to better, but maybe not from
good to best. 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.
ATTACHMENT 1
To address these concerns, staff has reviewed 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 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.
Specific responses to the Board’s concern are as follows:
Concern 1. Top of bank is not a clearly defined term that is widely accepted as an
industry standard.
Response: Staff conducted a review of what term other municipalities use for
their point of measurement. Only the City of Boulder used the term “bankfull
discharge” for the beginning of their buffers; Boulder hired a consultant to map
bankfull discharge along every length of their streams throughout the City so that
a consistent measurement would be applied. Conversely, based on staff’s
research and expert feedback, it appears “top of bank” is the most universally
applied term for this point of measurement. Experts cited communities in
Colorado (e.g., Colorado Springs and El Paso County), Texas, North Carolina,
Vermont, Pennsylvania, Maryland, Illinois, New Jersey, New York, New Mexico,
California, and Georgia, and in the model buffer language developed by the US
EPA and the model buffer language developed the Stormwater Manager’s
Resource Center.
Staff did find several communities that used the term “ordinary high water mark,”
e.g., Salt Lake City, Tillamook County in Oregon, and Overland Park in Kansas.
However, the term “ordinary high water mark” is typically less restrictive than “top
of bank” or “bankfull discharge” and would thus, dilute the intent of the Code. In
addition, Larimer County uses measures their buffer from the “centerline of the
waterbody,” which would also dilute the intent of the Code.
Thus, after careful review and discussion with experts, staff finds that “top of
bank” is a widely accepted term. In addition, there was consensus amongst the
experts that “top of bank” is the best standard because it is the most readily
identifiable and consistently applied term in the field.
Concern 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.
Response: If a project is within 500’ of a natural habitat or feature, an Ecological
Characterization Study is required to be prepared “by a professional qualified in
the areas of ecology, wildlife biology or other relevant discipline.” The same
ecological characterization is also a Federal prerequisite for submitting a flood
hazard map revision known as a Conditional Letter of Map Revision (CLOMR).
Thus, if a project is in the proximity of a natural habitat or feature, a professional
is required to be hired by the Land Use Code, regardless of which term is
applied. While a developer is not required by the Code to go out in the field with
City staff, many experts do ask City staff to walk the site so all of the natural
habitat and features issues on a site can be discussed from a holistic perspective
so that when the buffer standards are applied (whether the standard metrics or
performance standard are applied on a site), they are viewed within the context
of the ecological value of the entire site.
Concern 3. It varies over time where streams may braid.
Response: Both terms, “bankfull discharge” and “top of bank,” can vary over
time. The top of bank definition recognizes the fact that streams are dynamic
systems, and that these features can relocate naturally over time. If a stream
were to braid, “bankfull discharge” and “top of bank” would both encompass the
entire stream system.
Concern 4. The term does not solve the problem; it may not be consistently
applied.
Response: The experts universally agreed that “top of bank” is the most readily
identifiable feature in the field and the most consistently applied term. This
consensus is reinforced by the extensive application of this term in the Land Use
Codes to waterways of communities across the country.
Concern 5. Would like to see a term more consistent with floodplain mapping.
Response: The intent of Section 3.4.1 of the Land Use Code is as follows:
“The purpose of this Section is to ensure that when property is developed
consistent with its zoning designation, the way in which the proposed
physical elements of the development plan are designed and arranged on
the site will protect the natural habitats and features both on the site and
in the vicinity of the site.”
Thus, it is staff’s opinion that the term selected for the point of measurement, for
the purposes of compliance with Section 3.4.1 of the Land Use Code, should
emphasis ecological and natural habitat protection and not floodplain protection.
Chapter 10 of the Municipal Code is designed to protect life safety and property
from severe flood hazards. While these areas often coincide, each standard has
a different intent.
In addition, if top of bank cannot be found, applicants can use the “outer limits of
riparian vegetation” to demarcate the line between the river resource and the
buffer area. This term is consistent with our City’s Comprehensive Plan, Plan
Fort Collins, Policy ENV 24.3 – Provide Natural Area Protection Buffers, which
states “the buffer should be a minimum of three hundred (300) feet wide,
beginning at the outer limits of the river bank or areas of riparian vegetation” and
is consistent with the ecological intent of this section of the Land Use Code.
Concern 6. Top of bank is a more restrictive term than bankfull discharge
Response: In a natural stream system that has not been modified, “top of bank”
and “bankfull discharge” are synonymous terms. Where “bankfull discharge”
occurs, banks form. However, in our urban systems, where the majority of our
streams are frequently incised, “top of bank” would define a wider area for
buffering and would therefore be more restrictive than bankfull discharge. This is
consistent with Section 1.7.2 of the Land Use Code, which provides guidance for
resolving internal conflicts in the code. As bank (or top of bank) is both the more
specific, because of the increased consistency of application, and more stringent,
because of the wider area encompassed by the term, “top of bank” is a more
appropriate term for use in determining the point of measurement from which to
begin the establishment of the Natural Habitat Buffer Zone.
It should be noted, though, that in an incised stream, the horizontal distance
between where “bankfull discharge” and “top of bank” would occur is often
minimal. Incision is a process of downcutting and thus, the stream would drop in
elevation without typically widening at the same time. Staff will present local
examples of this concern during the Planning and Zoning Board hearing.
Concern 7. Buffer standards are a minimum; if top of bank were adopted, this
would increase the overall area of the buffer requirements
Response: The Land Use Code pertaining to this issue is as follows:
“The decision maker shall determine the buffer zones for each natural
habitat or feature contained in the project site. The buffer zones may be
multiple and noncontiguous. The general buffer zone distance is
established according to the buffer zone table below, but the decision
maker shall reduce or enlarge any portion of the general buffer zone
distance, if necessary in order to ensure that the performance standards
set forth below are achieved. The buffer zone performance standards are
as follows…”
Thus, the buffer zone table provides a consistent starting point for determining
the width of the buffer zone, but does not serve as a minimum width.
Based on expert opinion, staff research, and field examples which will be provided at the
meeting, staff finds that these simple changes to the Land Use Code have the effect of
providing a more easily identifiable, more accurate point of measurement for the
protection of our stream and riparian resources and in no way dilutes the intent of the
original code language.
Code Change
Section 3.4.1(D):
(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:
(a) O.K.
(b) O.K.
(c) O.K.
(d) O.K.
(e) the top of bank, shoreline and high water mark of any
perennial stream or body of water on the site;
(f) O.K.
(g) O.K.
(h) O.K.
(i) O.K.
(j) O.K.
(k) O.K.
Section 3.4.1(E):
BUFFER ZONE TABLE FOR
FORT COLLINS NATURAL HABITATS AND FEATURES1, 2
1 O.K.
2 O.K.
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.
(a) Isolated area buffer zones such as woodlots, farm windbreaks and forests will
be measured from the outer edge of the drip line toward the boundary of such lot,
tract or parcel of land.
(b) Wetlands, grasslands and shrubland buffer zones will be measured from the
outside edge of the habitat toward the boundary of such lot, tract or parcel of
land.
(c) Stream corridors, lakes, reservoirs and irrigation ditches buffer zones will be
measured from the top of bank level of bankfull discharge toward the boundary of
such lot, tract or parcel of land.
(d) Special habitat features/resources of special concern will be measured as a
radius starting from the outer edge of the habitat toward the boundary of such lot,
tract or parcel of land.
(e) Locations of geological or paleontological sites of special interest will be
measured from the outer edge of the feature toward the boundary of such lot,
tract or parcel of land.
Article 5 - Definitions
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.
Planning & Zoning Board
July 21, 2011
Page 8
manner knowing there are examples that are perfectly acceptable--they were approved at the time. They
are fine additions to our community. They provide a valuable housing type but can we make them
better? Can we make them a little less complex like? Can we make them more town-like? Can we
make them so that the buildings front on streets and not parking lot access drives? Can the buildings
have addresses instead of letters? Shepard said you would create more of a town like pattern that looks
like it evolved organically instead of formula like building that has been dropped in. The objective is to
create a distinctive, unique community.
Shepard said we know we have some pretty good looking projects but they’re identical to one that’s just
been built in Lafayette or Broomfield or Aurora. Not that that’s a bad thing but we’re trying to take it to
the next level knowing this is one particular housing type in a zone district that just didn’t have these
standards. When they started to analyze the code, they thought how surprising that we have such
rigorous standards in the LMN but nothing in the MMN so they are just trying to close the gap. Member
Campana said for reference—Shepard is correct, the same Sidehill building was built in Longmont and
Littleton.
Member Lingle said when he looks at the buildings at Sidehill he thinks they have enough articulation
and interest in roof line variation. We can make the distinction that is not necessarily a bad development
in terms of not being in compliance with this but he can think of some are not up to speed in terms of
where we want to go as a community. This amendment would help elevate some of those things.
Member Campana said his compromise suggestion would be that we apply standards in everything
except in the variation of models. Member Schmidt said that’s addressed in Section B of the code.
Member Schmidt said her point is right now if you have certain acreage, the code requires two housing
types. This would also help us get around all the buildings but one (the clubhouse) being one housing
type. This might give us something a little closer to making it look like there are several housing types
there.
Member Lingle asked if this was a modifiable standard—if someone wanted to try to argue that uniformity
in their particular product should be acceptable. Shepard said yes.
Item 888
Item 888 amends 3.4.1(E) (1) – establishment of buffer zones to clarify the point of measurement for
streams as top of bank of active channel. Member Campana said he had comments in line with what he
was discussing at the work session on July 15. The top of bank is not a clearly defined term that is
widely accepted by any industry standard. It’s very 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. It varies over time in “braided”
situations. He thinks we’re trying to solve a problem by using a new term and we’re not solving the
problem. He would like to see a little more time spent on to come up with a better defining delineation
point from where the buffer would start.
Shepard said staff did add the clause “top of bank of active channel” as was suggested at the work
session. He said that would occur twice—once in the body of the standard and once in the footnotes.
Anytime you see top of bank, we would add “of active channel”. He said that would address the braiding
effect.
Campana asked for the definition of active channel. Shepard said they do not have a specific term.
What they have done is have conversations with Stormwater Utilities experts in hydrology and
hydraulics. They are the people who have given him the scientific basis and terminology. Stormwater
Utilities staff has informed him that previous language was vaguer, less defined, and not accepted in the
field. Shepard said that no matter what the standard, there will always be an ecological characterization
ATTACHMENT 2
Planning & Zoning Board
July 21, 2011
Page 9
consultant out in the field and they probably will always be accompanied by a staff member. Staff’s belief
is that previous language is not as scientifically supported as the language being proposed.
Member Campana said he was glad to see the change but not having it is a defined term makes difficult
for me to make the recommendation. Member Schmidt asked about the term “braided”. Campana said
when you look at a river during peak flow it might branch off from the main channel and flow around
trees; creating islands. As written currently, that buffer measurement would move to where ever that
water line is. Campana said it seems pretty arbitrary. He said there are not a lot of braided channels in
our city but there are some. Schmidt asked if that happened every spring or just for major flood events.
Campana said it varies and depends on what improvements are done up and down stream of that point.
Member Carpenter said she doesn’t pretend to know anything about this but it sounds like it’s because
it’s a natural system and there is no way to get an exact term that everyone is going to agree. She said
no matter what language we use, we’re going to have to use the process of having different experts look
at it. She tends to want to go with the experts at the City. Carpenter said if they say this is better than
what we have and it’s more accepted in the field; then it makes sense to change to it.
Member Campana said that if we’re going to change it, he’d rather we come up with something that’s a
little more concrete and definable. He suggests we postpone the change until we can do that.
Carpenter said she understands there’s not a more exact term. Campana said he believes there are.
This change would make the buffer more restrictive to the land owner. He agrees experts are probably
going to have to debate what that point is but if you have a clearly defined term it makes it much easier.
Carpenter asked what the clearly defined term would be. Campana said in the case he’s considering—
the Poudre River. It’s been modeled and you could use flood events at defined locations to use when
considering flood plain and flood way. He said there are FEMA (Federal Emergency Management
Agency) maps. He’d like to have “more on it”.
Member Schmidt said when you have experts look at it (the top of bank of an active channel) they would
be able to decide pretty clearly where that is.
Member Campana asked if the active channel than replaces the riparian edge. Shepard said the new
term top of bank of active channel replaces level of bankful discharge. We’re going from one
measurement to another.
Member Lingle said he’s a little more where Member Campana is on this. He understands and
acknowledges that we have in-house experts in these areas but he also knows from practical experience
that there are a lot of other experts in private practice that don’t’ agree with them every day of the week.
It makes it a little difficult to expand potentially the definition of things when we really don’t know what
we’re talking about when we’re working with these terms and their practical application.
Member Campana said his understanding of the buffer table is that’s a minimum buffer and depending
on what’s found in the ecological characterization study it could be increased beyond that. His point is
we already have a minimum amount; now we’re saying that the floor is potentially being raised by
changing this term. That’s his concern.
Shepard said the intent of the change wasn’t to ratchet down a standard. He said we’re just trying to
figure out what is the best, defensible, scientific methodology from which to start our point of
measurement. The intent was to be more scientifically supported and accurate in an ecological analysis
in the field. There are different ecological characteristics and the intent of the standard is to protect the
streams, the rivers, and the riparian areas. Shepard said we’re going to protect the streams and rivers in
a variety of ways--quantitatively and qualitatively. The buffer table is what we call qualitative
performance standards. Shepard said what we’re trying to do is establish where we start the
Planning & Zoning Board
July 21, 2011
Page 10
measurement. Now we’re hearing from the scientists that top of bank of active channel is better.
Shepard said he doesn’t know if it’s more restrictive in the field.
Campana said he understands that and he doesn’t think this means of measurement is “it”. He’s
suggesting we take our time and come up with something that works—better addresses the issues.
Director Dush said from staff’s perspective what we’ve done, working with Natural Resources and
Environmental Planners, is identify a more consistent term that provides certainty for an applicant. He
recognizes and understands Member Campana’s concerns of what the impact may or may not be. He
said this is a better definition and it gives the professionals in the field a common understanding.
Member Schmidt said it might not be the end all solution but maybe it’s one step right now. Before the
next annual review, we could continue to work on what the Board thinks might be a better solution. In
the meantime, we’d have something that’s less ambiguous.
Member Carpenter suggested we pull it and vote separately on it.
Items 893 and 894
These items were from consideration by staff. Stockover said he thinks we should not pull Item 894.
He’s always felt that it’s something that should be in place as a protective measure for a lot of the smaller
lots in old town. A lot of good work has gone into that and it should stay and the Board should forward a
recommendation to City Council.
Member Schmidt said she feels the same way as Chair Stockover does about the amendment itself. She
said when we look at how Land Use Code changes are publicized—it’s just “the Planning & Zoning
Board is going to review Land Use Code changes”. They are not listed in an itemized fashion unless
someone is interested enough to ask. Those that wish to talk to the Board on the Eastside/Westside
Design Standards have no way of knowing that we’re discussing this tonight. Because that whole topic
was such a hot item, she doesn’t know if it would be fair to go ahead and vote on something when those
who would have liked to speak had not been notified.
Member Carpenter said especially after it was repealed by petition, she thinks it would be much better if
we put this in the “reset” of the Eastside/Westside Design Standards. Whether she agrees with either of
these is immaterial at this point. She thinks it’s really important we have public input on both of these
items. She’s happy to see it removed from consideration.
Chair Stockover said he thinks this Board is tasked with doing what’s right. He thinks this is right.
Member Carpenter said maybe we need to pull it and vote on it separately because some of the Board
members disagree. Director Dush recommends that those items are deleted from consideration.
Deputy City Attorney Daggett suggested they proceed with an initial motion that includes all of the items
the person making the motion wants to get on the table. You can do that in any way that is
understandable. Another thing you can consider is after you have that first motion on the table; you can
have motions to amend that to the extent you want to tweak some of the items.
Member Smith moved to recommend to City Council the following amendments to the Land Use
Code: 822, 870, 871, 872, 873, 874, 875, 876, 876, 877, 878, 880, 881, 882, 883 with a change to 10
calendar days (as opposed to 5), 884, 885, 887, 889, 890, 891, 892 and 895. Member Schmidt
seconded the motion.
Chair Stockover said we’d then discuss items 888, 893 and 894 as a line item.
Planning & Zoning Board
July 21, 2011
Page 11
Member Carpenter had a question about items 893 and 894. If staff has recommended that we delete
them, are they really bringing them to the Board to recommend? Director Dush said at the worksession
we discussed deleting them from the agenda. Perhaps what we should have done is not included them
in this package and provided a modified list. The memo was just to clarify that change.
Member Carpenter said then maybe we should omit them rather than voting yes or no on them. Director
Dush agreed. He thought they should vote on the question before the Board then leaving Items 893 and
894 out. Member Carpenter said so when this goes to City Council, 893 and 894 will not be included.
Dush said that’s correct. Daggett said the minutes will reflect that you talked about them and were
concerned about moving forward with them given the issues that were discussed. It will accurately
reflect what the Board considered.
Member Smith and Chair Stockover said they understand the Board can make recommendations to City
Council for Land Use Code changes. The Chair’s impression is that can be done by vote or when 3
members make the request. Deputy City Attorney Daggett said the three-person policy is a Council
policy; she was not sure what the options were for the Planning & Zoning Board. Director Dush asked if
he was referring to request for zoning changes or code modifications. The Board can make those
requests. He said with relation to Items 893 and 894 for the reasons stated by Members Carpenter and
Schmidt, as well as City Council at their work session, those issues will come forward with the Reset of
the Eastside/Westside Design Standards. He said if you want to have that considered at a later date on
an accelerated pace, that is something as a Board you can make a recommendation to do,
Member Schmidt said what Chair Stockover was referring to was a while back (she’s not sure they every
formalized it in their bylaws), the Board decided that it would take at least 3 people to make requests,
Director Dush said he remembers that discussion at their annual retreat.
Member Hatfield said that Member Smith made a good motion excluding Items 893 and 894.
The motion passed 7:0.
Item 888
Member Schmidt made a motion to recommend to City Council they approve Land Use Code
change Item 888 which would read: “to top of bank of active channel”. Member Carpenter
seconded the motion.
Member Smith said the Land Use Code needs to be very transparent and predictable to serve all
stakeholders well. He knows the attempt is there to add predictability. He thinks there are major
implications there and additional research needs to be done with more understanding by the Board.
He’s not ready to support it.
Chair Stockover said he too is having trouble with this amendment.
The motion failed 3:4 with Members Campana, Lingle, Smith and Chair Stockover dissenting.
Chair Stockover said the Board did not recommend adoption of Item 888.
Other Business:
None
Meeting adjourned at 7:30 p.m.
Planning & Zoning Board
October 20, 2011
Page 2
Consent Agenda:
1. Minutes for the August 18, 2011 Planning & Zoning Board Hearing
2. Courtney Annexation and Zoning, # ANX110004
Member Schmidt made a motion to approve the Consent Agenda which consists of the minutes
of the August 18, 2011 Hearing and the Courtney Annexation and Zoning, # ANX110004. Member
Lingle seconded the motion. The motion was approved 4:0.
Member Schmidt commented for the benefit of the audience the Board normally reviews agenda topics
at Work Session the previous Friday. If something is on the consent agenda, it does not mean they
have not previously discussed it in more detail than might appear this evening.
Discussion Agenda:
2. 2011 Annual Revisions, Clarifications and Additions to the Land Use Code – Section 3.4.1(E) –
Point of Measurement for Buffers
3. Leistikow Annexation and Zoning, # ANX110003
_______
Project: 2011 Annual Revisions, Clarifications and Additions to the Land Use Code –
Section 3.4.1 (E) – Point of Measurement of Buffers
Project Description: This is a request for a Recommendation to City Council regarding the annual
update to the Land Use Code, specifically Section 3.4.1(E) that identifies where
the buffer zone should begin in regards to rivers, streams, and irrigation ditches.
There are proposed revisions, clarifications and additions to the sections of the
Code that requires this point of measurement to be from “bankful discharge.”
Instead, the term “top of bank” is recommended as the most appropriate term for
this point of measurement.
Recommendation: Approval
Hearing Testimony, Written Comments and Other Evidence
Chair Stockover said the Board’s spent a lot of time on this topic. It was considered at a previous
hearing and it was sent back to City staff for another look. It was almost considered for the Consent
Agenda because of the time already spent but for the benefit of the public, the Board decided to have a
quick presentation to bring everyone one else up to speed.
Environmental Planner Lindsay Ex said the previous concerns surrounding the term “bankful discharge”
included that it is inappropriate for our community because it is difficult to define. In addition, many
experts argue that you cannot consistently apply it in the field, especially in systems dominated by
incised channels (which are the majority of the streams in our City).
Ex said based on research, meetings with experts, and reviews of other municipal, state, and federal
codes and recommendations, staff is recommending the adoption of the term “top of bank” as an
alternative to “bankful 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
ATTACHMENT 3
Planning & Zoning Board
October 20, 2011
Page 3
across the Country for determining where buffers should begin on these types of water bodies. Finally,
based on the water bodies within our municipality, all experts agreed this was the most appropriate term
for our streams, rivers, and irrigation ditches.
Ex said conflicting language appears in Section 3.4.1 of the Land Use Code. In Section 3.4.1(D),
subsection (e) requires data for the Ecological Characterization Study (ECS) is collected on “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 that “stream corridors, lakes, reservoirs, and irrigation ditches
buffer zones will be measured from the level of bankful discharge toward the boundary of such lot, tract
or parcel of land.”
Section 1.7.2 of the Land Use Code provides guidance for resolving internal conflicts in the code. As
bank (or top of bank) is both the more specific and more stringent of the two terms, top of bank is a more
appropriate term for use in determining the point of measurement from which to begin the establishment
of the Natural Habitat Buffer Zone. In addition, the use of the term bankful discharge is inappropriate for
irrigation ditches, as they are unlikely to have bankful, or channel-forming, discharge. Finally, the term
“top of bank” is more consistently applied in the field than “bankful discharge” and has been identified in
Plan Fort Collins as the way to measure the buffer along the Poudre River (see Policy ENV 24.3 –
Provide Natural Area Protection Buffers, which states “the buffer should be a minimum of three hundred
(300) feet wide, beginning at the outer limits of the river bank or areas of riparian vegetation”).
The proposed solution is to remove the term “bankful discharge” from Section 3.4.1(E) of the Land Use
Code and instead use the term “top of bank.” In section 3.4.1(D) the term “bank” will be expanded for
consistency to also say “top of bank.” Finally, a definition for “top of bank” will be added to Article 5.1.2 of
the Land Use Code. 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.
Ex said 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 “bankful discharge” to “top of bank.” While general agreement was reached that top of bank
was more clear than bankful discharge, the Board was concerned that we were moving from good to
better, but maybe not from good to best.
As appropriate she briefly reviewed her responses to the questions raised by the Board at their meeting
in July. She reviewed slides that were examples of a variety of situations. Ex said we should really be
talking about where the riparian and where the stream resource really end and focus on making sure that
we’re protecting the stream resource --beginning the buffer appropriately after we’ve protected the
stream. Ex said both she and Floodplain Engineering staff member Brian Varrella are available for any
questions. Varrella said he’s a Hydraulic Engineer by trade. He’s spent the first 8 years of his career as
a consultant. He’s worked in 19 states during his consulting career. All in all he’s found that the
standards that Ms. Ex has asked them to explore and generally apply in the field were generally easy to
apply and recognize.
Member Schmidt asked for an explanation of the difference between a high floodplain terrace and top of
bank. Varrella said high floodplain terrace is created by the storms you see only once in a great while –
the ones for which property and livestock may need to be moved. The top of bank is created naturally by
features that occur every year.
Member Schmidt asked if a new terrace is created (high plain terrace event) is a new top of bank created
given the activity that occurs over time. Varrella said when you get an extreme event the top of bank can
move so the channel could relocate to one side or the other. The terraces that are formed are not
Planning & Zoning Board
October 20, 2011
Page 4
formed with one storm. They are formed in a series of storms over tens of thousands of years of
geologic time.
Member Schmidt asked when someone purchases a property can they ask for those to be defined at that
point in time or is it just when a development proposal is submitted that they do an ECS? Director Dush
said normally ECS are done when development applications are submitted. If they were interested at the
time of purchase, they could engage the services of a private consultant.
Member Schmidt asked what information would be reported with an ECS. Ex said with the adoption of
the new Code amendments, the requirement is an ECS be submitted 10 days prior to a PDP (Project
Development Plan) application. At that time, we would require they document the top of bank and the
different points of location. The ECS is a point of reference for staff to useas information.
Member Lingle said as described in work session, the Environmental Planner would go to the field with
the applicant and their consultant and jointly come to some agreement as to where top of bank is. In the
event there is a disagreement, how is that resolved?
Director Dush said there are a number of steps before it comes to a decision maker. He said there are a
number of options given the nature of the disagreement. Dush said in the Code we’re directed to protect
the resource and the buffer can vary given what’s intended. He said as discussed in work session, if a
buffer distance is 200 feet but it needs to be greater then we would identify the need for a great buffer.
Conversely, depending on the way the hydrology works (and the buffer point of measurement); we could
apply a performance standard which may result in a lesser distance. Dush said if there was a
disagreement after we’d been through some iterations, staff would provide a recommendation based on
their findings indicating why the buffer needs to be at a certain distance. Staff would rely on the intent of
the standard which is to protect the ecological character of that area.
Member Lingle referred to a chart and noted the average was a 4-5 foot difference. But there was the
anomaly of the Wood Street property and he would guess there may be some properties that would have
10, 20 or more feet that form part of the average. Lingle anticipates there are going to be situations
where there is a disagreement. He asked if it was such a disagreement where the developer thought he
was adversely impacted to the point where he was willing to come forward to the decision maker and say
he just doesn’t agree with staff’s recommendation; he would hope there is a mechanism to avoid getting
to that point.
Director Dush said what’s important to recognize is that this Code change wasn’t intended to remedy the
situation described by Lingle. If we left the Code the same, that situation would still be there. In the
Code, if we have a specific standard and there’s a more stringent standard; we apply the more stringent
standard. Dush said if we are unable to reconcile the specific metric in the field, we would take a look at
the purpose and intent of that standard and make sure in our recommendations to protect the ecological
character.
Chair Stockover asked if we’ve had any discussions on how this would apply to banks that are covered
with rip/wrap and someone wanted to restore the bank to its natural state. Ex said that’s really where the
qualitative versus quantitative standards come into play. If an applicant wants to come in to talk about
restoration, our main focus in that section of the Code is getting ecological integrity in our stream
systems. We’re not so much concerned with a certain metric—we’re concerned with ecological integrity.
Varrella said he would default to the ecological characterization in a case like that described by Ms. Ex.
It is not necessarily engineering or hydraulic parameters; it is more going back to the resource itself.
Public Input
None
Planning & Zoning Board
October 20, 2011
Page 5
Board Discussion
Member Schmidt made a motion the Planning and Zoning Board recommend to City Council the
proposed update to Land Use Code Section 3.4.1(E). Member Carpenter seconded the motion.
Chair Stockover said this has been a great discussion and what seemed pretty straight forward up front
was in fact made more clear. He said it’s amazing to see how staff rallied around this and upped the
Board’s education level tremendously. Thank you.
Member Schmidt said she is really thankful for the interpretation about the protection of the resource.
She thinks that is a really good goal to have. It’s encouraged her to go back and read the LUC section
more carefully to see if that comes out pretty clearly so when it comes up in the future we’ll understand
the intent of the Code.
The motion was approved 4:0.
_______
Project: Leistikow Annexation and Zoning, # ANX110003
Project Description: This is a request to annex and zone 18.04 acres located east of Timberline Road
and south of Trilby Road. The property is a portion of the Leistikow Minor
Residential Division as approved in Larimer County and addressed as 6732 South
Timberline Road. The entire abutting segment of street right-of-way for Timberline
Road is included in the annexation boundary. This is a 100% voluntary
annexation. The property is partially developed with one house and currently
zoned FA-1, Farming in Larimer County. In accordance with the City Plan’s
Structure Plan Map and the Fossil Creek Reservoir Area Plan, the requested
zoning for this annexation is U-E, Urban Estate. The surrounding properties are
currently zoned L-M-N, Low Density Mixed-Use Neighborhood and U-E to the
north (Westchase P.U.D.) and FA-1, Farming in the Larimer County to the east
and south.
Recommendation: Staff recommends approval of the annexation and recommends that the property
be placed in the U-E, Urban Estate Zoning District.
Staff recommends that this property be included in the Residential Neighborhood
Sign District.
Staff also recommends a condition of annexation that if the property develops as
a residential land use, the owner shall disconnect from City so that Larimer County
would then be able to implement its Transfer of Density Units program. The
effective term of this condition is recommended for ten years. That timeframe has
been in agreement with Larimer County.
Hearing Testimony, Written Comments and Other Evidence
Chief Planner Ted Shepard said this is a request to annex and zone Urban Estate 18.04 acres located
east of South Timberline Road and south of Trilby Road. The site is within the boundary of the Fossil
October 10, 2011
To: City of Fort Collins Planning and Zoning Board
From: Save the Poudre: Poudre Waterkeeper
RE: Item #3, P&Z Board meeting, 10-20-2011, Point of Measurement for Buffers on the Poudre River
Dear Planning and Zoning Board,
It has come to our attention that you will be considering a term to describe the measurement of the
buffer along the Poudre River at your 10-20-2011 Board meeting. We have reviewed the agenda item
for that meeting provided by staff. We appreciate the effort staff has put in to research this issue and
consult with scientific advisors. We also appreciate that staff has allowed Save the Poudre: Poudre
Waterkeeper to provide information to this board. In that regard, we support the term “Top of Bank”
as the proper term to identify the point of measurement for the buffer. We believe “Top of Bank” is
consistent with the best available science as well as with other regulating governments and agencies.
Thank you for your consideration of our input.
Respectfully,
--
Gary Wockner, PhD, Director
gary.wockner@savethepoudre.org
Save the Poudre: Poudre Waterkeeper
Fort Collins, CO http://savethepoudre.org
970-218-8310
ATTACHMENT 4
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 level of
bankfull dischargetop 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-