HomeMy WebLinkAboutMINUTES-01/04/2005-RegularJanuary 4, 2005
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, January 4, 2005,
at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered
by the following Councilmembers: Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and
Weitkunat.
Staff Members Present: Atteberry, Krajicek, Eckman.
Citizen Participation
Mayor Martinez stated each participant would have three minutes to speak.
Mona F. Frayer, 69 East Quandary Court, stated she was putting a small business into a house on
East Mulberry and had run into financial problems with the City's requirements for sidewalks along
Mulberry and Stover. She stated others were not required to install sidewalks to the same standards
and questioned why she would have this stringent requirement.
Richard Noys, contractor, spoke regarding the City's sidewalk requirements along Mulberry.
Jack Harper, president of the Skyview South Homeowners' Association, expressed concerns about
the proposed southwest enclave annexation. He asked about the ethics of proceeding with an enclave
annexation that was based on surrounding open space land. He stated the annexation plan did not
make sense and that both sides had something to lose, i.e. the City would face $7 million in
additional cost to extend police protection and the property owners would be unfairly saddled with
REA buy-out costs and stormwater fees.
Randy Ackerman, Lynn Acres resident, spoke in opposition to the southwest enclave annexation.
He stated the enclave was surrounded by open space rather than urban development. He noted that
there would have to be an exemption of some type for the Humane Society if the area was annexed
to the City.
Joshua Swanson spoke regarding the City Code provision regarding abandonment and towing of
vehicles. He stated the Code provision also included cars parked in front of the owner's property
for longer than 48 hours. He stated citizens could "harass other citizens" by calling the police about
parked cars that did not "look nice." He stated it was "unfair" not to be able to park his car in front
of his house for more than 48 hours and that his car was almost towed when he was gone over the
hol i days.
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Mark Brophy, 1109 West Harmony Road, commented on the southwest enclave annexation. He
stated it appeared that none of the property owners wanted to be annexed and they should not be
forced to annex. He also commented on the election process, noting that six of the Councilmembers
had four-year terms and that the Mayor had a two-year term. He stated the Mayor should have a
four-year term. He stated candidates should be able to accept money from a political party. He
noted that there were also stringent campaign limits, i.e. $100 for the Mayor and $75 for
Councilmembers and that this limited the amount of money that could be raised. He stated this was
an "unnecessary suppression of free speech."
Ann McSay, 6422 Kyle Avenue, stated she was "vehemently opposed" to the southwest enclave
annexation. She stated it was not a valid argument that residents of the area used City services. She
asked if the study session at which this would be discussed would be open to the public to listen or
to comment. She stated the City would lose more than it would gain with the annexation.
Al Baccili, 520 Galaxy Court, spoke in opposition to the southwest enclave annexation and the
increased utility fees for the area that would result from the annexation. He also spoke in favor of
repealing the sales tax on food.
Gordon Witfley, southwest area resident, opposed the southwest enclave annexation. He stated it
would destroy the "structure" of the neighborhood organization and would be a "boondoggle" for
the City because of the costs.
Kelly Ohlson, 2040 Bennington Circle, spoke that the natural areas were not purchased so that the
southwest enclave annexation could take place, as stated by one of the speakers. He stated local
government should be nonpartisan and that it would not be positive to allow party contributions to
candidates. He stated campaign contribution limits were needed to ensure that vested interests did
not influence the votes of decision makers. He that there should be a "valid" sales tax rebate for the
food tax so that did not become an election issue. He stated the raptor protection plan outlined in
a recent staff memo was "pathetic."
Jana Wilson, southwest area resident, spoke against the southwest enclave annexation. She stated
area residents wanted to live in a rural atmosphere.
Grace Brownlee, 421 Galaxy Way, spoke against the southwest enclave annexation. She noted that
REA members were owners of the electric utility and that there would be higher utility rates upon
annexation. She stated residents would also have to pay high stormwater fees. She stated the City
was not required to annex property when it was eligible.
Citizen Participation Follow-up
Mayor Martinez asked about the sidewalk issues referenced by Ms. Frayer. City Manager Atteberry
stated an update would be given to the Council.
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Mayor Martinez stated the study session would be open to the public to attend and that public
comment would not be allowed at the meeting. City Manager Atteberry stated the study session on
the southwest enclave annexation was scheduled for February 22.
Councilmember Bertschy stated study sessions were televised. He noted that he obtained some
information regard the sidewalk issue described by Ms. Frayer. He stated the curb and gutter would
not have to be replaced. He stated he had some concerns about sidewalks and understood that City
staff had been meeting with Ms. Frayer. He noted in response to remarks made by Mr. Brophy and
Mr. Ohlson, that the election laws of the City were in the Charter. He stated the community was
better served when there was no "huge money" involved in races. He stated there were benefits to
the abandoned vehicle law in cases where there was limited parking. He stated he would like staff
to look into the issue of parking of personal vehicles in front of the owner's house.
Councilmember Weitkunat asked if there was a waiver process for abandoned vehicles parked by
owners in unusual circumstances, and stated, if not, this should be explored. City Manager Atteberry
stated there was no waiver process and that such a process could be explored.
Councilmember Weitkunat stated there was no foregone conclusion regarding the upcoming
southwest enclave annexation. She stated it was important for Council to receive input from citizens
and the staff. She stated there was no "plot" to surround and "take over" the area.
Councilmember Hamrick thanked the southwest residents for making their concerns known to the
Council regarding the proposed annexation. He stated he was concerned about the annexation and
the cost to the City. He stated annexation was not mandatory. He stated he would bring up the sales
tax rebate program under Other Business.
Councilmember Roy stated the nonpartisan tradition served the community well. He noted that he
had requested information about the sales tax rebate program. City Manager Atteberry stated
information was e-mailed to the Council late in the day.
Councilmember Kastein stated the campaign contribution limits were a Code provision and that he
believed the limits were too low to allow candidates to make their positions known. He stated he
would like to look at that issue after the April election. He stated he would also like to review the
two-year mayoral term and four-year Council terms after the election.
Agenda Review
City Manager Atteberry stated the agenda would stand as published.
CONSENT CALENDAR
7. Consideration and approval of the adjourned Council meeting minutes of December 10, 11
and 14, 2004.
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8. Items Pertaining to the Liebl Annexation.
A. Second Reading of Ordinance No. 195, 2004, Annexing Property Known as the Liebl
Annexation to the City of Fort Collins, Colorado.
B. Second Reading of Ordinance No. 196, 2004, Amending the Zoning Map of the City
of Fort Collins and Classifying for Zoning Purposes the Property Included in the
Liebl Annexation to the City of Fort Collins, Colorado.
The Liebl Annexation is a request to annex and zone 2.8 acres of land located along the east
side of Timberline Road, south of Kechter Road. The site contains an existing single family
residence and detached garage. The parcel is designated UE — Urban Estate on the Fort
Collins Structure Plan and the Fossil Creek Reservoir Area Plan. The anticipated land use
is a bed and breakfast consistent with the design standards in the UE zone district. The parcel
is currently zoned FA1 - Farming in Larimer County. Ordinance Nos. 195 and 196, 2004
were unanimously adopted on First Reading on December 7, 2004.
9. Second Reading of Ordinance No. 199, 2004, Amending Section 2-398 of the City Code
Relating to the Functions of the Senior Advisory Board.
The Senior Advisory Board (SAB) is asking that Section 2-398 of the City Code regarding
the Board's functions be amended to better describe the role the Board serves. The Board
is concerned that the current description of its functions implies duties and responsibilities
that the Board is not equipped to perform. The Board's recommended changes have been
approved by staff in the City Attorney's office and the Recreation Division. Ordinance No.
199, 2004, was unanimously adopted on First Reading on December 21, 2004.
10. Second Reading of Ordinance No. 201, 2004, Amending Chapter 24 of the City Code,
Pertaining to Signs in the Right -of -Way, and Chapter 17 of the City Code, Pertaining to
Posting of Notices and Handbills on Public Property.
Section 24-1 of the City Code prohibits placement of signs on streets, sidewalks and other
areas owned by the City. Similarly, Section 17-42 prohibits the posting of notices and
handbills on public property. An amendment to these Code sections is recommended in order
to clarify the methods that will be used to enforce the current provisions. Ordinance No. 201,
2004, was unanimously adopted on First Reading on December 21, 2004.
11. First Reading of Ordinance No. 001, 2005, Appropriating Unanticipated Revenue from Grant
Proceeds from the State Office of Energy Management and Conservation in the Capital
Projects Fund - Police Facility - Design Project to be Used for Design Services for the Future
Police Services Facility.
On September 2, 2004, the City applied for a Rebuild Colorado high performance design
grant from the Governor's Office of Energy Management and Conservation for the new
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Police Services Building. On October 4, 2004, the Governor's Office awarded the City a
$20,000 grant award for design services for the new Police Services Facility, located on
Timberline Road.
This grant will provide integrated design services that will focus on developing a building
that meets, or attempts to meet, LEED (Leadership in Energy and Environmental Design)
"silver" certification. The design work includes design charettes, energy modeling,
daylighting modeling, and other services. Also, the City will provide to the Office of Energy
Management and Conservation any educational/outreach materials and activities about high
performance design (outreach materials and activities may involve web site announcements,
newsletter articles, project overview at workshops, local newspaper articles, press releases,
etc.)
12. First Reading of Ordinance No. 002, 2005, Appropriating Unanticipated Grant Revenue in
the General Fund from the Colorado Department of Transportation Enforcement of Underage
Drinking Laws Program.
Fort Collins Police Services has been awarded a grant under the Colorado Department of
Transportation, Enforcement of Underage Drinking Laws program (EUDL) in the amount
of $26,000. The grant funds will be used for overtime in possession/illegal sales operations,
to provide educational materials for School Resource officers, and to fund educational
programs conducted by TEAM Fort Collins. The grant period begins March 1, 2005 and
ends May 30, 2006.
13. First Reading of Ordinance No. 003, 2005, Designating the Dukes/Dunlap House, 501 Stover
Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City
Code.
The owner of the property, Mona Frayer, is initiating this request for Fort Collins Landmark
designation of the Dukes/Dunlap House. Constructed circa 1900, the Dukes/Dunlap House
is a nice example of Folk Victorian/Late 19th-Early 20th Century Vernacular architecture.
The house qualifies for designation as a Fort Collins Landmark under Preservation Standard
3. The property embodies the distinctive characteristics of a type, period, and method of
construction, and contributes to the historical and architectural significance of Fort Collins.
14. Routine Easements.
A. Non-exclusive easement agreement from Colorado State University, to install a water
main to provide water service for the new Center for Disease Control facility located
on the CSU Foothills Campus. Monetary consideration: $0
***END CONSENT***
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January 4, 2005
Ordinances on Second Reading were read by title by City Clerk Krajicek.
8. Items Pertaining to the Liebl Annexation.
A. Second Reading of Ordinance No. 195, 2004, Annexing Property Known as the Liebl
Annexation to the City of Fort Collins, Colorado.
B. Second Reading of Ordinance No. 196, 2004, Amending the Zoning Map of the City
of Fort Collins and Classifying for Zoning Purposes the Property Included in the Liebl
Annexation to the City of Fort Collins, Colorado.
9. Second Reading of Ordinance No. 199, 2004, Amending Section 2-398 of the City Code
Relating to the Functions of the Senior Advisory Board.
10. Second Reading of Ordinance No. 201, 2004, Amending Chapter 24 of the City Code,
Pertaining to Signs in the Right -of -Way, and Chapter 17 of the City Code, Pertaining to
Posting of Notices and Handbills on Public Property.
19. Second Reading of Ordinance No. 200, 2004, Amending Chapter 7 of the City Code so as
to Add a New Section Relating to Identifying Circulators of Petitions.
20. Second Reading of Ordinance No. 202, 2004, Amending Section 2-596 of the City Code and
Fixing the Salary of the City Manager.
Ordinances on First Reading were read by title by City Clerk Krajicek.
11. First Reading of Ordinance No. 001, 2005, Appropriating Unanticipated Revenue from Grant
Proceeds from the State Office of Energy Management and Conservation in the Capital
Projects Fund - Police Facility - Design Project to be Used for Design Services for the Future
Police Services Facility.
12. First Reading of Ordinance No. 002, 2005, Appropriating Unanticipated Grant Revenue in
the General Fund from the Colorado Department of Transportation Enforcement of Underage
Drinking Laws Program.
13. First Reading of Ordinance No. 003, 2005, Designating the Dukes/Dunlap House, 501 Stover
Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of the City
Code.
Councilmember Weitkunat made a motion, seconded by Councilmember Tharp, to adopt the
Consent Calendar. The vote on the motion was as follows: Yeas: Councilmembers Bertschy,
Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED
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Consent Calendar Follow-up
Mayor Martinez commented regarding item #12 First Reading of Ordinance No. 002, 2005,
Appropriating Unanticipated Grant Revenue in the General Fund from the Colorado Department
of Transportation Enforcement of Underage Drinking Laws Program. He asked the City Manager
to provide a brief overview for the benefit of the public and asked how the money would be used.
He stated a staff presentation could be made at the next meeting.
Councilmember Tharp spoke regarding item #10 Second Reading of Ordinance No. 201, 2004,
Amending Chapter 24 of the City Code, Pertaining to Signs in the Right -of -Way, and Chapter 17 of
the City Code, Pertaining to Posting of Notices and Handbills on Public Property and item #12 First
Reading of Ordinance No. 002, 2005, Appropriating Unanticipated Grant Revenue in the General
Fund from the Colorado Department of Transportation Enforcement of Underage Drinking Laws
Program. She stated she would be interested in more information about enforcement and education
regarding underage drinking. She stated enforcement and staff follow-up would be the key for the
success of the ordinance on political notices and handbills on public property.
Staff Reports
City Manager Atteberry reported on an article about Barney Apodaca. He noted that two City
employees were involved in that story of Mr. Apodaca reconnecting with family: Gary Lopez, CPES,
and Bob Loeven, Parks Department. He also reported on snow plowing and deicing efforts on high
priority routes.
Councilmember Reports
Mayor Martinez encouraged residents to support the American Red Cross tsunami relief effort.
Consideration of the Appeal
of the November 1, 2004, Determination of the Administrative
Hearing Officer Regarding the Adrian Subdivision, First Filing -
Proiect Development Plan; Decision of Hearing Officer Upheld.
The following is staff's memorandum on this item.
"EXECUTIVE SUMMARY
On October 18, 2004, an administrative public hearing was conducted to receive presentations and
testimony on the Adrian Subdivision, First Filing - PDP, a single-family residential project on 1.2
acres. There would be a total of 7 residential dwelling units on the proposed 7 lots in the
subdivision. On November 1, 2004, the Administrative Hearing Officer approved the Adrian
Subdivision, First Filing - PDP.
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The property was annexed into the city of Fort Collins in April, 2004 and is zoned RL - Low Density
Residential. The project is located on a portion of a 2-acre property at the southeast corner of West
Vine Drive and North Impala Drive.
On December 1, 2004, an Amended Notice of Appeal was received by the City Clerk's office
regarding the decision of the Administrative Hearing Officer. In the Amended Notice of Appeal from
the Appellants Dr. Steven L. Schaeffer and Ms. Sandy Knox, it is alleged that:
[Note that the following letters and numbers used in this AIS correspond to the lettering and
numbering used in the Appellants' Notice of Appeal]
Relevant laws were not properly interpreted and applied.
A) Division 4.3 RL - Low Density Residential District, Sections (D)(1) and (D)(2). (D)(1)
states that "the minimum lot area shall not be less than six thousand (6,000) square feet".
(D)(2) states that "the minimum lot width shall be sixty (60) feet for a single-family
dwelling".
B) Division 3.2.3(E)(2) Solar Access, Orientation, Shading -Alternative Compliance states
that "the decision maker shall take into account whether the alternative design fosters
nonvehicular access".
C) Division 3.3.1(B)(1) states that "no lot in a subdivision shall have less area than required
under the applicable zoning requirements of the city".
D) Division 3.3.1(B)(2) states that "the general layout of lots, roads, driveways, utilities,
drainage facilities and other services within the proposed development shall be designed
in a way that enhances an interconnected street system within and between
neighborhoods and otherwise accomplishes the purposes and intent of the Land Use
Code".
E) Division 3.3.3(c) states that "any lands that are subject to high groundwater shall not
be platted for building lots with basements".
F) Division 3.6.2(L)(1)(a) states that "a private drive shall not be permitted if it prevents
or diminishes compliance with any other provisions of the Land Use Code".
G) Division 3.6.2(L)(1)(b) states that "a private drive, instead ofa street, shall be allowed
to provide access to an unusually shaped parcel of land".
This PDP with its high density on such a small area does NOT protect the public welfare. It
would dramatically destroy our property values and our quality of life. This cluster PDP project
would stigmatize our neighborhood. It is unethical for the developer to profit at the expense of
the existing neighborhood."
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Mayor Martinez stated each side would be allowed 20 minutes for a presentation and 10 minutes for
rebuttal.
Deputy City Attorney Eckman explained the appeal and hearing process. He stated this was an
appeal of a Type 1 hearing decision of an administrative hearing officer. He stated there were two
grounds for appeal: the hearing officer failed to properly interpret and apply the Code, or the hearing
officer failed to conduct a fair hearing. He stated the appeal presented the question of whether the
hearing officer failed to properly interpret and apply the Code. He stated a mandatory remand to the
hearing officer was not on the table for consideration because the issue of a fair hearing was not
raised. He stated the appeal would be on the record and that no new evidence was admissible. He
stated new evidence was admissible only in the event that a fair hearing issue was raised and that was
not the case in this appeal. He stated new evidence could be submitted in response to questions of
individual City Councilmembers. He stated after the presentations and rebuttals, Council could
decide the issue by motion to either uphold, overturn or modify the decision of the hearing officer.
He stated the only opportunity for remand would be if the Council decided that the hearing officer
should receive and consider additional information with regard to any issue that came up at this
hearing. He stated a Resolution would be prepared for the next meeting to formalize the Council's
decision.
Steve Olt, City Planner, presented background information regarding the appeal. He stated this was
an appeal on the Adrian Subdivision, First Filing project development plan that went to an
administrative public hearing before a Hearing Officer on October 18, 2004. He stated the project
was a seven -lot single-family residential project on approximately 1.2 acres. He stated it was a
portion of the Adrian property at the southeast corner of West Vine Drive and North Impala Drive.
He stated the property was annexed into the City in April of 2004 and was placed in the RL-Low
Density Residential zoning district. He stated in September of 2004 an overall development plan
for two parcels was taken to the Planning and Zoning Board. He stated Parcel A was approximately
two-thirds of the property, which indicated that it would contain no more than seven residential
dwelling units, and that Parcel B would ultimately contain no more than two residential dwelling
units. He stated on October 18 the Hearing Officer considered a project development plan request
for Parcel A, which was 1.2 acres containing seven residential lots and an outlot for on -site
stormwater detention. He stated the Hearing Officer deliberated in a public hearing and rendered
a decision on November 1, 2004 to approve the project development plan. He stated the City Clerk's
Office received an appeal of the decision on December 1, 2004 and that the appeal was scheduled
for Council at this time.
Mayor Martinez asked if there were e-mails to be read into the record. Olt stated there were two e-
mai Is: (1) dated Thursday, December 30, 2004: "Dear City Councilmembers, I am writing in support
of the Adrian subdivision on West Vine and Impala. As a professional working with older adults
and their families, I have been made aware of the need for accessible and affordable housing. It is
my understanding the developers are dedicated to making at least some of these homes accessible
in addition to affordable. If this project is allowed to proceed, it will not only provide much needed
affordable housing, but it may also provide the City for an opportunity to support the Commission
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on Disability and its concept of practical housing for all. Again, I ask for your support and approval
of the Adrian Subdi vision project. Sincerely, Peggy Holler;" and (2) dated Sunday, January 2, 2005:
"Dear City Councilmembers, as a member of the Affordable Housing Board I see a persistent and
growing need for affordable housing here in Fort Collins. As a private citizen, I would like to draw
your attention to a proposal that will be reviewed at your next meeting, specifically the Adrian
Subdivision proposal in northwest Fort Collins. This proposal fills a clear need here in Fort Collins,
is located near shopping, a bus stop and schools. As a resident of northwest Fort Collins, I do not
believe that we can keep screaming 'not in my backyard.' We need to provide affordable housing
for our teachers, police officers, etc. I hope that you will continue to support this proposal so that
we as a community can remain a place where all our children can grow up together. Sincerely, Jane
Phelan." Deputy City Attorney Eckman stated those were e-mails sent to the Council outside of this
hearing and since this was a quasijudicial hearing that it seemed prudent to read the e-mails into the
record so that all participants would know what kind of information had been communicated to the
Council. He noted that he did not believe that any Councilmembers had responded to the e-mails.
Mayor Martinez stated the appellants would have 20 minutes to make a presentation.
Dr. Steven L. Schaeffer, 601 North Impala Drive, stated he represented neighbors and residents of
the Green Acres Subdivision (North Impala, Irish, Webb and Sunset Drives). He asked for a show
of hands from those in attendance opposing the proposal. He requested that the recent decision by
Hearing Officer Linda Michaud be overturned and that the project be "sent back to the drawing
board" so that something more compatible with the existing neighborhood could be created. He
stated numerous item from the Land Use Code had been "overlooked, treated callously or exempted
purposefully" by both the Hearing Officer and the City staff in their replies to neighborhood
concerns. He questioned how the proposed development would propose to "improve and protect"
the public safety, health and welfare of the neighborhood and how it would be "sensitive to the
character" of the neighborhood. He stated there was a correlation between population density and
crime and density and health of those living in close quarters and the surrounding area (including
mental and emotional). He stated the proposed development was out of character because of its
density. He stated the maximum construction density had been planned using a private driveway.
He stated the Land Use Code provided that private drives "shall not be permitted if it prevents or
diminishes compliance with any other provision of the Land Use Code." He stated staff and the
Hearing Officer "evaded" this part of the Land Use Code. He stated the Code stated "buildings shall
either be similar in size, height or, if larger, be articulated and subdivided into massing that is
proportional to the mass and scale of other structures on the same block, or if no buildings exist
thereon then on adjoining blocks." He stated two-story buildings placed as close together as those
proposed for this project did not satisfy 3.5.1(c) of the Land Use Code. He stated there were 39
homes in the Green Acres Subdivision and that all were single -story ranch style and that all but one
had uniform setbacks from the street. He stated there were 122 homes in the subdivision and that
all but three were basically this style of home. He stated the properties on Impala, Irish and Webb
were lined up along the street. He stated the property lines were seen by the residents as drawn to
satisfy the Land Use Code provision relating to "subdividing into massing that is proportional to
mass and scale of other structures on the same block." He stated the minimum square footage
requirement was being sought by "drawing the property boundaries at the center of the U-shaped
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driveway." He stated compliance with Section 4.3(D)(1) of the Land Use Code was being
diminished by the use of the private drive. He stated the Code provided that "private drives shall not
be permitted if it prevents or diminishes compliance with any other provision of the Land Use
Code." He stated there was a clear definition of a "lot" in the Land Use Code as follows: "A lot shall
abut a dedicated right-of-way, private street or driveway." He stated drawing the lines at the center
of the U-shaped driveway was clearly in conflict with the Land Use Code. He stated a minimum of
6,000 square feet could never be realized if the lot boundaries abutted the private drive as set forth
in the Code. He stated the Hearing Officer and City staff did not address this part of the Code. He
questioned why this debate had been allowed to continue for a year and asked why the developer and
architect had license to "deceptively push the envelope of the Land Use Code" with regard to those
provisions designed to protect public safety, health and welfare of the existing surrounding
neighborhood. He stated the clear intent of the Land Use Code was that the rules should be followed
and respected. He stated the Code provided that a "private drive instead of a street shall be allowed
to provide primary access to an unusually shaped parcel of land." He asked what was "unusual"
about this piece of land. He stated the "creation of unusually shaped pieces of property" was being
proposed through the forced use of a private drive to "chop up" the property into a "menagerie
cluster of odd -angled property lines." He stated the use of a private drive in this situation clearly
diminished other aspects of the Code designed to protect the existing neighborhood. He stated the
Land Use Code stated with regard to compatibility that a development was to compatible with the
context of the surrounding area, i.e. sensitive to the character of the existing neighborhood. He
stated some of the responses to the appeal involved "twisting" of the words "not the same as" to
mean compatibility. He stated other than multi -family dwellings or a high rise apartment building
that there would be no development that would be less compatible with the surrounding area than
the proposed development. He stated the Code provided that "new developments in or adjacent to
existing development shall be compatible through the use of roof lines, similar proportions in
building mass and outdoor spaces, similar relations to the street." He stated the cluster of odd -
shaped properties satisfied no part of the Code. He stated there were three homes out of 122 in
Green Acres that had a second story and that their roof lines were mostly similar to the neighborhood
homes. He stated buildings put on the small sized lots would have to be two stories and that they
would not fit. He stated homes in the neighborhood had been for sale for over six months at a cost
of $161,000 and $159,900 and that the proposed price of the new homes was $203,000. He
questioned the affordability of those homes. He stated the appellants would like to maintain the
integrity of their neighborhood. He stated over 163 people had expressed opposition to the project
over the last year by attending meetings, signing petitions, and writing e-mails. He stated the
Council was elected "to represent the will of the people." He asked that the Council overturn the
decision of the Hearing Officer and send this project "back to the drawing board" to allow something
to be developed that would be in character with and respectful of the surrounding areas.
Sandy Knox, 2309 West Vine Drive, expressed strong opposition to the Adrian PDP, the proposed
high density and the type of structures that would have an adverse effect on the public safety,
aesthetics and property values of the neighborhood. She stated the proposal was not compatible or
in character with the surrounding established areas. She stated the private drive would make the
actual size of the lots range in size from 3,800 to 6,300 square feet and that five of the seven lots
would be smaller than what was required in the RL zone. She stated the houses would be two-story
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and that the density and building mass would not be compatible or in character with the surrounding
areas. She stated the northwest area was "peaceful, quiet and country -like" for the residents. She
stated the high density proposal in such a small area would "dramatically alter property values and
quality of life." She stated it would be "unethical" to allow this project to have seven lots and that
the cluster project would "stigmatize" the neighborhood. She stated it was "unethical for the
developer to profit at the expense of the neighborhood." She stated this proposal was "deceitful
manipulation" of the Land Use Code for "the developer's personal monetary gain." She stated the
project would "ruin quality of life and property values" by increasing noise, congestion, traffic,
stormwater problems and road damage. She stated North Impala Drive was an owner -maintained
road. She stated she knew of 163 people who opposed this project. She asked that the Council not
approve this seven lot proposal and not allow the project to have a private drive. She asked that the
plan be modified to contain three or four lots with the front lot lines on North Impala Drive and the
rear lot lines on her driveway. She asked that the project be made compatible and in character with
the surrounding established neighborhoods.
Cory Cartwright, 509 North Impala Drive, expressed concerns regarding safety. He stated the street
was fairly densely populated and narrow. He stated getting on to Vine Drive was often a problem
and that there were school children in the area. He stated affordable housing was important but that
the density issue was important to the neighborhood. He asked that the property be developed in a
way that would be fair to all and not allow anyone to leave a situation behind that would be of
"detriment" to those in the neighborhood. He stated there were "ethical" issues and safety factors
to consider.
Mayor Martinez stated those in opposition to the appeal would have 20 minutes to speak.
Troy Jones, M. Torgerson Architects, 223 North College Avenue, applicant, stated there was a
"struggle" resulting from the concept of creating an Urban Growth Area that would contain higher
density than the area outside of the Urban Growth Area. He stated there was a "struggle" between
existing neighborhoods and developable properties that were following the rules of the Land Use
Code that still had many neighbors object to the project. He stated the applicant was following all
of the rules and that staff was recommending that the decision of the Hearing Officer be upheld. He
stated the appellant emphasized only part of the definition of a `lot." He stated a "lot" was "a
designated parcel, tract, or area of land established by lSat (emphasis added)." He stated Section
3.6.2(J)(4) of the Land Use Code sets forth when public access easements can or cannot not be used
and that the project followed the Code's provisions relating to placement of access easements on
lots. He stated the Code provided that "easements, public and private, of such width as necessary
shall be provided on lots for utilities, public access, stormwater drainage and other public purposes
as required and approved by the City Engineer." He stated all of the lots created through the plat
process met the minimum lot size for the RL zone district and that access to those lots could be
through public streets or private drives. He stated some lots would be accessed by Impala Drive and
that some would be accessed by private drive, which met the description of easements on lots
mentioned previously. He stated many of the allegations of the appeal referred to the definition of
a "lot" and that parts of the definition were "taken out of context" of the whole definition. He stated
the majority of the grounds for appeal "fall apart" when the full definition of "lot" was used and that
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the project would satisfy the minimum lot width and size required in the zone district. He stated the
appellant was contending in the appeal that excessive vehicular access would be caused by having
seven lots rather than three or four lots and that this would create a safety problem. He stated
Council's material included a summary from City Traffic Engineer Eric Bracke that waived a traffic
study for this project because the traffic impacts would be so low within the context of the vicinity
that the threshold was not triggered for a traffic study. He stated the nonvehicular access
(pedestrians, bicycles) were accommodated via sidewalks on either side of Impala and the proposed
private drive. He noted that the bike lane was being upgraded from the development to Taft Hill
Road. He stated the appellants alleged that the use of private drives diminished compliance with
other provisions of the Land Use Code. He stated this argument went back to the definition of a
"lot." He stated the project was following the definition of a "lot" and that easements were being
used as allowed by the Code. He stated this would be a 100% qualified affordable housing project
and that this was figured based on 80% of the area median income. He stated the new housing
market was different than the for sale houses noted by the appellants.
Mike] Torgerson, M. Torgerson Architects, 223 North College Avenue, stated the appeal referenced
Section 3.6.2(L)(1) which provides that "a private drive shall not be permitted if it diminishes
compliance with any other provisions in the Land Use Code." He stated the appellants alleged that
the private drive would diminish the Code because the lots would be less than 6,000 square feet as
a result of the private drive. He stated this was not true and that it was the opinion of City
Engineering and Planning staff and the attorney hired by the City to interpret the Code that this was
not the case. He stated he met with City staff at the beginning of the process to make certain that the
plan would meet the Code and that the lot size was acceptable. He stated he was told that it did meet
the Code requirements. He stated the allegation that the lots did not meet Code was untrue. He
stated the appeal also alleged that Section 3.5.1(A) which provides that buildings were to be
compatible with the surrounding area was not being followed. He stated there was a condition of
approval from the designated processor that the building architecture and design should be reviewed
for compatibility at the time the buildings would be submitted for permits. He stated compatibility
would be reviewed and determined at that time. He stated the architecture (two-story or one-story)
had not yet been determined. He stated the lots would range from 6,000 square feet to over 7,000
square feet and that the larger lots would clearly accommodate a one-story house. He stated it was
not a foregone conclusion that there would be all two-story buildings. He stated there was also a
question about compatibility with the lot sizes of the surrounding area within the context of the
appellant's calculation of the lot square footage. He stated the appellants' calculation of lot size was
not consistent with the Land Use Code and the calculation done by City staff. He stated lot sizes
were 6,011 to 7,050 square feet and that the surrounding lots in the area were 7,000 to about 14,000
square feet. He stated the project lots were in the same range as surrounding lots. He stated actual
compatibility was determined by the zone district and that the RL zoning was a downzoning from
that included in the City Structure Plan. He stated the RL zoning determined that the lot sizes would
be 60 feet wide and a minimum of 6,000 square feet and that the project met this requirement. He
stated the project was compatible because it met the specific requirements for lot size in the RL zone.
He stated the appellants also argued that compatibility was to be achieved through techniques "such
as" similar proportions in an outdoor space to those in the immediate area. He stated the
compatibility section of the Code listed many suggestions that indicated "such as" and that this was
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not a checklist to be met. He stated the RL zoning set the minimum lot size so that the open space
and surrounding backyards would be compatible with the surrounding neighborhood. He stated there
would be a large detention pond on Impala Drive and that this was located there to provide open
space where it would be the most visible to the surrounding neighborhood. He stated the appellants
also alleged that compatibility was to be achieved by techniques "such as" similar relationships to
the street and that the project did not meet the Code because it did not have an exact relationship to
the street because it would front a private drive. He stated the Code said "such as" and that this was
not a requirement but was part of a checklist. He stated this was a uniquely shaped lot. He stated
the appellants alleged that Section 3.5.1(c) provided that "buildings shall be of a similar height, size
and proportion to others on the same block" and that this requirement was not being met. He stated
no buildings had as yet been proposed and that the buildings would be reviewed at the time of
building permits because that was a condition of approval given by the Hearing Officer. He stated
the appellants said that Section 3.5.1(D) stating that "elements of the development plan shall be
arranged to minimize infringement on privacy of adjoining lands" and that the project did not meet
this section of the Code. He stated some mature "nuisance trees" between the project and Ms.
Knox's property were saved to maintain privacy between the project and Ms. Knox's property to the
south. He stated the neighbors to the east were some distance away and that there were no privacy
issues there. He stated the detention pond was intentionally located between the project and the
existing surrounding developed neighborhoods. He stated the appellant alleged that the lot sizes
were smaller than required. He stated the City Engineering and Planning staffs, the designated
processor and the Land Use Code all disagreed with that allegation. He stated this parcel was 175
by 269 feet and that the minimum lot width required in the RL zone district would make it a 60 by
170 foot deep lot which would be almost twice the lot size suggested in the RL zone district. He
stated this would result in the plan that the appellants drew for about four lots fronting Impala. He
stated this project was a 100% unsubsidized affordable housing project and that the project would
be required to pave Impala, put in new sidewalks on Impala, install new curb and gutter on Impala
(on -site and off -site), build a bike lane on Vine Drive all the way to Taft Hill Road, and make on -site
and off -site stormwater improvements. He stated all of these things were required for the project as
designed or if the project went to some lower density that the neighborhood "imagined to be
economically feasible." He stated the reality was that this would not be "economically feasible"
especially for an affordable housing project. He stated there were issues brought up regarding this
project bringing down property values and that this was not a valid argument because the project
homes would be slightly more expensive than surrounding homes.
Julie Adrian, 2333 West Vine Drive, stated the lots in the proposed project absolutely met the criteria
and were supported by the Land Use Code. She stated the project had been through "three full
rounds" with Advance Planning and that the Planning and Zoning Board had unanimously voted in
favor of the Overall Development Plan. She stated the Administrative Hearing Officer listened to
all sides of the issue and found that this was a viable plan. She stated last spring the residents
opposed to zoning the property LMN asked for RL zoning. She stated the Council asked at that
meeting how many lots could be accommodated by zoning RL and that the answer was up to eight
with a well planned project. She stated the Council received 26 letters of thanks for the RL zoning.
She stated the project planned for seven lots with the possibility of one more in the future. She
stated this was less than half the density that the Master Plan and LMN zoning would have allowed.
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She stated there were 15 duplexes within a two block radius of the property and that it could be
argued that the density was much less than several of the lots around the project.
Mayor Martinez stated the appellants would have 10 minutes for rebuttal.
Dr. Schaeffer stated the concept of urban growth had been brought up and that this referred to the
"sprawl of the City." He asked that the Council keep in mind that there was a country -like
atmosphere in the area and that the residents would like to see that remain the same. He stated Mr.
Jones made a statement that staff had recommended approval of this project. He noted that on the
first page of staff's response, they gave other options, including an option to overturn. He stated the
definition of "lot" included the words "and which abuts" and that "and" meant also or in addition
to. He stated the upgrade of the bike lane on Vine Drive would be done whether or not this
development was put in. He stated the City had plans to upgrade Vine Drive within two to three
years from Taft Hill to Overland Trail. He stated the bike lane as a "perk for this project" did not
count. He stated cutting a driveway through the properties would mean that there would be "hardly
any yard" for those houses and that this would not be like what was in existence in the area right
now. He stated the Land Use Code should not be treated as a "cafeteria or a la carte program." He
stated the residents would like to see the project be compatible with the existing neighborhood. He
stated "deliberating the technicalities" would miss the "spirit of what the people have had to say over
year long deliberations." He stated 163 residents of the area had been against this. He stated the
Council needed to ask "why is that." He stated the residents were not opposed to the property owner
making a profit and asked that the Council do something that made "sense."
Mr. Cartwright emphasized that there were safety issues with entering and leaving North Impala
Drive. He stated if this density was allowed, someone would have to take "responsibility" for those
safety problems.
Mayor Martinez stated the opponents to the appeal would have 10 minutes for rebuttal.
John Adrian, 2333 West Vine Drive, stated there was a charge by some neighbors that they were
"hiding behind the affordable housing label." He stated Mr. Schaeffer wrote to the Coloradoan to
say that the City Council may "kowtow to the greed and temptation to grab taxpayers' money under
the name of affordable housing." He stated the "hypocrisy of this statement was astounding"when
the accusers asked the City to purchase the property for a neighborhood park at the beginning of this
process. He stated homes generated property taxes that were spent for the greater good and that
affordable homes served a great need in this area. He stated the developer had saved between $5,000
and $6,000 up front by being in the affordable housing program but that it took tens of thousands of
dollars to get to this point. He stated with affordable housing the cap on the development was
around $200,000 but that the homes might not cost that much. He stated the average home on
Impala was appraised at $165,000 and was built in the 1970s. He stated any new homes would have
to meet current building codes. He stated when infrastructure requirements cost more than the total
value of the subdivision, the affordable housing aspect of the project did not help the developer
increase profits. He stated several builders had indicated they could not make enough profit. He
stated he believed that this was the "right thing to do" and had stayed with the affordable housing
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plan. He stated he would not apologize for "trying to take care of his family." He stated a few
neighbors were taking small phrases "out of context" of the Land Use Code and were "bending the
truth to suit their opinion." He stated he and his wife did not believe that this subdivision would
lower the surrounding property values. He stated homes not designated for senior housing would
be marketed to teachers, police and various other professionals. He noted that Council had received
e-mails and letters from a variety of concerned citizens and that two neighbors had refused to sign
the appellant's petition. He thanked those who supported the project.
Mr. Torgerson stated the definition of a "lot" was brought up again by the appellant. He stated
Section 3.6.2(J)(4) of the Land Use Code provided that "easements, public and private, of such width
as necessary shall be provided on lots for utilities and public access easements." He stated if that
definition meant what Mr. Schaeffer indicated that it meant there could never be public easements
provided on a lot. He stated the City Planning and Engineering staffs and the designated processor
agreed with this statement. He noted the appellant stated the bike lane was going to be built by the
City. He stated if that was done, the City would still assess the development for that work under a
repay agreement. He stated the development would pay for the bike lane whether it was built now
or later. He stated the appellants referenced difficulties with entering and leaving Impala. He stated
this project would pave Impala, put in curb and gutter and sidewalks, and improve access. He stated
the City Traffic Engineer did not require a traffic study on this project because the traffic impacts
were so minimal. He stated density had been mentioned a lot and that the neighborhood was saying
that they would be happy with four lots but not with seven. He stated three additional homes would
not contribute to crime or other things noted by Mr. Schaeffer. He stated the additional traffic for
three additional homes would not be noticed. He asked that the Council uphold the decision of the
Planning staff and the Hearing Officer.
Councilmember Tharp asked for clarification regarding minimum lot size and whether the lots could
include a private drive or not. She stated most "lots" did not include the street as part of the lot. Olt
stated in the RL zone district the minimum lot size required by the Land Use Code was 6,000 square
feet. He stated on the subdivision plat for the Adrian Subdivision 151 Filing the lots ranged in size
from 6,011 to 7,049 square feet. He stated all of the lots included a portion of a 30-foot wide
emergency access, utility and drainage easement and that within that easement there would be a 29
foot wide cross section of private drive (not a public or private street). He stated the 29 foot width
would include four -foot sidewalks on either side and a 20-foot wide travel way as the private drive.
He stated Section 3.6.2(J)(4) stated "easements, public and private, of such widths as necessary shall
be provided on lots for utilities, public access, stormwater drainage or other public purposes as
required and approved by the City Engineer." He stated this section of the Code did permit the
private drive to be included within the 6,000 square feet of the lot.
Councilmember Tharp asked how a private drive differed from a private street. Olt stated a "private
drive" was within an easement. Greg Byrne, CPES Director, stated one of the points of discussion
before the Hearing Officer was a presentation by the applicant that this essentially was a shared
driveway and that any lot taking access off of a public street was going to have a driveway that
would constitute a portion of the lot in pavement. He stated the argument was that this was in
essence a shared driveway to serve several lots for access to a garage. He stated the Hearing Officer
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was persuaded that this was a creative solution to gain access to these lots through a private drive,
which would be on the lot, much as a private driveway would be on the lot. Deputy City Attorney
Eckman stated the difference in the definitions of a "private drive" and a "private street" was that
a private drive was "a parcel of land not dedicated as a public street, over which a private easement
for road purposes has been granted to the owners of property adjacent thereto." He stated it was a
"reciprocal easement amongst the property owners." He stated a private street was "a parcel of land
not dedicated as a public street over which a public access for street purposes has been granted to
the City." He stated the difference was to whom the easement was granted.
Councilmember Tharp asked if that was technically how a private drive could be part of the lot's size
while a private street could not be counted as part of the lot's size. Sheri Wamhoff, Engineering,
stated a private street would be a separate tract and that it would have to be designed to the same
standards as a public street. She stated it would be a private entity on a tract of land that would not
be part of the lots since the street could at some point be taken over by the City. She stated a private
drive would need to be of a width to accommodate access to the lots and any needed emergency
access.
Councilmember Tharp asked how often private drives were done. Wamhoff stated it was fairly
common in developments to have private drives. She stated it was less common in single-family
developments than in multi -family developments.
Councilmember Roy asked that staff read the section of the Code relating to private drives. Olt
stated Section 3.6.2(J)(4) provided that "easements, public and private, of such widths as necessary
shall be provided on lots for utilities, public access, stormwater drainage or other public purposes
as required and approved by the City Engineer."
Councilmember Roy stated public access appeared to be a prerequisite for allowing that sort of an
easement. He stated the definition of "public drive" indicated that it was solely for the landowners.
He stated there appeared to be a "disconnect" between the two purposes of the Code, i.e. one allowed
public access and the other made it specifically for the private owners. Deputy City Attorney
Eckman stated in terms of the rules of construction, the intent was to try to give meaning to all
provisions and to reconcile all of them if possible. He stated if the provisions could not be
reconciled that the Code provided in Section 1.7.2 that the more specific provision would control
over the more general provision. He stated in this case the point had not been reached where there
was a "conflict" that would require a determination as to which provision was the more specific. He
stated it would appear that the definition of `lot," which indicates that it must abut a public or private
street, could be looked at with regard to the reason for the requirement to abut, i.e. that lots have to
be on streets or drives to provide access from the garage to the traffic system. He stated whether the
lot abutted or overlapped may not be pertinent and that the two provisions could be harmonized.
Councilmember Roy stated page 18 of the verbatim transcript had a statement about the subdivision
having complied with all requirements for emergency services. He stated he had earlier requested
the Poudre Fire Authority's memo indicating that PFA had signed off on the safety issues relating
to the private drive and that he had not received that information. Olt stated the Poudre Fire
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Authority had been part of the development review process and had commented on the project. He
stated there typically was no sign -off by the PFA. He noted that a representative of the PFA was
present to answer questions. He noted that the PFA evaluated the design and use of the private drive.
Councilmember Roy asked for assurance that the Poudre Fire Authority had found that a
development did not compromise safety. Mike Chavez, Poudre Fire Authority, stated the
requirement was for an emergency access easement that would be 20 feet wide and meet the turning
radii. He stated this project met all of PFA's requirements for emergency access.
Councilmember Roy asked if there was a sign -off process for that determination. Chavez stated the
PFA made comments early in the process and talked with the contractor or applicant at the
appropriate stage.
Mayor Martinez asked who had a record of those comments. Chavez stated PFA comments were
sent through the DMS program. Byrne stated the comments were automatically sent to the project
planner by the shared computer system and that those comments remained on record.
Councilmember Weitkunat stated the Council's role was to determine whether the decision maker
failed to properly interpret and apply the Land Use Code. She stated the term "driveway" might be
more helpful. She stated Section 3.6.2(L) stated "private drives were allowed in a development
provided that their function will only be to provide access to the properties within the development."
She stated her question had to do with interpretation and application of the Code relating to density
and compatibility. She stated the issue was that the neighborhood did not want seven houses, and
that they wanted four houses. She asked if the Code requirements were being met in relation to the
density of this development. Byrne replied in the affirmative.
Councilmember Weitkunat asked if the Code would allow the seven houses based on square footage.
Byrne replied in the affirmative and stated was on the record when the rezoning to RL was done by
the Council upon annexation of the property.
Councilmember Weitkunat stated compatibility tended to be a `judgment call to some degree." She
asked if the neighborhood's concern was that there would be seven two-story houses in a
neighborhood that was primarily single-family even though there was no plan at this time on what
would actually occur. Olt stated the platting of the land into seven residential lots meant that there
would be seven single-family homes on the property. He stated the nature of the homes had not yet
been established. He stated the plan clearly stated the homes would be one-story and/or two-story
homes.
Councilmember Weitkunat asked if the assumption was that this would be incompatible because
there would be seven homes rather than because of the type of homes that could be built. Byrne
stated the RL zoning district permitted two-story homes and a maximum building height of 28 feet
by right.
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Councilmember Weitkunat asked if any residential zone would allow two-story homes. Byrne
replied in the affirmative.
Councilmember Weitkunat asked if density was an issue relating to compatibility. She noted that
the entire Land Use Code was based on density with in -fill projects and that if density was a
compatibility issue that the City would always be dealing with incompatibility issues. Byrne stated
this was an in -fill site surrounded by previous development that was done under a different Code.
He stated there were therefore "frictions" with in -fill and redevelopment under the current standards.
He stated the Council applied the RL rather than LMN zoning district to this property in an attempt
to have a development that would be "more compatible" with the surroundings as far as density. He
stated this project complied with the standards of the RL zone district.
Councilmember Weitkunat asked for confirmation that part of the surrounding area was out of the
City and not subject to the Land Use Code. Byrne stated there had been flagpole annexations to the
school and that the City limits line in the area was very irregular. He stated there would be
additional annexations in the area over time. He stated this site took its contiguity from West Vine
Dri ve, which was annexed when Irish Elementary School was annexed to the City to enable the City
to provide police protection.
Councilmember Weitkunat asked if all of Impala Drive with the exception of this corner was out of
the City. Olt stated Impala Drive south of this property was dedicated to Larimer County and that
the portion of Impala Drive along the west frontage of this property from West Vine Drive to the
south property line was annexed with the Adrian Annexation. He stated the properties to the east,
west and south of this property were still in the County.
Councilmember Hamrick noted that the Council's material indicated that: "The project included a
10,000 cubic foot detention pond which would allow run-off at less than historic rates. Run-off is
designed to drain into the Impala Drive, and in order to accommodate this drainage the applicant will
also be required to improve Impala Drive adjacent to the site with curb, gutter and asphalt." He
asked what happened to the rainfall currently. He expressed a concern that additional run-off was
being created due to Impala Drive. Wes Lamarque, Stormwater Utility, stated to mitigate the extra
run-off from the development that the site was required to detain the development flows in a
detention pond and that there would be a two-year historic flow rate, which would be less than the
current 100 year flow rate. He stated the development would improve the curb and gutter and make
sure that there would be a positive outfall to the south to Cherry Street and then east. He stated the
project would improve the peak flow i.e. the high water level that would occur in a 100 year storm.
He stated the development would provide more volume because of the pavement and that the
detention pond would mitigate that increased volume.
Councilmember Roy asked if the RL zoning included Parcels A and B. Olt stated at the time of
annexation, the City Structure Plan indicated low density mixed use neighborhood area and that the
applicant requested that zoning upon annexation. He stated the Planning and Zoning Board
recommended RL rather than LMN zoning and that the Council ultimately zoned the property RL.
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Councilmember Roy asked that visual information be presented on the entire area zoned RL. Olt
presented visual information showing the RL zoning and the site.
Councilmember Roy asked if the RL zoning included Parcels A and B. Olt replied in the
affirmative.
Councilmember Roy noted that a reference was made in the presentations that eight lots would be
compatible. He noted that Parcel B would have seven lots. Olt stated Parcel A was what was before
the Council for consideration (1.2 acres with seven Tots). He stated at the time of annexation there
was an "outside boundary" for the 2.1 acre property, and that the two parcels were not created until
an Overall Development Plan request was submitted to the Planning and Zoning Board in
September.
Council member Roy stated at the time of annexation and zoning to RL, there was discussion that
the entire property would fit eight lots very well. He asked Mr. Torgerson about the two-phase
development that was proposed. He asked what the intent was for improvements in Phases 1 and
2. Mr. Torgerson stated nothing had been designed for Phase 2. He stated the project before the
Council on appeal was Parcel B.
Councilmember Roy asked about the curb and gutter improvements that would be made. Mr.
Torgerson stated the curb and gutter improvements along Impala Drive were required to be adjacent
to the project. He stated it was his understanding that the project would voluntarily take curb and
gutter and pavement all the way to Impala Drive.
Councilmember Roy stated it was a "Catch 22" to "tout the project as affordable housing" in the
$205,000 range. He asked what kind of construction amenities could be done in that price range.
Mr. Torgerson stated this had not been "explored closely" at this point but that the project would be
bound by a deed restriction on the property to make this affordable for the next 20 years to those
making 80% of the area's median income. He stated the $205,000 figure had not been given by the
applicant. He stated nothing had yet been designed and that the price was unknown. He stated
$205,000 was the upper limit and that he doubted that the upper limit would be sought.
Mayor Martinez stated the question before Council was whether the decision maker failed to
properly interpret and apply relevant provisions of the Land Use Code.
Councilmember Kastein requested clarification regarding the definition of "lot" and size and whether
or not easements could be included in that lot size. Olt replied in the affirmative.
Councilmember Kastein asked where that was specified. Byrne stated it was in the Land Use Code
and that it was typical for utility and access easements to be on any lot in the City.
Councilmember Kastein requested that the definition be read since he believed that the decision
would hinge on this definition. Olt presented visual information showing the definition of a `lot."
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Councilmember Kastein stated it was "problematic" to have language specifying "which abuts
dedicated right-of-way, private street or private drive." He stated the appellants were arguing that
"abuts" meant that the lot would need to be next to one of those three things. He stated the Land Use
Code appeared to indicate that the boundary of the lot was not determined by one of those three
things. Byrne stated lots did have easements on them all the time and that staff believed that the
intent of the Code was that access be provided. Deputy City Attorney Eckman stated Section
3.6.2(J)(4) provided that "easements, public and private, of such as widths as necessary shall be
provided on lots for utilities, public access, stormwater drainage or other purposes." He stated this
Code provision allowed for easements for public access on lots. He stated this provision in
conjunction with the definition called into question whether "abutting" meant "up against" or
whether it could mean "overlapping."
Councilmember Kastein if an easement was in general for public access. Deputy City Attorney
Eckman stated Section 3.6.2 indicated that easements were required on lots for public access, utilities
or stormwater drainage.
Councilmember Kastein asked with reference to the language "abuts dedicated right-of-way, private
streets or private drives," which of those three things was considered to be an easement. Deputy City
Attorney Eckman stated both a private street and a private drive involved easements and that the
"private drive" meant that the easement was reciprocal amongst those who used it while a "private
street" meant that the easement must be given to the City.
Councilmember Kastein asked if a "private drive" was an easement amongst neighbors.
Councilmember Roy stated it seemed clear to him that if a "private drive" was being created for the
use of the residents only and was being called "public access," there was a problem with the
definition. He asked how there could be a "private drive" for the sole use of four residents that could
be called an easement for "public access."
(**Secretary's Note: The Council took a recess at this point.)
Wamhoff stated under Section 3.6.2(L) of the Land Use Code "private drives" were allowed in a
development "provided their function will be to only provide access to property within the
development or additional cross access between developments" and were not permitted "if by plan
or circumstances such drives would in the judgment of the City Engineer attract through traffic."
She stated a "private drive" would work for this development because it would be internal to the
development and would not attract a lot of through traffic. She stated the Code also provided that
"if the property served by the private drive can not receive fire emergency service from the public
street" that it must be designed in accordance with emergency access standards and dedicate an
emergency access easement. She stated typically there were public utility and drainage easements
on public drives and that these were often public access easements to accommodate delivery people,
postal delivery, visitors, trash collection, etc. She stated there could also be private easements on
private drives. She stated in case there would be water and sewer and emergency access on this
private drive.
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Councilmember Roy asked if this was not a "private drive" but was a "public street" how the lot
sizes would be affected. Wamhoff stated a "public street" was dedicated as right-of-way to the City
and that it would be outside of a lot.
Councilmember Roy stated five of the seven lots would be significantly smaller than the required
6,000 square feet if there was a public street. Wamhoff stated if there was a "public street" that the
minimum width for the street would be 30 feet of pavement and 51 feet of right-of-way.
Councilmember Roy asked if the purpose of a "private drive" was solely for the use of the residents.
Wamhoff replied in the affirmative.
Councilmember Weitkunat made a motion, seconded by Councilmember Bertschy, to uphold the
decision of the Hearing Officer and to find that the Hearing Officer did properly interpret and apply
relevant provisions of the Land Use Code (including the provisions of Section 4.3, Section 3.6.2, and
Section 3.3.3) relating to the RL zone, storm drainage and the private drives.
Councilmember Roy stated there was a "struggle" relating to urban density. He stated there were
many projects going up at this time (Cortina, Pine Street Lofts, Block 33, the Perkins property
downtown). He stated the north end of town and the City at large did not have a problem with
increasing densities. He stated those were fine projects that were meeting no public opposition. He
stated 163 residents oppose the Adrian project because it would "fundamentally change the character
of their neighborhood." He stated when the zoning to RL was approved, the discussion was creation
of lower densities. He stated this proposal was a land use rather than affordable housing issue. He
stated it attempted to "create an opportunity to shoehorn in seven lots totally contrary to the
development of the rest of the neighborhood in a manner that is parsing words quite well" in a way
that would "take some aspects of the Code and create an opportunity." He stated the "bigger
opportunity" was to protect the neighborhood and allow the development. He stated the Code had
provisions relating to compatibility, design standards and safety and that he believed that the "intent
of protecting neighborhood integrity" was being "lost in an attempt to create the maximum
development possible on this land." He stated this would not protect the neighborhood and that it
would "stretch" the Land Use Code. He stated he would not support the motion.
Councilmember Hamrick stated he had issues with the use of the "private drive" as a "public utility
easement" and stated he felt that the Code should be clarified. He stated he did not think that a
"private drive" was the same thing as a "public utility easement" that was underground and could
be considered as part of the lot. He stated a "private drive was inherently different." He stated there
were questions about language relating to "abutting" and "overlapping" and that the square footage
of the lots fell below what was required in the Code (6,000 square feet minimum). He stated lot 5
was about 4,000 square feet and lot 6 was about 3,894 square feet. He stated the project was an
attempt to "shoehorn too many lots into this one development." He stated he liked the concept of
this development and where it was located but that he had concerns about the size of the lots not
meeting the Code requirements. He stated the Code provided that "a private drive shall not be
permitted if it prevents or diminishes compliance with any other provisions of this Land Use Code."
He stated it was necessary to look at the overall picture and the lot sizes under 6,000 square feet.
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He stated this would destroy the compatibility with the existing neighborhood. He stated he would
not support the motion.
Councilmember Weitkunat stated in -fill projects often become contentious between neighborhoods
and the City. She stated it was important that the Council "enforce the Codes of the City." She stated
the Codes set forth a "direction" and objectives for development to proceed. She stated the Council
had established all of the rules that were discussed at this hearing, i.e. affordable housing, density,
in -fill, etc. She stated the Council had created the rules and this was not a forum to debate those
rules or to determine that the Code was "inadequate" or "incompatible." She stated this project was
on an arterial street and it was not within a County subdivision. She stated the project met the
criteria of the Land Use Code adopted by the Council. She stated the Council's job was to "enforce"
the Code and to determine whether the decision maker properly interpreted the Codes adopted by
the Council. She stated the project did meet the criteria of the Code and that she believed that the
decision maker had properly interpreted the Code.
Councilmember Bertschy stated he believed that the Code was properly interpreted because when
the Council made the decision to zone the property RL rather than LMN, that decision was made
because of density. He stated he supported that zoning because he felt that the maximum density,
especially when combined with affordable housing, was too high and not compatible with the
neighborhood. He stated it was difficult to understand how this project was not compatible with the
neighborhood given the RL zoning. He stated RL zoning did not exist in any other new development
of the City. He stated the definition of the RL zone was "stretched" by the Planning and Zoning
Board and the Council to place it on this property because of the desire for in -fill and redevelopment.
He stated applying the RL zone in an "unusual way" already lowered the density to try to take care
of some of the compatibility issues. He stated the interpretation, given the combination of policies
and laws, was proper. He stated he would support the motion.
Councilmember Kastein stated he believed that the Code was properly interpreted. He stated the
property was zoned RL and that the possibility of seven or eight lots was discussed at that time. He
stated the testimony and transcripts indicate that the traffic requirements were met, the public
infrastructure improvements would be made, etc. He stated the only "real question" was whether
the lot sizes met the Code requirements. He noted that there was some confusion in that respect and
that the appellants interpreted the Code differently than the City staff and Hearing Officer. He stated
the question was "where is the harm" in one definition versus the other. He stated he understood the
neighborhood issues but that he did not think that going from four to seven units would "ruin the
neighborhood." He stated the applicant had dealt with staff in "good faith" and had gone through
the process and met the provisions of the Code. He stated he would support the motion.
Councilmember Tharp stated she had "problems" with this issue. She stated the minimum lot size
was 6,000 square feet and that a "private drive" would provide paved access across the property and
would be "part of the street." She stated the rule was that a "private drive shall not be permitted if
it prevents or diminishes compliance with any other provision of this Land Use Code." She stated
that seemed to indicate that you could not have a "private drive" unless there was a 6,000 square foot
lot. She stated this did seem to be in conflict with how the rules should be interpreted. She stated
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the job of the Council was to determine whether it was compatible when there were conflicting
interpretations. She stated she did not believe that both standards were being met with this project.
She stated the lots were not 6,000 square feet in size if there was a "private drive" on the lots. She
stated the density was not an issue to her. She stated this was not a "bad project" and that it would
not "destroy the neighborhood." She stated if the rules were being interpreted, there were two rules
that were not "in sync."
Mayor Martinez asked if the rules were in conflict. Olt stated staff's evaluation of the project
determined that the Adrian Subdivision met the Land Use Code. He stated staff did not identify the
conflicts that were being expressed by Councilmembers. Byrne stated he did not believe that the
project was in conflict with the Code. He stated this process had identified "refinements" that could
be made to the definitions in the Code. He stated he viewed the issue to be the "shared driveway."
Mayor Martinez suggested that the definitions be refined. He asked the Deputy City Attorney if he
believed that there was a conflict. Deputy City Attorney Eckman stated the provisions, if conflicting,
could be "harmonized." He stated the more specific provision of the Code would control and that
he believed that the provisions could be reconciled.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez and
Weitkunat. Nays: Councilmembers Hamrick, Roy and Tharp.
THE MOTION CARRIED
Ordinance No. 200, 2004,
Amending Chapter 7 of the City Code so as to Add a New Section Relating to
Identifying Circulators of Petitions, Failed on Second Reading
The following is staff's memorandum on this item.
"EXECUTIVE SUMMARY
Article X, Section 5 of the City Charter and Chapter 7, Article VI of the City Code establish certain
regulations and requirements pertaining to the content and circulation ofpetitions and the affidavits
of petition circulators. Currently, neither the City Charter nor the City Code requires that the status
of petition circulators be identified as being either volunteer or paid. This Ordinance, which was
adopted 6-1 (Nays: MayorMartinez) on First Reading on December21, 2004, would amend the City
Code to impose such a requirement."
City Manager Atteberry stated staff was available to answer any questions.
Mark Brophy, 1109 West Harmony Road, opposed the Ordinance. He stated the government existed
to "protect life, liberty and property." He stated the City had no "legitimate purpose" in forcing
someone to wear a "scarlet letter" saying that they were a volunteer or paid circulator. He stated the
first page of the petition indicated the names of the petition sponsors. He stated this was a way to
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"embarrass" petition circulators in saying that they were paid. He stated it was not "relevant"
whether petition circulators were paid or volunteer. He stated the courts had struck down rules
stating that petition circulators had to be residents of the municipality and that petition circulators
could not be paid. He stated the Council should request a "constitutional analysis" of the proposed
Ordinance. He stated there were no proposed enforcement provisions for this Ordinance. He stated
he planned to do another petition in a few months and had no intention of "wearing a scarlet letter."
Linda Sherrod, 825 Milan Terrace Drive, Vice -President of Clean Water Advocates, thanked the
Council for placing the fluoride initiative on the April ballot. She stated a "phenomenal effort" was
required to do the fluoride petition. She stated the group did not feel that it was necessary for
petition circulators to wear a badge indicating whether they were paid or volunteer. She stated
petition sponsors were listed on the front page of each petition. She stated the Ordinance would
expand government oversight beyond what was necessary to ensure a "clean petition process." She
stated the Ordinance would be difficult to enforce.
Mary Brophy, 1109 West Harmony Road, thanked the Mayor for withdrawing this item from the
Consent Calendar at the last meeting. She stated she had participated in petition efforts and that
most people were more interested in the topic of the petition than in who was sponsoring it. She
stated the front page of the petition indicated the names of the petition sponsors. She expressed a
concern than three of the Councilmembers indicated that they were supporting the Ordinance
because they wanted to know who was being paid from outside of the City rather than from a
grassroots organization. She stated just because petitioners were being paid did not mean that they
were not grassroots. She stated the petition drive on which she worked had paid petitioners and that
all but two were residents of Fort Collins and eligible to vote. She stated paying some petitioners
provided gainful employment. She stated the Ordinance would "stigmatize" and "label" petitioners.
Councilmember Kastein asked for clarification regarding "petitioners" i.e. that this meant petition
circulators for initiatives rather than less formal petitions. City Clerk Krajicek stated the Ordinance
would apply to official petitions, such as initiative, referendum or recall petitions.
Councilmember Weitkunat asked how enforcement would take place and what kind of punishment
a violation of the Ordinance would carry. City Clerk Krajicek stated violation would be a
misdemeanor punishable by 90 days in jail or a maximum fine of $999.
Council member Weitkunat asked if a violation would go to Municipal Court. City Clerk Krajicek
replied in the affirmative.
Councilmember Weitkunat stated she supported this Ordinance previously but after hearing the
public comment she would not support it on Second Reading. She stated she had concerns about
enforcement.
Councilmember Bertschy stated one of the "motivations" for the Ordinance was the Wal-Mart
petition for which there was a significant effort with paid petitioners from outside collecting
signatures. He stated the goal for him was to have citizens understand the motivation behind
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petitioning. He asked if there would be any reporting requirements under the Code for petitioners.
City Clerk Krajicek stated there was no registration or reporting requirement for petition circulators.
Councilmember Bertschy asked if there was a reporting requirement for wages paid to petition
circulators as there would be for campaign expenses. Ms. Brophy stated it was her understanding
that the petitioners were not required to give any names of petitioners paid. She stated the report
would include a category for payments to petition circulators. City Clerk Krajicek stated payments
to petition circulators would be listed as an expense.
Mayor Martinez asked if the constitutionality issues had been explored. Deputy City Attorney
Eckman stated the badges indicating whether the petition circulators were paid or volunteer would
be constitutionally permissible.
Mayor Martinez stated he did not see any point to the Ordinance.
Councilmember Weitkunat asked how this Ordinance would be enforced when there would be no
registration process for circulators. City Clerk Krajicek stated each circulator would have a badge
indicating whether they were paid or volunteer and that a ticket could be written by a police officer
if the circulator was not wearing a badge.
Mayor Martinez asked if the Ordinance specified where the badge had to be worn. City Clerk
Krajicek stated was not specified in the Ordinance. Deputy City Attorney Eckman stated the badge
would have to be in bold faced type that was clearly legible.
Councilmember Hamrick made a motion, seconded by Councilmember Roy, to adopt Ordinance No.
200, 2004 on Second Reading.
Councilmember Kastein stated he would not support the motion. He questioned whether it was the
job of City Council to make sure that everyone knew whether a petition effort was grassroots or not.
He stated the Ordinance did not address petitions for neighborhood issues or campaign efforts. He
stated the Ordinance would be an "infringement on civil liberties."
Councilmember Weitkunat made a motion, seconded by Councilmember Kastein, to postpone the
Ordinance indefinitely.
Councilmember Tharp suggested voting on the Ordinance rather than postponing indefinitely.
Councilmember Weitkunat expressed a concern that the Ordinance needed more thought and stated
postponement could allow it to be brought back at some point. She stated she was fearful that the
Ordinance would pass and that there would be a "bad law."
Councilmember Bertschy stated he would support the motion to postpone. He stated the
enforcement issue should be discussed further. He stated he did believe that there was an issue that
the Ordinance was intended to address.
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Mayor Martinez stated he would support the motion to postpone. He stated the courts had generally
ruled in favor of "leaving the petitioners alone." He stated he did not favor creating a situation that
would lead to another court ruling to that effect.
Councilmember Hamrick asked for an explanation of how this would be enforced and how this
would be different than the enforcement of other ordinances. City Clerk Krajicek stated this would
be no different than other ordinances. She stated this would be a Municipal Court violation and that
enforcement would be in response to complaints or ticketing as would be done for other Code
violations.
Councilmember Hamrick asked if such details were usually determined at the time an ordinance was
adopted or whether such details were usually left up to the City Manager and staff. Deputy City
Attorney Eckman stated such details were up to the City Manager, who could delegate the
enforcement function to any of his employees. He stated the police were an "overarching
enforcement arm of the City."
Councilmember Hamrick asked if it was "micromanagement" for the Council to work out such
details or whether it was a "political" issue. City Manager Atteberry stated staff had not discussed
in detail how this Ordinance would be enforced. He stated if the Ordinance was adopted he would
discuss with the staff the best way to enforce it.
Councilmember Roy stated Council had dealt with "real civil liberties issues" such as the Patriot Act
and the Human Rights Protection Ordinance. He stated this Ordinance was an "adjunct to private
property rights." He questioned the shift in voting from the 6-1 on First Reading. He stated citizens
should be able to know if a petition was a grassroots or paid effort. He stated he opposed activities
that gave a "veil of grassroots credibility" to petition efforts to affect community issues. He stated
the issue was "protecting private property rights and allowing people that have deep bank accounts
to fund issues."
Councilmember Bertschy stated the Council just strengthened the law on signs in the rights -of -way
and noted that the City could not get a conviction on that Ordinance due to enforcement difficulties.
He stated he supported postponement because there were valid issues that needed to be addressed.
He stated it was not "micromanagement" to discuss enforcement issues.
Councilmember Kastein stated he would oppose the motion to postpone so that the Council could
vote on the main motion.
The vote on the motion to postpone indefinitely was as follows: Yeas: Councilmembers Bertschy,
Martinez and Weitkunat. Nays: Councilmembers Hamrick, Kastein, Tharp and Roy.
THE MOTION FAILED
Councilmember Kastein stated a paid petitioner may or may not be grassroots.
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Councilmember Weitkunat stated she would not support the motion to adopt the Ordinance because
the enforcement issue had not been thought through. She stated the issue was how the law would
be "set in motion."
Councilmember Hamrick stated the volunteer or paid badge was simply additional information about
the petition effort. He stated the enforcement issue should be clarified to determine if this should
be a criminal or civil offense.
Councilmember Roy stated there were many issues on the books that were difficult to enforce. He
stated the "first effort" did not necessarily have to be a "perfect effort." He stated the point was to
continue to try to find ways to make the community better. He stated the intent was to craft
legislation that would "make a difference."
Councilmember Bertschy stated the issue was where resources should be allocated. He stated the
City should not "practice" on this Ordinance and that it should have been postponed. He stated the
allocation of resources would become an even bigger issue with budget cuts. He stated he would
not support the motion.
Mayor Martinez stated he would not support the motion and that the Ordinance was "too ambiguous"
and would make some petitioners "criminals."
The vote on the main motion to adopt Ordinance No. 200, 2004, on Second Reading, was as follows:
Yeas: Councilmembers Hamrick and Roy. Nays: Councilmembers Bertschy, Kastein, Martinez,
Tharp and Weitkunat.
THE MOTION FAILED
Ordinance No. 202, 2004,
Amending Section 2-596 of the City Code and Fixing the
Salary of the City Manager, Adopted on Second Reading
The following is staff's memorandum on this item.
"EXECUTIVE SUMMARY
Ordinance No. 202, 2004, which was adopted 6-1 (Nays: Councilmember Tharp) on First Reading
on December 21, 2004, amends Section 2-596 of the City Code to establish the initial base salary
of the City Manager.
The terms of the negotiated agreement have resulted in the following compensation package:
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SALARY AND BENEFITS
ANNUAL
NON -MONETARY BENEFITS
Base Salary
$149,280
Vacation (30 days per year)
Medical Insurance
8,904
Holidays (11 days per year)
Dental Insurance
558
Life Insurance
522
Long Term Disability
1,478
ICMA 457
4,478
ICMA 401
14,928
FICA/Medicare
8,026
Car Allowance
9,000
Worker's Compensation
269
Total Monetary Compensation
$197,473
City Manager Atteberry stated staff was available to answer any questions.
Councilmember Weitkunat made a motion, seconded by Councilmember Bertschy, to adopt
Ordinance No. 202, 2004 on Second Reading. The vote on the motion was as follows: Yeas:
Council members Bertschy, Hamrick, Kastein, Martinez, Roy and Weitkunat. Nays: Councilmember
Tharp.
THE MOTION CARRIED
Other Business
Councilmember Hamrick stated he would like Council support looking at increasing the income
limits for the sales tax rebate program.
Councilmember Bertschy supported looking at the issue and stated he would like to know the
financial impact of making changes to that program. He suggested having the Finance Committee
look at the issue.
Mayor Martinez and Councilmember Kastein expressed support for that idea.
Executive Session Authorized
Councilmember Bertschy made a motion, seconded by Councilmember Weitkunat to adjourn into
Executive Session under Section 2-31(a)(3) of the City Code for the purpose of considering a
possible real property acquisition by the City. The vote on the motion was as follows: Yeas:
Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED
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(**Secretary's Note: Mayor Martinez left the meeting at this point. The Council adjourned into
Executive Session at 9:25 p.m. and reconvened following the Executive Session at 9:55 p.m.)
Adjournment
Mayor Pro Tem Bertschy adjourned the meeting at 9:55 p.m.
ATTEST:
City Clerk
400
Mayor