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HomeMy WebLinkAboutMINUTES-07/01/2003-RegularJuly 1, 2003 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, July 1, 2003, at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered by the following Councilmembers: Bertschy, Hamrick, Martinez, Roy, Tharp and Weitkunat. Absent: Councilmember Kastein. Staff Members Present: Fischbach, Krajicek, Roy. Citizen Participation Bill Carson, representing the High Tech Network, spoke regarding the need to replace the primary high tech jobs lost in this area in the last two years and the impact of these job losses on secondary jobs. He stated a major deficit in primary job availability was expected to continue as major computer companies moved job functions off -shore to the Far East. Leo Buccellato, 2238 Iroquois Drive, expressed concerns regarding slow police response time for noise complaints. Al Baccili, 520 Galaxy Court, asked for a public vote on the reallocation of open space taxes to transportation. Kelly Ohlson, 2040 Bennington Circle, spoke in favor of the citizen -initiated and voter approved open space sales tax and the continued acquisition of open space. Citizen Participation Follow-up Mayor Martinez thanked the individuals who spoke during Citizen Participation. Councilmember Tharp asked that staff look into the noise complaint issue and provide a response. She stated the Council was discussing ways to deal with the issue of lost jobs. Councilmember Bertschy asked if staff would be providing a response with regard to the noise issue. City Manager Fischbach replied in the affirmative. Councilmember Bertschy suggested that the High Tech group provide written information. 472 Councilmember Roy stated the loss of jobs was a significant issue. He stated Council was working on ways to address the student noise issue. He stated he disagreed with Mr. Baccili's comments with regard to the open space tax. Councilmember Hamrick spoke regarding the issue of lost primary jobs and stated he would be interested in any information pertaining to what could be done locally about the problem. He spoke regarding the importance of having funding to acquire open space at a time when such land was rapidly disappearing. Councilmember Weitkunat thanked Mr. Baccili for his perspective regarding spending taxpayer dollars on open space in these difficult economic times. Mayor Martinez stated he had met several times with the High Tech group and thanked them for their work on significant issues. He spoke regarding the difficulty of meeting all needs for police enforcement of noise complaints given limited staffing and difficult economic times. He stated police calls had to be prioritized. Aeenda Review City Manager Fischbach stated the agenda would stand as printed. CONSENT CALENDAR Consideration and approval of the Council meeting minutes of June 3 and June 17 2003 8. Second Reading of Ordinance No. 091 2003 Appropriating Unanticipated Revenue in the General Fund and Authorizing the Transfer of Appropriated Amounts Between Accounts and Projects for the Multi -Jurisdictional Drug Task Force Fort Collins Police Services and Loveland Police, Latimer County Sheriff's Department, Drug Enforcement Administration (DEA), and the Colorado State University Police Department are members of the Larimer County Drug Task Force (LCDTF). For the past 16 years, Fort Collins Police Services, as administrator of the LCDTF has applied to the Colorado Division of Criminal Justice for Federal Byrne Grant monies to help fund the investigation of illegal narcotics activities. This Ordinance, which was adopted 6-0 (Mayor Martinez was absent) on First Reading on June 17, 2003, appropriates unanticipated revenue for the Multi -Jurisdictional Drug Task Force. 473 July 1, 2003 9. Second Reading of Ordinance No. 092, 2003 Authorizing the Acceptance of Property Donated by Willowood Corporation and Appropriating Unanticipated Revenue in the General Fund for Said Property Acceptance. This Ordinance, which was adopted 6-0 (Mayor Martinez was absent) on June 17, 2003, authorizes the Mayor to accept the conveyance of approximately 1.54-acres of land to be owned by the City and managed as a natural area by the Natural Resources Department. 10. Second Reading of Ordinance No. 093, 2003 Amending Section 23-193 of the Code of the City of Fort Collins Governing Certain Conduct in City Natural Areas This Ordinance, which was adopted 6-0 (Mayor Martinez was absent) on First Reading on June 17, 2003, amends Section 23-193 of the City Code Governing certain conduct in City Natural Areas. 11. First Reading of Ordinance No. 094, 2003 Authorizing the Transfer of Appropriated Amounts to be Used to Construct Interim Roadway Improvements on County Road 11 and Douglas Road. The Northeast Area Overlay Project was intended to improve roads in the Mountain Vista Sub Area. Several different developments, as well as currently undeveloped parcels of land, are included in the project area. The objective of the City is to collect the developers' portion of the cost of the improvements in advance of the work, combining the individual developments into one cohesive project. The project is funded by "contributions in aid" from local developments, as well as the Street Oversizing Program. These "contributions in aid" are cash payments from the developers which meet the developers' responsibility under the Land Use Code to pay the cost of constructing the local street portion of the street improvements adjacent to their developments. This project is being completed in phases as the revenues are collected from developers. Phase 1 from International Boulevard to County Road 52 was completed in the summer of 2000. Increased development in the area indicates Phase 2 of the project is needed. Phase 2 of this project overlays, widens and repairs County Road 9 and County Road 11, from International to Douglas Road, as well as Douglas Road, from County Road 11 to County Road 13. This overlay project will be an interim improvement project and will provide two travel lanes and two bike lanes, allowing new development in the area to begin construction. This Ordinance will transfer funds deposited with the City from the developments for construction of Phase 2 of the overlay project. County Road 11 from County Road 52 to Douglas Road: and Douglas Road from County Road 11 to County Road 13 will be widened and overlaid with this project. 474 July 1, 2003 12. First Reading of Ordinance No. 095, 2003, Authorizing the Appropriation of Funds for Expenditures for Capital Improvements and Operating Expenses at the Fort Collins -Loveland Airport. The Airport's budget for 2003 did not include any carry-over capital projects or new capital projects due to the change in management at the Airport. This Ordinance appropriates $40,060 for completion of the FAA sponsored aircraft ramp area reconstruction project; $63,080 for design costs of the FAA sponsored snow removal building addition; and $277,800 for estimated costs to prepare the FAA sponsored Airport Master Plan Update Study. The appropriation also includes $39,000 of Airport reserve funds for operating costs needed to meet FAA safety standard requirements for runway/taxiway striping, federal transportation security regulations, repair of snow removal equipment damaged in the blizzard earlier this year and for surveying costs to clarify land lease discrepancies. Total revenue anticipated to be received from the FAA and State of Colorado is $339,210. Total Airport funds utilized are $80,730. 13. Items Relating to the Swift Addition to Fossil Lake P.U.D. Annexation A. Resolution 2003-080 Setting Forth Findings of Fact and Determinations Regarding the Swift Addition to Fossil Lake P.U.D. Annexation. B. First Reading of Ordinance No. 096, 2003, Annexing Property Known as Swift Addition to Fossil Lake P.U.D. Annexation to the City of Fort Collins. C. First Reading of Ordinance No. 097, 2003, Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Swift Addition to Fossil Lake P.U.D. Annexation. This is a request for a 100% voluntary annexation and zoning of approximately 55 acres of privately owned property known as the Fossil Lake P.U.D. — Swift Addition, which is a County -approved development in the Fossil Creek Reservoir Planning Area. The recommended zoning is a combination of the LMN—Low-Density Mixed Use Neighborhood Zoning District, and the UE — Urban Estate Zoning District. This property is eligible for annexation according to CRS, requiring 1/6 contiguity to the existing city limits. This annexation application complies with this standard since the property has 1042 feet of its total boundary of approximately 6107 feet contiguous to the existing city limits. This exceeds the minimum 1018 feet required to achieve 1/6 contiguity. This contiguity occurs through a common boundary with the Fossil Lake Annexation No. 1 and the Fossil Lake Annexation No. 2. am July 1, 2003 14. First Reading of Ordinance No 098, 2003, Authorizing the Transfer of a 151-acre Portion of the Resource Recovery Farm from the Wastewater Utility to the Natural Areas Program in Exchange for a Total Payment Amount of $1 890 306 In 1982, the City developed the Resource Recovery Farm ("RR Farm") at Prospect Road and I-25 as a beneficial reuse site for wastewater biosolids. The City land applied biosolids on the site through the year 2000. As the City has grown, the site has become less functional for this type of use. In 1993, the biosolids program began its move north to Meadow Springs Ranch. With the move now complete, the Utilities is no longer using the RR Farm land for biosolids application. In 2000, the City of Fort Collins Natural Areas program purchased 174-acres of the RR Farm along with 3.6 shares of the Lake Canal water for the Running Deer Natural Area. In discussion at the City Council study session regarding the draft I-25 Corti dorPlan on August 27, 2002, there was general support for the City's Natural Areas program to purchase the 151-acre portion of the RR Farm from Utilities. This 151-acre transfer to the Natural Areas program would include the 2.4 shares of Lake Canal water associated with this portion of the RR Farm. 15. Resolution 2003-081 Authorizing the Execution of a Grant Agreement with the State of Colorado for Funding of the Airoort Master Plan Update at the Fort Collins -Loveland Municipal Airport. Last year the Airport submitted a Grant Proposal to the Colorado Aeronautics Board for financial assistance to help pay for the Master Plan Update Study. The amount of $7,555 is being given to the two cities as a result of that request. The State wants the funds committed before the new grant cycle begins to ensure the funds will be accepted and not available to other airports. Other grant funds from the FAA will be forthcoming when negotiations with the Master Plan consultant have been completed. Funding from the FAA will be 90% of the eligible scope items. 16. Resolution 2003-082 Authorizing the Airoort Manager to Execute a Lease Agreement at the Fort Collins -Loveland Municipal Airoort with the State of Colorado The Colorado State Forest Service has used the Airport for the past several years to operate a small air tanker during summer months to assist with fighting forest fires. The pilot and ground crew need a waiting area and small office for communications and staging area. The terminal building has a small office area on the backside of the building suitable for this purpose and is close to where the aircraft is staged on the ramp area. This room will be used 476 July 1, 2003 through the fire season, which typically runs through the end of September. Use of the room will assist the Forest Service with its firefighting efforts. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Krajicek. Second Reading of Ordinance No. 091 2003 Appropriating Unanticipated Revenue in the General Fund and Authorizing the Transfer of Appropriated Amounts Between Accounts and Projects for the Multi -Jurisdictional Drug Task Force, 9. Second Reading of Ordinance No. 092, 2003 Authorizing the Acceptance of Property Donated by Willowood Corporation and Appropriating Unanticipated Revenue in the General Fund for Said Property Acceptance. 10. Second Reading of Ordinance No. 093, 2003, Amending Section 23-193 of the Code of the City of Fort Collins Governing Certain Conduct in City Natural Areas Ordinances on First Reading were read by title by City Clerk Krajicek, 11. First Reading of Ordinance No. 094, 2003, Authorizing the Transfer of Appropriated Amounts to be Used to Construct Interim Roadway Improvements on County Road 11 and Douglas Road. 12. First Reading of Ordinance No. 095, 2003, Authorizingthe he Appropriation of Funds for Expenditures for Capital Improvements and Operating Expenses at the Fort Collins Loveland Airport. 13. Items Relating to the Swift Addition to Fossil Lake P.U.D. Annexation B. First Reading of Ordinance No. 096, 2003, Annexing Property Known as Swift Addition to Fossil Lake P.U.D. Annexation to the City of Fort Collins. C. First Reading of Ordinance No. 097, 2003, Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Swift Addition to Fossil Lake P.U.D. Annexation. 477 July 1, 2003 14. First Readine of Ordinance No. 098, 2003 Authorizing the Transfer of a 151-acre Portion of the Resource Recovery Farm from the Wastewater Utility to the Natural Areas Program in Exchange for a Total Payment Amount of $1 890 306 Councilmember Bertschy made a motion, seconded by Councilmember Weitkunat, to adopt and approve all items on the Consent Calendar. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Martinez, Roy, Tharp and Weitkunat. Nays: None, THE MOTION CARRIED Consent Calendar Follow-up Councilmember Bertschy spoke regarding item #14 First Reading of Ordinance No. 098, 2003, Authorizing the Transfer of a 151-acre Portion of the Resource Recovery Farm from the Wastewater Utility to the Natural Areas Program in Exchange for a Total Payment Amount of $1,890,306. Mayor Martinez spoke regarding item #8 Second Reading of Ordinance No. 091, 2003, Appropriating Unanticipated Revenue in the General Fund and Authorizing the Transfer of Appropriated Amounts Between Accounts and Projects for the Multi -Jurisdictional Drug Task Force. Staff Reports City Manager Fischbach reported on the City Council follow-up list, completion and reopening of Lemay Avenue a month ahead of schedule, Cable 27 awards from the Alliance for Community Media, the Museum's repatriation of Native American Indian remains in compliance with federal law, and Youth Activity Center fund raising. Mayor Martinez asked about the scheduling of a meeting for the Transportation Committee for the Fire Board. Councilmember Reports Councilmember Tharp reported on North Front Range Transportation and Air Quality Planning Council discussions regarding the Regional Transportation Authority. She also reported on a tour of the Museum storage barn. Councilmember Bertschy reported on agenda management for the July 15 City Council agenda. EW-1 July 1, 2003 Consideration of the Appeal of the April 24, 2003 Determination of the Administrative Hearing Officer to Approve the Bella Vista, PDP Decision Upheld The following is staff's memorandum on this item. "Executive Summary On April 10, 2003, an administrative public hearing was conducted to receive presentations and testimony on the Bella Vista, Project Development Plan (PDP), a mixed -use (residential and commercial) project on 3.0 acres. There would be a total of 81 residential dwelling units in the proposed three buildings and 16,000 square feet of non-residential uses on the lower two floors of the building right at the intersection of East Horsetooth Road and Stanford Road. On April 24, 2003, the Administrative Hearing Officer approved the Bella Vista, POP. The property is zoned MMN - Medium Density Mixed -Use Neighborhood (as of the effective date of March 28, 1997 for the new Land Use Code). The property is located at the northeast corner of East Horsetooth Road and Stanford Road, east of South College Avenue, and west of South Lemay Avenue. On May 7, 2003, a Notice of Appeal was received by the City Clerk's office regarding the decision of the Administrative Hearing Officer. " City Attorney Roy explained the appeal hearing process and the options available to the Council at the conclusion of the hearing. City Manager Fischbach introduced the agenda item. Steve Olt, City Planner, presented background information regarding the agenda item. He stated the Administrative Hearing Officer conducted a Type 1 administrative public hearing on April 10, 2003 regarding the Bella Vista Project Development Plan. He stated this was a mixed use project consisting of 81 residential dwelling units and approximately 16,000 square feet of nonresidential uses on a three acre site. He stated the Hearing Officer heard presentations from City staff and the project applicant and accepted testimony from the public. He stated there citizens spoke both for and against the project. He stated after deliberation the Hearing Officer approved the Bella Vista Project Development Plan on April 24, 2003. He stated the property was located on the north side of East Horsetooth Road at Stanford Road and east of South College Avenue and west of South Lemay. He stated the property was in the M-M-N Medium Density Mixed Use Neighborhood zoning district. He stated a notice of appeal of the Hearing Officer's decision was filed on May 7, 2003 and that it cited two basic allegations. He stated the appellant had requested an interpretation from the Current Planning Director on how the project was able to be evaluated against contextual height 479 July 1, 2003 requirements, and that the Current Planning Director issued an administrative interpretation. He stated the citizen who requested the interpretation felt that it was too general in nature and requested further interpretation. He stated the Current Planning Director indicated that there were no necessary changes to the interpretation, that he was not charged with interpreting the project to the contextual height and relativity to the buildings in the area, that such interpretation would be done through the standard development review process, and that the determination regarding the appropriateness of the contextual height would be made by an assigned Hearing Officer at a public hearing. He stated the second allegation was that the Hearing Officer failed to receive and acknowledge all relevant evidence offered. He noted the appellant has indicated the Hearing Officer stated that no evidence regarding project compatibility was presented and that the Hearing Officer did not adequately accept and evaluate the evidence presented. He stated the allegation also stated the City failed to deliver to the Hearing Officer all pertinent e-mail communications from and to the appellant with regard to the project. He stated the City response to the appeal was included in the Council packet and that each allegation was addressed. He stated photos of the site would be available to view at Council's request. Mayor Martinez stated each side would have 20 minutes to make a presentation and that each side would then have 10 minutes to make a rebuttal. Paul Thomas Kitze, 539 Spindrift Court, representing the appellants, stated City Council's decision may determine whether high rise buildings would be inserted into existing neighborhoods, altering the skyline of much of Fort Collins. He stated he was appointed representative of the Land Use Community Board and that letters had been submitted from that Board in opposition to the project. He stated "quirks" in the Code do not allow Planning and Zoning Board review of this project in spite of the size of the project and the height of the proposed buildings. He stated Bella Vista would be a mixed use project of luxury condominiums and that this would be the first attempt away from the downtown area to put the new urbanism idea of high density infill into an existing neighborhood using high rise buildings as envisioned by City Plan. He stated City Plan and the Land Use Code had protections for the character of existing neighborhoods, including restrictions on the use of the contextual height vision of the Code to ensure better compatibility of an infill project to existing buildings on the same block and a provision to ensure that height changes of buildings be gradual. He stated the Code also states a building greater than 40 feet should be located in the downtown area or in an established or developing activity center. He stated the policies of City Plan required neighborhood collaboration in determining if infill projects were acceptable. He stated such collaboration did not happen with the Bella Vista project. He stated the neighborhood first heard of the development at the neighborhood meeting in November of 2001 and that the comments from the neighborhood expressed concern about the extreme height of the buildings. He stated the developer made no accommodation for these comments and submitted the project unchanged to the City for development review. He stated it was recently discovered that City staff had been working with the developer on the project since April of 2000. He stated in June of 2000 the contextual height portion of the Code was changed to allow the proposed Bella Vista project to built on this site. �:1 July 1, 2003 He stated in late 2001 the part of the Code not allowing abrupt changes in height was eliminated. He stated the neighborhood was not aware of the project and of the significance to the neighborhood of those Code changes. He spoke regarding the placement of the project's height relative to the neighborhood and stated the activity center of the neighborhood appeared to be the commercial area just east of College Avenue, including Foothills Fashion Mall. He stated the developer claimed that this project was part of the activity center but that the commercial uses requested did not appear to offer the immediate neighborhood anything in the way of attractive activities. He stated Mr. Olt stated at the administrative hearing that the project bordered on an activity center but was not in one. He stated the site intrudes into an existing residential neighborhood and that these high buildings should be in commercial to be in the activity center as required. He stated City Council needed to decide whether the Administrative Hearing Officer erred in allowing placement of these tall buildings in a residential neighborhood. He stated the appellants believed that the Hearing Officer did err. He stated the M-M-N zoning of the site limited building height to three stories. He stated the contextual height provisions of the Code provided for exceptions to the three-story limit. He stated he had questioned the City at length about applicability of the provision to this site. He stated the Code still requires that the project lot and the lot being used as context be adjacent. He stated the dictionary definition of adjacent, which was "applied to things of the same type that indicates either side by side proximity or lack of anything of the same nature intervening." He stated the zoning map showed the parcels in existence on the Marriott block and that those parcels met the Code definition of "lot." He stated he believed that City staff had indicated to the developer early in the process that the proposed site met the Code after Code changes were made and that staff had second thoughts regarding the definition of "adjacent" and had to find a "legal loophole" to justify the staff position. He asked if City Council wanted the first use of contextual height to be based on such a questionable position. He stated the buildings should be stepped and set back like the Marriott Hotel and the Horsetooth One Building. He stated City staff had stated the Bella Vista buildings were on lower ground and that the height was mitigated. He stated in fact because of the proposed underground garage that the face of the buildings would be at or slightly above the face of the Aspen Leaf Apartment Buildings and would be about 10 feet above the face of Cove Island Townhouses. He stated he and Mr. Emmel had scaled the plans submitted to the City by the developer at 62 feet and 64 feet for buildings B and C. He stated it appeared that the developer was not required to measure to the roof peaks. He stated City Council needed to ensure that the Codes were being enforced. He stated these buildings did not meet the contextual height part of the Code. He spoke regarding building and project compatibility and stated the Code would require the Aspen Leaf Apartments to be used as context. He stated City staff indicated that building footprints were comparable and that in fact the footprints of buildings A and B of the project were about 1.4 times the Aspen Leaf footprint and that building C was 3 times the Aspen Leaf footprint. He stated the bulk of the buildings would be huge in a residential area and that the character of the neighborhood would be changed. He stated all buildings in the immediate neighborhood were well below tree line and that lines were softened by the trees. He stated these buildings would be above the tree line and would not be compatible. He stated the staff report indicated that Cove Island had a significant earthen berm and dense, mature landscaping and that only a few townhomes would be adversely Eff July 1, 2003 affected. He stated in fact the berm was in front of only 10 of the 21 townhomes and that it was only 2-3 feet above the level of Horsetooth Road. He stated there were many breaks in the trees and that some were deciduous. He stated views from Aspen Leaf Apartments would be blocked along the Bella Vista property line and that views from Horsetooth Road would also be adversely affected. He stated the Code said that views of the mountains and foothills were important in Fort Collins and that these buildings would significantly block important views. He stated placing large buildings in existing neighborhoods may be desirable to achieve the goals of the new urbanism but that it needed to be done with care and in collaboration with residents of those neighborhoods. He stated this project was intrusive when placed on the northeast corner of Stanford Road and Horsetooth Road, that it did not meet the height requirements of the Code, and that it was out of context and out of character with the neighborhood. He asked that the Council reverse the decision of the Administrative Hearing Officer on the Bella Vista Project Development Plan. Jeff Emmel, 543 Spindrift Court, representing the appellants, concurred with the previous speaker's statements with regard to contextual height, compatibility and views. He spoke regarding the demarcation between the residential, M-M-N and commercial sections of the area. He stated the Bella Vista project would be within nine feet of Horsetooth Road. He stated the project would be intrusive rather than transitional. He stated the site was zoned M-M-N and that the site did have interesting proposed architecture. He stated the issues were height, the lack of collaboration with the neighborhood, the combination of multiple buildings into one to get an average height potentially below the threshold, and failure to consulting the Landings. He stated the height of the Marriott was incorrectly measured by the developer, that building C from the street would be 72 feet, that the project did not transition and was abrupt from all angles, and that the developer has been against a surety bond. He spoke regarding a CBS production regarding a project in Nantucket that was similar to the Bella Vista project. Lucia Liley, 300 South Howes Street, representing the applicant, lodged an objection that all of the preceding material including the maps and this video clip were not shown at the administrative hearing. She stated it was difficult for the applicant to respond when these materials had never been seen before. She asked for Council consideration of her objection. Mayor Martinez asked for the opinion of the City Attorney. City Attorney Roy stated it might be appropriate to inquire of the appellants as to whether they believed the new evidence, if indeed it was new evidence, fit into either of the exceptions to the rule against new evidence. He stated evidence was the introduction of facts that were believed to be relevant to the determination, as opposed to arguing what the facts show. He stated much of what was shown by the appellants were facts and that the question would be whether the notice of appeal stated some evidence that was received at the administrative hearing was substantially false or grossly misleading, and if so how, if at all, this new evidence would tend to support that contention. Cf:N► July 1, 2003 Mr. Kitze stated one of the points was that the characterization of the project by the City staff as being compatible with the neighborhood was in error. He stated the appellant wanted to show how this project fit into the neighborhood in context with other buildings in the area. He stated some of the pictures shown at the hearing were very misleading. City Attorney Roy asked if the notice of appeal indicated that the evidence that had been introduced was false or misleading. Councilmember Hamrick asked if he could request that the appellant be allowed to show the information. City Attorney Roy replied in the affirmative. He stated evidence could be offered by City staff or parties -in -interest in response to questions presented by City Councilmembers. He stated this meant that if a Councilmember had a particular question about an issue being addressed on appeal and if the Councilmember felt that some information would be helpful in order to made a determination that the Councilmember could request the information even if it was not in the record. He urged that the Councilmember consider whether he was requesting particular information to help with a particular issue or whether carte blanche was being given to any new evidence that the appellant wanted to offer. Councilmember Hamrick stated the appellant indicated that there was some information that would shed some light on the character and contextual issue and that he would like to hear the information that would show the context between buildings of this type and the community and its residents. City Attorney Roy stated the Mayor would rule on the admissibility of new evidence. He stated his advice was that Councilmember Hamrick's request for this information made it moot as to whether the information could have been in otherwise and that the information could be received with the understanding that it was new and that the Hearing Officer did not have an opportunity to consider it. Mayor Martinez stated he would object to the admission of the new evidence unless overruled by a majority of the Council because the Hearing Officer did not have a chance to review the information. Councilmember Tharp stated she did not understand the Mayor's objection to the admission of the new evidence. Councilmember Weitkunat stated she would object to the admission of the CBS report because it was extraneous information from a different community with different rules. She stated she felt that this would "taint" the Council's attempts to "keep the facts pure." Councilmember Tharp stated she agreed that the CBS clip should not be admitted. Mayor Martinez stated he would rule against the admission of the CBS clip. EM July 1, 2003 Councilmember Hamrick asked about the process for the chair ruling against a Council request for information. City Attorney Roy stated the City Charter provided that approval by a majority of the Council was sufficient to authorize any action of the Council. Councilmember Hamrick made a motion, seconded by Councilmember Roy, to overrule the ruling of the Mayor with regard to the admission of evidence that would show some context to this development, including the video clip. The vote on the motion was as follows: Yeas: Councilmembers Hamrick and Roy. Nays: Councilmembers Bertschy, Martinez, Tharp and Weitkunat. THE MOTION FAILED TO PASS Mayor Martinez stated the motion failed to pass and that the video clip would not be entered into evidence and that the appellants could proceed with their presentation. Mr. Emmel stated the main issues had been somewhat inaccurately addressed as shown by the information presented. Mayor Martinez stated any parties -in -interest in support of the appeal could speak. Doug Johnson, Warren Shores resident, stated he had received the hearing notice and that the proposed buildings would have a totally different character than what exists to the east of Stanford Road. William Withers, 700 Sandpiper Point, stated he had received the hearing notice and expressed concern about the project's proximity to Horsetooth Road and the abruptness of the transition. He stated the building height should gradually decrease from the Marriott to the Aspen Leaf Apartments. Will Stutheit, 737 Warren Landing, stated he had received the hearing notice and concurred with the presentations of the appellants. He stated the project would have an impact on traffic in an already congested area. Ruth Thomas, 503 Spindrift Court, stated she received the hearing notice and that she lived in the first unit "directly across from this monstrosity." She stated the project would greatly impact those who lived in the neighborhood. Mayor Martinez stated the presentation of the appellants was concluded and that parties -in -interest opposed to the appeal could proceed with their presentations. Eldon Ward, Cityscape Urban Design, representing the applicant, stated City Plan and the new Land Use Code allowed and encouraged alternatives to development that are better than urban sprawl. EM July 1, 2003 He stated the Bella Vista applicant decided to design a mixed use infill project that embodied the vision of City Plan. He stated the resulting plan was consistent with dozens of adopted City policies and other City plan elements. He stated this site was the focal point of a linear M-M-N transition district that would run between predominantly residential areas to the east and predominantly commercial and office development to the west. He stated this site also fit into a general pattern of increasing building height in this transition zone. He stated the project had been in process since March of 2000 and that the applicant confirmed with the City that the contextual height provisions of the Land Use Code were applicable to this property and that buildings up to six stories would be allowed by Code on this site. He stated the site was designed with underground parking, vertical mixed use and urban character. He stated this project was the opposite of sprawl because the proposed development would consume only three acres on an infill site and because these 80 units would use only 22,000 gallons of irrigation water in a week compared with a half a million gallons per week in conventional subdivisions. He stated City Plan stated preferential consideration was to be given to infill projects like Bella Vista with services in place. He stated this type of development was desirable in locations other than downtown. He stated the housing policy stated the City would promote higher density housing near public transportation, shopping and designated neighborhood districts and that this site would do that. He stated City Plan also specifically stated compatibility with existing elements did not mean uniformity. He stated Bella Vista would complement and set a positive tone for this area and proposed to do high quality urban character spaces as this crossroads focal point in the community. He stated there was a wide variety of architecture in the neighborhood and that the neighborhood to the east had more than residential uses. He described the character of Cove Island and the separation of Bella Vista from that area by the arterial. He stated the closest point of Bella Vista would be more than 160 feet from the closest garage door in Cove Island. He stated there were typically more than 200 feet between any living spaces in Bella Vista and those in Cove Island. He stated there were other buildings in the area that were vertically oriented and that there were other buildings that were close to the street. He stated City Plan provided for a maximum setback from the street of 15 feet. He stated the project design picked up on many positive characteristics of the neighborhood. He stated no neighborhood meeting was required for this Project Development Plan but that two meetings were held. He stated the design was changed as a result of those meetings to reduce the nonresidential floor area and to remove one entire floor from two buildings. He stated the buildings would be four and five stories high with a lockout basement at the corner building that would allow nonresidential uses. He stated the buildings would step down toward Stanford Road. He stated the calculations for building height were set out in the Land Use Code. He stated the applicants throughout the lengthy process had given up everything that could be given up to still have a viable project. He stated there was considerable neighborhood support for the project. He stated the applicant believes that it could do better than the same old urban sprawl. Lucia Liley, 300 South Howes Street, representing the applicant, stated this project stood on its planning merits and that the she was present because the appellants had raised a series of legal arguments to try to overturn the decision of the Hearing Officer. She stated the first of the LM July 1, 2003 appellants' arguments stated the Hearing Officer failed to properly interpret the Code, and specifically the interpretations of "adjacent" and what would constitute a "lot." She stated it was the applicant's position that both administrative interpretations were final when issued by the Planning Director and not timely appealed and that the interpretations were not properly the subject of this appeal. She stated both definitions had to do with the same issue, which was whether or not one could use the Marriott to determine whether Bella Vista would meet the contextual height Code section. She stated in order for the appellants to prevail on that issue, the Council would have overturn both the Planning Director's and Hearing Officer's determinations on both of those issues. She stated the appellant argued that "adjacent" means abutting or touching and not nearby. She stated in Land Use Codes when you mean that something must be touching, words such as "abut," "adjoin" or "contiguous" would be used. She stated such words had a legal meaning that meant only "touching." She stated if something more flexible was intended such as "nearby" or "in the vicinity of" that the word "adjacent" would be used as indicated by Black's Law Dictionary. She stated the appellants themselves recognized another material fact with regard to the word "adjacent" i.e. that the Code section on contextual height used to contain the word "abutting" and that word was removed and replaced by the word "adjacent." She stated it would be hard to argue that "adjacent" meant the same thing as "abutting" when the one replaced the other. She stated the Marriott was on Lot 3 of the Strachan Subdivision and that lot abutted the lot on which Bella Vista would sit. She stated this project would fall squarely within the definition of contextual height and that the project would be entitled to use the height of the Marriott in determining the height of Bella Vista. She stated the appellant alleged that there was a failure on the part of the Hearing Officer to receive and "acknowledge" all relevant evidence, yet the record clearly showed that the Hearing Officer received all of the information presented by the applicant at the hearing. She stated the appellant might be using the word "acknowledge" to mean that the Hearing Officer did not agree with the conclusions that the appellants drew with regard to the information. She stated the record showed that in some cases the appellant misconstrued the Hearing Officer's statements or supplied standards that were not Code standards. She stated the appellants' real issues appeared to be with City Plan's policies and goals and the ordinances that implemented those goals. She stated one of the appellants said the following on page 66 of the transcript: "We are very disappointed in the City staff and how they have handled this. With the Landings and our neighborhood there was really no interest in listening to our needs. They kept relying on the City Plan." She stated this was true and that staff, the applicant and the Hearing Officer throughout the long process had relied upon City Plan and the Codes which implementedit. She stated the Planning Director and the Administrative Hearing Officer both found that the project met the requirements and deserved approval. She asked that Council make the same decision. Larry Kendall, managing partner in the Shores Office Park and Warren Lake area resident, spoke in favor of the project. He spoke regarding the diversity and popularity of the area and stated this project would add to that diversity and popularity. He spoke regarding the alternative uses considered for the property over the years and stated this was a much better alternative than past proposals. Ems July 1, 2003 Mike O'Dell, 624 Skysail Lane, supported the project. He stated he did not share the homeowners' association's opinion of the project as stated by Mr. Kitze. He stated this type of project would be fitting and appropriate forthis location and that the design would enhance property values in that part of town. He asked that Council deny the appeal. James Comer, 306 Starboard Court, expressed support for the Bella Vista development. He stated this was the kind of development that City Plan called for at this location. He stated the project would offer a lifestyle that was in demand in Fort Collins and was not currently available. He stated Bella Vista would serve as a good transition into the adjacent residential area. He stated the design of the project would enhance the neighborhood and property values. Mayor Martinez stated each side would have 10 minutes for rebuttals. Mr. Kitze stated the changes in height were abrupt in these large buildings and will not fit within the context of the neighborhood. He stated the Marriott was 60 feet high and that the Cove Island and Aspen Leaf buildings were 24 feet high. He stated the heights should transition gradually to those heights for a transitional development. He stated the appellants would prefer to see a development like this on the commercial lot next to the Marriott, where it would fit as part of the activity center. He stated these buildings will intrude into the residential area and that was one of the big reasons that the appellants opposed this development. He stated there was a good reason that he did not file a timely appeal, and that was that the e-mails that Mr. Olt did not provide to the Administrative Hearing Officer were the ones relative to that, including e-mails to and from the City staff telling him that it was not appropriate to appeal to the Zoning Board of Appeals because it was not specific to the project. He stated he did request that the interpretation be done specific to the project and that was not done. He stated the term "adjacent" did not necessarily mean "touching" and that it meant "nothing of a like kind between." He stated he agreed that "abutting" meant "touching." Mr. Emmel stated the "pretty pictures" shown by the applicant indicated that the project would be a welcome addition. He stated the issue was that those pictures were the result of requests for reviews by people in the Landings. He stated, in context with the Marriott, that the height of the buildings would be 89 feet and that this did not agree with the measurements of the applicant. He stated the applicant could not change the actual height and whether it would be in context. He stated the meanings of words such as "adjacent" appear to change throughout this process. He stated the applicant cannot change the actual height of the building and that the applicant was not meeting what he said was the threshold. He stated the same Codes do not apply to the downtown and to this area on Horsetooth Road. He stated this project would be a Justice Center size building within nine feet of Horsetooth Road. He stated this would be an "interesting experiment that would be there for a long time." He stated no one was in favor of urban sprawl but that the applicant was not showing a design that would have had more units on the lot than were currently proposed. He stated the applicant did not talk about views, lighting, and impact on angles and views that would be seen by ME July 1, 2003 the resident and the pedestrian. He stated the project would need to be put into the context of the height of the proposed buildings, the Marriott and the rest of the buildings in the neighborhood. ("Secretary's Note: The Council took a recess at this point.) Mayor Martinez stated those opposed to the appeal would have a 10 minute limit for a rebuttal. Mr. Ward showed the existing view from Landings Drive approaching the site and the view after construction. He also showed a view from the intersection of Spindrift Court going into Cove Island Townhomes as it would exist now and as it would be after construction. He stated the views were as accurate as technology would allow. He stated the view of Horsetooth Rock from Horsetooth Road would not be affected by the project. He described the specific formula in the Code for measurement of building height and that the contextual height requirement could not be used to limit buildings to less than would be allowed in the underlying zoning district. He stated M-M-N allows buildings taller than these and that the applicant voluntarily limited the height to the height of the Marriott. Ms. Liley stated the applicant asks the Council to keep in mind that in this zone, a commercial project of three stories would be a use by right. She stated such a project would not have to rely on contextual height and it would not require a modification or variance. She stated such a commercial project could have three stories each 25 feet tall, with a potential for a fourth story on the comer up to 100 feet. She stated the neighborhood appeared to be objecting to the actual height of the project but that the actual height of a commercial alternative project would be higher than this mixed use residential project. She stated this would be a residential mixed use infill project in a transition area, which City Plan states should not only be strongly encouraged but should be given preferential consideration. She stated this project was at a height from 15 to 40 feet lower than a commercial project which could be anywhere from 75 to 100 feet tall. Richard Kuyard, 6212 Mariner Lane, stated he attended the last hearing and spoke in support of the project. He stated this was an attractive and interesting project and that he would prefer to see a project that would enhance the value of his property and that would be an asset to the community. He stated this project appeared to meet the City's goals for infill development, higher density, mixed use and less auto dependent lifestyles. He stated the applicant had worked hard to comply with the City's requirements and regulations and that the project would impact many in a positive way. Councilmember Weitkunat asked for clarification about what type of neighborhood engagement was to be conducted for a Type 1 Review. Olt stated an administrative review was required for a project determined to create less of an impact or to be less controversial than other types of projects. He stated the Land Use Code stated administrative Type 1 Reviews would go to an administrative public hearing before a single hearing officer and that such process was subject to the same rules, regulations and requirements as a Type 2 Planning and Zoning Board Review. He stated a ME July 1, 2003 neighborhood meeting was not required for a Type 1 Review unless the Director deemed the project to be significant or controversial enough to require a neighborhood meeting prior to formal submittal of the project. He stated in this case there were two neighborhood meetings held prior to formal submittal of the project. Councilmember Weitkunat asked if the residents received notification of the project. Olt replied in the affirmative. Deputy City Attorney W. Paul Eckman stated Section 2.2.2(A) required neighborhood meetings only for those matters that would come before the Planning and Zoning Board and that even then the Planning Director could decide not to have a neighborhood meeting if he would determine that the project would have no significant impact. He stated there was no mention whatsoever of a requirement for a neighborhood meeting for a Type 1 Review. Councilmember Weitkunat asked what the Code would allow for height of commercial buildings in the M-M-N zone and what the criteria would be for measuring height. Olt stated the M-M-N zoning district would prohibit buildings from exceeding three stories in height. He stated Section 3.8.17(A)(2) related to measurement of height and that no story of a commercial or residential building should have more than 25 feet from floor to floor. He stated would permit one story to be 25 feet in height and that his interpretation would be that up to 75 feet in height would be allowed for a three-story building. Councilmember Weitkunat asked for clarification regarding measurement. Olt stated building height was to be measured from the average of finished ground level at the center of all walls of a building or structure to the highest point of the roof surface or structure. Councilmember Weitkunat asked for clarification that the elevation of the ground would therefore not matter. Olt replied in the affirmative. Councilmember Weitkunat asked if this project represented the City Plan policies. Olt replied in the affirmative and stated this was determined in staff's review of the project. Councilmember Weitkunat asked which of the City Plan policies were most strongly reflected in this project. Greg Byrne, CPES Director, stated applicants were asked to submit a statement of planning objectives upon submission of a project and that they were also asked to submit a context diagram. He stated Mr. Ward had provided a summary of the items the applicant considered in the planning objective approach, including infill and redevelopment in activity centers and areas. He stated staff concurred that was probably the strongest policy support, although it was recognized that infill projects always brought with them some frictions. Councilmember Tharp asked about the determination of "lot" and whether it was considered to be the whole space (including the vacant lot) or the area on which the Marriott Hotel was built. Eckman stated as he understood it from the presentation that the Marriott Hotel sat on one lot (Lot 3 of the e July 1, 2003 Strachan Subdivision). Olt stated the Marriott was one of multiple structures on Lot 3 of the Strachan Subdivision Third Filing. Eckman stated the lot had been divided by the County for tax assessment purposes. He stated the definition of "lot" in the Land Use Code was "a parcel, tract or area of land established by plat, subdivision or otherwise permitted by law to be used, occupied or designed to be occupied by one or more buildings." He stated the division of the lot for tax purposes did not mean that the City would be obliged to allow construction on any part of the lot without further City approval or replatting. Councilmember Tharp stated the Marriott was used for contextual height for the project and that there was an empty lot between the Bella Vista project and the hotel. She asked about having the 500 feet of vacant land between the two and saying that the two were "nearby." City Attorney Roy stated the criterion in question stated that: "The allowed contextual height may fall at any point between the zone district maximum height limit and the height of a building that exists on a lot that is adjacent to the subject lot." He stated it was necessary to compare the proximity of the lots rather than the proximity of the buildings. He stated the zone district maximum height limit was three stories and that the Marriott was a building that existed on a lot. He stated the question was whether the Marriott lot was "adjacent" to the Bella Vista lot. Councilmember Tharp asked if there was 500 feet between the building (the Marriott) and the Bella Vista property if the two could be considered to be "nearby." Eckman stated "adjacent" meant "nearby" but not necessarily "touching." He stated the Marriott lot was across the street from the Bella Vista project and that the road therefore intervened and that the two lots would fit the term "adjacent." Councilmember Tharp stated she did not see 500 feet as being "nearby." She asked about the requirement that the two buildings be "adjacent" and "compatible." She stated she found it difficult to see the building as compatible with the surrounding residential properties. She asked if the project met the criterion of compatibility. Eckman stated would be a valid question for the Council to consider. He stated Section 3.5.1 related to building and project compatibility and had nothing to do with adjacency. Councilmember Tharp asked if it was required that the project be "compatible" and "adjacent." Eckman replied in the affirmative. Councilmember Tharp stated it could be argued that the project was not compatible even if it was considered to be adjacent. Eckman stated there were Code provisions that related to architectural character, height, bulk, mass, scale, privacy, views, light and shadow, and neighborhood scale. Councilmember Tharp stated her argument was with compatibility and adjacency. ,•E July 1, 2003 Councilmember Weitkunat asked about compatibility and noted that this did not necessarily mean that things would be identical or look alike. She stated all residential was typically compatible. Eckman stated the Land Use Code's definition of "compatibility" was as follows: "Compatibility shall mean the characteristics of different uses or activities or design which allow them to be located near or adjacent to each other in harmony. Some elements affecting compatibility include height, scale, mass and bulk of structures. Other characteristics include pedestrian or vehicular traffic, circulation, access and parking impacts. Other important characteristics that affect compatibility are landscaping, lighting, noise, odor and architecture. Compatibility does not mean "the same as." Rather, compatibility refers to the sensitivity of development proposals in maintaining the character of existing development." He stated Council could also look at the architectural character paragraph of Section 3.5.1(B) that was included in his report to the Council because it dealt somewhat with compatibility. Councilmember Tharp stated she was not as concerned with the appearance of the building as the mass of the building. Councilmember Weitkunat noted that a variety of things dealt with compatibility. Mayor Martinez asked how far the Marriott lot was from the development's lot. Olt stated the Marriott's lot was Lot 3 of the Strachan Subdivision Third Filing and that there were other buildings on that lot. He stated Lot 3 abutted the right-of-way of Stanford Road and that the property in question was directly across the street to the east. Mayor Martinez asked how far it would be. Olt stated the width of the right -of way was 78 feet. Mayor Martinez asked how far it would be from the appellants' residential homes. Olt stated the width of Horsetooth Road was 150 feet. Mayor Martinez asked about the uses in the surrounding area. Olt confirmed that there were a mix of uses. Councilmember Bertschy asked for clarification relating to the provision in Section 3.5.1(c) which stated buildings were to be similar in size and height or, if larger, were to be articulated and subdivided into mass that was proportional. He stated these buildings were not equal height and asked whether the slope or placement would articulate the buildings. Olt stated the site sloped dramatically from northeast to southwest. He stated there would be some leveling of the ground to accommodate the apartments and that there would be a difference from the back of the units and where they would meet the finished grade down to Horsetooth Road. He stated the Code did not require buildings to be like in size or mass to a great degree if the building footprints were comparable. He stated building height, design, colors and materials all played into the compatibility 491 July 1, 2003 issue. He stated the Staff Report and Staff Response indicated that the project met the criteria as stated in Section 3.5.1 of the Code. Mayor Martinez asked how tall the Marriott was. Olt stated the Marriott was 60 feet 6 inches tall. Mayor Martinez asked how tall this project would be. Olt stated the project would vary from 48 feet 6 inches to 61 feet 8 inches. Councilmember Weitkunat made a motion, seconded by Councilmember Hamrick, to find that the Administrative Hearing Officer did conduct a fair hearing and received all relevant evidence offered by the appellants at the hearing. City Attorney Roy stated to complete the record the e-mails referenced in the testimony should be offered into evidence and made part of the record. Ms. Liley stated she would not have any objection to the admission of the referenced a -mails into the record. Deputy City Attorney Eckman stated a letter dated June 25, 2003 from Ms. Liley also indicated that there would be no objection to the consideration of those e-mails. Councilmember Roy thanked those who spoke regarding the project. He stated this project would do many of the things the City was trying to achieve, that it was an infill project that would have the ability to "keep people at home" and to lessen traffic, and that its closeness to the Foothills Fashion Mall would make it a positive addition to the community and would help make the mall a healthier part of the community. He stated a project of this size would change this part of the community. He stated Fort Collins had undergone numerous changes and that this type of project would infill development in ways the City wanted to see redevelopment happen. He stated the conceptual renderings were attractive and that he like the idea of underground parking. He stated this project was an attempt to do something different. He stated he would support the motion. Councilmember Weitkunat stated looking at the Code and the Land Use Plan was difficult and that many areas were interpretive in nature. She stated the Council must abide by the "rules that were on the table" and the policies being implemented through City Plan and the Land Use Code. She commended the appellants for their work on the issue. She stated for her it was a matter of looking at the established rules and policies. She stated the implementation of City Plan has had some difficulties with community buy -in with regard to intensity, density and the size of projects needed to accomplish the desired goals. She stated this site was in the commercial area and that it was appropriate to apply many of the concepts of City Plan. 492 July 1, 2003 Councilmember Tharp stated she was troubled by the statement of the Hearing Officer that there was no contradictory evidence presented. She stated this suggested that the people appealing the matter did not present her with any information. She stated she liked the infill part of the project but that it troubled her that the statement was part of the Hearing Officer's statement. She stated she would find it difficult to support a motion finding that a fair hearing was conducted because the Hearing Officer did not acknowledge the conflicting information presented. Councilmember Bertschy stated he would support the motion. Mayor Martinez stated he would support the motion. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Martinez, Roy and Weitkunat. Nays: Councilmember Tharp. THE MOTION CARRIED Councilmember Weitkunat made a motion, seconded by Councilmember Hamrick, to find that the Administrative Hearing Officer did properly interpret and apply relevant Code provisions. Councilmember Tharp stated she was somewhat troubled by the Hearing Officer's interpretation of "nearby" and "adjacent" when there was a 500 foot distance from the building used as the contextual basis. She stated she also had difficulty with the bulk of the project and its compatibility with the surrounding areas. CouncilmemberHamrick stated he would support the motion. He stated he did have questions about the size of the project but that he did not feel that it was out of line with the area and the transition area. He stated this was the exact type of infill project needed for this location. He stated the project fit within the overall context of the transition area. He stated other developments that could be built on the location would not be as compatible as this project would be. He asked why the applicant had been working on the project since 2000 and that he would like to hear staff follow-up on that at another time. Councilmember Weitkunat stated if the definition of "lot" was used the distance would be only 60 feet between the project and the Marriott lot. She stated if three-story buildings are allowed at 75 feet and these buildings would be about 60 feet, the buildings would fall within the height limits based on footage. She stated Mr. Ward understood the principles and policies set forth in City Plan and that this was a "better project" because of City Plan. Councilmember Bertschy stated the provisions of the Code and the goals and intents of City Plan supported this project and that he believed that it had been interpreted properly. He stated it was important to recognize the various ways the City could grow as a community. He stated the issue m July 1, 2003 was how the City would grow and that it was necessary to do some kinds of projects that reflected the growth. He stated this was one of those projects. He stated the appellants had made a strong case about some of the impacts and that it was important to recognize what type of growth was desired in the community. Mayor Martinez stated the property was "adjacent" and that the project would fit into the area. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Martinez, Roy and Weitkunat. Nays: Councilmember Tharp. THE MOTION CARRIED Resolution 2003-083 Accepting the Advisory Opinion and Recommendation No. 2003-1 of the Ethics Review Board, Adopted. The following is staff's memorandum on this item. "Executive Summary Section 2-569(e) of the City Code provides that all opinions and recommendations of the City Council Ethics Review Board be submitted to the full Council for review and approval. The Ethics Review Board met on June 23, 2003, to render an opinion on whether Councilmember Kastein would have a conflict of interest in participating in Council's consideration of (1) a possible amendment to the City's Harmony Corridor Plan (the "Plan) to allow for a life style center; and (2) the possible review of a decision of the City's Planning and Zoning Board regarding a particular life style center on the site of the Plan amendment. The question arises because of Councilmember Kastein's employment at LSI Logic, which has entered into a contract to sell the site to the developer of the life style center. The meeting of the Board resulted in the issuance of Opinion No. 2003-1 (Exhibit 'A" to the Resolution). Pursuant to the requirements of the Code, this opinion is being presented to the Council for its review and possible approval. " City Manager Fischbach introduced the agenda item. City Attorney Roy explained the process under which this agenda item had come to the Council. Councilmember Hamrick asked for clarification regarding some terms in the Charter that he felt to be vague. He asked about the terms "foreseeable, measurable, financial benefit" and "direct and July 1, 2003 substantial benefit or detriment." City Attorney Roy stated the terms were not further defined in the City Charter. Councilmember Hamrick asked if the City Code dealt with this issue. City Attorney Roy stated the rules were in the Charter and that the City's rules were much more specific in some respects that some of the State rules. Councilmember Bertschy made a motion, seconded by Councilmember Tharp, to adopt Resolution 2003-083. Councilmember Hamrick stated he had difficulty with the broad definition and that he would like to review it and suggest some changes. He stated perception was important even if there was no "direct measurable" benefit. He stated there were some inconsistencies and that he would like to revisit the issue. He stated he did believe that the Ethics Review Board ruled correctly on the information it had. He stated his questions related to the Charter language. Councilmember Tharp stated the discussion was that when the employee was part of a large company "several layers down through the hierarchy having nothing to do with acquisition or sale of property" that the employee was far removed from decision making and would have no benefit. She stated the issue of perceptions was also discussed. She stated the Board found that Councilmember Kastein would have no financial interest. Councilmember Hamrick stated he did not believe that Councilmember Kastein would have a financial benefit from the decision. He stated it might set a bad precedent where an employee worked for a company that was involved in the transaction and when said employee got to vote on whether the transaction would happen. Councilmember Bertschy stated if there was a direct financial benefit or detriment that there would be a conflict. He stated it would ultimately be up to the Councilmember whether to participate in the discussion and vote. He stated too strict an interpretation would prevent Councilmembers from voting in many situations. He stated the test for him was whether the financial benefit or loss to the Councilmember would be any greater or less than for any other citizen as a result of the action. He stated the Council vote would not be on whether or not the company should sell the property and that the vote would be on whether there should be a zoning change. He stated the Council would have no direct impact on whether anything would occur with regard to the property. Councilmember Hamrick stated his comments related primarily to the Charter language. Mayor Martinez stated he would support the motion. 495 July 1, 2003 The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED Other Business Councilmember Roy stated the Leadership Team had discussed delaying the mid -year evaluations for the City Manager, City Attorney and Municipal Judge and that he would like to discuss that concept. Mayor Martinez stated the discussion was to ask Councilmembers to submit their comments in writing and to have the individual employees meet with the Councilmembers about their comments. Councilmember Tharp stated she had suggested scheduling the mid -year evaluations on July 8. She stated the July 8 meeting could be for a regular study session, an adjourned meeting, the Executive Session and the mid -year evaluations. She stated a special study session could be held on July 9 to deal with issues that could not be dealt with on July 8 and noted that Councilmember Weitkunat would not be present on July 9. Councilmember Hamrick stated he supported having the mid -year reviews and that he would support Councilmember Tharp's suggestion. Councilmember Weitkunat stated she would object because the Council's work was conducted on Tuesday nights. Councilmember Tharp noted that scheduling the mid -year reviews on the Wednesday had been discussed. Councilmember Hamrick suggested a straw poll to determine if there was support for Councilmember Tharp's proposal. Councilmember Weitkunat stated she strongly protested meeting on an alternate night. Councilmember Tharp asked if there was any reason the Council could not meet on an alternate night. City Attorney Roy stated there was no legal reason and that the Council could meet in a special meeting with the approval of the majority or on the call of the Mayor with sufficient advance notice. Councilmember Bertschy stated the Council needed to hold an Executive Session and that all Councilmembers needed to be present for that. He stated the employees had requested that all .M July 1, 2003 Councilmembers be present for mid -year reviews. He noted that he would not be available to meet on July 9. He stated the study session agenda items were lengthy and important discussions about the budget and transportation capital funding. He noted that the local newspaper had been critical about the Council not making all meetings well known to the public. He stated he felt that it was important for the Council to conduct all of its business and noted the full agendas. He stated the Leadership Team came up with the idea of having Councilmembers submit their comments in writing and having the individual employees meet with Councilmembers. He stated he would not be able to attend a meeting on July 9. Councilmember Hamrick asked if any other dates would be available for mid -year reviews. Mayor Martinez stated there were no other available dates in July. Councilmember Hamrick stated comment forms would be acceptable but that it would not give Council an opportunity to discuss any issues. Councilmember Weitkunat asked about the possibility of meeting earlier on July 8. Mayor Martinez noted that there appeared to be buy -in on meeting at 4:00 p.m. on July 8. Councilmember Hamrick asked if the City kept track of businesses by type when they come into the City and leave. City Manager Fischbach stated there was some tracking done through sales tax licenses. Councilmember Tharp stated she had requested further information regarding the policy change during the discussions on the Council policy regarding the 70th percentile. Councilmember Roy spoke of a recent article relating to the cost of printing the City Council Agendas. Mayor Martinez requested a cost analysis on providing the City Council Agendas electronically. Councilmember Bertschy suggested taking a second look at Arvada's system for providing its Council Agenda on a CD Rom. Adiournment Councilmember Bertschy made a motion, seconded by Councilmember Roy, to adjourn the meeting to 4:00 p.m. on July 8, 2003, to conduct the mid -year performance reviews for the City Manager, City Attorney and Municipal Judge. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Martinez, Roy, Tharp and Weitkunat. Nays: None. THE MOTION CARRIED 497 Adjournment The meeting adjourned at 9:30 p.m. a or ATTEST: City Clerk July 1, 2003 498