HomeMy WebLinkAboutMINUTES-12/15/1998-RegularDecember 15,1998
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, December 15,
1998, 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: Azari, Bertschy, Byrne, Kneeland, Mason, Smith and
Wanner.
Staff Members Present: Fischbach, Krajicek, Roy.
Citizen Participation
Dave Bigelow, Larimer County Search and Rescue, asked about the scheduling of the ordinance
relating to natural areas rules and regulations and requested that this item be expedited as it pertains
to training of search and rescue dogs.
Kelly Ohlson, 2040 Bennington Circle, spoke regarding Council's policy agenda workplan,
population projections, and estimates of open space losses.
Tim Johnson, Transportation Board member, spoke regarding a Coloradoan editorial concerning
conflicts of interest.
An unidentified man representing the Friends of the Poudre, Sierra Club and other groups spoke
concerning the work done on Gateway Park.
Citizen Participation Follow-up
Councilmember Bertschy spoke regarding the work being done to resolve the issues relating to
search and rescue dogs.
Agenda Review
City Manager Fischbach stated that item #39Items Relating to the Rigden Farm (CSU) Request for
an Amendment to the City Structure Map and Request for Zoning includes a revised Resolution and
Ordinance.
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December 15, 1998
CONSENT CALENDAR
Consideration and approval of the Council meeting minutes of November 3 and November
17, and December 1. 1998 and the adjourned meeting minutes of November 24 1998
8. Second Reading of Ordinance No 217 1998 Appro riating Prior Year Reserves and
Unanticipated Revenue in the Benefits Fund to Cover Medical Insurance Claims
Ordinance No. 217, 1998, which was unanimously adopted on First Reading on December
1, 1998, appropriates insurance recovery funds along with prior year reserves in the Benefits
Fund to cover additional expenses anticipated through the remainder of 1998. The total
being requested for possible use is $1,099,851.
9. Second Reading of Ordinance No 218 1998 Appropriating Prior Year Reserves in the
General Employees' Retirement Fund
Earlier this year, Council approved amendments to the General Employees Retirement Plan
that allow covered employees to receive their benefit in a single sum payment. Many
participants in the Plan have taken such payments and used the available appropriations for
such purpose. Since the appropriations were made in November, two additional requests
have been received from members desiring single sum payments of their benefits. Ordinance
No. 218, 1998 was unanimously adopted on First Reading on December 1, 1998 increasing
the 1998 appropriations by $500,000 to meet additional requests.
10. Second Reading of Ordinance No 219 1998 Appropriating Prior Year Reserves in the
Transit Services Fund for the Acquisition of Replacement Buses for Dial a Ride and a
Replacement Engine for the Fixed Route Buses
When City Council approved the 1996 Transfort budget, federal and local funds were
identified to acquire the four replacement vehicles and the spare engine. These funds were
placed into a project budget. Early this year, the 1996 project budget for these purchases was
inadvertently closed, and, in order to purchase the vehicles and spare engine, the funds need
to be appropriated again. Ordinance No. 219,1998, which was unanimously adopted on First
Reading on December 1, 1998, appropriates funds from the Transit Fund Reserves and
places them in the Transfort 1996 Operating Budget.
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December 15, 1998
11. Second Reading of Ordinance No 222 1998 Amending the Definition of "Street' and
Changing the Term "Director of Engineering" to "City Engineer" as Those Terms Are
Contained in the City Code and in the Transitional Land Use Regulations and Amending
Section 24-112 of the Code to Bring Said Section into Conformance with Provisions of the
Land Use Code.
This Ordinance, which was unanimously adopted on First Reading on December 1, 1998,
amends the City Code and the Transitional Land Use Regulations as follows:
Revises the definition of "street' to match the Land Use Code.
• Replaces references to "Director of Engineering" with "City Engineer".
• Changes the term "residential streets" to "local streets" in Section 24-112 of the
Code.
• Changes the term "traffic impact study" to "transportation impact study" in Section
24-112 of the Code.
Changes the word "traffic' to "transportation" in Section 24-112 of the Code.
The revisions are housekeeping changes to match the Land Use Code and to account for the
new City Engineer title.
12. Second Reading of Ordinance No 223 1998 Amending Section 2-31 of the City Code
Relating to Executive Sessions.
At the April 8,1997 regular municipal election, the voters approved an amendment to Article
II, Section 11 of the City Charter pertaining to executive sessions. Article H, Section 11, as
amended, now provides that the Council may go into executive session by a two-thirds (2/3)
vote of those present and voting. Ordinance No. 223, 1998, which was unanimously adopted
on First Reading on December 1, 1998, amends Section 2-31 of the City Code so as to
conform to the provisions of the City Charter.
13. Second Reading of Ordinance No. 224 1998 Amending Section 7-88 of the City Code
Relating to the Procedure for Protesting the Establishment of Council District Boundaries
At the April 8,1997 regular municipal election, the voters approved an amendment to Article
11, Section 1(c) of the City Charter pertaining to redistricting. Pursuant to the provisions of
Article II, Section 1(c), the Council adopted Ordinance No. 26, 1998 on March 17, 1998,
which provided for the giving of notice of any redistricting proceedings and the manner of
protesting such proceedings. The manner of protesting redistricting proceedings was
modeled after an existing Charter provision relating to the protest of the sufficiency of
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December 15, 1998
initiative and referendum petitions. After using the provisions relating to redistricting
proceedings for the first time in November, staff believes that the manner of protesting
redistricting proceedings is unnecessarily restrictive in that it requires written protests to be
given under oath. In addition, Section 7-88 of the City Code requires Council to hear, and
resolve, protests no later than the date of first reading. Since any amendments to the
redistricting proposal that Council may request after hearing and first reading would require
staff to research the effect of such amendments, it is unreasonable to expect Council to
resolve protests no later than the date of first reading. Ordinance No. 224, 1998 was
unanimously adopted on First Reading on December 1, 1998.
14. Second Reading of Ordinance No. 225 1998 Amending Section 2-138 of the City Code
Pertaining to the Citizen Review Board
Ordinance No. 225, 1998, which was unanimously adopted on First Reading on December
1, 1998, amends Section 2-138(a) of the City Code to increase the membership on the
Citizen Review Board from five to seven members to provide an opportunity for a more
diverse membership on the Board.
15. Second Reading of Ordinance No. 226 1998 Designating the Robert and Orpha Buxton
House and Attached Garage, 140 North McKinley Avenue, as a Historic Landmark Pursuant
to Chanter 14 of the City Code.
The owner of the property, Jordan K. Radin, is initiating this request for Local Landmark
designation for the Robert and Orpha Buxton House and attached garage. The building is
significant architecturally, as an interesting example of Post World War H architecture in
Fort Collins. The home also has historical value as a representative example of two
significant American social trends, the first the development of affordable home ownership
on a large scale, and the other the rising prominence of the automobile, as reflected in
residential architecture. Ordinance No. 226, 1998 was unanimously adopted on First
Reading on December 1, 1998 designating the property as a local landmark.
16. Second Reading of Ordinance No. 227 1998 Authorizingthe he City to Enter into a Three year
Farm Lease Agreement with Greg Walker.
Ordinance No. 227, 1998 was unanimously adopted on December 1, 1998 and authorizes the
City to enter into a three-year farm lease agreement with Greg Walker.
December 15, 1998
17. Second Reading of Ordinance No 228 1998 Making Various Amendments to the City's
Land Use Code.
Ordinance No. 228, 1998, was unanimously adopted on First Reading on December 1, 1998
and addresses a variety of issues that have recently emerged or have otherwise been
identified by staff as being appropriate for amendment of the Land Use Code.
18. Second Reading of Ordinance No 229 1998 Approving aFranchise and License Agreement
Between the City of Fort Collins and the Platte River Power Authority_
For the past two years, the City's Electric Utility and PRPA have been working together with
the other PRPA member municipalities of Longmont, Loveland, and Estes Park to
accomplish a number of goals related to telecommunications. Ordinance No. 229, 1998 was
unanimously adopted on First Reading on December 8, 1998.
19. Second Reading of Ordinance No. 230 1998 Amending Section 2-606 of the CitY Code and
Setting the Compensation of the Municipal Judge
City Council met in Executive Session on November 24, 1998 to conduct the performance
appraisal of Municipal Judge Kathleen M. Lane.
Ordinance No. 230, 1998, which was unanimously adopted on First Reading on December
8, 1998, establishes the 1999 salary of the Municipal Judge at $75,063. Total compensation
paid to the Municipal Judge in 1999 will be $96,337.
This Ordinance has been amended on Second Reading to change the effective date of the
salary increase from January 1, 1999 to January 11, 1999, which is the beginning of the first
full pay period in 1999.
20. Second Reading of Ordinance No. 231 1998 Amending Section 2-581 of the City Code and
Setting the Compensation of the City Attorney_
City Council met in Executive Session on November 24, 1998 to conduct the performance
appraisal of City Attorney Steve Roy.
Ordinance No. 231, 1998, which was unanimously adopted on First Reading on December
8, 1998, establishes the 1999 salary of the City Attorney at $101,133. Total compensation
paid to the City Attorney in 1999 will be $126,314.
This Ordinance has been amended on Second Reading to change the effective date of the
salary increase from January 1, 1999 to January 11, 1999, which is the beginning of the first
full pay period in 1999.
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December 15, 1998
21. First Reading of Ordinance No 233 1998 Adding a New Division 2 to Article V of Chapter
2 of the City Code Relating to Councilmember Comnensation
Article 11, Section 3 of the City Charter provides that, commencing in 1998, the
compensation of Councilmembers shall be $500 per month and the compensation of the
Mayor shall be $750 per month. In addition, the amounts of compensation are to be adjusted
annually for inflation in accordance with the Denver/Boulder Consumer Price Index.
This Ordinance amends the City Code by adding a new Division 2 to Article V of Chapter
setting the 1999 compensation of Councilmembers at $515 and the compensation of the
Mayor at $770.
22. First Reading of Ordinance No. 234 1998 Amending the City Code Pertaining to the
Procedure for Hearing Appeals to the City Council
This Ordinance amends the Appeals Procedure by repealing the prohibition against actions
being taken until all appeal rights are exhausted and replacing that prohibition with a
statement that such actions are permissible but, if taken, shall be totally at the risk of the
person taking the action. The Ordinance also reconciles conflicting provisions regarding the
time period in which an appellant may file an amended notice of appeal and adjusts other
time -sensitive provisions accordingly.
23. Items Relating to the Arapaho Bend 1st Annexation
A. Resolution 98-163 Setting Forth Findings of Fact and Determinations Regarding the
Arapaho Bend 1st Annexation.
B. First Reading of Ordinance No. 236, 1998, Annexing Property Known as the
Arapaho Bend 1st Annexation.
C. First Reading of Ordinance No. 237, 1998, Amending the Zoning Map ofthe City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Arapaho Bend 1st Annexation.
This is a request for the voluntary annexation a City -owned natural area consisting of
approximately 41 acres. The property is located north of East Harmony Road, south of East
Horsetooth Road, west of County Road 7 and east of County Road 9. The site is currently
zoned Larimer County FAI-Farming, and the proposed zone district is POL-Public Open
Lands.
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December 15, 1998
24. Items Relating to the Arapaho Bend 2nd Annexation
A. Resolution 98-164 Setting Forth Findings of Fact and Determinations Regarding the
Arapaho Bend 2nd Annexation.
B. First Reading of Ordinance No. 238, 1998, Annexing Property Known as the
Arapaho Bend 2nd Annexation.
C. First Reading of Ordinance No. 239, 1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Arapaho Bend 2nd Annexation.
This is a request for the voluntary annexation a City -owned natural area consisting of
approximately 215 acres. The property is located north of East Harmony Road, south of East
Horsetooth Road, west of I-25 and east of County Road 9. The site is currently zoned
Larimer County C-Commercial and I -Industrial, and the proposed zone district is POL-Public
Open Lands.
25. Items Relating to the Cottonwood Hollow Annexation.
A. Resolution 98-165 Setting Forth Findings of Fact and Determinations Regarding the
Cottonwood Hollow Annexation.
B. First Reading of Ordinance No. 240, 1998, Annexing Property Known as the
Cottonwood Hollow Annexation.
C. First Reading of Ordinance No. 241,1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Cottonwood Hollow Annexation.
This is an annexation and zoning of a City -owned natural area of approximately 93.3 acre
in size, located on the south side of East Prospect Road, north of East Drake Road, west of
Interstate 25 and east of Sharp Point Drive. The site consists of two parcels which are
vacant. The recommended zoning is POL, Public Open Lands.
26. Items Relating to the Pineridge 3rd Annexation and Zoning.
A. Resolution 98-166 Setting Forth Findings of Fact and Determinations Regarding the
Pineridge 3rd Annexation.
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December 15, 1998
B. First Reading of Ordinance No. 242, 1998, Annexing Property Known as the
Pineridge 3rd Annexation.
C. First Reading of Ordinance No. 243, 1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Pineridge 3rd Annexation.
This request is the annexation and zoning of approximately 102 acres located on the west
side of South Overland Trail and south of County Road 42C. The recommended zoning is
POL, Public Open Lands.
27. First Reading of Ordinance No. 244, 1998 Amending the Zoning Man of the City of Fort
Collins by Changing the Zoning Classification for that Certain Property Known as the Spring
Creek Farm Rezoning.
This property was annexed into the City ofFort Collins as part of the Timberline Annexation
on November 4, 1997. The applicant, Jim Sell Design, on behalf of Spring Creek Farms,
LLC, filed a rezone petition with the City on October 9, 1998. The applicant is requesting
a rezone from T-Transitional to NC- Neighborhood Commercial, MMN-Medium Density
Mixed Use Neighborhood and LMN-Low Density Mixed Use Neighborhood.
28. First Reading of Ordinance No 245, 1998 Authorizing the Grant of a Non-exclusive
Easement to Larimer County for the Relocation of a Drainage Channel
The City of Fort Collins Utilities is granting a non-exclusive easement to Larimer County to
accommodate the relocation of the drainage channel that runs through the Water Treatment
Facility located on LaPorte Avenue.
An existing Larimer County drainage channel runs through the Water Treatment Facility
property. The City is currently working on the design and construction of an estimated $50
million Master Plan Improvements Project for new facilities and improvements to existing
facilities. The existing drainage channel is in conflict with the location of the planned
facilities which need to be adjacent to existing facilities and piping. Discussion with Larimer
County and researching existing and potential conflicts in the area resulted in the new
alignment. Acquisition of the easement and relocation of the drainage channel must precede
the beginning of Master Plan Facilities construction which is scheduled for 2000 and which
is necessary to meet the needs of the citizens of Fort Collins. The relocation of the drainage
channel is scheduled to begin January, 1999.
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December 15, 1998
29. First Reading of Ordinance No 246 1998 Authorizing the Grant of a Non-exclusive
Easement to Platte River Power Authority for the Relocation of a Water Line
The City of Fort Collins Utilities is granting a non-exclusive easement to Platte River Power
Authority to accommodate the relocation of the raw water line that runs through the Water
Treatment Facility located on LaPorte Avenue. PRPA will be concurrently vacating the
existing easement.
An existing Platte River Power Authority water line runs through the center of the Water
Treatment Facility property. The City is currently working on the design and construction
of an estimated $50 million Master Plan Improvements Project for new facilities and
improvements to existing facilities. The existing water line is in conflict with the location
of the planned facilities which need to be adjacent to existing facilities and piping.
Discussion with Platte River Power Authority and researching existing and potential conflicts
in the area resulted in the new alignment. Acquisition of the easement and relocation of the
water line must precede the beginning of Master Plan Facilities construction which is
scheduled for 2000 and which is necessary to meet the needs of the citizens of Fort Collins.
The relocation of the water line is scheduled to begin January 1, 1999.
30. Resolution 98-167 Authorizing the City Manager to Enter into an Intergovernmental
Agreement with the Colorado Department of Transportation Division of Transportation
Development for the Provision of Public Transportation Services in Non -urbanized Areas
Adoption of this Resolution will provide operating and administrative assistance funding to
Estes Park, Berthoud Area Transportation (BATS), Senior Alternative in Transportation
(SAINT), Loveland, Larimer County and the City of Fort Collins (non -urban Dial -A -Ride
and FoxTrot).
Larimer County previously administered these grants, but following some organizational
restructuring, the County was looking for another agency to administer the grants. Transfort
staff offered to do the administration. The grant program is funded for the next two years
and includes money to cover administration expenses.
31. Resolution 98-168 Adopting the City's 1999 Legislative Agenda.
Each year the Legislative Review Committee (LRC) develops a legislative agenda to assist
the City in the analysis of pending legislation. The 1999 Legislative Agenda has been
updated from the 1998 Legislative Agenda and will be used as a guide for the upcoming
General Assembly.
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December 15, 1998
32. Resolution 98-169 Authorizing the Purchasing Agent to Purchase Animal Control Services
from the Humane Society of Larimer County as an Exception to Competitive Purchasing
Procedures.
The City of Fort Collins has contracted with the Humane Society for Larimer County for
animal control services for the past sixteen years. The contract requires a wide variety of
equipment and services including: public education; maintaining and equipping a shelter
facility; veterinary care; humane and modern vehicles equipped for transporting animals;
radios; uniforms; administration of the pet licensing program; furnishing humane traps as
appropriate; maintaining adequate liability insurance; quarterly reports to our Director of
Finance; pick-up and disposal of dead animals, and generally respond to animal -related calls
for services within the City. There is no other known organization, entity or individual
capable of performing these services.
33. Resolution 98-170 Making Appointments to Various Boards and Commissions
Two vacancies currently exist on the Commission on Disability due to the resignations of
Kathy Lassen and Amy Rosenberg. Applications were solicited and Councilmembers Byrne
and Kneeland conducted interviews. The Council interview team is recommending that Lila
Vizzard and Mark Beck fill the vacancies with terms to begin immediately and to expire on
June 30, 1999 and June 30, 2001 respectively.
A vacancy also currently exists on the Commission on the Status of Women due to the
resignation of Beth Fitzgerald. Applications were solicited and Councilmembers Kneeland
and Byrne conducted interviews. The Council interview team is recommending that Sylvia
Schmid be appointed to fill the vacancy with a term to begin immediately and to expire on
June 30, 2000.
A vacancy also exists on the Landmark Preservation Commission due to the resignation of
George Lyons. Applications were solicited and Councilmembers Mason and Bertschy
conducted interviews and are recommending that W. J. Frick fill the vacancy with a term
to begin immediately and to expire on June 30, 2001.
Items on Second Reading were read by title by City Clerk Wanda Krajicek.
8. Second Reading of Ordinance No. 217 1998 Appropriating Prior Year Reserves and
Unanticipated Revenue in the Benefits Fund to Cover Medical Insurance Claims
9. Second Reading of Ordinance No. 218 1998 Appropriating Prior Year Reserves in the
General Employees' Retirement Fund
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December 15, 1998
10. Second Readin¢ of Ordinance No 219 1998 Appropriating Prior Year Reserves in the
Transit Services Fund for the Acquisition of Replacement Buses for Dial a Ride and a
Replacement Engine for the Fixed Route Buses
11. Second Reading of Ordinance No. 222 1998 Amending the Definition of "Street" and
Changing the Term "Director of Engineering" to "City Engineer" as Those Terms Are
Contained in the City Code and in the Transitional Land Use Regulations and Amending
_Section 24-112 of the Code to Bring Said Section into Conformance with Provisions of the
Land Use Code.
12. Second Reading of Ordinance No 223 1998 Amending Section 2-31 of the City Code
Relating to Executive Sessions
13. Second Reading of Ordinance No. 224 1998 Amending Section 7-88 of the City Code
Relating to the Procedure for Protesting the Establishment of Council District Boundaries
14. Second Reading of Ordinance No 225 1998 Amending Section 2-138 of the City Code
Pertaining to the Citizen Review Board
15. Second Reading of Ordinance No. 226, 1998 Designating the Robert and Orpha Buxton
House and Attached Garage, 140 North McKinley Avenue as a Historic Landmark Pursuant
to Chapter 14 of the City Code.
16. Second Reading of Ordinance No 227.1998 Authorizing the City to Enter into a Three-year
Farm Lease Agreement with Greg Walker.
17. Second Reading of Ordinance No. 228 1998 Making Various Amendments to the Citv's
Land Use Code.
18. Second Reading of Ordinance No 229 1998 Approving a Franchise and LicenseAgreement
Between the City of Fort Collins and the Platte River Power Authority.
19. Second Reading of Ordinance No.230.1998 Amending Section 2-606ofthe CityCodeand
Setting the Compensation of the Municipal Judge
20. Second Reading of Ordinance No. 231,1998 Amending Section 2-581 of the City Code and
Setting the Compensation of the City Attorney.
40. Second Reading of Ordinance No. 232 1998 Amending Section 2-596 of the City Code and
Setting the Compensation of the City Manager.
Items on First Reading were read by title by City Clerk Wanda Krajicek.
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December 15, 1998
21. First Reading of Ordinance No. 233 1998 Adding a New Division 2 to Article V of Chanter
2 of the City Code Relating to Councilmember Compensation
22. First Reading of Ordinance No. 234 1998 Amending the City Code Pertaining to the
Procedure for Hearing Appeals to the City Council
23. Items Relating to the Arapaho Bend 1 st Annexation
A. First Reading of Ordinance No. 236, 1998, Annexing Property Known as the
Arapaho Bend 1st Annexation.
B. First Reading of Ordinance No. 237,1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Arapaho Bend 1st Annexation.
24. Items Relating to the Arapaho Bend 2nd Annexation
A. First Reading of Ordinance No. 238, 1998, Annexing Property Known as the
Arapaho Bend 2nd Annexation.
B. First Reading of Ordinance No. 239, 1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Arapaho Bend 2nd Annexation.
25. Items Relating to the Cottonwood Hollow Annexation
A. First Reading of Ordinance No. 240, 1998, Annexing Property Known as the
Cottonwood Hollow Annexation.
B. First Reading of Ordinance No. 241, 1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Cottonwood Hollow Annexation.
26. Items Relating to the Pineridge 3rd Annexation and Zonis
A. First Reading of Ordinance No. 242, 1998, Annexing Property Known as the
Pineridge 3rd Annexation.
B. First Reading of Ordinance No. 243, 1998, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property included in the
Pineridge 3rd Annexation.
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December 15, 1998
27. First Reading of Ordinance No. 244, 1998 Amending the Zoning Man of the City of Fort
Collins by Changing the Zoning Classification for that Certain Property Known as the Spring
Creek Farm Rezoning.
28. First Reading of Ordinance No. 245 1998 Authorizing the Grant of a Non-exclusive
Easement to Larimer County for the Relocation of a Drainage Channel
29. First Reading of Ordinance No. 246, 1998, Authorizing the Grant of a Non-exclusive
Easement to Platte River Power Authority for the Relocation of a Water Line
39. First Reading of Ordinance No 247 1998 Amending the Zoning Man of the City of Fort
Collins and Classifying for Zoning Purposes that Certain Property Known as the Rigden
Farm Zoning.
Councilmember Kneeland made a motion, seconded by Councilmember Bertschy, to adopt and
approve all items on the Consent Calendar. The vote on the motion was as follows: Yeas:
Councilmembers Azari, Bertschy, Byrne, Kneeland, Mason, Smith and Wanner. Nays: None.
THE MOTION CARRIED.
Consent Calendar Follow-up
Councilmember Smith noted that the legislative agenda was adopted on the Consent Calendar.
Councilmember Reports
Councilmember Wanner reported that the Finance Committee has discussed economic policy and
the sales and use tax rebate policy, police staffing levels, the 800 MHz communications system, and
the Art's Alive program.
Councilmember Mason reported on the Growth Management Committee's discussions regarding
block standards for neighborhood commercial centers and the northeast truck route.
Councilmember Kneeland reported that the Poudre School District Liaison Committee discussed
Building Community Choices, the School Resource Officer program, and amendment of the Poudre
School District intergovernmental agreement. She noted that ideas for joint projects for Building
Community Choices will be discussed at the next study session.
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December 15, 1998
Special Review of the Mulberry-Lemay Crossings,
Preliminary PUD Application, Hearin Held.
The following is staff's memorandum on this item.
"Executive Summary
On November 25, 1998, local attorney Ron Vaughan, on behalfofhis clients, the Citizen Planners
Board of Directors and the Citizen Planner Technical Review Committee, submitted a request that
the City Council conduct a special review of the Mulberry-Lemay Crossings, Preliminary PUD
application filed on March 27, 1997. This review is to determine whether the applicant complied
with "transition " Ordinance No. 161, 1996 and whether the staff decision to process this project
under the LDGS was proper.
At the December 8,1998, City Council meeting, a motion was made directing that immediatelyprior
to the consideration of the appeal of the November 5, 1998, Planning and Zoning Board decision
to deny Mulberry-Lemay Crossing, Preliminary PUD, Mr. Vaughan, City staff and the developer
of the project be asked to provide City Council with information and argument on this question, so
that Council can determine whether the decision to review theproject under theLDGS was proper. "
Mayor Azari introduced Scott Kroh, Special Counsel to the City Council regarding the special
review matter. She spoke concerning the need for open communication and commented regarding
conflict of interest issues that have arisen.
Special Counsel Krob stated that the City Charter addresses conflicts of interest and prohibits
Councilmembers from voting on, attempting to influence, or otherwise participating in any decision
in which the Councilmember or a relative has a financial or personal interest. Special Counsel Krob
stated that the question has arisen as to whether present or past membership in the group known as
Citizen Planners would constitute a conflict of interest under the Charter. He stated that by
definition such membership does not constitute a personal interest that would create a conflict of
interest under the Charter. He noted that questions have also arisen as to whether there is a
fundamental bias that would preclude Councilmembers from hearing the decisions that are before
the Council regarding this matter in a fair and unbiased manner. He suggested that City Council
follow a two-step process: (1) indicate on the record their affiliation with Citizen Planners, including
the length and nature of that affiliation, and (2) indicate whether they believe that their present or
prior affiliation with Citizen Planners or any other party to the matter would render them unable to
fairly consider the issues that are before the Council.
Mayor Azari summarized the suggested procedure regarding this item and commented that the intent
is to demonstrate that a fair hearing can be held on the matter.
Councilmember Kneeland stated that she is not a member of Citizen Planners.
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December 15, 1998
Councilmember Byrne stated that he had an affiliation as a member of Citizen Planners prior to his
service on the Planning and Zoning Board and that in his opinion he has no bias that would affect
his ability to participate in a fair hearing. He stated that Citizen Planners is an advocacy and
educationally -oriented group that prepares people to have a better understanding of complex land
use questions, that he distinguishes between making the rules and ensuring the rules have been
applied fairly, and that the role of the Council is to ensure that the rules have been fairly applied.
He stated he would not be declaring a conflict of interest in this matter.
Councilmember Smith stated that he paid dues to receive the Citizen Planners newsletter in the early
1990's until about 1993-94 and that he was never an officer of the group.
Mayor Azari stated that she is not a member of Citizen Planners but has been to many meetings of
the group and has a variety of acquaintances who are members. She stated that she does not have
a conflict of interest and would be able to discipline her biases to provide fair judgement on the
matter.
Councilmember Bertschy stated that he has paid dues to Citizen Planners in the late 1980's and one
other time, has not attended meetings, and does not believe he has a conflict of interest or any bias
in terms of making a decision on this matter.
Councilmember Wanner stated that he is not a current or past member of Citizen Planners.
Councilmember Mason stated that he joined Citizen Planners in 1989 and shared aboard position
with his spouse in about 1992, and in approximately 1994 served as president of the group until
February of 1997 when he announced his candidacy for City Council. He stated that his spouse
resigned from the board of the group when he became president, and she is not a current officer or
member although she wrote a $20 check to Citizen Planners earlier this year. He stated that he has
not attended any business meetings but attended a social gathering about a year ago at which he was
awarded a certificate for serving as president of the group. He stated that he does not believe that
his previous activities with Citizen Planners would render him unable to fairly consider the issues
before the Council.
Ron Vaughan, attorney representing Citizen Planners, stated that his group is not taking a position
relating to conflicts of interest in this matter and the group does not believe that there are any conflict
of interest issues that have not been effectively addressed by the Councilmembers.
Lucia Liley, attorney representing Goldberg Property Associates Inc., stated that she does not take
the position that any affiliations with any group involved in a hearing is necessarily a conflict of
interest and that having listened to the disclosures, she would not raise any objections to any of the
Citizen Planners ties, although a presidency in the group as recently as 1997 raises questions because
the group has taken a lead advocacy role in opposing the project and a presidency is clearly a lead
role in that organization. She stated that on the whole she accepts the statements that have been
made at face value and raises no objections regarding those affiliations.
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December 15, 1998
Mayor Azari stated that the next step would be for the Council to determine if the hearing should be
held.
Special Counsel Kroh reviewed Charter provisions that provide a broad authority for the City
Council to take action and hold hearings as it deems appropriate and to inquire into and investigate
any office, department or agency of the City and the official acts of any officer or employee of the
City. He stated that it his opinion that the Council has the discretionary authority under the Charter
to conduct this special review hearing.
Mayor Azari stated that five minutes each would be allowed to hear from the representatives of
Citizen Planners, the representative of the developer, and staff to give input regarding holding the
special hearing prior to her entertaining a motion regarding whether or not the hearing should be
held.
Ron Vaughan, attorney representing Citizen Planners, stated that this is a City Council decision and
that this review is necessary because the existing appeals procedure is not adequate to address the
issue of staff s compliance with Ordinance No. 161, 1996. He noted that under the existing appeals
procedures Citizen Planners may not qualify as an interested party. He stated that a special hearing
should be held because there is no other mechanism for input from the public or any other individual
who is concerned about whether or not the regulations in Ordinance No. 161, 1996 has been
complied with and whether or not staff properly interpreted and applied the Ordinance.
Lucia Liley, attorney representing the developer, stated that the developer was first informed six
calendar days ago that the Council would hold this hearing to decide whether a staff decision to
accept a preliminary P.U.D. application filed over a year and a half ago was proper, and that this
decision could have the unprecedented effect of nullifying the entire project, even without holding
the appeal hearing. She stated that this is not a proper procedure authorized under the Charter and
that, although the Charter gives the Council the power to conduct an internal investigation of its
staff, there is nothing in the Charter to indicate any intent or authority in conducting that
investigation to affect third party rights in a land use matter. She stated that the Charter gives the
City Manager the power to enforce the laws and ordinances of the City, and the Zoning Board of
Appeals and the Planning and Zoning Board have been delegated by the Council the powers and
duties to hear appeals in land use matters. She stated that the City Attorney ruled in October that the
appropriate method for raising this issue was through the Zoning Board of Appeals, that there are
standing and timing issues, and that there were as many as four possible avenues to raise this issue
under defined processes of the City Code. She stated that this process creates an unprecedented
special review procedure to determine the correctness of an administrative action made a year and
a half ago, with no procedural safeguards, no standing requirements, and no time limits imposed.
She stated that under those conditions, this is an improper hearing.
City Attorney Roy explained his role in this special review. He stated that he advised City staff with
regard to the decision that is under review and that he would have a conflict of interest in advising
the Council regarding the special review. He noted that with staffs consent he will continue to
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advise them with regard to this inquiry and that independent counsel has been retained to provide
legal advice to the Council on this matter. He stated that staff believes that the issue of the
correctness of staff s decision on the matter might have been raised as a cross appeal with regard to
the merits of the P.U.D. application. He noted that staff does not wish to take a position with regard
to the appropriateness of the special review.
Councilmember Smith made a motion, seconded by Councilmember Bertschy, to proceed with the
special review hearing.
Councilmember Kneeland stated that she would not support the motion because she believes that
staff made a reasonable interpretation of the transition ordinance and attendant factors in how the
project was reviewed.
Councilmember Smith spoke in support of the motion and noted that it is important in the conduct
of City business that people feel that they have an opportunity to be involved in the process.
Councilmember Byrne stated that although there is a need to be open, there were a number of
opportunities to raise the issue.
Councilmember Mason spoke in support of the motion because of the need to determine how the
administrative decision was made and how that decision was advertised to the public. He also noted
questions at the Planning and Zoning Board meeting regarding the administrative decision and the
advice of the Deputy City Attorneythat those questions could onlybe discussed in executive session,
and he supported discussing these questions in an open meeting.
Councilmember Bertschy supported the motion as a way to allow open discussion and provide
information to the public regarding the process.
Councilmember Kneeland stated that the process is and has been absolutely public, although the
public is not always aware of the process.
Councilmember Wanner stated that he would be supporting the motion and stated for the record that
the possibility of this special review hearing was not discussed prior to last Tuesday night.
Mayor Azari stated she would support the motion to provide an opportunity for open discussion and
an opportunity to hear staffs point of view regarding some unanswered questions. She commented
that it is also important to hear why a citizen group felt compelled to write to the Council regarding
this matter and to hear the developer's perspective regarding the transition from the LDGS to City
Plan.
The vote on Councilmember Smith's motion was as follows: Yeas: Councilmembers Azari,
Bertschy, Mason, Smith and Wanner. Nays: Councilmembers Byrne and Kneeland.
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December 15, 1998
THE MOTION CARRIED.
Councilmember Smith made a motion, seconded by Councilmember Wanner, to adjourn into
Executive Session to discuss legal issues. The vote on the motion was as follows: Yeas:
Councilmembers Azari, Bertschy, Byrne, Kneeland, Mason, Smith and Warmer. Nays: None.
THE MOTION CARRIED.
("Secretary's Note: The meeting adjourned into Executive Session at 6:55 p.m. and reconvened
following the Executive Session at 7:10 p.m.)
Councilmember Smith made a motion, seconded by Councilmember Byrne, that the City Council
waive its attorney/client privilege with regard to discussions between the City Attorney and City staff
regarding the decision to process the Mulberry-Lemay Crossing application under the Land
Development Guidance System rather than the new Land Use Code. The vote on the motion was
as follows: Yeas: Councilmembers Azari, Bertschy, Byrne, Kneeland, Mason, Smith and Wanner.
Nays: None.
THE MOTION CARRIED.
Mayor Azari stated that Citizen Planners, the developer, and staff in that order would each have 20
minutes for a presentation, and that each party would then have 10 minutes to respond to the
presentations of the other parties. Council would then ask questions of any of the parties, discuss
the matter, and render a decision.
Ron Vaughan, attorney representing Citizen Planners, stated that he is part of a volunteer
subcommittee of the group and that the group is not implying any wrongdoing, but that there is
disagreement regarding the interpretation and application of procedures and requirements. He
noted that an Overall Development Plan (ODP) was filed for this project on December 20, 1996 and
that Section 6 of Ordinance No. 161, 1996 specifies that the only land use applications that will be
accepted from the effective date of the Ordinance through March 28, 1997 are applications for
preliminary P.U.D. plans filed pursuant to Overall Development Plans that have been approved by
the City prior to the effective date of the Ordinance (January 18, 1997). He stated that the ODP for
this project was not approved until March 24, 1997. Section 7 of the Ordinance specifies that all
applications for approval of an ODP or preliminary P.U.D. plans accepted for filing before March
28, 1997 in accordance with Section 6 shall be processed and reviewed under the LDGS. He stated
that this ODP was not approved prior to January 18, 1997 and that the review under the LDGS was
therefore not proper. He spoke regarding the March 13, 1997 letter to the applicant from Current
Planning Director Bob Blanchard upholding this interpretation and a meeting held on March 19,
1997 between staff and the developer at which the decision of the Current Planning Director was
reversed by the City Manager. He stated that Ordinance No. 161, 1996 refers to decision -making
by the Director rather than the City Manager and that none of the decisions are in writing. He stated
that the public had no way of knowing on either occasion what the process was or what the applicant
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December 15, 1998
was being told. He spoke regarding the submittal requirement for a traffic impact analysis and a list
of omissions in the P.U.D. application and stated that there is no written approval by the Current
Planning Director authorizing modifications and submission of supplementary material. He stated
that he has sent a letter to Council summarizing pertinent zoning and planning cases and spoke
concerning general standards and principles of planning and zoning and the intent of the transition
ordinance. He questioned whether the decisions of staff in this case during the transition furthered
the new Land Use Code and suggested that the incomplete application was submitted to avoid some
of the more restrictive aspects of the Land Use Code. He spoke regarding the letter of December 14,
1998 from staff to Council addressing the intent of Ordinance No. 161, 1996 and stated that staff
should have made an interpretation consistent with the intent of the transition ordinance. He
summarized that staff did not comply with the clear and plain language of the ordinance because
there was no approval of the ODP prior to January 18, 1997 and that the P.U.D. should have been
addressed under the new Land Use Code. He spoke regarding the apparent perception by the
developer that Citizen Planners is seeking to destroy this project, and stated that reviewing the
application under the new Land Use Code would not destroy the project or render the site unusable
as a shopping center. He stated that the only loss to the applicant would be time. He concluded that
the application should not be reviewed under the LDGS.
Gina Janett, 620 Colorado, spoke regarding the traffic impact study submitted in December, 1996,
and the documents submitted after the March 27, 1997 due date.
Chris Carlson, 1705 Springmeadows Court, licensed professional engineer, stated that eight out of
fifteen preliminary submittal items relating to drainage requirements were not addressed in the
March 27, 1997 submittal and that the drainage plan was not included.
Lucia Liley, attorney representing the developer, stated for the record that the developer in making
an appearance and submitting evidence on the merits of this hearing does not intend to waive any
right to raise legal objections to this process. She stated that one area of concern from a fairness
standpoint is why Citizen Planners has exclusive standing on behalf ofthe public to comment on this
issue. She observed that everything procedurally that was officially done by the developer in this
project was done with the approval and at the direction of City officers and employees who had
authority to act in this matter. She stated that Section 1 of the transition ordinance specifically states
that Overall Development Plans for which City approval is pending, as this project was because it
was submitted in December of 1996, would expire, except to the extent that those plans were
necessary to review applications for approval ofpreliminaryplans filed prior to March 28,1997, and
that the preliminary plan for this project was filed prior to that date. She stated that this Section 1
clearlyprovides that if the preliminaryplan is filed within that time frame, the ODP does not expire,
and it may then be used in an application and in reviewing the approval of an application for a
preliminary plan. She spoke regarding the conflict between Section 1 and Section 6 of the transition
ordinance but stated that this does not diminish the fact that under the terms of Section 1 this ODP
did not expire and it clearly could be used for the review and approval of a preliminary plan. She
stated that this developer over a two-year period relied in good faith upon consistent City actions and
approvals of the project as an LDGS project as authorized by Section 1 of the transition ordinance.
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December 15, 1998
She spoke regarding the supporting material that has been submitted relating to the issue of complete
submittal, noting that the City accepted on March 27, 1997 the entire package and application for
the preliminary plans. She stated that supplementary information was filed in April, that this is
typical of projects, and that this supplemental information was complete under the transition
ordinance. She spoke in detail regarding the list of alleged submittal deficiencies provided by
Citizen Planners, stated that for purposes of the transition, the transition ordinance is the operative
document in determining submittal requirements, and noted that it is typical for staff to request
additional supplemental material after a complete submittal. She stated that a key piece of evidence
would be the testimony of staff regarding whether a complete submission was made. She spoke
regarding the time and money expended on this project to date, noting that the development has been
in the process for more than two years and that the developer has spent approximately $400,000 in
processing the project, meeting all of the City's requirements, and paying the application fees. She
noted that there are provisions in the City Code which allow delegation of authority from the
Director to his staff, and every submission, modification and supplement was approved and accepted
by the appropriate City staff. She also noted that the Charter and Code specify that the City Manager
is the chief executive officer ultimately charged with enforcing ordinances and regulations of the
City, and that he is the ultimate authority to determine whether the project would proceed or not
under the transition ordinance.
Mark Goldberg, President of Goldberg Property Associates, provided two corrections to his affidavit:
on page 2 item #8 the reference to "ODP" should be changed to "PUD" and on the last page item #17
the figure of"$292,977.03" representing the amount spent on the project should read "$440,072.72."
City Manager Fischbach stated that typically several hundred administrative decisions are made each
week and that some decisions are documented while most are undocumented. He stated that there
are three key issues: (1) why did the Council not know of this decision; (2) the use of the LDGS
instead of the Land Use Code; and (3) the completeness of the application. He stated that Council
did not know of this decision because of the number of administrative decisions that are made and
because he made it clear to the staff from the beginning that this matter would go to appeal, and it
is the practice in such cases to keep the Council uninvolved because the Council is the ultimate
decision maker in land use matters. He stated that a comparison has been developed between the
LDGS and LUC requirements for this project, noting that for this project there are inconsequential
differences between the LDGS and LUC requirements because the "big box" standards and the
interim commercial building design standards that are now part of the LUC were also in place for
the review process that was followed for this application. He stated that the project application was
complete and that the project was handled in exactly the same way any other application is handled.
He summarized that staff believed that this would be as good a project under the LDGS as it would
have been under the LUC, that the LDGS provided more authority to the City Council, and
consequently that there was no reason to take any legal risks by imposing the LUC.
Greg Byrne, CPES Director, spoke regarding the completeness of the application. He stated that
Ordinance No. 161, 1996 requires the CPES Director to determine that all relevant submittal
requirements have been met, and that in practice this is routinely done by the staff of the Current
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December 15, 1998
Planning Department under the supervision of the Department Director. He stated that this project
was different only because of the public interest it generated, but that this project was not treated
differently than any other project. He stated that the City Manager has repeatedly given direction
that this project proceeded according to the rules, especially in adherence to design standards. He
stated that he is satisfied that staff exercised its usual diligence in processing this project and
followed exactly the same process the is followed on every other similar project. He noted that this
application was one of 15 filed on that final day, that staff has 48 hours to determine completeness
for purposes of acceptance, and that there is a distinction between complete and adequate. He stated
that staff reviews submittals, routinely redlines and returns them to applicant, requires the applicant
to submit additional information, and when these materials have been determined to be adequate,
the application is scheduled for Planning and Zoning Board consideration.
Bob Blanchard, Current Planning Director, stated that a matrix had been prepared to compare the
LDGS requirements for the project as it was presented to the Planning and Zoning Board and what
would have been required under the LUC. He spoke regarding the distinction between a complete
application and an adequate application that is ready to be presented to the Planning and Zoning
Board for hearing. He summarized the procedures followed for processing an application to
determine if it is complete and for subsequently reviewing the application materials, noting that an
analysis of adequacy is not done at the time of submittal. He stated that Ordinance No. 161, 1996
does not set any limits on how long a project can remain in the process. He stated that he is
confident that the application was complete and that this project was processed in the same manner
as other projects that were processed under the LDGS. He stated that the comparison matrix lists
64 site design criteria from the LUC for the purpose of comparison with the requirements of the
LDGS requirements. He noted that six of these LUC criteria were not met in minor ways and that
there is an opportunity to remedy anyproblems that are identified prior to final review and approval.
City Attorney Roy noted that Council has waived the attorney/client privilege in this matter and
spoke regarding the legal component of the decision to process the project under the LDGS. He
stated that the City Manager had the authority to make this decision under the Charter. He spoke
regarding communications to the Council, staff, and boards and commissions under confidential
cover pursuant to the attorney/client privilege, noting that communication of the assessment of the
merits of claims in a public manner might be contrary to the public interest. He stated that there was
confidential communication to the Planning and Zoning Board regarding this matter. He spoke
regarding the doctrine of estoppel, which means that a party can go to court to stop an entity from
asserting a legal right the entity would otherwise have, in this case the ability of the City to require
the developer to submit the proposal under the Land Use Code. He stated that in his view there was
a significant chance that under the circumstances in this case the developer had a strong estoppel
argument. The developer was initially informed that the LDGS was the appropriate review
mechanism, and by the time that decision came into question two months later, substantial
expenditures had been made in reliance upon good faith representations. His opinion to City staff
was that if there was not much to be gained in terms of the ultimate outcome for the City by having
the developer start over under the LUC, and because the Council has even more discretion under the
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December 15, 1998
LDGS to decide this kind of a proposal, the issue should not be pressed because of the strong
likelihood that the developer could successfully sue. He stated that the staff decision was made in
good faith and with the public interest in mind.
Ron Vaughan, attorney representing Citizen Planners, stated that the group is not seeking to destroy
the project but is seeking to have the rules and regulations of the planning system honored. He stated
that the developer would not suffer any losses, although the developer might suffer some economic
impact. He spoke regarding the conflict between Section 1 and Section 6 of the transition ordinance,
stated that the language in Section 6 is clear regarding Overall Development Plans, and suggested
looking at the overall intent of Ordinance No. 161, 1996. He stated that submittal on the day of the
deadline was clearly an attempt to escape processing the project under the LUC. He stated that
economic losses to the developer is not an issue because of case law. He requested that Council
determine that staff made an incorrect interpretation in processing the project under the LDGS.
Gina Janett, 620 Colorado, spoke regarding the completeness of the application and her group's
interpretation of Ordinance No. 161,1996 that special permission was needed for the submission of
supplemental information. She stated that prior to the March 27, 1997 deadline, the application did
not meet requirements set out in preliminary storm drainage design guidelines and traffic impact
analysis guidelines.
Lucia Liley, attorney representing the developer, stated that this development was caught with others
in the transition between two land use codes and noted that an ODP was filed and pending at the time
the transition rules were established. She stated that the impression that this project was rushed to
beat the deadline is incorrect. She commented on the willingness of the developer to meet all the
City's requirements during the stringent review process that has taken place.
Basil Hamdan, Stormwater Engineer, stated that the preliminary storm drainage design guidelines
that have been referenced is a working document that has not been adopted by City Council and is
therefore not yet an official submittal requirement. He stated that the practice has been to require
the submission of letters of intent regarding easements prior to the P&Z Board hearing for
preliminary approval. He stated that a drainage plan and other storm drainage documents were
submitted for this project on March 27, 1997.
City Attorney Roy noted that his assessment of the legal risks associated with the staff decision was
based on Colorado law related to estoppel.
Councilmember Byrne spoke regarding the comparison between the LDGS and LUC prepared by
staff and asked about street connectivity issues and the street grid for this particular project.
Blanchard stated that the site has about 2,500 feet of Lemay Avenue frontage, and Magnolia Street
would need to be relocated in order to meet the spacing requirements in the LUC.
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December 15, 1998
Councilmember Byrne asked if this type of development would fit under the LUC if a quarter mile
grid were required. Blanchard stated that variables include placement of a building on -site and
building size, and the project would still fit under what would be allowed under the big box standard.
Councilmember Byrne spoke concerning the intent in the LUC to move away from auto -oriented
development by requiring grid -like street patterns with more even and frequent spacing of collector
and local streets and asked how this project complies with that goal. He asked if a project such as
this that is automobile -dependent and suburban would be allowed under the new LUC. Blanchard
stated that the matrix indicates that the project would not comply with that goal and that Magnolia
Street would have to be relocated to meet the quarter mile spacing under the LUC. He stated that
the project as reviewed under the LDGS is mostly, but not precisely, similar to the project as it would
have been under the LUC. CPES Director Byme stated that under the LUC Magnolia Street would
have to be placed differently. Blanchard stated that this project would be allowed under the LUC
"big box" standards, which sets out the parking distribution.
Councilmember Bertschy asked about the reasons for staff's initial determination that the project
should be reviewed under the LDGS and the subsequent determination that the project should be
reviewed under the LUC. Blanchard stated that the initial determination was based on an
interpretation of Section 1 of Ordinance No. 161, 1996 relating to an ability to submit a PUD
consistent with an ODP that is in the process, and that his March 13, 1997 letter to the developer was
written following subsequent discussions with staff and legal staff in which it was pointed out that
Section 1 should have been read in conjunction with Section 6.
Councilmember Bertschy asked if the CityAttomey agrees with the interpretation that Section 1 and
6 of Ordinance No. 161, 1996 are in conflict. City Attorney Roy stated that Section 6 more
specifically applies and that it permits only those developments that fall within the exceptions to the
moratorium to submit applications prior to March 28, 1997, and that Section 1 did not speak to the
kinds of applications that could be submitted prior to that date.
Councilmember Bertschy asked about the meeting with Mr. Goldberg where the decision was
reached that the project would be allowed to proceed under the LDGS. City Attorney Roy spoke
concerning the legal reasons for staffs decision to allow the project to proceed under the LDGS.
Councilmember Mason asked who would have standing to receive notification regarding the project,
who would be able to appeal an administrative decision, and how interested parties are made aware
of an administrative decision. Blanchard stated that notification under the LDGS is based on the size
of the project and in this case the notification area was a minimum of 1,000 feet, and that staff asked
that the applicant provide notice beyond 1,000 feet in several cases. City Attorney Roy stated that
standing to appeal an administrative decision is based on the property ownership or residency within
500 feet and that interested parties would be informed of the administrative decision in this case by
reading the file.
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December 15, 1998
Councilmember Smith asked about the cursory review of items received for a preliminary PUD.
Blanchard summarized the verification process.
Councilmember Bertschy asked if there is documentation ofthe meeting held with Mr. Goldberg and
commented regarding the lack of a date stamp on the application checklist. Blanchard stated that
minutes were not taken for the meeting with the developer and spoke regarding the checklist
procedure.
Councilmember Bertschy stated that he believes that staff acted in the best interests of the City in
processing this application.
Councilmember Kneeland commented that other projects were caught in the transition. She asked
for a statement of philosophy and approach in applying Ordinance No. 161, 1996. Blanchard stated
that his philosophy was that the transition ordinance was intended to help transition from the LDGS
to the LUC and to provide a notification period during which it was appropriate to submit certain
types of applications outlined in Section 6 of the ordinance.
Special Counsel Krob stated that it is his understanding that Citizen Planners has participated in the
process even though the application was handled under the LDGS. He asked Mr. Vaughan if the
application had been processed under the LUC rather than the LDGS how the ability of Citizen
Planners or anyone else to participate in the process would have been different, and if the ability to
participate in the process for citizens is the same whether handled under the LDGS or the LUC, how
anyone has been damaged by the fact that the project has been handled under the LDGS. He further
inquired if the outcome has been any different under the LDGS process than it would have been
under the LUC process.
Ron Vaughan, attorney representing Citizen Planners, stated that he is not sure there would have
been any differences in terms of participation if the project were handled under the LUC. He stated
that there must be a difference in outcomes because the developer clearly does not want to have the
project handled under the LUC. He stated that the size of the project and location of some of the
buildings would be different under the LUC than under the LDGS.
Bridget Schmidt, Citizen Planners member, stated that one difference would that under the LUC
storm drainage questions would be answered earlier at the time of the preliminary PUD.
Councilmember Mason asked if the project would be Type 2 under the LUC because of its size and
would have required a hearing before the Planning and Zoning Board. CPES Director Byrne stated
that is correct and spoke regarding the review and hearing process.
Councilmember Kneeland made a motion, seconded by Councilmember Byrne, to find that the
project received a fair hearing and that it was reasonable for the application to be processed under
the Land Development Guidance System.
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December 15, 1998
Councilmember Mason spoke concerning the adoption of Ordinance No. 161,1996 and the creation
of the deadline for applications. He noted that the large retail design standards were taken from the
LDGS and placed in the LUC, and there are few differences in this project whether it is reviewed
under the LDGS or the LUC. He stated that this special review was necessary to provide public
discussion on how such decisions are made.
Councilmember Byrne spoke regarding the matrix that compares the LDGS and LUC requirements.
He commented on the importance of public discussion on this matter.
Councilmember Bertschy spoke regarding the complexity of Ordinance No. 161, 1996 and the
complexity of the proposed project. He stated that his main concern is the lack of documentation
of the administrative decision. He stated that he believes staff acted in the best interests of the City.
Councilmember Wanner commented on the importance of having this special review and discussion.
He stated that he believes the outcome has been substantially the same under the LDGS process as
it would have been under a LUC process.
Councilmember Kneeland spoke concerning the difficulty of the transition to the LUC and the work
that has been done to ensure fairness and equity.
Councilmember Smith commented on the work that has been done to get to this point and the need
to continue to take a look at processes and procedures.
Councilmember Mason supported tightening up documentation and processes.
Mayor Azari spoke regarding the difficulties of the transition to the LUC and the rationale for the
transition ordinance.
The vote on Councilmember Kneeland's motion was as follows: Yeas: Councilmembers Azari,
Bertschy, Byrne, Kneeland, Mason, Smith and Wanner. Nays: None.
THE MOTION CARRIED.
Consideration of the Appeal of the November 5, 1998
Planning and Zoning Board Decision to Deny Mulberry-Lemay
Crossing Preliminary P.U.D.. Planning and Zoning Board Decision Upheld
The following is staff s memorandum on this item.
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December 15, 1998
"Executive Summary
On November 5, 1998, the Planning and Zoning Board denied the Mulberry-Lemay Crossing
Preliminary P. U.D. This was a request for a 42.98 acre community/regional shopping center
located at the northeast corner of East Mulberry Street and Lemay Avenue. Total gross leasable
square footage would be 339,072 square feet divided among eight buildings. Buildings are divided
among two large anchors, which are considered to be "big box retail" establishments, two "in -line"
retail buildings, and four pad sites. The largest anchor would be a general merchandise/grocery
store at 192, 000 square feet.
On November 13, 1998, a Notice ofAppeal was received by the City Clerk's Office alleging that the
Planning and Zoning Board failed to properly interpret and apply the relevant provisions of the City
Code and Charter. "
City Attorney Roy explained the Code provisions relating to the appeal process, the appeal hearing,
and the options available to the City Council.
Mayor Azari established a thirty -minute time limit for the combined presentations of parties -in -
interest on each side of the appeal, ten minutes for rebuttal for those in favor, and ten minutes for
rebuttal for those opposed.
Ted Shepard, Senior City Planner, presented background information and the site plan relating to
the project and noted the availability of slides of aerial photographs, vicinity maps, and the approved
ODP. He described the proposed Magnolia Street right-of-way, the collector street system associated
with the project, and the proposed building layout. He noted that the building plan has been
reviewed under the "big box" criteria.
Lucia Liley, attorney representing the developer Goldberg Property Associates, hic., stated that some
opposition to the project appears to be based upon the fact that it contains a superstore. She noted
that this is a land use decision rather than a political decision and should be based on adopted City
criteria. She spoke concerning superstore issues related to location and size. She stated that a "big
box" moratorium was put into effect in 1994 and a decision was made to appoint a citizen committee
to study and make recommendations regarding the adoption of standards. She noted that this site
was identified by the committee and the staff and included in the final report as one of the handful
of sites suitable for a community regional shopping center with a superstore, and that the project also
meets all of the locational criteria of the LDGS for such a shopping center. She stated that the
committee and the Council considered the size issue at length, that no size limit was recommended
in the final report, and that the recommendation was to handle size issues through the standards and
guidelines. She noted lengthy discussions regarding the issue of architecture and "big box" standards
and stated that this project has undergone dozens of changes and revisions to come into full
compliance with all of the City standards as interpreted by the City staff. She stated that there have
only been two regional shopping centers adopted under the LDGS since the "big box" regulations
were put into place, that this project is similar in acreage and building coverage to the Harmony
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December 15, 1998
Town Center project, and that in every category this project is better that the two approved projects.
She stated that this project has less building coverage per acreage; significantly less pavement, streets
and parking spaces; and more open space and landscaping. She spoke concerning the history of the
acquisition, annexation and development of the property. She stated that double standards were
applied during the Planning and Zoning Board hearing, in particular in the area of transportation.
She stated that the Board cited four grounds for denial, two of which dealt with transportation, and
that written information has been submitted regarding the grounds relating to natural features and
parking orientation. She stated that this project will construct $2.3 million of transportation
improvements and pay another $1.2 million in street oversizing fees. She stated that there may have
been some perception on the Board that if the project were turned down it would come in under the
Land Use Code and that the standards would be more stringent. She compared streets, pedestrian
and bicycle improvements for the project as submitted under the LDGS and as the requirements
would have been under the LUC. She noted that the traffic study area was one-half mile under the
LDGS and would still be one-half mile under the LUC, that the City required a signal progression
analysis and that all of the City's level of service standards were met within the study area, and that
traffic counts done outside the study area at Vine and Lemay showed that even with a full Wal-Mart
build -out traffic levels would remain at an acceptable level of service. She stated that the Traffic
Engineer testified at the P&Z Board hearing that the City standards had been met and that the
roadway system would be safe with the improvements proposed. She spoke regarding the
discussions surrounding railroad issues and projects that have been approved in the South College
corridor that are closer to the railroad tracks. She noted that Poudre Fire Authority's review did not
indicate any safety issues related to this project. She stated that the P&Z Board discussion of the
project seems to indicate that unless the project cured all of the northeast area deficiencies in
pedestrian/bicycle connections it could not get approval under the LDGS. She stated that the
extension of Magnolia Street will improve vehicle, pedestrian, and bicycle access to the industrial
and commercial areas to the east. She noted that this project improves links south on Lemay, west
to the river and trail connections, and to the east to Link Lane, and provides full adjacent bike and
pedestrian improvements along Mulberry and Lemay. She stated that the developer is willing to
provide apedestrian/bicycle structure spanning the river and providing a second connection west into
the downtown. She noted that the Board cited safety concerns with the pedestrian crossing at the
Mulberry-Lemay intersection and the Magnolia intersection. She stated that identical pedestrian
crossing improvements were approved unanimously for the Harmony Town Center but have been
deemed unsafe for this project. She stated that this project can be expected to significantly reduce
vehicle -miles -traveled City-wide. She spoke regarding neighborhood compatibility, noting that
individuals and businesses most directly impacted by this project are strongly in favor of it.
Mike Buderas, 2813 Adobe Drive, president of the Northeast Fort Collins Business Association,
stated that the Association's members are in support of the project.
Betty Aragon, representing Buckingham area residents, spoke in support of the project.
Julie Jimenez, representing residents of the BAVA neighborhood, supported the project.
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December 15, 1998
Steve Joyce, 1124 Cobblestone Court, co-owner of Superstore Liquors, spoke in support of the
project and the need for economic development.
Cathy Velasquez, 205 3rd Street, co-chair of the neighborhood committee for Buckingham,
addressed transportation concerns and the possibility of jobs at Wal-Mart for area residents.
Bill Neal, 407 Cormorant Court, spoke regarding tax increment benefits of the project and
restoration of the river corridor.
Margaret Guzman, representing BAVA residents, spoke in support of the project
Patty Taylor, 2713 Spoke Court, business owner, supported the project.
Gina Janett, Citizen Planners, stated that the issue is whether this project as proposed at the site
proposed meets the City standards, criteria, and policies. She spoke in support of the decision of the
Planning and Zoning Board and noted Board concerns about traffic, transportation and storm
drainage at the time of approval of the ODP and at the hearing on the preliminary PUD. She spoke
regarding the points erroneously awarded the project on the mandatory point chart for joint parking
direct access, and she noted concerns regarding direct pedestrian access. She stated that the project
does not meet the "big box" standards relating to parking and entrances accessible to surrounding
neighborhoods. She noted concerns regarding whether the projects meets LDGS criteria and policies
relating to transportation network capacity and safety. She spoke regarding the transportation
planning regarding North Lemay and safety issues at the Mulberry-Lemay intersection. She stated
that a full traffic analysis within one-half mile was not done. She spoke regarding pedestrian access
concerns and a lack of sidewalks. She stated that this project will exceed the capacity of existing and
future transportation networks. She spoke regarding topography and storm drainage concerns and
the impact of construction traffic to bring in 10-20,000 truckloads of fill. She stated that storm
drainage problems noted at the time of ODP approval have not been solved and that the project does
not meet the LDGS criteria requiring that a project minimize changes to topography and existing
drainage. She spoke regarding the lack of arterial improvements on Lincoln.
Bridget Schmidt, Citizen Planners, representing the Northeast Neighborhood Coalition, stated that
this project does not meet City policies and will impact area neighborhoods.
Aria Sims, representing the Eastside Park Neighborhood, stated that 90% of the members voted
against the project at this location.
Tim Johnson, Transportation Board chair, stated that the Board did not review this project and spoke
regarding the costs of transportation improvements and the lack of a traffic analysis study for major
intersections near this project. He supported upholding the decision of the Planning and Zoning
Board.
Delores Williams, 1520 Hillside Drive, expressed concerns about traffic on Lemay.
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December 15, 1998
Gina Janett, Citizen Planners, spoke regarding projections regarding the number of shoppers at this
Wal-Mart and the impact on traffic. She questioned projections of the impact of this project in
reducing vehicle -miles -traveled in the City. She stated that the project does not meet the intent and
purpose of the "big box" standards and guidelines. She requested that the Council uphold the
decision of the Planning and Zoning Board.
Lucia Liley, attorney representing the developer, stated that Point Chart C relating to joint access is
not one of the grounds for Planning and Zoning Board denial of the project. She described how the
project meets the joint access criteria. She spoke regarding parking orientation criteria in the
regulations for large retail establishments and the results of the traffic analysis with the
improvements proposed. She spoke regarding the level of service analysis and signal progression
analysis done for intersections within one-half mile of the project and noted that the Vine-Lemay
intersection is not within the study area. She stated that the project is not inconsistent with City
storm drainage standards and that planned drainage improvements will improve the situation and
minimize flooding that now occurs on the site. She stated that the fill that is being brought in is the
minimum necessary to make the site drain properly and to meet FEMA standards. She stated that,
with the proposed transportation improvements, the project meets the City's level of service
standards.
Kathleen Krager, traffic engineer for the developer, spoke regarding the methodology of the vehicle -
miles -traveled (VMT) analysis that was done and stated that having retail shopping on the north side
of the City will reduce the distance of the total travel trip that has to be made for shopping. She
stated that the project could be expected to reduce the vehicle miles of travel throughout the Cityby
1-2%.
Ann Lampson, executive manager for National Realty Management, developer and owner of Buffalo
Run affordable housing project, stated that a major incentive for locating affordable housing on this
site was having a Wal-Mart and a grocery store immediately adjacent so residents would not have
to drive.
Bridget Schmidt, Citizen Planners, stated that the project does not meet joint parking requirements
because there is no direct vehicular access from Buffalo Run and the access from Supermarket
Liquors is across a busy collector street. She stated that the Vine-Lemay intersection should have
been included in the traffic analysis even though it is slightly more than one-half mile from the
project. She stated that it is unclear what storm drainage impacts will be for the properties to the
east. She spoke concerning the impact of the project on North College Avenue traffic if congestion
on Lemay increases.
Gina Janett, Citizen Planners, spoke regarding incorrect assumptions made in the VMT analysis and
the policy intent of "big box" parking standards. She stated that the traffic analysis study did not
look at larger neighborhood impacts and that a detailed study was not done for nearby intersections.
She stated that this project cannot be compared to the Harmony Town Center and that the situations
are not comparable.
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December 15, 1998
Councilmember Bertschy asked about the source of the fill that will be brought into raise the project
above the floodplain and how it will be brought to the site. Sheri Wamhoff, Development Review
Engineer, stated that the source is unknown at this time and that a haul route map will be required
and reviewed prior to construction.
Councilmember Bertschy asked about the traffic flow at the Mulberry-Lemay intersection and what
improvements would be needed to improve the projected level of service for the intersection. Eric
Bracke, Traffic Engineer, stated that the intersection as designed would provide an acceptable level
of service. Kathleen Krager, traffic engineer for the developer, spoke regarding the traffic analysis
for that intersection.
Councilmember Bertschy asked how Lemay is shown in the Master Street Plan. Bracke stated that
Lemay would be a four -lane arterial and that this project and Buffalo Run would improve Lemay to
the four -lane arterial standard and would improve the Lincoln-Lemay intersection.
Councilmember Bertschy asked about the capacity for the detention pond, the source of stormwater
that will flow into the pond, and where the stormwater will be released. Glen Schlueter, Senior
Stormwater Engineer, stated that the pond is sized for a hundred -year stone, which is the present
City criteria, and that the only upstream flow would be toward Buffalo Run. He described current
stone drainage problems and the proposed stormwater improvements for this project and for Buffalo
Run, and stated that both projects will be the source of stormwater collected in the pond and that the
stormwater will be released into the river.
Councilmember Byrne asked for clarification regarding the traffic improvements that will be done
forthis project and commenting regarding the inadequacyofthe existing transportation infrastructure
in the area. Kathleen Krager, traffic engineer for the developer, described the proposed
transportation improvements.
Councilmember Byrne asked about transportation planning for the area and the mechanisms that are
in place to ensure that the City does not fall further behind in capital improvements in the northeast..
Bracke stated that some of the improvements that will be needed in the northeast will need to be
addressed at a later date and that one of the major issues that has emerged in the discussions on this
project is funding for improvements to the Vine-Lemay intersection. Councilmember Byrne
commented that such transportation planning issues and funding of major capital projects will need
to be addressed regardless of whether or not this project goes forward.
Councilmember Kneeland asked about the pedestrian -bike structure that the appellant expressed a
willingness to construct.
Councilmember Kneeland asked if the large volume of fill is needed to meet FEMA standards.
Schleuter stated that the fill is needed to meet the grading requirements for the project and to meet
FEMA standards.
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December 15, 1998
Councilmember Wanner asked about the Master Street Plan for Mulberry east and west of Lemay
and why the developer will not be responsible for widening the bridge. Bracke stated that Lemay
is shown as a major six -lane arterial from Riverside to I-25, and stated that the developer is not
required to widen the bridge because analysis has shown that the intersection will continue to operate
efficiently with the proposed cross section to the year 2015 with the background traffic and with this
development in place.
Councilmember Mason asked about the current plan for pedestrian/bicycle access going west and
east on Mulberry and if JFK Parkway is a collector or arterial. Bracke stated that it is an arterial.
Councilmember Mason asked about the VMT data relating to the project. Kathleen Krager, traffic
engineer for the developer, spoke regarding the methodology used in the VMT analysis and stated
that the project will save between 14,000 and 47,000 vehicle -miles -traveled in the City daily.
Councilmember Mason asked about the funding gap for transportation capital needs. Ron Phillips,
Transportation Services Director, stated that there are $90 million in capital needs overthe next eight
years, and $47 million is unfunded.
Councilmember Mason asked about the "big box" parking standards and building separations.
Shepard spoke regarding the building and plaza layout and the parking lot distribution.
Councilmember Wanner asked about the improvements planned along Lincoln and if this project
is responsible for any pedestrian/bicycle accommodations. Bracke stated that Buffalo Run is
responsible for auxiliary turn lanes, bike lanes and sidewalks along Lincoln from 12th Street to
Lemay.
Councilmember Byrne commented that the temporary reduction in vehicle -miles -traveled will be
wiped out by growth. Kathleen Krager, traffic engineer for the developer, stated that the 1-2%
reduction will be permanent but will be offset as vehicle -miles -traveled continue to increase overall,
but that failing to add commercial to the north side will increase vehicle -miles -traveled with no
reduction at all.
Councilmember Smith asked if the proposed drainage system would be adequate to handle the
stormwater if there is a heavy rain and asked about the detention pond's bioremediation of materials
coming off the surface. Schleuter spoke regarding improvements that could be made to improve the
release rate into the river, and stated that the greatest pollution comes from smaller storms and that
the detention pond is designed to capture the first half -inch of run-off. Basil Harridan, Stormwater
Engineer, stated that the objective at this site is to drain into the river as soon as possible and that
detention ponds are not an automatic solution for every site.
Councilmember Smith asked about signal timing for pedestrians going north to south across
Mulberry on the east side of the exchange. Bracke spoke concerning the pedestrian green time for
the traffic signal.
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December 15, 1998
Councilmember Bertschy asked why no mid-term traffic analysis was required. Bracke spoke
regarding the context of the staff decision not to have this analysis done and stated that there were
many unknowns because of the adoption of the structure plan, the planning of Timberline, and work
on the Mountain Vista plan. He stated that short-term and long-term analyses were done and that
the project met both short-term and long-term criteria. Kathleen Krager, traffic engineer for the
developer, spoke regarding the worst case traffic projections used in the long term analysis.
Councilmember Bertschy asked about signalization ofthe 12th Street/Mulberry intersection. Bracke
spoke concerning the traffic flow at that intersection and stated that 12th Street is being constructed
as a commercial local street.
Councilmember Bertschy asked about parking for Buildings A and B and asked how the entrance
for the building meets the "big box" standards. Shepard spoke concerning the building layout,
parking distribution, and facade treatment.
Councilmember Bertschy asked about the location of the pedestrian crossing from Buffalo Run and
the connection from Supermarket Liquors. Shepard spoke regarding the pedestrian walkway that
will tie into a connection into Buffalo Run and the new joint access point between the reconfigured
Supermarket Liquors parking lot and the project.
Councilmember Wanner asked about the requirements for accessibility for traffic and pedestrians
from the north. Bracke spoke about the pedestrian crossings from Buffalo Run and vehicular access
from 12th Street.
Mayor Azari asked about planning for a bike pavilion and if Buffalo Run was part of the original
ODP. Kathleen Krager, traffic engineer for the developer, stated that a bike pavilion is planned in
the area to connect to the trail system. Shepard stated that Buffalo Run was part of the original ODP
and that following a split in ownership the Buffalo Run preliminary PUD was submitted on a
different time track that this project.
Mayor Azari asked for clarification that this project has met the City's criteria and that Planning staff
has recommended approval on the basis that the project has met the City's standards and asked about
the six conditions for staff approval. Blanchard stated that the project has met the LDGS criteria,
"big box" standards, and interim design standards. He stated that the six conditions relate to the final
submittal.
Mayor Azari asked if this project received any kind of credit for being in the north. Shepard stated
that the project is north of Laurel Street, which is the dividing line, and that this was a criteria on the
point chart.
Councilmember Smith asked if there are other sites in the north that would meet all of the City's
criteria for this type of project. Blanchard stated that one of the criteria used in the 1994
determination that this was the only site available in the north for this type of project was contiguity
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December 15, 1998
to existing development and as the City continues to grow that will open up additional sites. Shepard
stated that the subarea planning group for the Mountain Vista plan could be asked to do an analysis
to determine if there are currently other sites for this type of project. CPES Director Byrne stated
that sites would have to be appropriately zoned and meet the contiguity requirements.
Councilmember Bertschy asked if one of the buildings in this project will be a movie theater and if
there are different traffic standards for this type of use. Bracke stated that the standards would be
developed based on peak hour trip generation rates.
Councilmember Bertschy asked how many points were awarded to the project for being in the north.
Shepard stated that the maximum of two points were awarded.
Councilmember Mason asked about the requirement that "big boxes" be at the intersection of
arterials. Shepard spoke regarding the point system based on a variety of criteria for the specific site
and that this is a variable rather than an absolute criterion under the LDGS.
Councilmember Bertschy made a motion, seconded by Councilmember Mason, to uphold the
decision of the Planning and Zoning Board based on Criteria A2.1 and A2.3.
Councilmember Bertschy stated that reference to the two criteria, there have been significant events
that have occurred that would uphold the Board's decision that the plan was lacking in those two
areas.
Councilmember Mason offered a friendly amendment adding Criteria A2.6 related to the pedestrian
facilities to the motion. Councilmember Bertschy accepted the friendly amendment.
Councilmember Bertschy restated the motion as follows: To uphold the decision of the Planning and
Zoning Board based on Criteria A2.1, A2.3 and A2.6.
Councilmember Kneeland stated that she would not be supporting the motion.
Councilmember Mason stated that this is a site specific issue for this particular proposal. He stated
that the issue is not fixing all of the infrastructure deficiencies in the northeast, but that there are
specific deficiencies at this site that need to be fixed for a proposal of this size with the projected
volume of vehicle -miles traveled. He stated that the comparison of this site with other sites is not
accurate.
Councilmember Kneeland stated that she has concluded that the project has adequately met the
standards and criteria required under the LDGS.
Councilmember Smith stated that he would be supporting the motion, primarily based on Criteria
A2.1, and noted that it is unclear that traffic concerns have been adequately addressed.
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Councilmember Mason stated that the issue is an individual's interpretation as to whether the proj ect
has met the standards. He noted staff s interpretation that the standards have been met and stated
that there is an issue as to whether the spirit and intent of the "big box" standards is being met under
the staff interpretation. He spoke concerning checks and balances in the system and the role of the
Planning and Zoning Board and Council in weighing staff s recommendation.
Councilmember Kneeland spoke regarding the objective criteria and calculations that are used to
determine if a project has met the standards and to ensure fair application.
Councilmember Bertschy stated that he did not believe that the 1996 traffic study and the data
presented represents the current and future growth of the transportation system and that Criteria A2.1
was not met. He spoke regarding Criteria A2.3 relating to physical elements and disturbance of the
site and stated that he did not believe that the studies presented satisfy that criteria.
Councilmember Wanner spoke in support of the motion on the basis of Criteria A2.1 and stated that
he believed that Criteria A2.3 and A2.6 have been adequately addressed or would be adequately
addressed with the inclusion of a bridge across the Poudre River for foot and bicycle traffic. He
noted that the information presented is two years old and that circumstances are changing rapidly,
and he is not convinced that the traffic study is current or accurate.
Mayor Azari spoke in opposition to the motion and stated that the proper decision is that every effort
was made to meet the standards and criteria under the LDGS.
The vote on Councilmember Bertschy's motion was as follows: Yeas: Councilmembers Bertschy,
Mason, Smith and Wanner. Nays: Councilmembers Azari, Byrne and Kneeland.
THE MOTION CARRIED.
Mayor Azari noted that a Resolution presenting findings would be prepared for the January 5
Council meeting.
Items Relating to the Rigden Farm (CSU)
Request for an Amendment to the City Structure Plan Map
and Request for Zoning, Adopted as Amended on First Readin
The following is staffs memorandum on this item.
"Executive Summary
A. Resolution 98-171 Amending the City Structure Plan Map by Changing the Designation of
a Portion of the Rigden Farm Propertyfrom "Urban Estates " to "Rural/Open Lands and
Stream Corridors" and "Low Density Mixed Use Residential. "
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B. First Reading of Ordinance No. 247, 1998, Amending the Zoning Map of the City of Fort
Collins and Classifying for Zoning Purposes that Certain Property Known as the Rigden
Farm Zoning.
This property was annexed into the City of Fort Collins as part of the Rigden Farm Annexation on
August 8, 1988. The applicant filed a request for a Structure Plan Amendment and rezone petition
with the City on October 9, 1998. The applicant is requesting an initial zoning of LMN — Low
Density Mixed Use Neighborhood and RC — River Corridor (as CSUproperty, there is no existing
zoning).
APPLICANT: The State Board of Agriculture of the State of Colorado
on behalfofColorado State University
202 Administration Building
Colorado State University
Fort Collins, CO 80523
OWNER: The State Board of Agriculture of the State of Colorado
on behalf of Colorado State University
202 Administration Building
Colorado State University
Fort Collins, CO 80523
BACKGROUND:
The surrounding zoning and land uses are as follows:
North (T): Existing arterial street (Drake Road), Existing Spring Creek Farm,
Cargill agricultural research facility
South (RL): Dakota Ridge and Stoneridge Subdivisions
East (I): County Road 9, Unincorporated Lorimer County, Western Mobile
Mining operation
West (T): Vacant (proposed zoning to NC, MMN, LMN— File #56-98)
Petition For Structure Plan Amendment and Initial Zoning
The applicant filed a request for a Structure Plan Amendment and rezone petition with the City on
October 9, 1998. The applicant is requesting an initial zoning of LMN— Low Density Mixed Use
Neighborhood and RC— River Corridor (as CSUproperty, there is no existing zoning).
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December 15, 1998
Structure Plan Map Amendment
The requested amendment is from the Urban Estate plan designation to Low Density Mixed Use
Residential and River Corridor for approximately 100 acres of the property generally described as
the valley wall above the Poudre River f oodplain east to County Road 9. This property is included
in the Poudre River Special Study Corridor.
Amendments to the Structure Plan Map are typically processed as part of a rezone request. While
no specific review criteria have been articulated, the basis for any map amendment must be found
in the Principles and Policies of City Plan.
Request for Amendment to RurallOpen Lands and Stream Corridors
The Structure Plan principle relevant to the request for an amendment from Urban Estates to
Rural/Open Lands and Stream Corridors is the Interconnected System of Open Lands. This
principle provides for a comprehensive network of greenways linking important natural areas,
parks, neighborhoods and community facilities weaving its way along major waterways and
drainages. The requested addition of more land to the Rural/Open Lands and Stream Corridors
Plan designation in this area enhances the Poudre River corridor, especially in an area specifically
recommended for conservation (see Principle PRC-1).
Policy ENV-5.1: The City will seek to integrate wildlife habitat, riparian areas,
wetlands and other important natural features into the developed landscape by
directing development away from sensitive areas and using innovative planning,
design, buffering and management practices......
The addition of more lands designated for Rural/Open Lands and Stream Corridors will enhance
the area devoted to the Poudre River corridor by providing additional area for wetlands and other
natural features. This will provide additional buffer between development and the river corridor.
Policy NOL-1.2: The City will conserve and integrate natural areas into the
developed landscape by directing development away from sensitive areas and using
innovative planning, design, and management practices.
Amending the Structure Plan map to Rural/Open Lands and Stream Corridors will direct
development away from a low-lying area that is on the edge of the designated Poudre River
foodplain. Zoning districts associated with this Plan designation limit uses to those compatible with
the conservation and protection of land in the Poudre River corridor. These uses include
stormwater management, native wildlife habitat and sand and gravel operations.
PRINCIPLE PRC-1: In order to assure that the diverse community values of the
Poudre River Corridor are protected and enhanced, land uses must be carefully
managed through an integrated land use plan.
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December 15, 1998
As noted above, this property is included in the planning area for the Poudre River Special Study
Corridor. Policy PRC-1.2 identifies distinct segments ofthe river to be considered in the plan. This
propertyfalls within the Conservation Open Lands and Stream Corridors (Drake Road to Harmony
Road) segment. The policy notes that this river segment possesses abundant, highly significant
natural and historic resources. The emphasis on land uses in this area should be conservation to
assure protection of significant resources. The request to add additional area to the Rural/Open
Lands and Stream Corridors plan designation is consistent with this principle.
Policy PRC-2.2: Natural Area Protection Buffers. Natural area protection buffers
will be maintained along both banks ofthePoudre River to protect natural areas and
scenic qualities, .. .
The addition of additional land to the Rural/Open Lands and Stream Corridors designation will
increase the buffer in this area between the Poudre River and residential development.
Request For Amendment to Low Density Mixed Use Residential
The City Structure Plan has 5 key principles that guided its development. Pertinent to the request
fora Structure Plan amendment to Low Density Mixed Use Residential is theprinciple ofa Compact
Development Pattern. The intent of a compact development pattern is to accommodate growth
without fostering urban sprawl. Higher densities will contribute to preserving environmentally
sensitive areas, allow for the efficient provision of public services and encourage infzll. The
requested amendment meets the intent ofthis principle by directing higher density development into
identified areas that will encourage infill at a level that will enhance the provision ofpublic services.
The requested Plan designation of Low Density Mixed Use Residential and its associated zoning
district ofLMN-Low Density Mixed Use Neighborhood will still allow thepotential oflarger estate
lots provided the low density is offset with higher density within the project.
Principles and policies associated with new low density mixed use neighborhoods (Principles LMN-
I and LMN-2) deal with density, housing types and site planning considerations. There are no
locational policies to provide guidance on this amendment request. Development of the subject
property can easily meet these principles and policies through attention to site planning details.
PRINCIPLE RD-3: Urban Estate development may be included in some
Residential Districts for several purposes: ])to acknowledge the presence of the
many existing County subdivisions as part of the community; 2) to allow for choices
of very low density and large -lot housing in the community; and, 3) to provide, in
some cases, a physical transition between urban development and rural or open
lands.
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December 15, 1998
The propertyproposed for the amendment is not part ofan existing County subdivision. In addition,
the requested Plan designation (Low Density Mixed Use Residential) and its accompanying zoning
district (Low Density Mixed Use Neighborhood), allows for the development of estate lots provided
the density of those lots are balanced with higher density elsewhere in the project. This property
could be considered appropriate as a transition from more intense development on top of the hill
to the valley floor and Poudre River floodplain. However, perusal of the Structure Plan map
indicates that there are other areas near the floodplain (as well as some within the floodplain) that
are planned for more intense development. In addition, County Road 9, a drainage canal and the
Burlington Northern Railroad tracks are between this property and the river giving further
credence to the appropriateness ofhigher density development. Lastly, proximity to one ofthe City's
treatment facilities may reduce the desirability of this area for estate development.
PRINCIPLE PRC-1: In order to assure that the diverse community values of the
Poudre River Corridor are protected and enhanced, land uses must be carefully
managed through an integrated land use plan.
As noted above, this property is included in the planning area for the Poudre River Special Study
Corridor. Policy PRC-1.2 identifies distinct segments ofthe river to be considered in the plan. This
propertyfalls within the Conservation Open Lands (Drake Road to Harmony Road) segment. The
policy notes that this river segment possesses abundant, highly significant natural and historic
resources. The emphasis on land uses in this area should be conservation to assure protection of
significant resources. However, as noted before, County Road 9 and the Burlington Northern
Railroad tracks exist between this property and the Poudre River. Conservation uses on the valley
floor and in the floodplain area do not necessarily preclude development on this property located
on the valley wall.
Land Use Code Criteria For Rezoning
Section 2.8.4[HJ[2] of the Land Use Code outlines mandatory requirements for quasi-judicial
rezonings. This section states:
Any amendment to the Zoning Map involving the zoning or rezoning ofsix hundred
forty (640) acres of land or less shall be recommended for approval by the Planning
and Zoning Board or approved by the City Council only if the proposed amendment
is:
(a) consistent with the City's Comprehensive Plan; and/or
(b) warranted by changed conditions within the neighborhood surrounding and
including the subject property.
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December 15, 1998
In addition, Section 2.8.4[HJ[3] outlines additional considerations for quasi-judicial rezonings:
In determining whether to recommend approval of any such proposed amendment,
the Planning and Zoning Board and City Council may consider the following
additional factors:
(a) whether and the extent to which the proposed amendment is compatible with
existing and proposed uses surrounding the subject land, and is the
appropriate zone district for the land;
(b) whether and the extent to which the proposed amendment would result in
significantly adverse impacts on the natural environment, including but not
limited to, water, air, noise, stormwater management, wildlife, vegetation,
wetlands and the natural functioning environment;
(c) whether and the extent to which the proposed amendment would result in a
logical and orderly development pattern.
Analysis
1. Is the request consistent with the City's Comprehensive Plan?
The requested zoning of LMN — Low Density Mixed Use Neighborhood and RC — River
Corridor is consistent with City Plan provided the Structure Plan is amended from Urban
Estate to Low Density Mixed Use Residential and Rural/Open Lands and Stream Corridors
on the eastern boundary.
2. Additional Considerations
a. Is the rezone request compatible with existing and proposed uses surrounding the
subject land and is it the appropriate zone district for the land?
The requested zoning is compatible with all existing land uses. Residential uses exist
to the south of the property. Property to the west is subject to an existing rezone
request to NC, MMNand LMNas part of the same proposed development. Property
to the north remains in agricultural production (Spring Creek Farms, Cargill
agricultural research station). Property to the east, across County Road 9, is owned
by Western Mobile and is currently being mined for gravel. While higher intensity
urban development may not be considered totally compatible with agricultural
activities, they frequently coexist during the transition period as agricultural land
within the Urban Growth Area converts to development. In addition, it was
recognized at the time of annexation that this property was planned for residential
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December 15, 1998
development. In fact, the Structure Plan anticipates that the property to the north
will develop with both commercial and residential development as well.
b. Will the rezoning result in significantly adverse impacts on the natural environment?
There are no significant environmentally sensitive areas directly associated with the
subject property. However, the eastern portion of the property is adjacent to the
Poudre River f oodplain and is included in the Poudre River Special Study Corridor.
The zoning of a portion of the property to RC — River Corridor will limit
development on a portion of the property and provide additional buffer between the
proposed area ofresidential development and the Poudre River corridor. While air
quality and noise levels would be impacted with urban levels of development, this
area is within the Urban Growth Boundary and, as indicated on the Structure Plan
Map, is planned for the levels of development associated with the rezoning request
pending approval of a Structure Plan amendment. The City's Natural Resources
Department does have an air qualityprogram which addresses the overall air quality
of the City. Any impacts associated with stormwater management will be addressed
during the review of a specific development proposal.
C. Will the rezoning result in a logical and orderly development pattern?
This property has existing development or development applications in the review
process to the west and south and further to the north across the railroad tracks
north of Spring Creek Farm. Development of the subject property represents a
logical progression of development in this area.
Neighborhood Meeting
While a neighborhood meeting is not required for a rezone request, one was held on Thursday,
November 12, 1998. The meeting was for the purpose of explaining the rezoning and development
review and to hear early comments on the draft development plan. At least one additional meeting
will be held prior to the submittal of an Overall Development Plan and Project Development Plan.
FINDINGS OF FACT/CONCLUSIONS
1. The requested Structure Plan amendment is consistent with the Principles and Policies
contained in CityPlan.
2. The Rigden Farm/Spring Creek Farm Rezone, File #57-98A is consistent with the City's
Comprehensive Plan.
3. The proposed zoning is compatible with existing and proposed uses surrounding the subject
land.
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December 15, 1998
4. The proposed zoning district is the appropriate district for this property.
5. The proposed zoning does not result in significantly adverse impacts on the natural
environment.
6. The proposed rezoning will result in a logical and orderly development pattern.
PLANNING AND ZONING BOARD RECOMMENDATION
On November 19, 1998, the Planning and Zoning Board held a public hearing and recommended
approval of the requested City Structure Plan map amendment, and recommended approval of the
requested zoning of RC - River Corridor and LMN— Low Density Mixed Use Neighborhood with
the following conditions by a vote of 5-2:
This rezoning shall not be effective so long as title to the property is vested
in the State Board of Agriculture and the property continues to be used for
educational, research, extension and related support services.
2. The area subject to the City Structure Plan map amendment from Urban
Estates to Rural/Open Lands and Stream Corridors and Low Density Mixed
Use Residential as said area is identified in Exhibit `A" of Resolution 98-
171 shall be limited to 232 dwelling units.
3. The RC— River Corridor zoning district will extend south along County Road
9 to the south end of the property line tapering from a width of I00 feet to 0
feet.
(NOTE: Condition #1 was placed on the approval at the request of Colorado State University. The
effect of the condition is to ensure that the zoning of the property is only effective if, in fact, the
property is sold to this developer. If the sale does not occur, the property will remain unzoned as
are all CSUproperties.)
STAFF RECOMMENDATION
Staff recommends both the City Structure Plan map amendment and the requested zoning."
Paul Eckman, Deputy City Attorney, read proposed changes to Resolution 98-171 and Ordinance
No. 247, 1998.
Bob Blanchard, Director of Current Planning, stated that this is a request to amend the structure plan
map and to apply an initial zoning of LMN and RC to approximately 228 acres located south of
Drake Road and west of County Road 9. He described the site and surrounding area and summarized
the applicable provisions of the Land Use Code.
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December 15, 1998
Councilmember Mason asked about the number of housing units the property would accommodate
under various zoning scenarios. Blanchard spoke regarding the density for various zones.
Councilmember Mason asked if there would be a detention pond if the property were zoned Urban
Estates and asked about the public benefit of the rezoning. Blanchard stated that staff does not look
at possible developments during the rezoning process but that a detention pond would probably be
needed for this site.
Councilmember Smith asked for clarification regarding the current zoning designations and the
number of housing units possible under different zones and asked about access to the site. Blanchard
stated that one of the issues in the development review process would be connectivity standards of
the Land Use Code.
Councilmember Wanner asked about development near the sewage plant location. City Manager
Fischbach spoke regarding planned capital improvements at the treatment plant.
Councilmember Bertschy asked about the conditional approval of the Planning and Zoning Board.
Blanchard stated that the limitation on the number of units was an attempt by the Board to maintain
the intent of the Structure Plan in terms of the recommended density and to recognize the design
benefits of LMN zoning. He stated.that the condition pertaining to the title and its relationship to
the State Board of Agriculture was in response to a request from CSU, and the condition for tapering
of the river corridor zoning district from a hundred foot width down to zero was an attempt to
recognize continuity from the east.
Councilmember Smith made a motion, seconded by Councilmember Wanner, to adopt Resolution
98-171 as revised.
Martin Schriefer, 2642 Blackstone Court, spoke regarding the impact of higher density and site
elevation on the surrounding area and existing road structures.
Reneta Santoro, 4108 Stoney Creek Drive, spoke regarding crowded schools and traffic and stated
that this rezoning is not consistent with surrounding neighborhoods.
Jennifer Oliver, Stoneridge Village resident, spoke regarding the wildlife in the area and the adverse
impacts of higher density.
Paul Dubose, 2718 Jewelstone Court, spoke regarding higher housing density and traffic impacts.
Blanchard stated that there will be a need to fill the property in some areas and that the lower areas
are being built into the detention systems. He noted that this is a development rather than rezoning
issue.
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December 15, 1998
Councilmember Mason asked if restricting the rezoned parcel to 232 housing units will force the
developer to increase densities in the rest of the property to achieve the required average of five units
per acre. Blanchard stated that the density limitation would be placed on about 80 acres and that
increases in density in other areas is unknown until a development proposal is reviewed but should
be negligible.
The vote on Councilmember Smith's motion was as follows: Yeas: Councilmembers Azari,
Bertschy, Byrne, Kneeland, Mason, Smith and Wanner. Nays: None.
THE MOTION CARRIED.
Councilmember Wanner made amotion, seconded by Councilmember Kneeland, to adopt Ordinance
No. 247, 1998 on First Reading as revised.
Councilmember Mason noted that the Planning and Zoning Board voted 5-2 on the issue and that
he would be reviewing the notes from that meeting prior to Second Reading. He stated that he would
not support the motion because he would like the item to appear as a discussion item on Second
Reading.
The vote on the motion was as follows: Yeas: Councilmembers Azari, Bertschy, Byme, Kneeland,
Smith and Wanner. Nays: Councilmember Mason.
THE MOTION CARRIED.
Ordinance No. 232,1998,
Amending Section 2-596 of the City Code and Setting
the Compensation of the City Manager Adopted on Second Reading
The following is staff s memorandum on this item.
"Executive Summary
City Council met in Executive Session on November 24, 1998 to conduct the performance appraisal
of City Manager John F. Fischbach.
Ordinance No. 232, 1998, which was adopted 5-2 on First Reading on December 8, 1998,
establishes the 1999 salary of the City Manager at $117, 698. Total compensation paid to the City
Manager in 1999 will be $145,361.
This Ordinance has been amended on Second Reading to change the effective date of the salary
increase from January 1, 1999 to January 11, 1999, which is the beginning of the first full pay
period in 1999. "
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December 15, 1998
Councilmember Wanner made a motion, seconded by CouncilmemberBertschy, to adopt Ordinance
No. 232, 1998 on Second Reading. The vote on the motion was as follows: Yeas: Councilmembers
Azari, Bertschy, Byrne, Mason, Smith and Wanner. Nays: Councilmember Kneeland.
THE MOTION CARRIED.
Resolution 98-172
Approving the Expenditure of City Funds to Defray the
Costs of Attorneys Fees for the Fort Collins Housing Authority Adopted
The following is staff s memorandum on this item.
"Executive Summary
This Resolution would authorize the expenditure of certain previously appropriated funds in 1998
and 1999 for the purpose of defraying the legal costs and expenses of the Fort Collins Housing
Authority.
BACKGROUND:
The Fort Collins Housing Authority has been named as a defendant in recent litigation, and a
substantial judgment has been entered against the Housing Authority, its executive director and one
member ofthe board ofcommissioners. A settlement has been reached to remove the commissioner
from the litigation, but it is anticipated that the possible appeal of the lawsuit, as well as related
matters, may result in substantial legal fees and costs being incurred, in addition to those already
incurred in connection with the litigation. Because the operating revenues oftheHousingAuthority
may be insufficient to cover those fees and costs, and because the City has a vital interest in the
provision of affordable housing and the stability and ongoing operation of the Housing Authority,
the City Manager is recommending that, within existing appropriations, the City Council authorize
the expenditure of a certain amount of Cityfunds to help defray those legal fees and costs.
This Resolution would authorize such payment, and would further authorize the City Manager, in
consultation with the City Attorney, the City's Financial Officer, and such officers and employees
of the Housing Authority as the City Manager deems appropriate, to determine the lands and
amounts of fees and costs to be paid, within the limits set forth in the Resolution. Those amounts
would be limited to $104, 000 in 1998 and $100, 000 in 1999. The Resolution specifically precludes
the use of any City funds to satisfy any portion of the judgment entered against the Housing
Authority or its executive director. The Resolution also directs the City Manager to consider the
possibility of the Housing Authority repaying the amounts funded, to the extent legally and
financially possible. "
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December 15, 1998
City Manager Fischbach gave background information concerning this proposed Resolution.
Councilmember Kneeland asked if there has been any negotiation regarding these fees. City
Attorney Roy stated that as progress is made on the payment of fees that have been incurred to date
that there would be room to explore such negotiations. He stated that this Resolution authorizes but
does not require the expenditure and that staff can report back to the Council before any expenditures
are made.
Councilmember Mason made a motion, seconded by Councilmember Wanner, to adopt Resolution
98-172 and to direct staff to report back to Council prior to any expenditure of any City funds
pursuant to the Resolution.
David Herrera, attorney for Tracy DeFrancesco, stated that a jury found Ms. DeFrancesco to be the
victim and suffered substantial damages in this case. He spoke regarding the structured settlement
previously offered by his client and the important role of the Housing Authority.
Councilmember Kneeland stated that her intent is to promote the long term health of the Housing
Authority.
The vote on Councilmember Mason's motion was as follows: Yeas: Councilmembers Azari,
Bertschy, Byrne, Kneeland, Mason, Smith and Wanner. Nays: None.
THE MOTION CARRIED.
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Adjournment
The meeting adjourned at 1:00 a.m.
ayor
ATTTTES�T:
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City Clerk
December 15, 1998
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